TMI Blog1973 (4) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... h Amendments of the Constitution. I may give a few facts in Writ petition No. 135 of 1970 to show how the question arises in this petition. Writ Petition No. 135 of 1970 was filed by the petitioner on March 21, 1970 under Article 32 of the Constitution for enforcement of his fundamental rights under Articles 25, 26, 14, 19(1)(f) and 31 of the Constitution. He prayed that the provisions of the Kerala Land Reforms Act, 1963 (Act 1 of 1964) as amended by the Kerala Land Reforms (Amendment) Act 1969 (Act 35 of 1969) be declared unConstitutional, ultra vires and void. He further prayed for an appropriate writ or order to issue during the pendency of the petition. This Court issued rule nisi on March 25, 1970. 3. During the pendency of the writ petition, the Kerala Land Reforms (Amendment) Act 1971 (Kerala Act No. 25 of 1971) was passed which received the assent of the President on August 7, 1971. The petitioner filed an application for permission to urge additional grounds and to impugn the Constitutional validity of the Kerala Land Reforms (Amendment) Act 1971 (Kerala Act No. 25 of 1971). 4. In the meantime, the Supreme Court by its judgment dated April 26, 1971 in Kunjukutty Sah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edom to the citizens can be set up by Parliament by exercising its powers under Article 368. 12. On the side of the petitioners it is urged that the power of Parliament is much more limited. The petitioners say that the Constitution gave the Indian citizen freedoms which were to subsist for ever and the Constitution was drafted to free the nation from any future tyranny of the representatives of the people. It is this freedom from tyranny which, according to the petitioners, has been taken away by the impugned Article 31C which has been inserted by the Twenty-fifth Amendment. If Article 31C is valid, they say, hereafter Parliament and State Legislatures and not the Constitution, will determine how much freedom is good for the citizens. 13. These cases raise grave issues. But however grave the issues may be, the answer must depend on the interpretation of the words in Article 368, read in accordance with the principles of interpretation which are applied to the interpretation of a Constitution given by the people to themselves. 14. I must interpret Article 368 in the setting of our Constitution, in the background of our history and in the light of our aspirations and hopes, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 13(2). X X X 18. As stated in the head note, this Court held: The provisional Parliament is competent to exercise the power of amending the Constitution under Article 368. The fact that the said article refers to the two Houses of the Parliament and the President separately and not to the Parliament, does not lead to the inference that the body which is invested with the power to amend is not the Parliament but a different body consisting of the two Houses. The words all the powers conferred by the provisions of this Constitution on Parliament in Article 379 are not confined to such powers as could be exercised by the provisional Parliament consisting of a single chamber, but are wide enough to include the power to amend the Constitution conferred by Article 368. 19. I may mention that Mr. Seervai contends that the conclusion just mentioned was wrong and that the body that amends the Constitution under Article 368 is not Parliament. 20. The Court further held: The view that Article 368 is a complete code in itself in respect of the procedure provided by it and does not contemplate any amendment of a Bill for amendment of the Constitution after it has been int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of the Constitution. He thought that if the Constitution-makers had intended that any future amendment of the provisions in regard to fundamental rights should be subject to Article 13(2), they would have taken the precaution of making a clear provision in that behalf. 25. He seemed to be in agreement with the following observations of Kania, C.J. in A.K. Gopalan v. The State of Madras [1950] S.C.R. 88 at p. 100: the inclusion of Article 13(1) and (2) in the Constitution appears to be a matter of abundant caution. Even in their absence if any of the fundamental rights was infringed by any legislative enactment, the Court has always the power to declare the enactment, to the extent it transgresses the limits, invalid. 26. He was of the view that even though the relevant provisions of Part III can be justly described as the very foundation and the cornerstone of the democratic way of life ushered in this country by the Constitution, it cannot be said that the fundamental rights guaranteed to the citizens are eternal and inviolate in the sense that they can never be abridged or amended. 27. According to him, it was legitimate to assume that the Constitution-mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e effectiveness of the amendment.... The Constitution gives so many assurances in Part III that it would be difficult to think that they were the play-things of a special majority. To hold this would mean prima facie that the most solemn parts of our Constitution stand on the same footing as any other provision and even on a less firm ground than one on which the articles mentioned in the proviso stand. 34. Mudholkar, J. although agreeing that the writ petition should be dismissed, raised various doubts and he said that he was reserving his opinion on the question whether Sankari Prasad s case was rightly decided. He thought: The language of Article 368 is plain enough to show that the action of Parliament in amending the Constitution is a legislative act like one in exercise of its normal legislative power. The only difference in respect of an amendment of the Constitution is that the Bill amending the Constitution has to be passed by a special majority (here I have in mind only those amedments which do not attract the proviso to Article 368). The result of a legislative action of a legislature cannot be other than law and, therefore, it seems to me that the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey can be modified. It has been said, no doubt, that the preamble is not a part of our Constitution. But, I think, that if upon a comparison of the preamble with the broad features of the Constitution it would appear that the preamble is an epitome of those features or, to put it differently if these features are an amplification or concretisation of the concepts set out in the preamble it may have to be considered whether the preamble is not a part of the Constitution. While considering this question it would be of relevance to bear in mind that the preamble is not of the common run such as is to be found in an Act of a legislature. It has the stamp of deep deliberation and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it? 39. Coming now to Golak Nath s case, the petitioner had challenged the validity of the Constitution (Seventeenth Amendment) Act, 1964 which included in the Ninth Schedule, among other acts, the Punjab Security of Land Tenures Act, 1953 (Act 10 of 1953), and the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14 of 1965. 40. It was urged before the Court that Sankari Prasad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment, Parliament cannot destroy the fundamental structure of the Constitution but can only modify the provision thereof within the framework of the original instrument for its better effectuation. 44. As will be seen later, the first conclusion above, does not survive for discussion any longer because it is rightly admitted on behalf of the petitioners that the Constitution (Twenty Fourth Amendment) Act, 1971, in so far as it transfers power to amend the Constitution from the residuary entry (Entry 97 List 1) or Article 248 of the Constitution to Article 368, is valid; in other words Article 368 of the Constitution as now amended by the Twenty Fourth Amendment deals not only with the procedure for amendment but also confers express power on Parliament to amend the Constitution. 45. I will also not discuss the merits of the second conclusion as the same result follows in this case even if it be assumed in favour of the respondents that an amendment of the Constitution is not law within Article 13(2) of the Constitution. 46. Hidayatullah, J. as he then was, came to the following conclusions at page 902: (i) that the Fundamental Rights are outside the amendatory proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akers could not have intended that the rights conferred by Part III could not be altered by giving effect to the policies of Part IV. (6) The Preamble cannot control the unambiguous language of the articles of the Constitution. 50. Regarding the amendment of the basic features of the Constitution, he observed: Counsel said that they could not give an exhaustive catalogue of the basic features, but sovereignty, the republican form of government, the federal structure and the fundamental rights were some of the features. The Seventeenth Amendment has not derogated from the sovereignty, the republican form of government and the federal structure, and the question whether they can be touched by amendment does not arise for decision. For the purposes of these cases, it is sufficient to say that the fundamental rights are within the reach of the amending power. 51. Ramaswami, J., held: (1) The amending power under Article 368 is sui generis; (2) Law in Article 13(2) cannot be construed so as to include Law made by Parliament under Articles 4, 169, 392, 5th Schedule Part D and 6th Schedule Para 21. (3) The expression fundamental rights does not lift the fundamental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amend or Amendment has, as will be pointed out later, been expanded. In some parts they have clearly a narrow meaning.. The proviso throws some light on the problem. First, it uses the expression if such amendment seeks to make any change in ; it does not add the words change of , or omit in , and say seeks to change instead of the expression seeks to make any change in . 56. The articles which are included in the proviso may be now considered. Part V, Chapter I, deals with the Executive . Article 52, provides that there shall be a President of India, and Article 53 vests the executive power of the Union in the President and provides how it shall be exercised. These two articles are not mentioned in the proviso to Article 368 but Articles 54 and 55 are mentioned. 57. Article 54 provides: 54. The President shall be elected by the members of an electoral college consisting of- (a) the elected members of both Houses of Parliament; and (b) the elected members of the Legislative Assemblies of the States. 58. Article 55 prescribes the manner of election of the President. 59. Why were Articles 52 and 53 not mentioned in the proviso to Article 368 if the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he States had been selected for inclusion in the proviso. 63. Clause (c) of the proviso mentions the Lists in the Seventh Schedule, Clause (d) mentions the representation of States in Parliament, and Clause (e) the provisions of Article 368 itself. The provisions of Sub-clauses (c), (d) and (e) can rightly be said to involve the federal structure and the rights of the States. 64. What again is remarkable is that the fundamental rights are not included in the proviso at all. Were not the States interested in the fundamental rights of their people ? The omission may perhaps be understandable because of the express provision of Article 13(2) which provided that States shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this clause shall to the extent of the contravention be void, assuming for the present that Article 13(2) operates on Constitutional amendments. 65. In construing the expression amendment of this Constitution I must look at the whole scheme of the Constitution. It is not right to construe words in vacuum and then insert the meaning into an article. Lord Greene observed in Bidie v. General Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, then, is one of construction and in the ultimate resort must be determined upon tht actual words used, read not in vacuo but as occurring in a single complex instrument, in which one part may throw light on another. The Constitution has been described as the federal compact, and the construction must hold a balance between all its parts . (Per Lord Wright-James v. Commonwealth of Australia 1936 A.C. 578 at 613). 71. In the Constitution the word amendment or amend has been used in various places to mean different things. In some articles, the word amendment in the context has a wide meaning and in another context it has a narrow meaning. In Article 107, which deals with legislative procedure, Clause (2) provides that subject to the provisions of Articles 108 and 109, a Bill shall not be deemed to have been passed by the House of Parliament unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses. It is quite clear that the word amendment in this article has a narrow meaning. Similarly, in Article 111 of the Constitution, whereby the President is enabled to send a message requesting the Houses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also important to note that the Constituent Assembly which adopted Article 368 on September 17, 1949, had earlier on August 18, 1949, substituted the following section in place of the old Section 291 in the Government of India Act, 1935: 291. Power of the Governor-General to amend certain provisions of the Act and orders made thereunder- (1) The Governor-General may at any time by order make such amendments as he considers necessary whether by way of addition, modification or repeal, in the provisions of this Act or of any order made thereunder in relation to any Provincial Legislature with respect to any of the following matters, that is to say- (a) the composition of the Chamber or Chambers of the Legislature; (b) the delimitation of territorial constituencies for the purpose of elections under this Act. * * * * * Here, the word amendment has been expanded. It may be that there really is no expansion because every amendment may involve addition, variation or repeal of part of a provision. 77. According to Mr. Seervai, the power of amendment given by Article 4, read with Articles 2 and 3, Article 169, Fifth Schedule and Sixth Schedule, is a limited power li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar language is used in Article 372 whereby existing laws continue to be in force until altered or repealed or amended by a competent Legislature or other competent authority. 85. In the original Article 243(2), in conferring power on the President to make regulations for the peace and good government of the territories in part D of the First Schedule, it is stated that any regulation so made may repeal or amend any law made by Parliament. Here, the two words together give the widest power to make regulations inconsistent with any law made by Parliament 86. In Article 252 again, the two words are joined together to give a wider power. Clause (2) of Article 252 reads: 252(2). Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State. 87. In the proviso to Article 254, which deals with the inconsistency between laws made by Parliament and laws made by the Legislatures of States, it is stated: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all; FRATERNITY assuring the dignity of the individual and the unity of the Nation; IN OUR CONSTITUENT ASSEMBLY this Twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. 93. This Preamble, and indeed the Constitution, was drafted in the light and direction of the Objective Resolutions adopted on January 22, 1947, which runs as follows: (1) THIS CONSTITUENT ASSEMBLY declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Consti- (2) wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States, as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and (3) wherein the said territories, whether with their present boundaries or with su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution. This appears from the following brief survey of the history of the framing of the Preamble extracted from the Framing of India s Constitution (A study) by B. Shiva Rao. In the earliest draft the Preamble was something formal and read : We, the people of India, seeking to promote the common good, do hereby, through our chosen representatives, enact, adopt and give to ourselves this Constitution, (Shiva Rao s Framing of India s Constitution-A study-p. 127.). 96. After the plan of June 3, 1947, which led to the decision to partition the country and to set up two independent Dominions of India and Pakistan, on June 8, 1947, a joint subcommittee of the Union Constitution and Provincial Constitution Committees, took note that the objective resolution would require amendment in view of the latest announcement of the British Government The announcement of June 3 had made it clear that full independence, in the form of Dominion Status, would be conferred on India as from August 15, 1947. After examining the implications of partition the sub-committee thought that the question of making changes in the Objectives Resolution could appropriately be considered only when effect had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assembly explained, was to see that it was in conformity with the Constitution as accepted. Once the transfer of power had taken place the question of British Parliament s subsequent approval which was visualised in the British Cabinet Commission s original plan of May 1946 could no longer arise. The sovereign character of the Constituent Assembly thus became automatic with the rapid march of events without any controversy, and the words in the Preamble give to ourselves this Constitution became appropriate. The Preamble was adopted by the Assembly without any alteration. Subsequently the words and figure this twenty-sixth day of November 1949 were introduced in the last paragraph to indicate the date on which the Constitution was finally adopted by the Constituent Assembly. 100. Regarding the use which can be made of the preamble in interpreting an ordinary statute, there is no doubt that it cannot be used to modify the language if the language of the enactment is plain and clear. If the language is not plain and clear, then the preamble may have effect either to extend or restrict the language used in the body of an enactment. If the language of the enactment is capabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution unless the court was thinking of the distinction between the Constitution Statute and the Constitution, mentioned by Mr. Palkhivala. It was expressly voted to be a part of the Constitution. Further, with respect, no authority has been referred before us to establish the proposition that what is true about the powers is equally true about the prohibitions and limitations. As I will show later, even from the preamble limitations have been derived in some cases. 106. It is urged in the written submission of Mr. Palkhivala that there is a distinction between the Indian Constitution Statute and the Constitution of India. He urges as follows: This Constitution is the Constitution which follows the Preamble. It starts with Article 1 and ended originally with the Eighth Schedule and now ends with the Ninth Schedule after the First Amendment Act, 1951. The way the Preamble is drafted leaves no doubt that what follows, or is annexed to, the Preamble, is the Constitution of India. 107. He has also urged that the Preamble came into force on November 26, 1949 alongwith Articles 5, 6, 7 etc. as provided in Article 394 because Articles 5, 6, 7 and the other Articles me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses set forth in the preamble, Part III of our Constitution has provided for us certain fundamental rights. 110. In Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R. 933; 968 Mudholkar, J. after assuming that the Preamble is not a part of the Constitution, observed: While considering this question it would be of relevance to bear in mind that the preamble is not of the common run such as is to be found in an Act of a legislature. It has the stamp of deep deliberation and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it? 111. Quick and Garran in their Annotated Constitution of the Australian Commonwealth (1901 p. 283) adopted the following sentence from Lord Thring s Practical Legislation, p. 36 : A preamble may be used for other reasons to limit the scope of certain expressions or to explain facts or introduce definitions. 112. Thornton on Legislative Drafting -p. 137-opines that construction of the preamble may have effect either to extend or to restrict general language used in the body of an enactment. 113. In Attorney-General v. Prince Ernest Augustus of Hanover [1957] A.C. 436, 460 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned. 118. There is a sharp conflict of opinion in Australia respecting the question whether an amendment can be made which would be inconsistent with the Preamble of the Constitution Act referring to the indissoluble character and the sections which refer to the Federal nature of the Constitution. After referring to this conflict, Wynes(Wynes Legislative, Executive and Judicial Powers in Australia, Fourth Edn. p. 506). observes: Apart from the rule which excludes the preamble generally from consideration in statutory interpretation, it is clear that, when all is said and done, the preamble at the most is, only a recital of the intention which the Act seeks to effect; and it is a recital of a present (i.e., as in 1900) intention. But in any event the insertion of an express reference to amendment in the Constitution itself must surely operate as a qualification upon the mere recital of the reasons for its creation. 119. I am not called upon to say which view is correct but it does show that in Australia, there is a sharp conflict of opinion as to whether the Preamble can control the amending power. 120. Story in his Commentaries on the Constitution of the United ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Vol. 16 p. 184). 123. In the United States the Declaration of Independence is sometimes referred to in determining Constitutional questions. It is stated in American Jurisprudence (2d. 16. p. 189): While statements of principles contained in the Declaration of Independence do not have the force of organic law and therefore cannot be made the basis of judicial decision as to the limits of rights and duties, yet: it has been said that it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence, and the courts sometimes refer to the Declaration in determining Constitutional questions. 124. It seems to me that the Preamble of our Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble. 125. Now I may briefly describe the scheme of the Constitution. Part I of the Constitution deals with the Union and its Territory . As originally enacted, Article 1 read as follows: 1. India, that is Bharat, shall be a Union of States. 2. The States and the territories thereof shall be the States and their territories specified in Parts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be compelled to be a witness against himself. 130. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. 131. Article 22 gives further protection against arrest and detention in certain cases. Article 22(1) provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. Article 22(2) provides that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate . 132. Article 22(4) deals with Preventive Detention. Article 23 prohibits traffic in human beings and other similar forms of forced labour. Article 24 provides that no child below the age of fourteen years shall be employed to work in any factory or min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provisions, which show the intention of the Constitution-makers regarding property rights. The first is Article 31(4). This provision was intended to protect legislation dealing with agrarian reforms. The second provision, Article 31(5)(a), was designed to protect existing legislation dealing with compulsory acquisition. Some acts, saved by this provision did not provide for payment of full compensation e.g. U.P. Town Improvement Act, 1919. The third provision Article 31(6) provided a protective umbrella to similar laws enacted not more than eighteen months before the commencement of the Constitution. 138. The fundamental rights were considered of such importance that right was given to an aggrieved person to move the highest court of the land, i.e., the Supreme Court, by appropriate proceedings for the enforcement of the rights conferred by this part, and this right was guaranteed. Article 32(2) confers very wide powers on the Supreme Court, to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm all the institutions of the national life. Now, this directive is compatible with the fundamental rights because surely the object of many of the fundamental rights is to ensure that there shall be justice, social, economic and political, in the country. Article 39, which gives particular directions to the State, reads thus: 39. The State shall, in particular, direct its policy towards securing- (a) that the citizens, men and women equally, have the right to an adequate means of livelihood; (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; (d) that there is equal pay for equal work for both men and women; (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; (f) that childhood and youth are protected against exploitation and against moral and material abandonment. 145. Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otection of monuments and places and objects of national importance. Article 50 directs that the State shall take steps to separate the judiciary fro m the executive in the public services of the State. This objective has been, to a large exten t, carried out without infringing the fundamental rights. 151. In his preliminary note on the fundamental Rights, Sir B.N. Rau, dealing with the directive principles, observed: The principles set forth in this Part are intended for the general guidance of the appropriate Legislatures and Government in India (hereinafter referred to collectively as the State ). The application of these principles in legislation and administration shall be the care of the State and shall not be cognizable by any Court. 152. After setting out certain directive principles, he observed: It is obvious that none of the above provisions is suitable for enforcement by the courts. They are really in the nature of moral precepts for the authorities of the State. Although it may be contended that the Constitution is not the proper place for moral precepts, nevertheless Constitutional declaration of policy of this kind are now becoming increasingly frequent. (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lopment of friendly relations between nations. 160. Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom. 161. Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms. 162. Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge 163. In the Preamble to the International Covenant on Economic and Social and Cultural Rights 1966, inalienability of rights is indicated in the first Para as follows: Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. 164. Do rights remain inalienable if they can be amended out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Parliament shall be summoned to meet twice at least in every year, and six months shall not intervene between their last sittings in one session and the date appointed for their first sitting in the next session. 167. Article 123 gives power to the President to promulgate ordinances during recess of Parliament Chapter IV deals with Union Judiciary. 168. Part VI, as originally enacted dealt with the States in Part A of the First Schedule-th e Executive, the State Legislatures and the High Courts. Article 174 deals with the summoning of the House of Legislature and its provisions are similar to that of Article 85. Article 213 confers legislative powers on the Governor during the recess of State Legislature by promulgating ordinances. 169. Part XI deals with the relation between the Union and the States; Chapter I regulating legislative relations and Chapter II administrative relations. 170. Part XII deals with Finance, Property, Contracts and Suits. We need only notice Article 265 which provides that no tax shall be levied or collected except by authority of law . 171. Part XIII deals with Trade, Commerce and Intercourse within the Territory of India. Subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect. 174. Article 353 describes the effect of the Proclamation of Emergency. The effect is that the executive power of the Union shall be extended to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised, and the Parliament gets the power to make laws with respect to any matter including the power to make laws conferring powers and imposing duties, etc., notwithstanding that it is one which is not enumerated in the Union List. Article 354 enables the President by order to make exceptions and modifications in the provisions of Article 268 to 279. Under Article 355 it is the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. Article 356 contains provisions in case of failure of Constitutional machinery in a State. 175. Article 358 provides for suspension of the provisions of Article 19 during Emergency. It reads: 358. While a Proclamation of Em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e powers of the legislature of the Dominion. Sub-section (1) of Section 6 reads: The legislature of each of the new Dominions shall have full power to make laws for that Dominion, including laws having extraterritorial operation. That Section 6(1) included making provision as to the Constitution of the Dominion is made clear by Section 8(1) which provided : In the case of each of the new Dominions, the powers of legislature of the Dominion shall for the purpose of making provision as to the Constitution of the Dominion be exercisable in the first instance by the Constituent Assembly of that Dominion, and references in this Act to the legislature of the Dominion shall be construed accordingly. (Emphasis supplied). 180. These provisions of the Indian Independence Act amply demonstrate that when the Constituent Assembly started functioning, it knew, if it acted under the Indian Independence Act, that it could limit the powers of the future Dominion Parliaments. 181. No similar provisions exists in any of the Independence Acts in respect of other countries, enacted by the British Parliament, e.g., Ceylon Independence Act, 1947, Ghana Independence Act, 1957, Federation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... major communities. (P. 251, Supra). 185. In his reply dated May 22, 1946, the Secretary of State observed: When the Constituent Assembly has completed its labours, His Majesty s Government will recommend to Parliament such action as may be necessary for the cession of sovereignty to the Indian people, subject only to two provisos which are mentioned in the statement and which are not, we believe, controversial, namely, adequate provision for the protection of minorities and willingness to conclude a treaty to cover matters arising out of the transfer of power. (Emphasis supplied) 186. In the Explanatory statement dated May 22, 1946, it was again reiterated as follows: When the Constituent Assembly has completed its labours, His Majesty s Government will recommend to Parliament such action as may be necessary for the cession of sovereignty to the Indian people, subject only to two matters which are mentioned in the statement and which, we believe are not controversial, namely, adequate provision for the protection of the minorities (paragraph 20 of the statement) and willingness to conclude a treaty with His Majesty s Government to cover matters arising out of the transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mprehensive field of social life. The present report deals with what may broadly be described as political safeguards of minorities and covers the following points: (i) Representation in Legislature; joint versus separate electorates; and weightage. (ii) Reservation of seats for minorities in Cabinets. (iii) Reservation for minorities in the public services. (iv) Administrative machinery to ensure protection of minority rights. 191. Sardar Patel, while moving the report for consideration on August 27, 1947, said: You will remember that we passed the Fundamental Rights Committee s Report which was sent by the Advisory Committee; the major part of those rights has been disposed of and accepted by this House. They cover a very wide range of the rights of minorities which give them ample protection; and yet there are certain political safeguards which have got to be specifically considered. An attempt has been made in this report to enumerate those safeguards which are matters of common knowledge, such as representation in legislatures, that is, joint versus separate electorate. (Emphasis supplied) 192. The above proceedings show that the minorities were particu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccord, or, as it is more tersely put in an American case- Those who did not speak may not have agreed with those who did and those who spoke might differ from each other- United States v. Trans-Missouri Freight Association. This rule of exclusion has not always been adhered to in America, and sometimes distinction is made between using such material to ascertain the purpose of a statute and using it for ascertaining its meaning. It would seem that the rule is adopted in Canada and Australia-see Craies on Statute Law, 5th Ed. p. 122. 195. In Golak Nath s [1967] 2 S.C.R. 762; 792; 922 case, Subba Rao, C.J., referred to certain portions of the speeches made by Pandit Nehru and Dr. Ambedkar but he made it clear at p. 792 that he referred to these speeches not with a view to interpret the provisions of Article 368, which we propose to do on its own terms, but only to notice the transcendental character given to the fundamental rights by two of the important architects of the Constitution. Bachawat, J., at p. 922 observed: Before concluding this judgment I must refer to some of the speeches made by the members of the Constituent Assembly in the course of debates on the draft Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of its acceptance by the Ruler of the Rajpramukh, as the case may be, who will no doubt consult his Council of Ministers. 200. In accordance with this statement, declarations were issued by the Rulers or Rajpramukhs accepting the Constitution. 201. It seems to me that when a Ruler or Rajpramukh or the people of the State accepted the Constitution of India in its final form, he did not accept it subject to the speeches made during the Constituent Assembly debates. The speeches can, in my view, be relied on only in order to see if the course of the progress of a particular provision or provision s throws any light on the historical background or shows that a common understanding or agreement was arrived at between certain sections of the people. (See In re. The Regulation and Control of Aeronautics in Canada) [1932] A.C. 54 at p. 70. 202. In this connection reference was made to Article 305 of the draft Constitution which provided that notwithstanding anything contained in Article 304 of the Constitution, the provisions of the Constitution relating to the reservation of seats for the Muslims etc., shall not be amended during the period of ten years from the commen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution of any religious body except with the consent of the governing authority of that body. So, however, that in any case where a religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body. Provided, however, that the preceding provisions of this subsection shall not apply to any law making provision for, relating to, or connected with the, election of Members of the House of Representatives, to represent persons registered as citizens of Ceylon under the Indian Pakistani Residents (Citizenship Act). This proviso shall cease to have effect on a date to be fixed by the Governor-General by Proclamation published in the Gazette. (3) Any law made in contravention of Sub-section (2) of this section shall, to the extent of such contravention, be void. (4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island: Provided that no Bill for the amendment or repeal of any of the Provisions of this Order shall be presented for the Royal Assent unless it has en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal as follows: A bribery tribunal, of which there may be any number, is composed of three members selected from a panel (Section 42). The panel is composed of not more than 15 persons who are appointed by the Governor-General on the advice of the Minister of Justice (Section 41). The members of the panel are paid remuneration (Section 45). 212. The Judicial Committee held that the members of the Tribunal held judicial office and were judicial officers within Section 55 of the Ceylon Constitution. They found that there was a plain conflict between Section 55 of the Constitution and Section 41 of the Bribery Amendment Act under which the panel was appointed. 213. Then the Judicial Committee examined the effect of this conflict. After setting out Section 18, Section 29(1) and Section 29(2)(a), the Judicial Committee observed: There follow (b), (c) and (d), which set out further entrenched religious and racial matters, which shall not be the subject of legislation. They represent the solemn balance of rights, between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution; and these are, therefore unalterable under the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eylon s Constitution) by L.J.M. Cooray, reads the obiter dicta in Bribery Commissioner v. Ranasinghe [1965] A.C. 172, 193-194 indicating that certain provisions of the Constitution were unalterable by the prescribed amending procedure. 218. It may be that these observations are obiter but these deserve our careful consideration, coming as they do from the Judicial Committee. 219. Why did the Judicial Committee say that the provisions of Section 29(2) were unalterable under the Constitution or fundamental in the sense of being beyond change ? There is nothing in the language of Section 29(4) to indicate any limitations on the power of the Ceylon Parliament. It could amend or repeal any provision of the Constitution, which included Section 29(2) and Section 29(4) itself. The reason could only be an implied limitation on the power to amend under Section 29(4) deducible from the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution . Unless there was implied a limitation on the exercise of the amending power under Section 29(4), Section 29(4) could itself be amended to make it clear that Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssage relied on was dealing with the procedural part of Section 29(4) of Ceylon Constitution. It reads: It is possible now to state summarily what is the essential difference between the McCawley case and this case. There the legislature having full power to make laws by a majority, except upon one subject that was not in question, passed a law which conflicted with one of the existing terms of the Constitution Act. It was held that this was valid legislation, since it must be treated as pro tanto an alteration of the Constitution, which was neither fundamental in the sense of being beyond change nor so constructed as to require any special legislative process to pass upon the topic dealt with. In the present case, on the other hand, the legislature has purported to pass a law which being in conflict with Section 55 of the Order in Council, must be treated, if it is to be valid, as an implied alteration of the Constitutional provisions about the appointment of judicial officers. Since such alterations, even if express, can only be made by laws which comply with the special legislative procedure laid down in Section 29(4), the Ceylon legislature has not got the general power to l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In other words, the expression Amendment of this Constitution does not include a revision of the whole Constitution. If this is true-I say that the concession was rightly made-then which is that meaning of the word Amendment that is most appropriate and fits in with the while scheme of the Constitution. In my view that meaning would be appropriate which would enable the country to achieve a social and economic revolution without destroying the democratic structure of the Constitution and the basic inalienable rights guaranteed in Part III and without going outside the contours delineated in the Preamble. 226. I come to the same conclusion by another line of reasoning. In a written Constitution it is rarely that everything is said expressly. Powers and limitations are implied from necessity or the scheme of the Constitution. I will mention a few instances approved by the Judicial Committee and this Court and other Courts. I may first consider the doctrine that enables Parliament to have power to deal with ancillary and subsidiary matters, which strictly do not fall within the legislative entry with respect to which legislation is being undertaken. 227. Lefroy in A short ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Rajpramukh.... 234. In Sanjeevi Naidu v. State of Madras [1970] 1 S.C.C. 443 Hedge, J., held that the Governor was essentially a Constitutional head and the administration of State was run by the Council of Ministers. 235. Both these cases were followed by another Constitution bench in U.N.R. Rao v. Smt. Indira Gandhi [1971] 2 S.C.C. 63. 236. This conclusion constitutes an implied limitation on the powers of the President and the GovernOrs. The Court further implied in Ram Jawaya Kapur s [1955] 2 S.C.R. 225; 236-37 case that the Government could without specific legislative sanction carry on trade and business. 237. To save time we did not hear Mr. Seervai on the last 3 cases just cited. I have mentioned them only to give another example. 238. It may be noted that what was implied regarding carrying on trade was made an express provision in the Constitution by the Constitution (Seventh Amendment) Act, 1956, when a new Article 298 was substituted. The Federal Court and the Supreme Court of India have recognised and applied this principle in other cases: (i) A grant of the power in general terms standing by itself would no doubt be construed in the wider s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e power which the Parliament may exercise...is not the power to over-ride the Constitutional scheme. No State can therefore be formed, admitted or set up by law under Article 4 by the Parliament which has no effective legislative, executive and judicial organs. (Per Shah J.-Mangal Singh v. Union of India 1967(2) SCR 109 at 112. (Emphasis supplied) 239. It would have been unnecessary to refer to more authorities but for the fact that it was strenuously urged that there could not be any implied limitations resulting from the scheme of the Constitution. 240. Before referring to a recent decision of the Australian High Court, observations in certain earlier cases may be reproduced here: Since the Engineers case (1920-28 CLR 129) a notion seems to have gained currency that in interpreting the Constitution no implications can be made. Such a method of construction would defeat the intention of any instrument, but of all instruments, a written Constitution seems the last to which it could be applied. I do not think that the judgment of the majority of the court in the Engineers case meant to propound such a doctrine (Per Dixon J. West v. Commissioner of Taxation (New South ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (1920), 28 C.L.R. 129 (the Engineers case) Lord Selborne s language in Reg. v. Burah (1878) 3 App. Cas. 889 at pp. 904- 905, was accepted and applied as was that of Earl Loreburn in Attorney- General for Ontario v. Attorney-General for Canada (1912) A.C. at 583. 245. According to the Chief Justice, the Court in Engineeres case unequivocally rejected the doctrine that there was an implied prohibition in the Constitution against the exercise in relation to a State of a legislative power of the Commonwealth once ascertained in accordance with the ordinary rules of construction, a doctrine which had theretofore been entertained and sought to be founded upon some supposed necessity of protection , as it were, against the aggression of some outside and possibly hostile body . The Court emphasized that if protection against an abuse of power were needed, it must be provided by the electorate and not by the judiciary. The one clear line of judicial inquiry as to the meaning of the Constitution must be to read it naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the statute law which preceded it and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th (1947) 74 C.L.R. 31, Starke J. said (at p. 70) : The federal character of the Australian Constitution carries implications of its own.... * * * * * 249. The position that I take is this : The several subject matters with respect to which the Commonwealth is empowered by the Constitution to make laws for the peace, order and good government of the Conmmon-wealth are not to be narrowed or limited by implications. Their scope and amplitude depend simply on the words by which they are expressed. But implications arising from the existence of the States as parts of the Commonwealth and as constituents of the federation may restrict the manner in which the Parliament can lawfully exercise its power to make laws with respect to a particular subject-matter. These implications, or perhaps it were better to say underlying assumptions of the Constitution, relate to the use of a power not to the inherent nature of the subject matter of the law. Of course whether or not a law promotes peace, order and good government is for the Parliament, not for a court, to decide. But a law although it be with respect to a designated subject matter, cannot be for the peace, order and good governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect this object would be void under Section 2 of the Act as being repugnant to Section 5 thereof. 251. For proposition (2) above, reference is made in the footnote to Taylor v. The Attorney-General of Queensland. 23 C.L.R. 457 The relevant passages which bear out the second proposition are: I take the Constitution of a legislature, as the term is here used, to mean the composition, form or nature of the House of Legislature where there is only one House, or of either House if the legislative body consists of two Houses. Probably the power does not extend to authorize the elimination of the reprsentative character of the legislature within the meaning of the Act. (p. 468 per-Barton J.). I read the words Constitution of such legislature as including the change from a unicameral to a bicameral system, or the reverse. Probably the representative character of the legislature is-a basic condition of the power relied on, and is preserved by the word such, but, that being maintained, I can see no reason for cutting down the plain natural meaning of the words in question so as to exclude the power of a self-governing community to say that for State purposes one House is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollows: The Parliament of Canada and each Provincial Legislature is a sovereign body within the sphere, possessed of exclusive jurisdiction to legislate with regard to the subject matters assigned to it under Section 91 or Section 92, as the case may be. Neither is capable therefore of delegating to the other the powers with which it has been vested nor of the receiving from the other the powers with which the other has been vested. 256. The Chief Justice observed: The Constitution of Canada does not belong either to Parliament, or to the Legislatures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled. It is part of that protection that Parliament can legislate only on the subject matters referred to it by Section 91 and that each Province can legislate exclusively on the subject matters referred to it by Section 92. 257. He further observed: Under the scheme of the British North America Act there were to be, in the words of Lord Atkin in The Labour Conventions Reference (1937) A.C. 326) , Water-tight compartments which are an essential part of the original structure. 258. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within their respective areas, and quoad one another, an independent, exclusive and over-all legislative authority, surrender to and charged the Parliament of Canada with the responsibility and authority to make laws with respect to what was then considered as matters of common interest to the whole country and retained and undertook to be charged with the responsibility and authority to make laws with respect to local matters in their respective sections. This is the system of government by which the Fathers of Confederation intended-and their intentions were implemented in the Act-to protect the diversified interests of the several provinces and secure the efficiency, harmony and permanency in the working of the union. 265. In the case just referred to, the Supreme Court of Canada implied a limitation on the power of Parliament and the Legislatures of the Provinces to delegate legislative power to the other although there was no express limitation, in terms, in Sections 91 and 92 of the Canadian Constitution. This case also brings out the point that delegation of law makng power can only be to a subordinate body. Apply the ratio of this decision to the present case, it canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary institutions. He deduces authority to protect it from the principle that the powers requisite for the preservation of the Constitution arise by a necessary implication of the Confederation Act as a whole. (Per Rand J.-Samur v. City of Quebec (1953) 4 D.L.R. 641 at 671). (Emphasis supplied) 267. It is, however, noteworthy that the Solicitor-General appearing on behalf of the Union of India conceded that implications can arise from a Constitution, but said that no implication necessarily arises out of the provisions of Article 368. 268. I may now refer to another decision of the Judicial Committee in Liyange s case, [1967] 1 A.C. 259 which was relied on by Mr. Seervai to show that an amendment of the Constitution cannot be held to be void on the ground of repugnancy to some vague ground of inconsistency with the preamble. 269. The Parliament of Ceylon effected various modifications of the Criminal Procedure Code by the Criminal Law (Special Provisions) Act, 1962. The appellants were convicted by the Supreme Court of Ceylon for various offences like conspiring to wage war against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argue from this that similarly the amending power of Parliament under Article 368 has no limitations and cannot be limited by some vague doctrine of repugnancy to natural and inalienable rights and the Preamble. We are unable to appreciate that any analogy exists between Mr. Palkhivala s argument and the argument of Mr. Gratien. Mr. Palkhivala relies on the Preamble and the scheme of the Constitution to interpret Article 368 and limit its operation within the contours of the Preamble. The Preamble of the Constitution of India does not seem to prescribe any vague doctrines like the law of natural justice even if the latter, contrary to many decisions of our Court, be considered vague. 275. The case, however, furnishes another instance where implied limitations were inferred. After referring to the provisions dealing with judicature and the Judges, the Board observed: These provisions manifest an intention to secure in the judiciary a freedom from political, legislative and executive control. They are wholly appropriate in a Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution by which it was inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged the Constitution. 280. McCawley v. The King [1920] A.C. 691 was strongly relied on by Mr. Seervai. The case was on appeal from the decision of the High Court of Australia, reported in 26 C.L.R. 9. Apart from the questions of interpretation of Sub-section (6), Section 6, of the Industrial Arbitration Act, 1916 and the construction of the Commission which was issued, the main question that was debated before the High Court and the Board was whether the Legislature of Queensland could amend a provision of the Constitution of Queensland without enacting a legislative enactment directly amending the Constitution. The respondents before the Board had contended as follows: But an alteration to be valid must be made by direct legislative enactment. The Constitution can be altered but cannot be disregarded. So long as it subsists it is the test of the validity of legislation. The High Court of Australia so decided in Cooper s case [1907] 4 C.L.R. 1304. 281. The appellants, on the other hand, had contended that the Legislature of Queensland has power, by ordinary enactment passed by both houses and assented to by the Governor in the name of the Crown, to alter the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, however humble its subject-matter. 284. Then, the Judicial Committee proceeded to deal with the Constitution of Queensland and held that it was an uncontrolled Constitution. Later, their Lordships observed: It was not the policy of the Imperial Legislature, at any relevant period, to shackle or control in the manner suggested the legislative powers of the nascent Australian Legislatures. Consistently with the genius of the British people what was given was given completely, and unequivocally, in the belief fully justified by the event, that these young communities would successfully work out their own Constitutional salvation. 285. Mr. Seervai sought to deduce the following propositions from this case: Firstly-(1) Unless there is a special procedure prescribed for amending any part of the Constitution, the Constitution was uncontrolled and could be amended by an Act in the manner prescribed for enacting ordinary laws, and therefore, a subsequent law inconsistent with the Constitution would pro tanto repeal the Constitution; Secondly-(2) A Constitution largely or generally uncontrolled may contain one or more provisions which prescribe a different procedure for amending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly with the interpretation of Section 5 of the Colonial Laws Validity Act, 1865, and its impact on the powers of the legislature of the New South Wales. The Constitution Act, 1902, as amended in 1929, had inserted Section 7A, the relevant part of which reads as follows: 7A.-(1) The Legislative Council shall not be abolished nor, subject to the provisions of Sub-section 6 of this section, shall its Constitution or powers be altered except in the manner provided in this section. (2) A Bill for any purpose within Sub-section 1 of this section shall not be presented to the Governor for His Majesty s assent until the Bill has been approved by the electors in accordance with this section. (5) If a majority of the electors voting approve the Bill, it shall be presented to the Governor for His Majesty s assent. (6) The provisions of this section shall extend to any Bill for the repeal or amendment of this section, but shall not apply to any Bill for the repeal or amendment of any of the following sections of this Act, namely, Sections 13, 14, 15, 18, 19, 20, 21 and 22. 290. Towards the end of 1930 two bills were passed by both Houses of the New South Wales legislature. The first Bil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nial Laws Validity Act, 1865, and that in particular the limitation as to manner and form prescribed by the 1865 Act must be governed by subsequent amendments to the Constitution, whether purporting to be made in the earlier Act or not. 292. The Judicial Committee considered the meaning and effect of Section 5 of the Act of 1865, read in conjunction with Section 4 of the Constitution Statute. It is necessary to bear in mind the relevant part of Section 5 which reads as follows: Section 5. Every colonial legislature...and every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the Constitution, powers, and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council, or colonial law, for the time being in force in the said colony. 293. The Judicial Committee interpreted Section 5 as follows: Reading the section as a whole, it gives to the legislatures of New South Wales certain powers, subject to this, that in respect of certain laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cooley on Constitutional Limitations (page 989) states: ...but there are some others which are implied, and which under the complex system of American government have the effect to exempt some subjects otherwise taxable from the scope and reach, according to circumstances, of either the Federal power to tax or the power of the several States. One of the implied limitations is that which precludes the States from taxing the agencies whereby the general government performs its functions. The reason is that, if they possessed this authority, it would be within their power to impose taxation to an extent that might cripple, if not wholly defeat, the operations of the national authority within its proper and Constitutional sphere of action. 298. Then he cites the passage from the Chief Justice Marshall in McCullock v. Maryland. 4 L. ed. 579; 607. 299. In Constitution by the United States of America by Corwin (1952)-page 728-729 it is stated: Five years after the decision in McCullock v. Maryland that a State may not tax an instrumentality of the Federal Government, the Court was asked to and did re-examine the entire question in Osborn v. Bank of the United States. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exist for their own purposes, and made it impossible to protect the people in their common interest without them. Each of these several agencies is confined to its own sphere, and all are strictly subordinate to the Constitution which limits them, and independent of other agencies, except as thereby made dependent There is nothing in the Constitution of the United States which can be made to admit of any interference by Congress with the secure existence of any State authority within its lawful bounds. And any such interference by the indirect means of taxation is quite as much beyond the power of the national legislature as if the interference were direct and extreme. It has, therefore, been held that the law of Congress requiring judicial process to be stamped could not Constitutionally be applied to the process of the State courts; since otherwise Congress might impose such restrictions upon the State courts as would put and end to their effective action, and be equivalent practically to abolishing them altogether. And a similar ruling has been made in other analogous cases. But the exemption of State agencies and instrumentalities from national taxation is limited to those wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mely rigid and unamendable. If this is so, a political party with a two-third majority in Parliament for a few years could so amend the Constitution as to debar any other party from functioning, establish totalitarianism, enslave the people, and after having effected these purposes make the Constitution unamcndable or extremely rigid. This would no doubt invite extra- Constitutional revolution. Therefore, the appeal by the respondents to democratic principles and the necessity of having absolute amending power to prevent a revolution to buttress their contention is rather fruitless, because if their contention is accepted the v ery democratic principles, which they appeal to, would disappear and a revolution would also become a possibility. 310. However, if the meaning I have suggested is accepted a social and economic revolution can gradually take place while preserving the freedom and dignity of every citizen. 311. For the aforesaid reasons, I am driven to the conclusion that the expression amendment of this Constitution in Article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the Preamble and the Constitution t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. 316. The learned Attorney-General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same. The basic structure may be said to consist of the following features: (1) Supremacy of the Constitution; (2) Republican and Democratic form of Government. (3) Secular character of the Constitution; (4) Separation of powers between the Legislature, the executive and the judiciary; (5) Federal character of the Constitution. 317. The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed. 318. The above foundation and the above basic features are easily discernible not only from the preamble but the whole scheme of the Constitution, which I have already discussed. 319. In connection with the question of abrogation of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which I have already referred to and that Declaration describes some fundamenal rights as inalienable. 324. Various decisions of this Court describe fundamental rights as natural rights or human rights . Some of these decisions are extracted bellow. There can be no doubt that the people of India have in exercise of their sovereign will as expressed in the Preamble, adopted the democratic ideal, which assures to the citizen the dignity of the individual and other cherished human values as a means to the full evolution and expression of his personality, and in delegating to the legislature, the executive and the judiciary their respective powers in the Constitution, reserved to themselves certain fundamental rights so-called, I apprehend, because they have been retained by the people and made paramount to the delegated powers, as in the American Model. (Per Patanjali Sastri, J., in Gopalan v. State of Madras [1950] S.C.R. 88; 198 199). (emphasis supplied) (ii) That article (Article 19) enumerates certain freedoms under the caption right to freedom and deals with those great and basic rights which are recognised and guaranteed as the natural rights inherent in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Judge was expressing the minority opinion that there could be a waiver of fundamental rights in certain circumstances. Das, C.J., and Kapur, J., held that there could be no waiver of fundamental rights founded on Article 14 of the Constitution, while Bhagwati and Subba Rao, JJ. held that there could be no waiver not only of fundamental rights enshrined in Article 14 but also of any other fundamental rights guaranteed by Part III of the Constitution. 327. Article 14 has been described variously as follows: (1) as the basic principle of republicanism (per Patanjali Sastri C.J. in State of West Bengal v. Anwar Ali Sarkar [1952] S.C.R. 284, 293.) (2) as a principle of republicanism (per Mahajan, J., Ibid. p. 313) (3) as founded on a sound public policy recognised and valued in all civilized States (per Das C.J., : Basheshar Nath v. C.I.T. [1959] Supp. (1) S.C.R. 528, 551.) (4) as a necessary corollary to the high concept of the rule of law (per Subba Rao, C.J., in Satwant Singh v. Passport Officer [1967] 3 S.C.R. 525; 542.) (5) as a vital principle of republican institutions (American Jurisprudence, Vol. 16, 2d. p. 731, Article 391) 328. How would this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution. I do not think it is necessary to review the decisions relating to the principles of interpretation of legislative entries in Article 245 and Artic le 246 of the Constitution. The Federal Court and this Court in this connection have followed the principles enunciated by the Judicial Committee in interpreting Sections 91 and 92 of the Canadian Constitution. I have no quarrel with these propositions but I am unable to see that these propositions have any bearing on the interpretation of Article 368. The fact that legislative entries are given wide interpretation has no relevance to the interpretation of Article 368. The second set of cases referred to deal with the question whether it is legitimate to consider consequences of a particular construction. 331. He referred to Vacher Sons v. London Society of Compositors [1913] A.C. 107; 117-118. This decision does not support him in the proposition that consequences of a particular construction cannot be considered, for Lord Machaghten observed at p. 117: Now it is the universal rule, as Lord Nensleydale observed in Grey v. Pearson [1857] 6 H.L.C. 61; 106 that in construing statutes, as in construing all other written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erta v. Attorney-General for Canada [1939] A.C. 117; 132; 133. The Judicial Committee first observed: It was rightly contended on behalf of the appellant that the Supreme Court and the Board have no concern with the wisdom of the Legislature whose Bill is attacked; and it was urged that it would be a dangerous precedent to allow the views of members of the Court as to the serious consequences of excessive taxation on banks to lead to a conclusion that the Bill is ultra vires. Their Lordships do not agree that this argument should prevail in a case where the taxation in a practical business sense is prohibitive. 335. Then their Lordships made the following observations on the decision of the Judicial Committee in Bank of Toronto v. Lambe [1887] 12 A.C. 575; 586: That case seems to have occasioned a difficulty in the minds of some of the learned Judges in the Supreme Court. It must, however, be borne in mind that the Quebec Act in that case was attacked on two specific grounds, first, that the tax was not taxation with the Province, and secondly, that the tax was not a direct tax. It was never suggested, and there seems to have been no ground for suggesting, that the Act was b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very often is of assistance, in choosing between two possible meanings of ambiguous words, and this is exactly the use which this Court is entitled to make of the consequences which I have already mentioned. 340. Mr. Seervai referred to State of Punjab v. Ajaib Singh [1953] S.C.R. 254, 264. Das, J., observed: We are in agreement with learned Counsel to this extent only that if the language of the article is plain and unambiguous and admits of only one meaning then the duty of the court is to adopt that meaning irrespective of the inconvenience that such a construction may produce. If however two constructions are possible, then the court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well established provisions of existing law nugatory. 341. He also referred to the following passage in Collector of Customs, Baroda v. Digvijaysinghi Spinning Weaving Mills Ltd. [1962] 1 S.C.R. 896-899: It is one of the well established rules of construction that if the words of a statute are in themselves precise and unambiguous no more is necessary than t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents. If anything, these observations are against them for when I come to the question of interpretation of the 25th amendment I may well approach the interpretation keeping those observations in mind. 346. Both Mr. Seervai and the learned Attorney General have strongly relied on the decisions of the United States Supreme Court, Federal Courts and the State Courts on the interpretation of Article V of the Constitution of the United States and some State Constitution. Mr. Palkhiwala, on the other hand, relied on some State decisions in support of his submissions. 347. Article V of the Constitution of the United States differs greatly from Article 368 of our Constitution. For facility of reference Article V is reproduced below: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislatures of two thirds of several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by conventions in three fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the first article and the second relates to deprivation of a State s suffrage in the Senate without its consent. Apart from the above broad differences in Article V as compared to Article 368, the Constitution of India is different in many respects which has a bearing on the extent of the power of Parliament to amend the Constitution. In brief they are : the background of the struggle for freedom, various national aspirations outlined during this struggle, the national objectives as recited in the Objectives Resolution dated January 22, 1947 and the Preamble, the complex structure of the Indian nation consisting as it does of various peoples with different religions and languages and in different stages of economic development. Further the U.S. Constitution has no Directive Principles as has the Indian Constitution. The States in U.S. have their own Constitutions with the right to modify them consistently with the Federal Constitution. In India the States have no power to amend that part of the Indian Constitution which lays down their Constitution. They have legislative powers on certain specified subjects, the residuary power being with Parliament. 353. I may before referrin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rep. 186 but impliedly rejected by the Supreme Court by reversing the decision. 359. Counsel sought to buttress this argument by citing views of learned American authors that the arguments against the validity of the 18th Amendment were brushed aside although no reasons are given. I have great respect for the judges of the Supreme Court of United States, but unless the reasons are given for a judgment it is difficult to b e confident about the ratio of the decision. Apart from the decision, I would be willing to hold the 18th Amendment valid if it had been enacted by our Parliament and added to our Constitution, for I would discern no such taking away of Fundamental rights or altering the basic structure of the Constitution as would place it outside the contours of the Preamble and the basic features of the Constitution. 360. United States of America v. William H. Sorague (75) L. Ed. 640 was concerned with the validity of the 18th Amendment. The District Court had held 44 F. (2d) 967 that the 18th Amendment had not been properly ratified so as to become part of the Constitution. It was the contention of the respondents before the Supreme Court that notwithstanding the plain l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to conform to the particular theories of political science, sociology, economics, etc. held by the current judicial branch of the Government. 365. He then pointed out that grounds mentioned in Group B, which were very much like Mr. Palkhiwala arguments, were not even urged by counsel in the Supreme Court, and, therefore we must regard these grounds as extremely unsound. I, however, do not find Mr. Palkhiwala s arguments similar to those referred to in Group B. It is true articles like Marbury s The Limitations upon the Amending Power,-33 Harvard Law Rev. 232 , and Mc Goveney s Is the Eighteenth Amendment void because of its content ? (20 Col. Law Rev. 499), were brought to our notice but for a different purpose. Indeed the District Judge criticised these writers for becoming enmeshed in a consideration of the Constitutionality of the substance of the amendment -the point before us. As the District Judge pointed out, he was concerned with the subject-matter of the 18th Amendment because of the relation between that substance or subject-matter and the manner of its adoption. 366. I do not propose to decide the validity of the amendment on the touchstone of any particular t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eople to amend a Constitution and the power of the legislature to amend the same was noticed by the Oregon Supreme Court in Ex Parte Mrs. D.C. Kerby 36, A.L.R. 1451; 1455, one of the cases cited before us by the respondent. McCourt, J. speaking for the Court distinguished the case of Eason v. State in these words: Petitioner cites only one authority that has any tendency to support the contention that a provision in the bill of rights of a Constitution cannot be amended-the case of Eason v. State, supra. Upon examination that case discloses that the Arkansas Constitution provided that the legislature might, by the observation of a prescribed procedure, amend the Constitution without submitting the proposed amendment to a vote of the people of the state, and the Bill of Rights in that Constitution contained a provision not found in the Oregon Constitution, as follows : Everything in this article is excepted out of the general powers of government. The court held that the clause quoted exempted the provisions in the Bill of Rights from the authority delegated to the legislature to amend the Constitution, and reserved the right to make any such amendment to the people themselves, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese Constitutions. Further, if it is not helpful to argue from one Act of Parliament to another (see Commissioner of Stamps, Straits Settlements v. Oei Tjong Swan [1933] A.C. 378; 389). much less would it be helpful to argue from one Constitution to another different Constitution (see Bank of Toronto v. Lambe [1887] 12 A.C. 575-787). 374. During the course of the arguments I had drawn the attention of the Counsel to the decision of the Supreme Court of Ireland in The State (at the prosecution of Jeremiah Ryan) v. Captain Michael Lennon and Ors. [1935] Irish Reports 170, and the respondents place great reliance on it. I may mention that this case was not cited before the Bench hearing Golak Nath s case. On careful consideration of this case, however. I find that this case is distinguishable and does not afford guidance to me in interpreting Article 368 of the Constitution. 375. In order to appreciate the difference between the structure of Article 50 of the Irish Constitution of 1922 and Article 368 of the Indian Constitution, it is necessary to set out Article 50 before its amendment. It reads: 50. Amendments of this Constitution within the terms of the Scheduled Treaty ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m hereof. In other words, for the first eight years it was purely a flexible Constitution, a Constitutional amendment requiring no special procedure. 379. With these differences in mind, I may now approach the actual decision of the Supreme Court. 380. The High Court and the Supreme Court were concerned with the validity of the Constitution (Amendment No. 17) Act 1931 (No. 37 of 1931) having regard to the provisions of the Constitution. The validity of that Act depended on the validity of the Constitution (Amendment No. 10) Act, 1928, No. 8 of 1928, and of the Constitution (Amendment No. 16) Act, 1929, No. 10 of 1929. 381. The Constitution (Amendment No. 17) Act 1931 was passed as an Act of the Oireachtas on October 17, 1931 i.e. some 11 months after the expiry of the period of 8 years mentioned in Article 50 of the Constitution, as originally enacted. It was not submitted to a referendum of the people. It was described in its long title as an Act to amend the Constitution by inserting therein an Article making better provision for safeguarding the rights of the people and containing provisions for meeting a prevalence of disorder. But there is no doubt that it affected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution. It Was that any amendment repugnant to the Scheduled Treaty shall be void and inoperative. 388. The third limitation was put in these words: The Third Dail Eireann has, therefore, as Constituent Assembly, of its own supreme authority, proclaimed its acceptance of and declared, in relation to the Constitution which it enacted, certain principles, and in language which shows beyond doubt that they are stated as governing principles which are fundamental and absolute (except as expressly qualified), and, so, necessarily, immutable. Can the power of amendment given to the Oireachtas be lawfully exercised in such a manner as to violate these principles which, as principles, the Oireachtas has no power to change ?. In my opinion there can be only one answer to that question, namely, that the Constituent Assembly cannot be supposed to have in the same breath declared certain principles to be fundamental and immutable, or conveyed that sense in other words, as by a declaration of inviolability, and at the same time to have conferred upon the Oireachtas power to violate them or to alter them. In my opinion, any amendment of the Constitution, purporting to be made under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restrain the action of the Oireachtas affecting the Constitution. The frame of this provision makes it clear to my mind that, even if, by amendment of the Constitution under the power, Article 47 might cease to apply to ordinary legislation of the Oireachtas, the provisions of that clause were declared, deliberately, expressly and in a mandatory way, to be kept in force and operative for the purpose of amendments of the Constitution during the preliminary period of eight years. 394. According to him the permanent power of amendment, to arise at the expiry of the period of eight years, is a wholly different thing both as to the donee of the power and the manner of its exercise. 395. He held that it was apt competent for the Oireachtas to remove from the power granted to it by the Constituent Assembly the requisites for its exercise attached to it in the very terms of donation of the power. He observed: That provision of the Statute, No. 8 of 1928, was bad, in my opinion as being what is called in the general law of powers an excessive execution. It was outside the scope of the power. We have not been referred to, nor have I found, any precedent for such a use of a power. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been amended by the Oireachtas subject to a Referendum of the people after the period of eight years, and, if so, it follows that the same amendment, e.g., the deletion of the word no in Article 43 could be made by way of ordinary legislation within that period, or within sixteen, years, after eight had been altered to sixteen. 401. In other words, according to him, if the Oireachtas subject to a referendum of the people mentioned in Article 50 could amend any Article, so could Oireachtas during the period of eight years. But he noticed that in other Constitutions, there are articles, laws or provisions which are specifically described as Fundamental e.g., Sweden, or Constitutional e.g., Austria, Czechoslovakia and France, in respect of which the Constitution expressly restricts the power of amendment, but in Constitution of the Saorstat there is no such segregation, and the power of amendment which applies to any Article appears to me to be equally applicable to all others, subject, of course, to the restriction in respect of the Scheduled Treaty. He, later observed: Unless, therefore, these rights appear plainly from the express provisions of our Constitution to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided that Section 2 of the Constitution of the Irish Free State (Saorstat Eireann) Act, 1922, should be repealed, and, by Section 3, that Article 50 of the Constitution should be amended by deleting the words within the terms of the Scheduled Treaty. 408. Finally, on November 15, 1933, the Oireachtas, enacted the Constitution (Amendment No. 22) Act, 1933, amending Article 66 of the Constitution so as to terminate the right of appeal to His Majesty in Council. 409. The Validity of the last amending Act depended on whether the earlier Act, No. 6 of 1933, was valid, namely, that which is directed to removing from Article 50 the condition that there can be no amendment of the Constitution unless it is within the terms of the Scheduled Treaty. 410. It appears that Mr. Wilfrid Greene, arguing for the petitioners, conceded that the Constitution (Amendment No. 16) Act, 1929 was regular and that the validity of the subsequent amendments could not be attacked on the ground that they had not been submitted to the people by referendum. 411. It is true that the Judicial Committee said that Mr. Greene rightly conceded this point but we do not know the reasons which impelled the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and the Constitution of the Irish Free State derived their validity from the Act of the Imperial Parliament, the Irish Free State Constitution Act, 1922. This Act established that the Constitution, subject to the provisions of the Constituent Act, should be the Constitution of the Irish Free State and should come into operation on being proclaimed by His Majesty, as was done on December 6, 1922. The action of the House of Parliament was thereby ratified. 415. The position was summed up as follows: (1) The Treaty and the Constituent Act respectively form parts of the Statute Law of the United Kingdom, each of them being parts of an Imperial Act. (2) Before the passing of the Statute of Westminster it was not competent for the Irish Free State Parliament to pass an Act abrogating the Treaty because the Colonial Laws Validity Act forbade a dominion legislature to pass a law repugnant to an Imperial Act. (3) The affect of the Statute of Westminster was to remove the fetter which lay upon the Irish Free State Legislature by reason of the Colonial Laws Validity Act. That Legislature can now pass Acts repugnant to an Imperial Act In this case they have done so. 416. I think ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndamental rights should not apply to any amendment made under Article 368. 419. Mr. Palkhivala did not dispute that the amendments covered by (i) and (ii) above were within the amending power of Parliament. I do not find it necessary to go into the question whether Subba Rao, C.J., rightly decided that the amending power was in List I entry 97, or Article 248, because nothing turns on it now. 420. Mr. Palkhivala rightly conceded that Parliament could validly amend Article 368 to transfer the source of amending power from List I entry 97 to Article 368. 421. Mr. Palkhivala however contended that if the amendments covered by (iii) and (iv) above are construed as empowering Parliament to exercise the full constituent power of, the people themselves, and as vesting in Parliament the ultimate legal sovereignty of the people, and as authorising Parliament to alter or destroy all or any of the essential features, basic elements and fundamental principles of the Constitution (hereinafter referred to essential features ), the amendments must be held, to be illegal and void. He further urges that if the amendment covered by (v) is construed as authorising Parliament to damage or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o widen the meaning of the word Amendment of the Constitution it would have to be held void as beyond the amending power. But I do not read these to mean this. They have effect to get rid of the argument that Article 248 and Entry 97 List I contains the power of amendment. Similarly, the insertion of the words in exercise of its constituent power only serves to exclude Article 248 and Entry 97 List I and emphasize that it is not ordinary legislative power that Parliament is exercising under Article 368 but legislative power of amending the Constitution. 426. It was said that if Parliament cannot increase its power of amendment Clause (d) of Section 3 of the 24th Amendment which makes Article 13 inapplicable to an amendment of the Constitution would be bad. I see no force in this contention. Article 13(2) as existing previous to the 24th Amendment as interpreted by the majority in Golak Nath s case prevented legislatures from taking away or abridging the rights conferred by Article 13. In other words, any law which abridged a fundamental right even to a small extent was liable to be struck down under Article 368 Parliament can amend every article of the Constitution as long a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sation of the undertaking of the named Banks and by the method prescribed the amounts so declared could not be regarded as compensation. 430. If we compare Article 31(2) as it stood before and after the 25th Amendment, the following changes seem to have been effected. Whereas before the amendment, Article 31(2) required the law providing for acquisition to make provision for compensation by either fixing the amount of compensation or specifying the principles on which and the manner in which the compensation should be determined after the amendment Article 31(2) requires such a law to provide for an amount which may be fixed by the law providing for acquisition or requisitioning or which may be determined in accordance with such principles and given in such manner as may be specified in such law. In other words, for the idea that compensation should be given, now the idea is that an amount should be given. This amount can be fixed directly by law or may be determined in accordance with such principles as may be specified. 431. It is very difficult to comprehend the exact meaning which can be ascribed to the word amount . In this context, it is true that it is being used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely, that the amount given in cash or otherwise is of such a nature that it has been worked out in accordance with the principles which have relationship to the property to be acquired, the question arises : what meaning is to be given, to the expression the amount so fixed . The amount has to be fixed by law but the amount so fixed by law must also be fixed in accordance with some principles because it could not have been intended that if the amount is fixed by law, the legislature would fix the amount arbitrarily. It could not, for example, fix the amount by a lottery. 437. Law is enacted by passing a bill which is introduced. The Constitution and legislative procedure contemplate that there would be discussion, and in debate, the Government spokesman in the legislature would be able to justify the amount which has been fixed. Suppose an amendment is moved to the amount fixed. How would the debate proceed ? Can the Minister say- This amount is fixed as it is the government s wish. Obviously not. Therefore, it follows that the amount, if fixed by the legislature, has also to be fixed according to some principles. These principles cannot be different from the principles which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated. To give an extreme example, if an amount is determined or fixed at ₹ 10,000 a legislature cannot lay down that payment will be made at the rate of ₹ 10 per year or ₹ 10 per month. 439. Reference may be made to two cases that show that if discretion is conferred it must be exercised reasonably. 440. In Roberts v. Hopwood [1925] A.C. 578; 590 it was held that the discretion conferred upon the Council by Section 62 of the Metropolis Management Act, 1855, must be exercised reasonably. The following observations of Lord Buckmaster are pertinent: It appears to me, for the reasons I have given, that they cannot have brought into account the consideration which they say influenced them, and that they did not base their decision upon the ground that the reward for work is the value of the work reasonably and even generously measured, but that they took an arbitrary principle and fixed an arbitrary sum, which was not a real exercise of the discretion imposed upon them by the statute. 441. I may also refer to Lord Wrenbury s observation at p. 613: I rest my opinion upon higher grounds. A person in whom is vested a discretion must exercise his discretion upon r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . After Article 31B of the Constitution, the following article shall be inserted, namely: 31. C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy: Provided that where such law is made by the legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. 449. It will be noted that Article 31C opens with the expression notwithstanding anything contained in Article 13 . This however cannot mean that not only fundamental rights like Artice 19(1)(f) or Article 31 are excluded but all fundamental rights belonging to the minorities and religious groups are also excluded. The article purports t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.R. 530-582. After quoting the observations, Shah, J., observed: This was reiterated in Rashbihar Panda and Ors. v. The State of Orissa [1969] 3 S.C.R. 374. Vrajlal Manilal Co. and Anr. v. The State of Madhya Pradesh and Ors. [1970] 1 S.C.R. 400 and Municipal Committee, Amritsar and Ors. v. State of Punjab [1969] 3 S.C.R. 447. 453. While dealing with the validity of the Bombay Prohibition Act (XXV of 1949), this Court in State of Bombay v. F.N. Balsara [1951] S.C.R. 682 struck down two provisions on the ground that they conflicted with the fundamental rights of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. These provisions were Sections 23(a) and 24(1)(a), which read: 23. No person shall- (a) commend, solicit the use of, offer any intoxicant or hemp, or.... 24(1). No person shall print or publish in any newspaper news-sheet, book, leaflet, booklet or any other single or periodical publication or otherwise display or distribute any advertisement or other matter- (a) which commends, solicits the use of, or offers any intoxicant or hemp.... 454. Section 23(b) was also held to be void. It was held that the words incite a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or license, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31 : Provided that.... 459. In Article 31A the subject-matter of the legislation is clearly provided, namely, the acquisition by the State of any estate or any rights therein, (Article 31A(a)). Similarly, t he subject-matter of legislation is specifically provided in Clauses (b), (c) and (d) of Articl e 31A. But in Article 31C the sky is the limit because it leaves to each State to adopt measures towards securing the principles specified in Clauses (b) and (c) of Article 39. The wording of Articles 39(b) and 39(c) is very wide. The expression economic system in Article 39(c) may well include professional and other services. According to Encylopedia Americana (1970 Ed. Vol. 9p. p. 600) economic systems are forms of social organization for producing goods and services and determining how they will be distributed. It would be difficult to resist the contention of the State that each provision in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delegate to make law. Further the delegated legislation would be liable to be challenged on the ground of violation of fundamental rights regardless of the validity of the State Act. But a State legislature cannot be authorised to amend the Constitution and the State law deriving authority from Article 31C cannot be challenged on the ground that it infringes Articles 14, 19 and 31. 463. It will be recalled that Article 19 deals not only With the right to property but it guarantees various rights : freedom of speech and expression; right to assemble peaceably and without arms; right to form associations or unions; right to move freely throughout the territory of India; right to practice any profession or to carry on any occupation, trad e or business. I am unable to appreciate the reason for giving such powers to the State legislature to abrogate the above freedoms. In effect, Parliament is enabling State legislatures to declare that a citizen shall not be free; he will have no freedom of speech to criticise the policy of the State; he shall not assemble to protest against the policy; h e shall be confined to a town or a district and shall not move outside his State; a resident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso well-settled in countries, where the courts have taken a position different than in Indian courts, that a legislature cannot create another legislative body. Reference may be made here to In re Initiative and Referendum Act (1919) A.C. 935 and Attorney- General of Nova Scoitia v. Attorney-General of Canada (1951) S.C.R. Canada 31. I have discussed the latter case while dealing with the question of implied limitation. Initiative and Referendum case is strongly relied on by Mr. Palkhivala to establish that an amending power cannot be delegated. In this case the Judicial Committee of the Privy Council was concerned with the interpretation of Section 92, head 1 of the British North America Act, 1867, which empowers a Provincial Legislature to amend the Constitution of the Province, excepting as regards the office of the Lieutenant-Governor . The Legislative Assembly of Manitoba enacted the Initiative and Referendum Act, which in effect would compel the Lieutenant Governor to submit a proposed law to a body of voters totally distinct from the legislature of which he is the Constitutional head, and would render him powerless to prevent it from becoming an actual law if approved by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Lieutenant-Governor, which are at an end when a Bill has become an Act. Section 11 of the Initiative and Referendum Act is not less difficult to reconcile with the rights of the Lieutenant-Governor. It provides that when a proposal for repeal of some law has been approved by the majority of the electors voting, that law is automatically to be deemed repealed at the end of thirty days after the clerk of the Executive Council shall have published in the Manitoba Gazette a statement of the result of the vote. Thus the Lieutenant-Governor appears to be wholly excluded from the new legislative authority. 471. I have set out this passage in extenso because this deals with one part of the reasoning given by the Court of Appeal. Regarding the Other part i.e. whether the Legislature could confer that power on a body other than itself, the Judicial Committee observed at page 945: Having said so much, their Lordships, following their usual practice of not deciding more than is strictly necessary, will not deal finally with another difficulty which those who contend for the validity of this Act have to meet. But they think it right, as the point has been raised in the Court below, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e following words: In the case of In re Initiative and Referendum Act Lord Haldane, in declaring the judgment of the Board referred to the impropriety in the absence of clear and unmistakable language of construing Section 92 as permitting the abrogation of any power which the Crown possesses through a person directly representing it ; an observation which applies with equal force to Section 91 of the Act of 1867 and to the abrogation of a power which remains vested in the Grown itself. 475. But this passage again dealt with the actual point decided and not the obiter dicta. 476. The first para of the head note in Nadan s (1926) A.C. 482 case gives in brief the actual decision of the Privy Council as follows: Section 1025 of the Criminal Code of Canada, if and so far as it is intended to prevent the King in Council from giving effective leave to appeal against an order of a Canadian Court in a criminal case, is invalid. The legislative authority of the Parliament of Canada as to criminal law and procedure, under Section 91 of the British North America Act, 1867, is confined to action to be taken in Canada. Further, an enactment annulling the royal prerogative to grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge constructively those conditions and restrictions. Mr. Seervai further says that having laid down the law as set out above, the Privy Council added: Their Lordships agree that the Governor-General in Council could not, by any form of enactment; create in India, and arm with general legislative authority, a new legislative power, not created or authorised by the Council s Act. 478. We are unable to agree with him that the obiter dicta of the Judicial Committee deals with the same subject as Burah s 5 I.A. 178 case. Burah s case was not concerned with the power to amend the Constitution but was concerned only with legislation enacted by the Indian Legislature. This clearly appears from the passage just cited from Lefroy. The Governor-General in Council had no power to amend the Government of India Act, under which it functioned. 479. Reference was also made to the observations of one of us in Delhi Municipality v. B.C. W. Mills A.I.R. (1968) S.C. 1232 at p. 1266 where I had observed as follows: Apart from authority, in my view Parliament has full power to delegate legislative authority to subordinate bodies. This power flows, in my judgment, from Article 246 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Article 31C would be ineffective because the law which in effect abridges or takes away the fundamental rights would have been passed not in the form required by Article 368, i.e. by 2/3rd of the majority of Parliament but by another body which is not recognised in Article 368 and would be void on that ground. 484. The learned Solicitor General, relying on Mohamed Samsudeen Kariapper v. S.S. Wijesinha (1968) A.C. 717; 743 urged that there can be implied amendment of the Constitution and Article 31C may be read as an implied amendment of Article 368. What the Judicial Committee decided in this case was that a bill having received a certificate in the hands of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to no lass than two-thirds of the whole number of Members of the House in effect amounted to a bill for the amendment or repeal of any of the provisions of the order, and the words amendment or repeal included implied amendment. 485. Menzies, J., speaking for the Judicial Committee, observed: Apart from the proviso to Sub-section (4) therefore the board has found no reason for not construing the words amend or repeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion after entry 64 and before the Explanation, the following entries shall be inserted, namely: 65. The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969). 66. The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971). 489. The effect of the insertion of the two Kerala Acts in the Ninth Schedule is that the provisions of Article 31-B get attracted. Article 31-B which was inserted by Section 5 of the Constitution (First Amendment) Act, 1951, reads: Insertion of new Article 31B. 490. After Article 31A of the Constitution as inserted by Section 4, the following article shall be inserted, namaly: 31B. Validation of certain Acts and Regulations Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re in no way calculated to restrict the application of the latter article or of the enactments referred to therein to acquisition of estates. 496. He held that the decision in Sibnath Banerji s (1945) F.C.R. 195 case afforded no useful analogy. 497. In Visweshwar Rao v. State of Madhya Pradesh (1952) S.C.R. 1020-1037. Mahajan, J., repelled the argument in these words: In my opinion the observations in Sibnath Banerji s case far from supporting the contention raised negatives it. Article 31-B specifically validates certain acts mentioned in the Schedule despite the provisions of Article 31-A and is not illustrative of Article 31-A. but stands independent of it. 498. In H.B. Jeejeebhoy v. Assistant Collector, Thana (1965) 1 S.C.R. 636-648, to which decision I was a party, Subha Rao, C.J., observed that Article 31-B is not governed by Article 31-A and that Article 31-B is a Constitutional device to place the specified statutes beyond any attack on the ground that they infringe Part III of the Constitution. 499. I may mention that the validity of the device was not questioned before the Court then. 500. But even though I do not accept the contention that Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned Acts passed by the Kerala State Legislature. It would be for the Constitution Bench to decide whether the impugned Acts take away fundamental rights. If they do, they will have to be struck down. If they only abridge fundamental rights, it would be for the Constitution Bench to determine whether they are reasonable abridgements essential in the public interest. 505. Broadly speaking, Constitutional amendments hitherto made in, Article 19 and Article 15 and, the agrarian laws enacted by various States furnish illustrations of reasonable abridgement of fundamental rights in the public interest. 506. It was said during the arguments that one object of Article 31-B was to prevent timeconsuming litigation, which held up implementation of urgent reforms. If a petition is filed in the High Court or a suit is filed in a subordinate court or a point raised before a magistrate, challenging the validity of an enactment it takes years before the validity of an enactment is finally determined. Surely, this is not a good reason to deprive persons of their fundamental rights. There are other ways available to the Government to expedite the decision. It may for example propose ordina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts which have already been succinctly stated in the judgment of the learned Chief Justice. 510. It was considered, when the larger bench was constituted, that the decision of the questions before us would hinge largely on the correctness or otherwise of the decision of this court in I.C. Golak Nath and Ors. v. State of Punjab and Anr. [1967] 2 S.C.R. 762, according to which it was held, by majority, that Article 13(2) of the Constitution was applicable to Constitutional amendments made under Article 368 and that for that reason the fundamental rights in Part III could not be abriged in any manner or taken away. The decision in Golak Nath has become academic, for even on the assumption that the majority decision in that case was not correct, the result on the questions now raised before us, in our opinion, would just be the same. The issues that have been raised travel far beyond that decision and the main question to be determined now is the scope, ambit and extent of the amending power conferred by Article 368. On that will depend largely the decision of the other matters arising out of the 25th and the 29th amendments. 511. The respective positions adopted by learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e governance of the country. 513. These petitions which have been argued for a very long time raise momentus issues of great Constitutional importance. Our Constitution is unique, apart from being the longest in the world. It is meant for the second largest population with diverse people speaking different languages and professing varying religions. It was chiselled and shaped by great political leaders and legal luminaries, most of whom, had taken an active part in the struggle for freedom from the British yoke and who knew what domination of a foreign rule meant in the way of deprivation of basic freedoms and from the point of view of exploitation of the millions of Indians. The Constitution is an organic document which must grow and it must take stock of the vast socioeconomic problems, particularly, of improving the lot of the common man consistent with his dignity and the unity of the nation. 514. We may observe at the threshold that we do not propose to examine the matters raised before us on the assumption that Parliament will exercise the power in the way claimed on behalf of the respondents nor did the latter contend that it will be so done. But while interpreting Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian States from time to time between December 1946 and November 1949. Many Smaller States merged into the provinces, many united to from union of States and some came to be administered as commissioner s provinces. There was thus a gradual process by which the Constituent Assembly became fully representative of the various communities and interests, political, intellectual, social and cultural. It was by virtue of Section 8 of th e Indian Independence Act 1947 that the Constituent Assembly was vested with the legal authority to frame a Constitution for India. 516. The first meeting of the Constituent Assembly took place on December 9, 1946 when the swearing in of members and election of a temporary president to conduct the business until the installation of a permanent head, took place. On December 13, 1946 Pandit Jawahar Lal Nehru moved the famous Objectives Resolution giving an outline, aims and objects of the Constitution. This resolution was actually passed on January 22, 1947 by all members of the Constituent Assembly (standing) and it declared among other matters that all power and authority of the sovereign Independent India, its constituent parts and organs of Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal right. Part IV containing the directive principles of State policy was inspired largely by similar provisions in the Constitution of the Eire Republic (1937). This Part, according to B.N. Rao; is like an Instrument of Instructions from the ultimate sovereign, namely, the people of India (B.N. Rao, India s Constitution in the Making p. 393). The Constitution has all the essential elements of a federal structure as was the case in the Government of India Act 1935, the essence of federalism being the distribution of powers between the federation or the Union and the States or, the provinces. All the legislatures have plenary powers but these are controlled by the basic concepts of the Constitution itself and they function within the limits laid down in it Per Gajendragadkar C.J. in Special Reference No. 1 of 1964, [1965] 1 S.C.R. 413 at p. 445. All the functionaries, be they legislators, members of the executive or the judiciary take oath of allegiance to the Constitution and derive their authority and jurisdiction from its provisions. The Constitution has entrusted to the judicature in this country the task of construing the provisions of the Constitution and of safeguarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciples (Hindu Society at crossroads (By K.M. Pannikar) at pages 63-64). 519. We may now look at the Preamble. 520. It reads: We, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all; FRATERNITY assuring the dignity of the individual and the unity of the Nation; IN OUR CONSTITUENT ASSEBMLY this twenty-sixth day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. It may be mentioned that this Preamble and indeed the whole Constitution was drafted in the light of and directions contained in the OBJECTIVES RESOLUTION adopted on January 22, 1947. 521. According to Granville Austin (Cornerstone of a nation (Indian Constitution) by Granville Austin, p. 75), directive principles of State policy set forth the humanitarian socialist precepts that were the aims of the Indian social revolution. Granville Austin, while summing up the interrelationship of fundamental rights and directi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 S.C.R. 762 case has been that Parliament is considered to have no power to take away or curtail any of the fundamental rights guaranteed by Part III of the Constitution even if it becomes necessary to do so for giving effect tot the Directive Principles of State Policy and for attainment of the Objectives set out in the Preamble to the Constitution. It became, therefore, necessary to provide expressly that Parliament has the power to amend any provision of the Constitution including the provisions contained in Part III. 523. Article 368 is in a separate Part i.e. Part XX. Its marginal note before the 24th Amendment was Procedure for amendment of the Constitution . It provided in the substantive portion of the Article how the Constitution shall stand amended when An Amendment of this Constitution was initiated by the introduction of a Bill in either House of Parliament. The following conditions had to be satisfied: (i) The Bill had to be passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting. (ii) The Bill had to be presented for the assent of the Presiden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bar in the former Article against abridging or taking away any of the fundamental rights should not apply to an amendment made under the latter Article. In the judgment of Chief Justice Subba Rao with whom four learned judges agreed in GolaK Nath s case the source of the amending power was held to reside in Article 248 read with entry 97 of List I to the Seventh Schedule. Whether that view is sustainable or not need not be considered here now owing to the concession made by Mr. Palkhivala that by amendment of Article 368 such a power could be validly located in that Article even if it be assumed that it did not originally reside there. The real attack, therefore, i s directed against the validity of the 24th Amendment in so far as the three results mentioned above are concerned. It has been maintained that if the effect of those results is that the Parliament has clothed itself with legal sovereignty which the People of India alone possess, by taking the full constituent power, and if the Parliament can in exercise of that power alter or destroy all or any of the essential features of the Constitution, t he 24th Amendment will be void. The fundamental rights embodied in Part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not defined or explained in any manner although in other Parts of the Constitution the word amend as will be noticed later has been expanded by use of the expression amend by way of addition, variation or repeal. (ii) The power in respect of amendment has not been conferred in express terms. It can be spelt out only by necessary implication. (iii) The proviso uses the words if such amendment seeks to make any change in . It does not use the words change of or change simpliciter. (iv) The provisions of the Constitution mentioned in the proviso do not show that the basic structure of the Constitution can be changed if the procedure laid down therein is followed. For instance, Clause (a) in the proviso refers to Articles 54 and 55 which relate to the election of the President. It is noteworthy that Article 52 which provides that there shall be a President of India and Article 53 which vests the power of the Union in the President and provides how it shall be exercised are not included in Clause (a). It is incomprehensible that the Constitution makers intended that although the ratification of the legislatures of the requisite number of States should be obtained if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , sequence or systematic arrangement in respect of the inclusion of those Articles which deal with the whole of the federal structure. These clauses demonstrate that the reason for including certain Articles and excluding other from the proviso was not that all Articles dealing with the federal structure or the States had been selected for inclusion in the proviso. The other unusual result is that if the fundamental rights contained in Part III have to be amended that can be done without complying with the provisions of the proviso. It is difficult to understand that the Constitution makers should not have thought of ratification by the States if such important and material rights were to be abrogated or taken away wholly or partially. It is also interesting that in order to meet the difficulty created by the omission of Articles 52 and 53 which relate to there being a President in whom the executive functions of the Union would vest, the learned Solicitor General sought to read by implication the inclusion of those Articles because according to him, the question of election cannot arise with which Articles 54 and 55 are concerned if the office of President is abolished. 530. We ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llows: Any provision of this Constitution may be amended, whether by way of variation, addition or repeal, in the manner provided in this article. Mr. Kamath had moved another amendment in draft Article 304 to substitute the words it shall upon presentation to the President receive his assent . Both these amendments were negatived by the Constituent Assembly Ibid. It is noteworthy that the 24th amendment as now inserted has introduced substantially the same amendments which were not accepted by the Constituent Assembly. 532. The Constituent Assembly, must be presumed to be fully aware of the expanded expression, as on September 17, 1949 it had substituted the following section in place of the old Section 291 of the Government of India Act 1935 by means of Constituent Assembly Act 4 of 1949: 291. Power of the Governor General to amend certain provisions of the Act and order made thereunder.- (1) The Governor General may at any time by Order make such amendments as he considers necessary whether by way of addition, modification, or repeal, (emphasis supplied) in the provisions of this Act or of any Order made thereunder in relation to any Provincial Legislature with respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emed to be an amendment of this Constitution for the purpose of Article 368 was only meant to clarify that the form and manner prescribed by Article 368 was not to be followed and the Parliament could, in the ordinary way, by following the procedure laid down for passing legislative enactments amend the Constitution to the extent mentioned in those Articles and provisions. 533. The learned Advocate General of Maharashtra, who appears for respondent No. 1, has laid a great deal of emphasis on the fact that Article 368 is the only Article which is contained in a separate Part having the title Amendment of the Constitution . It is under that article that all other provisions including Aricles 4, 169 and paras 7 and 21 of the 5t h and 6th Schedules respectively can be amended. The latter group of articles contain a limited power because those Articles are subordinate to Article 368. This is illustrated by the categorical statement contained in each one of those provisions that no such law amending the Constitution shall be deemed to be an amendment there of for the purpose of Article 368. As regards the composite expression amend by way of addition, variation or repeal employed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Article 368. But that Article itself could be amended by the same procedure. It would not, therefore, be wrong to say that the amending power was of a diffused kind and was contained in more than one provision of the Constitution. It appears that the statement in the articles and provisions containing the amending power other than Article 368 that any amendment made under those articles would not amount to an amendment under Article 368 merely embodied the distinction emphasised by Dr. B.R. Ambedkar that one category could be amended by the Parliament by a bare majority and all the other articles could be amended by the said body but only by following the form and manner prescribed by Article 368. Although prima facie it would appear that the Constitution makers did not employ the composite expression in Article 368 for certain reasons and even rejected Mr. Kamath s amendment which pointedly brought to their notice that it was of material importance that the expanded expression should be used, it may not be possible to consider this aspect as conclusive for the purpose of determining the meaning of the word amendment in Article 368. 535. According to Mr. Palkhivala there c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king at the other Articles for determining the ambit of the amendatory power or taking into consideration the Preamble or the scheme of the Constitution or other permissible aids to construction. 537. A good deal of reliance has been placed on behalf of the respondents on Article 5 of the Constitution of the United States hereinafter called the American Constitution which deals with amendment and its interpretation by the American courts. Reference has been made to the writings of authors and writers who have dealt with the meaning of the word amendment in the American Constitution. It has been argued that in Article 5 of that Constitution the word used is amendments and our Constitution makers had that word in mind when they employed the expression amendment of this Constitution in Article 368. We propose to refer to the decision from other countries including those of the Supreme Court of the United States later. We wish to observe, at this stage, that our founding fathers had primarily the Constitutions of Canada, Australia, Eire, U.S.A. and Switzerland in view apart from that of Japan. The whole scheme and language of Article 368 is quite different from the amending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, particularly, of an instrument like a Constitution. A Constitution is not to be construed in any narrow and pedantic sense. A broad and liberal spirit should inspire those whose duty it is to interpre t it Gwyer C.J. In Re. C.P. Berar Sales of Motor Spirit Motor Lubricants Taxation Act 1938 [1939] F.C.R. 18 adopted the words of Higgins J., of the High Court of Australia from the decision in Attorney General for New South Wales v. The Brewery Employees Union of New South Wales etc. [1908] 6 C.L.R. 469 at pp. 611-612 according to which even though the words of a Constitution are to be interpreted on the same principles of interpretation as are applied to any ordinary law, these very principles of interpretation require taking into account the nature and scope of the Act remembering that it is a Constitution, a mechanism under which laws are to be made and not a mere Act which declares what the law is to be . [1939] F.C.R. 18, 37. The decision must depend on the words of the Constitution as provisions of no two Constitutions are in identical terms. The same learned Chief Justice said that the grant of the power in general terms standing by itself would no doubt be construed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h modifications as were approved by the Constituent Assembly. The preamble was, therefore, meant to embody in a very few and well defined words the key to the understanding of the Constitution. 539. It would be instructive to advert to the various stages through which the Preamble passed before it was ultimately adopted by the Constituent Assembly. In the earlier draft of the Union Constitution the Preamble was a somewhat formal affair. The one drafted by B.N. Rau said: We, the People of India, seeking to promote the common good, do hereby, throughout chosen representatives, enact, adopt and give to ourselves this Constitution. The Union Constitution Committee provisionally accepted the draft Preamble of B.N. Rau and reproduced it in its report of July 4, 1947 without any change with the tacit recognition, at that stage, that the Preamble would finally be based on the Objectives Resolution. 540. On July 18, 1947, Pandit Nehru in a statement observed that the Preamble was covered more or less by the Objectives Resolution which it was intended to incorporate in the final Constitution. Three days later, while moving the report of the Union Constitution Committee, he sugges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the people. It was not accepted on the short ground that the Preamble as drafted could convey no other meaning than that the Constitution emanated from the people and sovereignty to make this Constitution vested in them (The Framing of India s Constitution by B. Shiva Rao, p. 131) 545. The history of the drafting and the ultimate adoption of the Preamble shows: (1) that it did not walk before the Constitution as is said about the preamble to the United States Constitution; (2) that it was adopted last as a part of the Constitution: (3) that the principles embodied in it were taken mainly from the Objectives Resolution; (4) the Drafting Committee felt, it should incorporate in it the essential features of the new State : (5) that it embodied the fundamental concept of sovereignty being in the people. 546. In order to appreciate how the preamble will assist us in discovering the meaning of the word amendment employed in Article 368 we may again notice the argument presented by the respondents that the amending body can alter, vary or repeal any provision of the Constitution and enact it and apply that process to the entire Constitution short of total rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeded to say the object sought to be achieved was, as the preamble to the Constitution states.... In Re Kerala Education Bill 1957 [1959] S.C.R. 995 this Court referred to the preamble extensively and observed that the fundamental rights were provided for to implement and fortify the supreme purpose set forth in the preamble . The court also made use of the inspiring and nobly expressed preamble to our Constitution while expressing opinion about the legality of the various provisions of the Kerala Education Bill 1957. It is unnecessary to multiply citations from judgments of this Court in which the preamble has been treated almost as sacrosanct and has been relied on or referred to for the purpose of interpreting legislative provisions. In other countries also following the same system of jurisprudence the preamble has been referred to for finding out the Constitutional principles underlying a Constitution. In Rex v. Hess [1949] Dom. L.R. 199 at p. 208 it was said: I conclude further that the opening paragraph of the preamble to the B.N.A. Act 1867, which provided for a Constitution similar in principle to that of the United Kingdom thereby adopted the same Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Constitution; 2. The preamble is not a part of our Constitution; 3. It is not a source of the several powers conferred on government under the provisions of the Constitution; 4. Such powers embrace those expressly granted in the body of the Constitution and such as may be implied from those granted ; 5. What is true about the powers is equally true about the prohibitions and limitations; 6. The preamble did not indicate the assumption that the first part of preamble postulates a very serious limitation on one of the very important attributes of sovereignty, viz., ceding territory as a result of the exercise of the sovereign power of the State of treaty-making and on the result of ceding a part of the territory. 550. On behalf of the respondents reliance has been placed on this case for the proposition that no limitation was read by virtue of the preamble. A careful reading of the judgment shows that what was rejected was the contention that the preamble was the source of power. Indeed, it was held that the preamble was not even a part of the Constitution and that one must seek power and its scope in the provisions of the Constitution. The premise for the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution. In the third place, it declares the great rights and freedoms which the people of India intended to secure to all citizens and the basic type of government and polity which was to be established. From all these, if any provision in the Constitution had to be interpreted and if the expressions used therein were ambiguous, the preamble would certainly furnish valuable guidance in the matter, particularly when the question is of the correct ambit, scope and width of a power intended to be conferred by Article 368. 553. The stand taken up on behalf of the respondents that even the preamble can be varied, altered or repealed, is an extraordinary one. It may be true about ordinary statutes but it cannot possibly be sustained in the light of the historical background, the Objectives Resolution which formed the basis of the preamble and the fundamental position which the preamble occupies in our Constitution. It constitutes a land-mark in India s history and sets out as a matter of historical fact what the people of India resolve d to do for moulding their future destiny. It is unthinkable that the Constitution makers ever conceived of a stage when it would be claimed that ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing under Article 368 in our country will ever do any of the things mentioned above, namely change the Constitution in such a way that it ceases to be a Sovereign Democratic Republic. But while examining the width of the power, it is essential to see its limits, the maximum and the minimum; the entire ambit and magnitude of it and it is for that purpose alone that this aspect is being examined. While analysing the scope and width of the power claimed by virtue of a Constitutional provision, it is wholly immaterial whether there is a likelihood or not of such an eventuality arising. 557. Mr. Palkhivala cited example of one country after another in recent history where from a democratic Constitution the amending power was so utilized as to make that country wholly undemocratic resulting in the negation of democracy by establishment of rule by one party or a small oligarchy. We are not the least impressed by these instances and illustrations. In the matter of deciding the questions which are before us, we do not want to be drawn into the political arena which, we venture to think, is out of bounds for the judiciary and which tradition has been consistently followed by this Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 586-587. 562. According to Mr. Palkhivala, the test of the true width of a power is not how probable it is that it may be exercised but what can possibly be done under it; that the abuse or misuse of power is entirely irrelevant; that the question of the extent of the power cannot be mixed up with the question of its exercise and that when the real question is as to the width of the power, expectation that it will never be used is as wholl y irrelevant as an imminent danger of its use. The court does not decide what is the best what is the worst. It merely decides what can possibly be done under a power if the words conferring it are so construed as to have an unbounded and limitless width, as claimed on behalf of the respondents. 563. It is difficult to accede to the submission on behalf of the respondents that while considering the consequences with reference to the width of an amending power contained in a Constitution any question of its abuse is involved. It is not for the courts to enter into the wisdom or policy of a particular provision in a Constitution or a statute. That is for the Constitution makers or for the parliament or the legislature. But that the real cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This was before some essential rights based on British Common law and jurisprudence came to be embodied in various Parliamentary enactments. According to B.N. Rau Year Book of Human Rights 1947, human rights, with few exceptions, were not guaranteed by the Constitution (Government of India Act). Shiva Rao has in his valuable study Framing of India s Constitution (B. Shiva Rao) given the various stages beginning with 1895 Constitution of India Bill framed by the Indian National Congress which envisaged a Constitution guaranteeing a number of freedoms and rights. Two events at a later stage exercised a decisive influence on the Indian leaders. One was the inclusion of a list of fundamental rights in the Constitution of Irish Free State in 1921 an d the other, the problem of minorities. Ibid p. 172. 566. The next steps were the report of the Nehru Committee in 1928, the reiteration of the resolve at the session of the Indian National Congress at its Karachi Session in March 1931 and omitting some details, the deliberations of the Sapru Committee appointed by the All India Parties Conference (1944-45). The British Cabinet Mission in 1946 recommended the setting up of an Advisory Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and (7) whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilised nations, and 567. It may be recalled that as regards the minorities the Cabinet Mission had recognised in their report to the British Cabinet on May 6, 1946 only three main communities; general, muslims and sikhs. General community included all those who were nonmuslims or non-sikhs. The Mission had recommended an Advisory Committee to be set up by the Constituent Assembly which was to frame the rights of citizens, minorities, tribals and excluded areas. The Cabinet Mission statement had actually provided for the cession of sovereignty to the Indian people subject only to two matters which were; (1) willingness to conclude a treaty with His Majesty s Government to cover matters arising out of transfer of power and (2) adequate provisions for the protection of the minorities. Pursuant to the above and paras 5 and 6 of the Objectives Resolution the Constituent Assembly set u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excrcise of any religion, There follow (b), (c) and (d), which set out further entrenched religious and racial matters, which shall not be the subject of legislation. They represent the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution; and these are therefore unalterable under the Constitution. Another opposite observation in this connection was made in In re the Regulation and Control of Aeronautics in Canada [1932] A.C. 54 at p. 70 while interpreting the British North America Act 1867. It was said that inasmuch as the Act embodied a compromise under which the original provinces agreed to federate, it is important to keep in mind that the preservation of the rights of minorities was a condition on which such minorities entered into the federation and the foundation upon which the whole structure was subsequently erected. 568. Our Constitution is federal in character and not unitary. In a federal structure the existence of both the Union and the States is indispensable and so is the power of judicial review. According to Dicey: Law of the Constitution by A.V. Dicey p. 144. A federal State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on , and the result of the amendment is to be that the Constitution shall stand amended . As the Constitution has an identity of its own, an amendment, made under a power howsoever widely worded cannot be such as would render the Constitution to lose its character and nature. In other words, an amendment cannot be such as would denude the Constitution of its identity. The amending power is conferred on the two Houses of Parliament, whose identity is clearly established by the provisions in the Constitution. It must be the Parliament of the Sovereign Democratic Republic. It is not any Parliament which has the amending power, but only that Parliament which has been created by the Constitution. In other words, it must continue to be the Parliament of a sovereign and democratic republic. The institution of States must continue to exist in order that they may continue to be associated with the amending power in the cases falling under the proviso. If the respondents are right, the proviso can be completly deleted since Article 368 itself can be amended. This would be wholly contrary to the scheme of Article 368 because two agencies are provides for amending the provisions covered by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded so as to take away the voice of the states in the amending process. If the Constitution makers were inclined to confer the full power of a Constituent Assembly, it could have been easily provided in suitable terms. If, however, the original power was limited to some extent, it could not be enlarged by the body possessing the limited power. That being so, even where an amending power is expressed in wide terms, it has to be exercised within the framework of the Constitution. It cannot abrogate the Constitution or frame a new Constitution or alter or change the essential elements of the Constitutional structure. It cannot be overlooked that the basic theory of our Constitution is that Pouvoir Constituent , is vested in the people and was exercised, for and on other behalf by the Constituent Assembly for the purpose of framing the Constitution. 572. To say, as has been said on behalf of the respondents, that there are only two categories of Constitutions, rigid or controlled and flexible or uncontrolled and that the difference between them lies only in the procedure provided for amendment is an oversimplification. In certain Constitutions there can be procedural and or substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere addressed involving the validity of the 18th amendment and of certain features of the National Prohibition Law, known as Volstead Act, which was adopted to enforce the amendment. The relief sought in each case was an injunction against the execution of that Act. The Court merely stated its conclusions and did not give any reasons-a matter which was profoundly regretted by Chief Justice White. From, the conclusions stated and the opinion of the Chief Justice it appears that a good deal of controversy centered on Section 2 of the amendment which read Congress and the several States shall have concurrent power to enforce this Article by appropriate legislation . In the dissenting opinion of Mr. Justice Mckenna it was said that the Constitutional validity of the 18th amendment had also been attacked and although he dissented in certain other matters he agreed that the 18th amendment was a part of the Constitution of the United States. The learned Advocate General of Maharashtra has placed a great deal of reliance on this decision. His argument is that though the judgment in the Rhode Island case gives no reasons, yet it is permissible to look at the elaborate briefs filed by the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment Another case, United States of America v. William H. Sprague and William J. Howey 75 L. Ed. 640, 644, will be discussed more fully while considering the question of implied limitations. All that it establishes for the purpose of meaning of amendment is that one must look to the plain language of the Article conferring the power of amendment and not travel outside it. Article 5, it was said, contained procedural provisions for Constitutional change by amendment without any present limitation whatsoever except that no State might be deprived of equal representation in the Senate without its consent. Mr. Justice Douglas while delivering the opinion of the court in Howard Joseph Whitehill v. Wilson Elkins 19 L. Ed. 2d. 228 stated in categorical terms that the Constitution prescribes the method of alteration by amending process in Article 5 and, while the procedure for amending it is restricted there is no restraint on the kind of amendment that may be offered. Thus the main submission on behalf of the counsel for the respondents has been that Article 5 of the United States Constitution served as model for Article 368 of our Constitution. 576. Article V provides different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it is a grant of authority by the people to the Parliament. This argument loses sight of the fact that under the American theory of government, power is inherent in the people including the right to alter and amend the organic instrument of government. Indeed, practically all the State Constitutions associate the people with the amending process. The whole basis of the decisions of the Supreme Court of the United States and of some of the State Supreme Courts is that it is the people who amend the Constitution and it is within their power to make the federal Constitution or unmake it. The reason is quite obvious. So far as Article 5 of the American Constitution is concerned, out of the alternative methods provided for amendment, there is only one in which the people cannot get directly associated, whereas in the others they are associated with the amending process, e.g., proposal of amendment by two-thirds of both Houses of Congress and its ratification by conventions in three-fourths of the States or a proposal of amendment by a convention called on the application of two-thirds of the State Legislatures and its ratification by either convention in three-fourths of the States o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplied limitation on legislative power. 582. Taking up the cases of the first category, before 1955, Article 13(2) was read as containing an implied limitation that the State could acquire property only for a public purpose. (The Fourth Amendment expressly enacted this limitation in 1955). It was observed in Chiranjit Lal Chowdhauri v. The Union of India and Ors. [1950] S.C.R. 869 at p. 902 that one limitation imposed upon acquisition or taking possession of private property which is implied in the clause is that such taking must be for a public purpose. Mahajan J., (later Chief Justice) said in the State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Ors. [1952] S.C.R. 889 at p. 934 that the existence of a public purpose is undoubtedly an implied condition of the exercise of compulsory power of acquisition by the State. The power conferred by Articles 3 and 4 of the Constitution to form a new State and amend the Constitution for that purpose has been stated to contain the implied limitation that the new State must conform to the democratic pattern envisaged by the Constitution and the power which Parliament can exercise is not the power to override the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same implied limitation on the legislature, in the field of delegation, has been invoked in Raj Narain Singh v. Patna Administration [1955] 2 S.C.R. 290; Hari Shankar Bagla v. State of Madhya Pradesh [1955] 1 S.C.R. 380; Vasantlal Sanjanwala v. State of Bombay [1961] 1 S.C.R. 341; The Municipal Corporation of Delhi v. Birla Cotton Mills [1968] 3 S.C.R. 251 and Grewal D.S. v. State of Punjabi [1959] Supp. 1 S.C.R. 792. Implied limitations have also been placed upon the legislature which invalidates legislation usurping the judicial power : See for instance Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality and Ors. (1970) 1 S.C.R. 388 at pp. 392-393 and Municipal Corporation of the City of Ahmedabad Etc. v. New Shorock Spg. and Wvg. Co. Ltd. etc. (1971) 1 S.C.R. 288 at pp. 294-297. 584. Before we go to cases decided by the courts in other countries it may be useful to refer to some of the Constitutional provisions which are illustrative of the concept of implications that can be raised from the language and context thereof. The first provision in point is Article 368 itself. It has been seen at the stage of previous discussion that th e power to amend is to be found i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect. 586. Next, reference may be made to the decisions of the Privy Council relied on by one side or the other for deciding the question under consideration. The Advocate General of Maharashtra laid much stress on the principle enunciated in Queen v. Burah (1878) 3 A.C. 889 at pp. 904-5, which according to him, has been consistently followed by the Federal Court and this Court. The principle is that when a question arises whether the prescribed limits have been exceeded the court must look to the terms of the instrument by which affirmatively, the legislative powers were created and by which, negatively, they were restricted. If what has been done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited...it is not for any court of justice to inquire further, or to enlarge constructively those conditions or restrictions . The ratio of that decision is that conditional legislation is to be distinguished from delegation of legislati ve power and that conditional legislation is within the power of the legislature in the absence of any express words prohibiting con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the legislative power in a Province to its legislature and that legislature only. A body that has power of legislation on the subjects entrusted to it, the power being so ample as that enjoyed by a Provincial legislature in Canada, could while preserving its own capacity intact seek the assistance of a subordinate agency...but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes own existence Ibid at p. 945. 588. This case is more in point for consideration of validity of that part of the 25th Amendment which inserted Article 31-C but it illustrates that an implied limitation was spelt out from the Constitutional provisions of the British North America Act 1867 which conferred legislative power on the legislatures of provinces as constituted by that Act. 589. McCawley v. The King (1920) A.C. 691 was another case involving Constitutional questions. The legislature of Queensland (Australia) had power to include in an Act a provision not within the express restrictions contained in the Order in Council of 1959. But inconsistent with the term of the Constitution of Queensland, without first amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinary law and, therefore, a subsequent law inconsistent with the Constitution would pro-tanto repeal the Constitution. (2) A Constitution largely or generally uncontrolled may contain one or more provisions which prescribe a different procedure for amending them. In that case an ordinary law cannot amend them and the procedure must be strictly followed if the amendment is to be effected. (3) The implication on limitation of power ought not to be imported from general concepts but only from express or necessarily implied limitations (emphasis supplied). (4) While granting powers to the colonial legislatures, the British Parliament as far back as 1865 refused to put limitations of vague character, but limited those limitations to objective standards e.g., statutes, statutory regulations, etc. to objective standards. 591. We have already repelled at an earlier stage Pp. 70-71 the contention that the only distinction between a controlled and an uncontrolled Constitution is that in the former the procedure prescribed for amending any part of the Constitution has to be strictly followed. The second proposition is of a similar nature and can hardly be disputed. As regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 7-A. Reference was made to Section 5 of the Colonial Laws Validity Act 1865, which conferred on the Legislature of the State full power to make laws inter alia in respect of the Constitution in such manner and form as might from time to time be provided by any Act of Parliament Letters Patent, Colonial law in force in the colony etc. It was held that the whole of Section 7-A was within the competence of the legislature of the State under Section 5 of the Colonial Laws Validity Act. The provision that the Bills must be approved by the electors before being presented was a provision as to form and manner and accordingly the Bills could not lawfully be presented unless and until they had been approved by a majority of the electors voting. A number of contentions were raised, out of which the following may be noted: (a) The Legislature of New South Wales was given by the Imperial Statutes plenary power to alter the Constitution, powers and procedure of such Legislature. (b) When once the Legislature had altered either the Constitution or powers and procedure, the Constitution and powers and procedure as they previously existed ceased to exist and were replaced by the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) it was provided that no such law shall (a) prescribe or restrict the free exercise of any religion etc. This was followed by Clauses (b), (c) and (d) which set out further religious and racial matters, which according to their Lordships, could not be the subject of legislation. In the words of their Lordships they represent the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution; and these are therefore unalterable under the Constitution . By Sub-section (3) any law made in contravention of Sub-section (2) was to be void to the extent of such contravention. Sub-section (4) may be reproduced below: (4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island: Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not the respondent s case that any provision was unamendable. The references to the solemn compact etc. were also obiter because the appeal did not raise any question about the rights of religion protected by Sub-section (2) or Section 29 and the issues were entirely different. It is claimed that this decision supports the position taken up on behalf of the respondents that it is only the form and manner which is material in a controlled Constitution and that the above decision is an authority for the proposition that in exercise of the amending power a controlled Constitution can be converted into an uncontrolled one. Any implied limitations on Parliament s amending power here can be abrogated by an amendment of Article 368 itself and the amending power can be enlarged by an exercise of that very power. According to Mr. Palkhivala this argument is wholly fallacious. Firstly, the observations of the Privy Council Ibid p. 198 is merely on the form and manner of amendment and has nothing to do with substantive limitations on the power of amendment. Placing limits on the amending power cannot be confused with questions of special legislative process which is also referred to by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcised in accordance with the terms of the Constitution from which they were derived. Reference was made to the provisions in the Constitution for appointment of Judges by the Judicial Service Commission and it was pointed out that these provisions manifested an intention to secure in the judiciary a freedom from political, legislative and executive control. It was said that these provisions were wholly appropriate in a Constitution which intended that judicial power shall vest only in the judicature. And they would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature. 600. There seems to be a good deal of substance in the submission of Mr. Palkhivala that the above decision is based on the principle of implied limitations; because otherwise under Section 29(1) of the Ceylon Constitution Act Parliament was competent to make laws for the peace, order and good government of the island subject to the provisions of the Order. Strong observations were made on the true nature and purpose of the impugned enactments and it was said that the alterations made by them in the functions of the judiciary constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construing the words amend or repeal in that provision as extending to amendment or repeal by inconsistent law. The Act, therefore, amended the Constitution. Finally upon the merits it was observed that in view of the conclusion that the Act was a law and not an exercise of judicial power it was not necessary to consider the question whether Parliament could, by a law passed in accordance with the proviso to Section 29(4), both assume judicial power and exercise it in the one law. 602. The above decision can certainly be invoked as an authority for the proposition that even in a controlled Constitution where the form and manner had been followed of amending it, an Act, which would be inconsistent with it and which did not in express terms state that it was an amending Act, would have the effect of altering the Constitution. But it does not support any suggestion, as has been made on behalf of the respondents, that judicial power could, by an amendment of our Constitution, be transferred to the legislature. Moreover, as expressly stated by their lordships, the Ceylon Constitution empowered the Parliament to amend or repeal the Constitution and, therefore, there can be no com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l us to take into account the nature and scope of the Act- to remember that it is a Constitution, a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be . Sir Owen Dixon in Australian Railways Union v. Victorian Railway Commissioners [1930] 44 C.L.R. 319, 390 and later in West v. Commissioner of Taxation [1937] 56 C.L.R. 657, 682 formulated what in his view was the basic principle laid down in Engineers case (Supra) and made observations relating to reservations of qualifications, which he thought had been made, concerning the prima facie rule of interpretation which that decision laid down. In Ex-parte Professional Engineers Association [1959] 107 C.L.R. 208, 239 he once again adverted to the Engineers case and suggested that perhaps the reservations and qualifications therein expressed concerning the federal power of taxation and laws dircted specially to the states and also perhaps the prerogative of the Crown received too little attention. The question as to implied limitations was directly raised and decided in the Melbourne Corporation v. Commonwealth. [1947] 74 C.L.R. 31 It was held that Section 48 of the Banking Act, 1945, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the definition of employer for the purpose of the Act. The question raised for decision was about the Constitutional validity of the Act in so far as it purported to impose upon the State of Victoria an obligation to payroll tax rated to the amount of salaries and wages paid to its public servants employed in certain department named in its statement of claim. 605. The contention raised by the State of Victoria as summarised by Barwick, C.J. was that though the impugned Act fell under the enumerated power of taxation in Section 51 of the Constitution Act, that section did not authorise the imposition of a tax upon the Crown in the right of a State because there was an implied Constitutional limitation upon that Commonwealth power operating universally, that is to say, as to all the activities of a State. The point most pressed, however, was in a somewhat limited form, viz., that the legislative power with respect to taxation did not extend to authorise the imposition of a tax upon any essential governmental activity of a State and therefore, at the least, the power under Section 51 did not authorise a tax upon the State in respect of wages paid to its civil servants. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion specially imposing some defined limitation upon it and observed: there is a substantial body of authority for the proposition that the federal nature of the Constitution does give rise to implications by which some limitations are imposed upon the extent of the power of the Commonwealth Parliament to subject the States to its legislation. According to Gibbs J., the ordinary principles of statutory interpretation did not preclude the making of implications when they were necessary to give effect to the intention of the legislature as revealed in the statute as a whole. The intention of the Imperial Parliament in enacting the Constitution was to give effect to the wishes of the Australian people to join in a federal union and to establish a federal and not a unitary system. In some respects the Commonwealth was placed in a position of supremacy as the national interest required but it would be inconsistent with the very basis of federation that the Commonwealth s power should extend to reducing the states to such a position of subordination that their very existence as independent units would be dependent upon the manner in which the Commonwealth exercises its powers, rather than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce it contemplated delegation by Parliament of powers exclusively vested in it by Section 91 of the British North America Act to the Legislature of Nova Scotia; and delegation by that Legislature of powers, exclusively vested in Provincial Legislature under Section 92 of the Act to Parliament, it could not be Constitutionally valid. The principal ground on which the decision was based was that the Parliament of Canada and each Provincial Legislature is a sovereign body within its sphere, possessed of exclusive jurisdiction to legislate with regard to the subject matter assigned to it under Section 91 or Section 92 as the case may be. Neither is capable, therefore, of delegating to the other the powers with which it has been vested nor of receiving from the other the power with which the other has been vested. The learned Chief Justice observed that the Constitution of Canada does not belong either to the Parliament or to the Legislatures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled. 608. Although nothing was expressly mentioned either in Section 91 or Section 92 of the British North ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... twithstanding the Canadian Bill of Rights. It has also been submitted that the well known writers of Constitutional law both of Australia and Canada have not attached any signficance or accepted the principle of implied limitations. See W.A. Wynes, Legislative, Executive and Judicial powers in Australia and Bora Laskin, The Canadian Constitutional Law. The opinions of authors and writers have been cited before us so extensively, by both sides, that we find a great deal of conflict in their expression of opinion and it will not be safe to place any relianc e on them. The judges who have read limitations by implication are well known and of recognised eminence and it is not fair to reject their views for the reasons suggested by the Advocate General. 610. We need hardly deal at length with the Irish decisions. The principle emerging from the majority decision in The State (at the prosecution of Jermiah Ryan v. Captain Michael Lenons and Ors. (1935) Irish Reports 170 that under Section 50 of the 1922 Constitution (which provided for Constitutional amendment by ordinary legislation during the first period of 8 years which was subsequently extended to 16 years) an ordinary law incons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... District Court on the return date of his remand constituted interference with an exercise of judicial power to administer justice. This case and similar cases e.g., Margaret Buckley v. Att. Gen. of Eire [1950] Ir. Rep. 67 may not afford much assistance in determining the question about implied limitation to the amending power in a Constitution because they deal with the question mostly of repugnancy of ordinary legislation to Constitutional provisions. The main decision however, was in Ryan s [1935] Ir. Rep. 170 case in which Kennedy C.J. drew various implications from the Constitution but the majority of judges declined to do so and read the word amendment as wide enough to allow the repeal of a number of articles, however important in substance they might be. 611. It is equally unnecessary to deal with the argument on behalf of the respondents that the Privy Council in Moore v. Attorney General of Irish Free State [1935] A.C. 484 rejected the contention of the counsel based on the reasoning of Kennedy C.J. Moore s case was decided principally on the effect of the passing of the statute of Westminster as is clear from the summing up of the position by their Lordships. Ibid p. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t rightly failed. For the reasons suggested by Mr. Palkhivala which appear to have a good deal of substance we are unable, to derive any help from U.S. v. W.H. Sprague. 614. The Advocate General of Maharashtra has invoked another principle to the effect that unless the power of amendment is co-extensive with the judicial power of invalidating laws made under the Constitution the judiciary would be supreme; therefore, the power of amendment should be co-extensive with judicial power. This follows from what has been repeatedly held by this Court that under our Constitution none of the three great departments of the State is supreme and it is only the Constitution which is supreme and which provides for a government of laws and not of men. The reply of Mr. Palkhivala is that if the Constitution is supreme, as it is, it necessarily follows that the re must be limitation on the amending power because if there are no limitations the legislature would be supreme and not the Constitution. If the legislature s power of amending Constitution were coextensive with the judicial power of invalidating laws made under the Constitution, the legislature can bend the Constitution to its wheel in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt as to disable the others from exercising and discharging powers and functions entrusted to them. Though the Constitution does not lay down the principle of separation of powers in all its rigidity as is the case in the United Constitution but it envisages such a separation to a degree as was found in Ranasinghe s case. The judicial review provided expressly in our Constitution by means of Article 226 and 32 is one of the features upon which hinges the system of checks and balances. Apart from that, as already stated, the necessity for judicial decision on the competence or otherwise of an Act arises from the very federal nature of a Constitution (per Haldane, L.C. in Att. Gen. for the Commonwealth of Australia v. Colonial Sugar Refining Co. [1914] A.C. 237 and Ex parte Walsh and Johnson, In re Yates. (1925) 37 C.L.R. 36 at p. 58. The function of interpretation of a Constitution being thus assigned to the judicial power of the State, the question whether the subject of a law is within the ambit of one or more powers of the legislature conferred by the Constitution would always be a question of interpretation of the Constitution. It may be added that at no stage the respondents ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Attorney General that no implications can be read in an amending power in a Constitution must be repelled in the words of Dixon J. in West v. Commissioner of Taxation (N.S.W.) [1936-37] 56 C.L.R. 657: Since the Engineers case a notion seems to have gained currency that in interpreting the Constitution no implications can be made. Such a method of construction would defeat the intention of any instrument, but of all instruments a written Constitution seems the last to which it could be applied 618. We are equally unable to hold that in the light of the Preamble, the entire scheme of the Constitution the relevant provisions thereof and the context in which the material expressions are used in Article 368 no implied limitations arise to the exercise of the power of amendment. The respondents do not dispute, that, certain limitations arise by necessary implication e.g., the Constitution cannot be abrogated or repealed in its entirety and that the India s polity has to be a Sovereign Democratic Republic, apart from several other implications arising from Article 368 which have been noticed. 619. The argument that the Nation cannot grow and that the objectives set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art III and the mandate to build a welfare State contained in Part IV. 6. The unity and the integrity of the nation. 621. The entire discussion from the point of view of the meaning of the expression amendment as employed in Article 368 and the limitations which arise by implications leads to the result that the amending power under Article 368 is neither narrow nor unlimited. On the footing on which we have proceeded the validity of the 25th amendment can be sustained if Article 368, as it originally stood and after the amendment, is read in the way we have read it. The insertion of Articles 13(4) and 368(3) and the other amendments made will not affect the result, namely, that the power in Article 368 is wide enough to permit amendment of each and every Article of the Constitution by way of addition, variation or repeal so long as its basic elements are not abrogated or denuded of their identity. 622. We may next deal with the validity of the Constitution (25th Amendment) Act. Section 2 of the Amending Act provides: 2. In Article 31 of the Constitution,- (a) for Clause (2), the following clause shall be substituted, namely: (2) No property shall be compulso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, colourless word. The dictionary meanings do not help in arriving at its true import as used in a Constitutional provision. It can be anything from one paisa to an astronomical figure in rupees. Its meaning has, therefore, to be ascertained by turning to the context in which it is used and the words preceding it as well as following it. 624. The scheme of Article 31(2) now is: (1) The property has to be compulsorily acquired or requisitioned. (2) It has to be for a public purpose. (3) It has to be by a law. (4) The law must provide for an amount which may be- (i) fixed by such law or (ii) which may be determined in accordance with such principles as may be specified in such law. (5) The law shall not be questioned in a Court on the ground: (i) The amount so fixed or determined is not adequate or (ii) the whole or any part of such amount is to be given otherwise than in cash. It is significant that the amount can be determined in accordance with specified principles, if it is not fixed by the law itself. Moreover, its adequacy cannot be questione d in a court. The use of the word principles and the question of inadequacy can only arise if the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccepted in Shantilal s case was restored. The amendment now made is apparently aimed at removing that concept and for that reason the word amount has been substituted in place of compensation . This is particularly so as we find no reason for departing from the well-settled rule that in such circumstances the Parliament made the amendment knowing full well the ratio of the earlier decisions. 627. The Advocate General of Maharashtra has submitted that the fixing of the amount or alternatively specifying the principles for determining that amount is entirely within the judgment of the legislature and the whole object of the amendment is to exclude judicial review which had been introduced by the courts on the basis of the concept of compensation. But even then the members of the legislature must have some basis or principles before them to fix the amount as the same cannot be done in an arbitrary way. He, however, gave an unusual explanation that in the Cabinet system of government it is for the government to determine the amount or specify such principles as it choses to do. The legislators belonging to the ruling party are bound to support the measure whether the basis on whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value of the property acquired or requisitioned and one or more of the relevant principles have been applied and further that the amount is neither illusory nor it has been fixed arbitrarily, nor at such a figure that it means virtual deprivation of the right under Article 31(2). The question of adequacy or inadequacy, however, cannot be gone into. 630. As to the mode of payment, there is nothing to indicate in the amended Article that any arbitrary manner of payment is contemplated. It is well known that a discretion has to be exercised reasonably. 631. As regards Clause (2B) inserted in Article 31 which makes Article 19(1)(f) inapplicable, there is no reason for assuming that a procedure will be provided which will not be reasonable or will be opposed to the rules of natural justice. Section 2 of the 25th amendment can be sustained on the construction given to it above. 632. We now come to the most controversial provision of 25th Amendment, namely, Section 3 which inserted the following Article: 31C Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l fields, they did not desire that it should be a society where a citizen will not have the dignity of the individual. Part III of the Constitution shows that the founding fathers were equally anxious that it should be a society where the citizen will enjoy the various freedoms and such rights as are the basic elements of those freedoms without which there can be no dignity of individual. Our Constitution makers did not contemplate any disharmony between the fundamental rights and the directive principles. They were meant to supplement one another. It can well be said that the directive principles prescribed the goal to be attained and the fundamental rights laid down the means by which that goal was to be achieved. While on behalf of the petitioners greater emphasis has been laid on the fundametal rights, counsel for the respondents say that the fundamental rights should be subordinate to the directive principles. The Constituent Assembly did not accept such a proposal made by B.N. Rau. It has been suggested that a stage has been reached where it has become necessary to abrogate some of the basic freedoms and rights provided the end justifies the means. At an earlier stage in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material resources of the community and (ii) imposition of control on the production, supply and distribution of the products of key industries and essential commodities. It, therefore, impinges on a particular kind of economic system only. 637. The question of the validity of Article 31(C) to our mind has to be examined mainly from two points of view; the first is its impact on the various freedoms guaranteed by Article 19, the abrogation of the right of equality guaranteed by Article 14 and the right to property contained in Article 31. The second is whether the amending body under Article 368 could delegate its amending power to the legislatures of the Union and the States. Alternatively, whether the Parliament and the State Legislatures can, under Article 31(C), amend the Constitution without complying with the form and manner laid down in Article 368. Now it is quite obvious that under Article 31(C) a law passed by the Parliament or the State Legislatures shall not be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Articles 14, 19 and 31 so long as the law is declared to be one for giving effect to the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch power to the State Legislatures, in particular, involves serious consequences. It is well settled that one legislature cannot create another legislative body . This has been laid down very clearly in two decisions of the Privy Council. In the Initiative and Referendum Act [1919] A.C. 935 which has already been discussed See page 88 by us no doubt was entertained that a body that had the power of legislation on the subjects entrusted to it, even though, the power was so ample as that enjoyed by a provincial legislature in Canada, could not create and endow with its own capacity a new legislative power not created by the Act to which it owed its own existence. Attorney General of Nova Scotia v. The Attorney General of Canada [1951] Can. L.R. 31 is another direct authority for the view that the Parliament of Canada or any of the legislatures could not abdicate their powers and invest for the purpose of legislation bodies, which by the very terms of the British North American Act were not empowered to accept such delegation and to legislate on such matters. The distinction made by counsel on behalf of the respondents and the cases relied on by them have been fully discussed in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich seriously affect its validity. The first is that it enables total abrogation of fundamental rights contained in Articles 14, 19 and 31 and, secondly, the power of amendment contained in Article 368 is of special nature which has been exclusively conferred on the Parliament and can be exercised only in the manner laid down in that Article. It was never intended that the same could be delegated to any other legislature including the State Legislatures. 643. The purpose sought to be achieved by Article 31(C) may be highly laudable as pointed out by the learned Solicitor General, but the same must be achieved by appropriate laws which can be Constitutionally upheld. We have no option, in view of what has been said except to hold that the validity of Article 31(C) cannot be sustained. 644. The last matter for determination is the validity of the 29th Amendment Act, 1972. The challenge is only against the inclusion of two Acts, namely, the Kerala Land Reforms (Amendment) Act 1969 and a similar Kerala Act of 1971 in the Ninth Schedule to the Constitution. 645. The main argument on behalf of the petitioners haw been confined to the relationship between Article 31(A) and Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has to be based on some norm or principle which must be relevant for the purpose of arriving at the amount payable in respect of the property acquired or requisitioned; (b) the amount need not be the market value but it should have a reasonable relationship with the value of such property; (c) the amount should neither be illusory nor fixed arbitrarily; and (d) though the courts are debarred from going into the question of adequacy of the amount and would give due weight to legislative judgment, the examination of all the matters in (a), (b) and (c) above is open to judicial review. 4. As regards Clause (2B) inserted in Article 31 which makes Article 19(1)(f) inapplicable, there is no reason to suppose that for determination of the amount on the principles laid down in the law any such procedure will be provided which will be unreasonable or opposed to the rules of natural justice. 5. On the above view Section 2 of the 25th Amendment is valid. 6. The validity of Section 3 of the 25th Amendment which introduced Article 31C in the Constitution cannot be sustained because the said Article suffers from two vices. The first is that it enables abrogation of the basic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into force on November 5, 1971. Article 368 is the only article found in Part XX of the Constitution. The title of that part is Amendment of the Constitution. Its marginal note as it originally stood read Procedure for amendment of the Constitution . The Article read thus: An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in- (a) Article 54, Article 55, Article 73, Article 162 or Article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns and includes not merely legislative enactments but also Constitutional measures. The Counsel urged, there is no reason why a different meaning should be given to the word law in Article 13(2). A more important argument of his was that the power to amend the Constitution, even if, it is assumed to be contained in Article 368, is by no means an exclusive power because in certain respects and subject to certain conditions, the Constitution can also be amended by Parliament by a simple majority by enacting a law in the same manner as other legislative measures are enacted. In this connection he drew our attention to Articles 4, 169, Paragraph 7 of the Vth Schedule and Paragraph 21 of the VIth Schedule. Counsel urged that if the amendment of the provisions of the Constitution referred to therein is considered as the exercise of constituent power and consequently such an amendment is not a law within the meaning of that expression in Article 13, then Parliament by a simple majority of the members present and voting if the rule regarding the quorum is satisfied, can take away or abridge any of the Fundamental Rights of certain sections of the public in this country. 652. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f its power under Article 368 in accordance with the procedure laid down therein came up for consideration before this Court very soon after the Constitution came into force. The validity of the Constitution (1st Amendment) Act 1951 came up for the consideration of this Court in Sankari Prasad Singh Deo v. Union of India and State of Bihar [1952] S.C.R. 89. In that case the scope of Article 368 vis-a-vis Article 13(2) was debated. This Court rejecting the contention of the petitioners therein that it was impermissible for Parliament to abridge any of the Fundamental Rights under Article 368, held that although law must ordinarily include Constitutional law, there is a clear demarcation between ordinary Jaw which is made in exercise of legislative power, and Constitutional law, which is made in exercise of constituent power . This Court held that in the context of Article 13, law must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that Article 13(2) does not affect the amendments made under Article 368 . In the case this Court also opined that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case were not correctly decided. The majority held that the expression law in Article 13(2) includes Constitutional amendments as well. The minority agreeing with the earlier decisions held that the expression law in Article 13(2) does not include Constitutional amendments. Five of the majority judges namely Subba Rao C.J., Shah, Sikri, Shelat and Vaidialingam JJ. held that Article 368 in terms only prescribes the various steps in the matter of amendment and that the Article assumes the existence of the power to amend somewhere else in the Constitution. According to them the mere completion of the procedural steps mentioned in Article 368 cannot bring about a valid amendment of the Constitution. In their opinion, the power to amend cannot be implied from Article 368. They declined to infer such a power by implication in Article 368 as they thought it was not necessary since Parliament has under Article 248 read with Item 97 of List I of the VIIth Schedule plenary power to make any law including the law to amend the Constitution subject to the limitations contained therein. They observed that the power of Parliament to amend the Constitution may be derived from Article 245, Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... becomes immaterial. Hence the primary question is whether Parliament has power to abridge or take away any of the Fundamental Rights prescribed in Part III of the Constitution ? 657. In order to find out whether Parliament has the power to take away or abridge any of the Fundamental Rights in exercise of its power under Article 368, we must first ascertain the true scope of that Article. As seen earlier in Sankari Prasad s case, this Court ruled that the power to amend the Constitution is to be found in Article 368. The same view was taken by the majority of judges in Sajjan Singh s case as well as in Golak Nath s case. We respectively hold that view to be the correct view. As mentioned earlier, Part XX of the Constitution which purports to deal with amendment of the Constitution contains only one Article, i.e. Article 368. The title of that Part is Amendment of the Constitution. The fact that a separate part of the Constitution is reserved for the amendment of the Constitution is a circumstance of great significance-see Don John Francis Douglas Liyanage and Ors. v. The Queen [1967] 1 A.C. 259 at 287 and State of U.P. v. Manbodhan Lal Srivastava [1958] S.C.R. 533 at 544. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article does not expressly confer power to amend; the power is necessarily implied in the Article. The Article makes it clear that the amendment of the Constitution can only be made by Parliament but in cases falling under the proviso, ratification by legislatures of not less than one-half of the States is also necessary. That Article stipulates various things. To start with, the amendment to the Constitution must be initiated only by the introduction of a Bill for that purpose in either House of Parliament. It must then be passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting and if the amendment seeks to make any change in the provisions mentioned in the proviso, it must be ratified by not less than one-half of the State Legislatures. Thereafter, it should be presented to the President for his assent It further says that upon such assent being given to the Bill the Constitution shall stand amended in accordance with the terms of the Bill . To restate the position, Article 368 deals with the amendment of the Constitution. The Article contains both the power and the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 107; see Sankari Prasad s case. The Bill when passed by both the Houses of Parliament and, in matters coming under the proviso to Article 368, after securing the necessary ratification by the State Legislatures, is presented to the President for his assent The procedure adopted is the same as that adopted in enacting an ordinary statute except to the extent provided in Article 368. Even if it had been different , there can be hardly any doubt that the amendment of a Constitution is law . In Sankari Prasad s case, Patanjali Sastri J. (as he then was) speaking for the Court had no doubt in ruling that the expression law must ordinarily include Constitutional law . The same view was taken by all the judges in Sajjan Singh s case and also by most of the judges in Golak Nath s case. 661. But the question still remains whether our Constitution makers by using the expression law in Article 13(2) intended that that expression should also include the exercise of Parliament s amending power under Article 368. We have earlier explained the scope and extent of Article 368. In understanding the meaning of the word law s in Article 13(2) we should bear in mind the scope of Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution came into force, no Constitutional law was in force. Therefore in his view, the term law in Article 13(1) can only refer to legislative measures or ordinances or bye-laws, rules, regulations, notifications, customs and usages. Mr. Palkhivala contended that the said finding is not correct. In that connection he referred to the treaties and agreements entered into between the former Rulers of the Indian States and the Central Government as well as to certain other measures which were in force when the Constitution came into force which, according to him, are Constitutional law and, on that basis, he contended that certain Constitutional laws were in force on the day when the Constitution came into force. We are not satisfied that this contention is correct. Under Article 395, the Indian Independence Act, 1947 as well as the Government of India Act, 1935, were repealed. The laws which were continued under Article 372 after the Constitution came into force did not operate on their own strength. For their validity they had to depend on Article 372 and that Article made it clear that those laws will continue to be in force subject to the other provisions of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 13(2). 667. Counsel either side took us through the debates of the Constituent Assembly relating to Article 368. Naturally each one of them relied on those passages from the speeches of the various members who took part in the debate and, in particular, on the speeches of late Prime Minister Nehru and the then Law Minister Dr. Ambedkar, which supported their contention. Having gone through those speeches, we feel convinced that no conclusive inference can be drawn from those speeches as to the intention of those speakers. Hence, we need not go into the question at this stage whether it is permissible for us to place reliance on those speeches for finding out the true scope of Article 368. 668. Mr. Palkhivala placed a great deal of reliance on the stages through which the present Article 13 passed. It is seen from the Constituent Assembly records that when the Constituent Assembly was considering the provision which resulted in Article 13(2), Mr. Santhanam one of the members of the Constituent Assembly moved an amendment to make it clear that the expression law in Article 13(2) does not include an amendment of the Constitution under draft Article 304 (present Article 368) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions relating to the sovereignty of the country, the Republic and the Democratic character of the Constitution. According to the Counsel, even the provisions relating to the unity of the country are basic elements of the Constitution. 671. It was urged that since even amendment of several provisions of minor significance requires the concurrence of the legislatures of the majority of the States it is not likely that the Constitution makers would have made the amendment of the provisions relating to Fundamental Rights a plaything of the Parliament This argument, however, does not lead to any definite conclusion. It is not unlikely that the Constitution-makers thought that the states are specially interested in the provisions mentioned in the proviso to Article 368, so that the amendment of those provisions should require ratification by the legislatures of the majority of the States. When the language of Article 368 is plain, as we think it is, no question of construction of that Article arises. There is no need to delve i nto the intention of the Constitution-makers. 672. Every Constitution is expected to endure for a long time. Therefore, it must necessarily be elastic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tic manner. That power, under any circumstance, must receive a broad and liberal interpretation. How large it should be is a question that requires closer examination. Both on principle as well as on the language of Article 368, we are unable to accede to the contention that no right guaranteed by Part III can be abridged. 674. This Court is always reluctant to overrule its earlier decisions. There must be compelling reasons for overruling an earlier decision of this Court. As seen earlier, there are already conflicting decisions as to the scope of Article 368. As far back as 1951, in Sankari Prasad s case, this Court took the view that the power of amendment conferred under Article 368 included within itself the power to abridge and take away the Fundamental Rights incorporated in Part III of the Constitution. The correctness of that view was not challenged in several other decisions. The same view was taken in Sajjan Singh s case. That view was negatived in Golakhnath s case by a very narrow majority. Bearing in mind the disastrous effect that decision would have had on many important laws that had been enacted by the Union and the States between the years 1951 to 1967, this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers intended to confer on Parliament, a body constituted under the Constitution, power to damage or destroy the very basis on which our Constitution was erected. On the other hand it was contended on behalf of the Union of India, State of Kerala as well as the other States that the power of amendment conferred under Article 368 is of the widest amplitude. It brooks no limitation. It is a power which can be used to preserve the Constitution, to destroy the Constitution and to re-create a new Consitution. It was contended that the society can never be static, social ideals and political and economic theories go on changing and every Constitution in order to preserve itself needs to be changed now and then to keep in line with the growth of the society. It was further contended that no generation can impose its Will permanently on the future generations. Wise as our founding fathers were, wisdom was not their sole monopoly. They themselves realised it. They knew that in a changing world, there can be nothing permanent and, therefore, in order to attune the Constitution to the changing concepts of politics, economics and social ideas, they provided in Article 368 a machinery which is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to circumstances and the time in which it is used . We must read the word amendment in Article 368 not in isolaion but as occurring in a single complex instrument, Article 368 is a part of the Constitution. The Constitution confers various powers on legislatures as well as on other authorities. It also imposes duties on those authorities. The power conferred under Article 368 is only one such power. Unless it is plain from the Constitutional scheme that the power conferred under Article 368 is a super power and is capable of destroying all other powers, as contended on behalf of the Union and the States, the various parts of the Constitution must be construed harmoniously for ascertaining the true purpose of Article 368. 679. In our Constitution unlike in the Constitution of the United States of America the words amendment and amend have been used to convey different meanings in different places. In some Articles they are used to confer a narrow power, a power merely to effect changes within prescribed limits-see Articles 4, 107(2), 111, 169(2), 196(2), 197(2) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se neither the majority speaking through Gajendragadkar C.J. nor Hidayatullah J. (as he then was) went into that question. But Mudholkar J. did foresee the importance of that aspect. He observed in the course of his judgment: We may also have to bear in mind the fact that ours is a written Constitution. The Constituent Assembly which was the repository of sovereignty could well have created a sovereign Parliament on the British model. But instead it enacted a written Constitution, created three organs of State, made the Union executive responsible to Parliament and the State executive to the State legislatures, erected a federal structure and distributed legislative power between Parliament and the State Legislatures; recognised certain rights as fundamental and provided for their enforcement, prescribed forms of oaths of office or affirmations which require those who subscribe to them to owe true allegiance to the Constitution and further require the members of the Union Judiciary and of the Higher judiciary in the States, to uphold the Constitution. Above all, it formulated a solemn and dignified preamble which appears to be an epitome of the basic features of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the executive operated its repressive measures strengthened the demand for Constitutional guarantees of Fundamental Rights. As far back as 1895, the Constitution of India Bill, prepared by some eminent Indians, envisaged for India a Constitution guaranteeing to everyone of our citizens freedom of expression, inviolability of one s house, right to property, equality before the law, equal opportunity of admission to public offices, right to present claims, petitions and complaints and right to personal liberty. After the publication of the Montague-Chelmsford Report, the Indian National Congress at its special session held in Bombay in August 1918 demanded that the new Government of India Act should contain Declaration of Rights of the people of India as British citizens . The proposed declaration was to embody among other things, guarantees in regard to equality before the law, protection in respect of life and liberty, freedom of speech and press and right of association. In its Delhi Session in December of the same year, the Congress passed another resolution demanding the immediate repeal of all laws, regulations and ordinances restricting the free discussion of political qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the incorporation of Fundamental Rights in our Constitution. The British Cabinet Mission in 1946 recognised the need for a written guarantee of Fundamental Rights in the Constitution of India. It accordingly recommended the setting up of an advisory committee for reporting, inter alia, on Fundamental Rights. By the Objectives Resolution adopted on January 22, 1947, the Constituent Assembly solemnly pledged itself to draw up for India s future governance a Constitution wherein shall be guaranteed and secured to all the people of India justice, social, economic and political, equality of status, of opportunity and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action subject to law and public morality and wherein adequate safeguard would be provided for minorities, backward and tribal areas and depressed and other backward classes . The close association between political freedom and social justice has become a common concept since the French Revolution. Since the end of the first World War, it was increasingly recognised that peace in the world can be established only if it is based on social justice. The most modern Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all in this country the essential human rights. Their Constitutional plan was to build a welfare state and an egalitarian society. 688. Now that we have set out the objectives intended to be achieved by our founding fathers, the question arises whether those very persons could have intended to empower the Parliament, a body constituted under the Constitution to destroy the ideals that they dearly cherished and for which they fought and sacrificed. 689. If the nature of the power granted is clear and beyond doubt the fact that it may be misused is wholly irrelevant. But, if there is reasonable doubt as to the nature of the power granted then the Court has to take into consideration the consequences that might ensue by interpreting the same as an unlimited power. We have earlier come to the conclusion that the word amendment is not an expression having a precise cannotation. It has more than one meaning. Hence it is necessary to examine the consequence of accepting the contention of the Union and the States. Therefore let us understand the consequences of conceding the power claimed. According to the Union and the States that power inter alia, includes the power to (1) destr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment cannot be taken into consideration in interpreting the ambit of the amending power. Extra legal forces work in a different plane altogether. 690. We find it difficult to accept the contention that our Constitution-makers after making immense sacrifices for achieving certain ideals made provision in the Constitution itself for the destruction of those ideals. There is no doubt as men of experience and sound political knowledge, they must have known that social, economic and political changes are bound to come with the passage of time and the Constitution must be capable of being so adjusted as to be able to respond to those new demands. Our Constitution is not a mere political document. It is essentially a social document. It is based on a social philosophy and every social philosophy like every religion has two main features, namely, basic and circumstantial. The former remains constant but the latter is subject to change. The core of a religion always remains constant but the practices associated with it may change. Likewise, a Constitution like ours contains certain features which are so essential that they cannot be changed or destroyed. In any event it cannot be destroy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers of the either House of Parliament. That is seen from our experience in the past. That apart, our Constitution was framed on the basis of consensus and not on the basis of majority votes. It provides for the protection of the minorities. If the majority opinion is taken as the guiding factor then the guarantees given to the minorities may become valueless. It is well known that the representatives of the minorities in the Constituent Assembly gave up their claim for special protection which they were demanding in the past because of the guarantee of Fundamental Rights. Therefore the contention on behalf of the Union and the States that the two-thirds of the members in the two Houses of Parliament are always authorised to speak on behalf of the entire people of this country is unacceptable. 693. The President of India under Article 60 of the Constitution is required to take an oath before he assumes his office to the effect that he will to the best of his ability preserve, protect and defend the Constitution . Somewhat similar oaths have to be taken by the Governors of States, Ministers at the Centre and in the States, Judges of the superior courts and other important functi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prime Minister and the Ministers are to hold office during his pleasure. Despite this conferment of power in general and absolute terms, because of the scheme of the Constitution, its underlying principles and the implications arising from the other provisions in the Constitution, this Court has held in several cases that the President is a Constitutional head and the real executive power vests in the Cabinet. Similarly though plenary powers of legislation have been conferred on the Parliament and the State legislatures in respect of the legislative topics allotted to them, yet this Court has opine d that by the exercise of that power neither Parliament nor the State legislatures can delegate to other authorities their essential legislative functions nor could they invade on the judicial power. These limitations were spelled out from the nature of the power conferred and from the scheme of the Constitution. But, it was urged on behalf of the Union and the States that, though there might be implied limitations on other powers conferred under the Constitution, there cannot bo any implied limitations on the amending power. We see no basis for this distinction. The amending power is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed States most of the writers are of opinion that there is no implie d limitation on the amending power under the United States Constitution. The Supreme Court of the United States has not specifically pronounced on this question. The only case in which the question of implied limitation on the amending power under the United States Constitution came up for consideration was Rhode Island v. Palmer 64 L. Edn. 946. In that case the Supreme Court of United States rejecting the contention that the 18th Amendment-National Prohibition Amendment-was outside the amending power under Article 5 because of implied limitations on that power, held that the Amendment was valid. The Supreme Court, however, did not discuss the question of implied limitations on the amending power as such. In fact the judgment that was rendered in that case gave no reasons. Only certain questions were formulated and answered. It is not clear from the judgment whether the particular limitation pleaded was rejected or whether the plea of implied limitation on the amending power was rejected though writers of most text books have taken the view that the court rejected the plea of implied limitations on the amending p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power is limited it is not for any court of Justice to inquire further, or to enlarge constructively those conditions and restrictions was heavily relied on by Mr. Seervai. That decision, however, has been confined to the interpretation of conditional legislations and the rule that it laid down has not been applied while considering the question whether there are any implied limitations on any of the powers conferred under a statute or Constitution. 700. It was strenuously urged on behalf of the Union and the States that if we come to the conclusion that there are implied or inherent limitations on the amending power of Parliament under Article 368, it would be well nigh impossible for Parliament to decide before hand as to what amendments it could make and what amendments it is forbidden to make. According to the Counsel for the Union and the States, the conceptions of basic elements and fundamental features are illusive conceptions and their determination may differ from judge to judge and therefore we would be making the task of Parliament impossible if we uphold the contention that there are implied or inherent limitations on the amending power under Article 368. We are un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be treated as something sacred. It should be regarded just in the same way as we regard other human institutions. It should be possible to alter every part of it from time t o time so as to bring it in harmony with the new and changed conditions. In support of this contention we were invited to the writings of the various writers such as Burgess, Bryce, Willis, Orfield, Weaver Livingston etc. It was further urged that the Constituent Assembly knowing that, it will disperse, had arranged for the recreation of a Constituent Assembly, under Article 368 in order to so shape the Constitution as to meet the demands of the time. However, attractive these theories may sound in the abstract, on a closer examination, it will be seen that they are fallacious, more particularly in a Constitutional s set up like ours. We have earlier noticed chat under our electoral system, it is possible fo r a party to get a 2/3rd majority in the two Houses of Parliament even if that party does not get an absolute majority of votes cast at the election. That apart, when a party goes to election, it presents to the electorate diverse programmes and holds out various promises. The programmes presented or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn life indefinitely and also, to amend the Constitution in such a manner as to make it either legally or practically unamendable ever afterwards. A power which is capable of being used against the people themselves cannot be considered as a power exercised on behalf of the people or in their interest. 705. On a careful consideration of the various aspects of the case, we are convinced that the Parliament has no power to abrogate or emasculate the basic elements or fundamental features of the Constitution such as the sovereignty of India, the democratic character of our polity, the unity of the country, the essential features of the individual freedoms secured to the citizens. Nor has the Parliament the power to revoke the mandate to build a Welfare State and egalitarian society. These limitations are only illustrative and not exhaustive. Despite these limitations, however, there can be no question that the amending power is a wide power and it reaches every Article and every part of the Constitution. That power can be used to reshape the Constitution to fulfil the obligations imposed on the State. It can also be used to reshape the Constitution within the limits mentioned earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration. 709. Now let us see what is the true effect of the Constitution 24th Amendment Act, 1971. That Act amended Article 13 and Article 368. By that Act one more sub-article has been added to Article 13 viz. Sub-article (4) which reads thus: Nothing in this article shall apply to any amendment of this Constitution made under Article 368. 710. Section 3 of that Act which amends Article 368 reads. Article 368 of the Constitution shall be renumbered as Clause (2) thereof, and (a) for the marginal heading to that article the following marginal heading shall be substituted, namely: Power of Parliament to amend the Constitution and procedure therefor . (b) before Clause (2) as so-renumbered, the following clause shall be inserted, namely: Notwithstanding anything in the Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. (c) in Clause (2) as so re-numbered, for the words it shall be presented to the President for his assent and upon such assent being given to the Bill , the words It shall be presented to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 248 read with Entry 97 of List I. There is no ground for taking a different view. 713. We have already come to the conclusion that Article 368 as it originally stood comprehended both power as well as procedure to amend the Constitution. Hence the change effected in the marginal note has no significance whatsoever. The marginal note as it stood earlier was in a sense incomplete. The expression constituent power is used to describe only the nature of the power of amendment. Every amending power, however large or however small it might be, is a fact of a constituent power. The power, though described to be constituent power , still continues to be an amending power . The scope and ambit of the power is essentially contained in the word amendment . Hence, from the fact that the new article specifically refers to that power as a constituent power, it canno t be understood that the contents of the power have undergone any change. The power conferred under the original Article being a limited power to amend the Constitution, the constituent power to amend the Constitution referred to in the amended Article must also be held to carry with it the limitation to which that power was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the Constitution. We have earlier come to the conclusion that Article 13 as it stood earlier did not bar the amendment of the Constitution. Article 13(4) and 368(3) make explicit what was implicit. 715. It was contended that by means of the 24th Amendment Parliament intended to and in fact purported to enlarge its amending power. In this connection reliance was placed on the statement of objects and reasons attached to the Bill which resulted in the 24th Amendment. The power of Parliament does not rest upon its professed intention. It cannot acquire a power which it otherwise did not possess. We are unable to accept the contention that Clause (e) to the proviso to Article 368 confers power on Parliament to enlarge its own power. In our judgment the power to amend the Constitution as well as the ordinary procedure to amend any part of the Constitution was and is contained in the main part of the Article. The proviso merely places further restrictions on the procedure to amend the articles mentioned therein. Clause (e) to the proviso stipulates that Article 368 cannot be amended except in the manner provided in the proviso. In the absence of that clause, Article 368 could ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter the 24th Amendment must be held to be valid. 718. This takes us to the validity of the Constitution 25th Amendment Act. It is necessary to examine the scope and effect of that Act for deciding the question whether that Act or any one of its provisions can be held to be outside the amending power of the Parliament. That Act has three sections. We are not concerned with the first section which sets out the short title. Clause (a) of the second section amends Article 31(2). Clause (b) of that section incorporates into the Constitution Article 31(2B). Section 3 introduces into the Constitution a new Article viz. Article 31C. 719. Let us first take up the newly substituted Article 31(2) in the place of the old Articl e 31(2) and examine its scope. To do so, it is necessary to examine the history of that Article. 720. Article 31(2) has undergone several changes. As originally enacted it read thus: No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presents the intention of the Constitution makers. In support of that contention, we were asked to go through the Constituent Assembly debates relating to that article. In particular, we were invited to go through the speeches made by Pandit Nehru, Sir Alladi Krishnaswami Ayyar, Dr. Munshi and Dr. Ambedkar. In our opinion, it is impermissible for us to do so. It is a well settled rule of construction that speeches made by members of a legislature in the course of debates relating to the enactment of a statute cannot be used as aids for interpreting any of the provisions of the statute. The same rule is applicable when we are called upon to interpret the provisions of a Constitution. This Court ruled in State of Travancore Cochin and Ors. v. Bombay Co. Ltd. [1952] S.C.R. 113 that speeches made by the members of the Constituent Assembly in the course of the debates on the draft Constitution cannot be used as aid for interpreting the Constitution. In the course of his judgment Patanjali Sastri C.J. speaking for the Constitution Bench observed at p. 1121 of the Report: It remains only to point out that the use made by the learned Judges below of the speeches made by the members of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-see State of Travancore Cochin and Ors. v. The Bombay Co. Ltd. Accordingly I do not rely on them as aids to construction. But I propose to refer to them, as Shri A.K. Sen relied heavily on the speeches of Dr. B.R. Ambedkar. According to him, the speeches of Dr. Ambedkar show that he did not regard the fundamental rights as amendable. This contention is not supported by the speeches. 725. From these observations, it is clear that the learned judges were not referring to the speeches as aids for interpreting any of the provisions of the Constitution. 726. Now, let us turn to this Court s Judgment in the Privy Purse case. Shah J. (as he then was) in the course of his judgment (at p. 83 of the report) quoted a portion of the speech of the Home Minister Sardar Patel not for the purpose of interpreting any provision of the Constitution but for showing the circumstances which necessitated the giving of certain guarantees to the former ruler. That speech succinctly sets out why certain guarantees had to be given to the rulers. Hence it is not correct to say that Shah J. speaking for himself and six other Judges had used the speech of Sardar Patel in aid of the construction of any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the legislature is given the discretionary power of laying down the principle which should govern the determination of the amount to be given to the owner for the property appropriated, such principles must ensure that what is determined as payable Must be compensation, that is, a just equivalent of what the owner has been deprived of. Within the limits of this basic requirement of full indemnification of the expropriated owner, the Constitution allows free play to the legislative judgment as to what principles should guide the determination of the amount payable. Whether such principles take into account all the elements which make up the true value of the property appropriated and exclude matters which are to be neglected is a justiciable issue to be adjudicated by the Court. This, indeed, was not disputed. 730. We are told that Article 31(2) came to be amended by means of the 4th Amendment Act in view of the decision of this Court in Mrs. Bela Banerjee s case. The scope of the article as amended by the 4th Amendment Act was considered by this Court in P. Vairayelu Mudaliar v. Special Deputy Collector, Madras and Anr. [1965] 1 S.C.R. 614. Therein Subba Rao J. (as he then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent principles may lead to different results. The adoption of one principle may give a higher value and the adoption of another principle may give a lesser value. But nonetheless they are principles on which and the manner in which compensation is determined. The court cannot obviously say that the law should have adopted one principle and not the other, for it relates only to the question of adequacy. On the other hand, if a law lays down principles which are not relevant to the property acquired or to the value of the property at or about the time it is acquired, it may be said that they are not principles contemplated by Article 31(2) of the Constitution.... In such cases the validity of the principles can be scrutinized. The law may also prescribe a compensation which is illusory it may provide for the acquisition of a property worth lakhs of rupees for a paltry sum of ₹ 100. The question in that context does not relate to the adequacy of the compensation for it is no compensation at all. The illustrations given by us are not exhaustive. There may be many others falling on either side of the line. But this much is clear. If the compensation is illusory or if the princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring on Article 31(2). After doing so, he observed at p. 365 of the report: Reverting to the amendment made in Clause (2) of Article 31 by the Constitution (Fourth Amendment) Act, 1955, it is clear that adequacy of compensation fixed by the Legislature or awarded according to the principles specified by the Legislature for determination is not justiciable. It clearly follows from the terms of Article 31(2) as amended that the amount of compensation payable if fixed by the Legislature, is not justiciable, because the challenge in such a case, apart from a plea of abuse of legislative power, would be only a challenge to the adequacy of compensation. If compensation fixed by the Legislature-and by the use of the expression compensation we mean what the legislature justly regards as proper and fair recompense for compulsory expropriation of property and not something which by abuse of legislative power though called compensation is not a recompense at all or is something illusory-is not justiciable, on the plea that it is not a just equivalent of the property compulsorily acquired is it open to the courts to enter upon an enquiry whether the principles which are specified by the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n abuse of legislative power. It further laid down that the principles laid down may be challenged on the ground that they are not relevant for the purpose of determining the recompense payable to the owner of the property acquired. If the recompense fixed or determined is either not arbitary or illusory or if the principles fixed are relevant to the purpose of acquisition or requisition of the property i n question, the courts cannot go into the question of adequacy of the payment. 737. Then came the Bank Nationalisation case. The majority judgment in that case was delivered by Shah J. (as he then was). In that judgment he referred somewhat extensively to the decision in Shantilal Mangaldas s case and other cases rendered by this Court. He did not purport to deviate from the rule laid down in Shantital s case. The ratio of that decision relating to Article 31(2) is found at p. 598 of the report. The learned judge observed: Both the lines of thought (in Vajravelu s case and Shantilal s case) which converge in the ultimate result, support the view that the principle specified by the law for determination of compensation is beyond the pale of challenge, if it is relevant to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that aspect. All that we are concerned with is as to what is the effect of the substitution of the word amount in place of the word compensation . As seen earlier, the word compensation has been interpreted in the various decisions referred to earlier as just equivalent of the value of the property taken. That concept ha s now been removed. In other respects, the Article has not been altered. It remains what it was. We have earlier noticed that the decisions of this Court have firmly laid down that while examining the validity of law made under Article 31(2) as it stood after it was amended under the 4th Amendment Act, it was open to the Court to go into the questions whether the compensation had been fixed arbitrarily and whether the same was illusory. Those decisions further ruled that the Court can go into the relevant of the principles fixed. Parliament would have undoubtedly known the ratio of those decisions. That is also the legal presumption. Hence if the Parliament intended to take away the judicial review in any respect other than relating to the adequacy of the amount fixed, it would have expressed its intention by appropriate words. We find no such words in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then the word amount is followed by the words which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law and no such law shall be called in question in any court on the ground that the amount so fixed or determined is not adequate. 745. If the expression amount has no norm and is just what the Parliament stipulates, there can be no question of prescribing principles for determining that amount ; nor is there any scope for finding out its adequacy. The legislatures are permitted under the amended Article 31(2) either to fix the amount to be paid in lieu of the property acquired or to lay down the principles for determining that amount . These two alternative methods must bring about nearly the same result. If the relevancy of the principles fixed can be judicially reviewed-as indeed they must be-in view of the dicisions referred to earlier, we fail to see how the fixation of the amount which is the alternative method of determining the recompense to be paid in lieu of the property taken is excluded from judicial review. 746. The word fixed in Article 31(2) connotes or postu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed is adequate or not, it necessarily means that the amount payable has to be determined on the basis or principles relevant for determining the value of the property acquired or requisitioned. There can be no question of adequacy unless the amount payable has been determined on the basis of certain norms and not arbitrarily, without having regard to the value of the property. 748. Further, Article 31(2) provides for fixing or determining the amount for the acquisition or requisitioning of the property. The State action is still described as acquisition or requisition and not confiscation . Therefore, the principles for fixing or determining the amount must be relevant to the acquisition or requisition , and not to confiscation . The amount fixed or determined should not make it appear that the measure is one of confiscation. The principles for fixing or determining the amount may be said to be relevant to the acquisition or requisition when they bear reasonable relationship to the value of the property acquired or requisitioned. 749. Further there is practical difficulty in accepting the contention that the word amount in the context in which it is used, has no no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of examining the correctness or appropriateness of the amount fixed. A power so arbitrary as that can speedily degenerate into an instrument of oppression and is likely to be used for collateral purposes. Our Constitution has created checks and balances to minimise the possibility of power being misused. We have no doubt that the theory propounded by the Advocate General of Maharashtra will be repudiated by our legislatures and the cabinets as something wholly foreign to our Constitution. 750. If we bear in mind the fact that the amount in question is to be paid in lieu of the property taken, then, it follows that it must have a reasonable relationship with the value of the property taken. It may not be the market value of the property taken. The market value of a property is the result of an inter-action of various forces. It may not have any reasonable relationship with the investment made by its successive owners. The price of the property acquired might have shot up because of various contributions made by the society such as improvements effected by the State in the locality in question or the conversion of a rural area into an urban area. It is undoubtedly open to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o compulsorily acquire or requisition property for public purpose. When property is acquired or requisitioned for public purpose, the right of the owner of that property to hold or dispose of that property is necessarily lost. Hence there is no anti-thesis between Article 19(1)(f) and Article 31(2). That being so, the only assistance that the owner of the property acquired or requisitioned would have obtained from Article 19(1)(f) read with Sub-article (5) of that Article would be the right to insist that the law made under Article 31(2) as it stood before its recent amendment, should have to conform to some reasonable procedure both in the matter of dispossessing him as well as in the matter of determining the amount payable to him. In a way, those rights are protected by the principles of natural justice. 753. For the reasons mentioned above, we are unable to accept the contention urged on behalf of the petitioners that Section 2 of the 25th Amendment Act, 1971 is invalid. 754. This takes us to Section 3 of the 25th Amendment Act which now stands as Article 31C of the Constitution. This Article empowers the Parliament as well as the Local Legislatures to enact laws giving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our Constitution. The purpose of the Fundamental Rights is to create an egalitarian society, to free all citizens from coercion or restriction by society and to make liberty available for all. The purpose of the Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution. Through such a social revolution the Constitution seeks to fulfil the basic needs of the common man and to change the structure of bur society. It aims at making the Indian masses free in the positive sense. 756. Part IV of the Constitution is designed to bring about the social and economic revolution that remained to be fulfilled after independence. The aim of the Constitution is not to guarantee certain liberties to only a few of the citizens but for all. The Constituti on visualizes our society as a whole and contemplates that every member of the society should participate in the freedoms guaranteed. To ignore Part IV is to ignore the substance provided for in the Constitution, the hopes held out to the Nation and the very ideals on which our Constitution is built Without faithfully implementing the Directive Principles, it is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ediments in the way of States, in implementing the Directives. These controversies are not capable of being decided by courts. 760. There is no doubt that the power conferred under Article 31C, if interpreted in the manner contended on behalf of the Union and the States would result in denuding substantially the contents of the right to equality, the right to the seven freedoms guaranteed under Article 19 and the right to get some reasonable return by the person whose property is taken for public purpose. Unlike Article 31A, Article 31C is not confined to some particular subjects. It can take in a very wide area of human activities. The power conferred under it, is an arbitrary power. It is capable of being used for collateral purposes. It can be used to stifle the freedom of speech, freedom to assemble peaceably, freedom to move freely throughout India, freedom to reside and settle in any part of India, freedom to acquire, hold and dispose of property and freedom to practise any profession or carry on any occupation, trade or business. The power conferred under that provision is a blanket power. Even a small majority in a legislature can use that power to truncate or even destr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Legislatures to enact laws contravening one or more of the provisions in Part III. Article 31(4) relates to legislation s pending before the State Legislatures at the time the Constitution came into force. Their scope was known to the Constitution-makers. That provision was enacted to protect certain Zamindari Abolition laws which were on the anvil. But it must be remembered that the original provisions in the Constitution were not controlled by Article 368. That Article is as much a creature of the Constitution as the other Articles are. The form and manner prescribed in Article 368 did not govern the procedure of the Constituent Assembly. The mandates contained in Article 368 are applicable only to the amendments made to the Constitution. The power to amend the Constitution was exclusively given to the Parliament and to no other body. The manner of exercising that power is clearly prescribed. Article 31C gives a very large power to the State Legislatures as well as to Parliament to pro tanto amend the Constitution by enacting laws coming within its ambit. To put it differently, Article 31C permits the State Legislatures and the Parliament to enact Constitution-breaking laws by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is some similarity between the laws made under Article 31A and those made under Article 31C. The scope of the latter article is much wider than that of the former. The character of the laws made under both those Articles is somewhat similar. It was urged that if laws made under Article 31-A, without more, are valid even if they take away or abridge the rights conferred under Articles 14, 19 and 31, for the same reason, laws made under Article 31C must also be held valid. It was contended, now that this Court has upheld the validity of Article 31-A, we should also uphold the validity of Article 31C. In that connection, reliance was placed on the following observations of Brandies J. of the United States Supreme Court in Lesser v. Garnett : 66 L. Ed. p. 595(511)=258 U.S.13. This Amendment (19th Amendment) is in character and phraseology precisely similar to the 15th. For each the same method of adoption was pursued. One cannot be valid and the other invalid. That the 15th is valid...has been recognised and acted upon for half a century.... The suggestion that the 15th was incorporated in the Constitution not in accordance with law, but practically as a war measure which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted with the creation of the monopoly that are protected. The rest of the provisions which may be incidental do not fall under the latter part of Article 19(6) and would inevitably have to satisfy the test of the first part of Article 19(6). 768. The same principle was reiterated by the full Court in the Bank Nationalisation case. 769. As far back as in 1951 this Court ruled in State of Bombay and Anr. v. F.N. Balsara [1951] S.C.R. 682 that merely because law was enacted to implement one of the Directive Principles, the same cannot with impunity encroach upon the Fundamental Rights. The ratio of Akadasi Padhan s case would be equally applicable in respect of the laws made under Article 31A which speaks of the law providing for the topics mentioned therein. But that ratio cannot be effectively applied when we come to laws made under Article 31C. The reach of Article 31C is very wide. It is possible to fit into the scheme of that Article almost any economic and social legislation. Further, the Court cannot go into the question whether the laws encted do give effect to the policy set out in Article 39(b) and (c). We were told on behalf of the Union and the States that it is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he manner prescribed in Article 368. The State Legislatures are not institutions subordinate to Parliament. Parliament as well as State Legislatures in their respective allocated fields are supreme. Parliament cannot delegate its legislative powers-much less the amending power-to the State Legislatures. The question whether the legislatures can confer power on some other independent legislative body to exercise its legislative power came up for consideration before the Judicial Committee in re The Initiative and Referendum Act [1919] A.C. p. 935 at 945 P.C. Therein Viscount Haldane speaking for the Board observed: Section 92 of the Act of 1867 (British North American Act) entrusts the legislative power in a Province to its legislature and to that legislature only. No toubt a body with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capacity intact, seek the assistance of subordinate agencies, as had been done in Hodge v. The Queen 19 App. Cas. 117 the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to Taver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . At the same time, the Court is not entitled to place very great reliance upon the fact that, in cases, before it where occasions might have been made to raise the question for argument and decision, this was not done by any member of the Court and that on the contrary all accepted the common assumption of the parties and decided the case accordingly. Undesirable as it is that doubtful questions of validity should go by default, the fact is that, the court usually acts upon the presumption of validity until the law is specifically challenged. 775. Similar was the view expressed by Viscount Simonds speaking for the Judicial Committee in Attorney-General of Commonwealth of Australia v. The Queen and Ors. 95, C.L.R. 529 at 547 It is therefore asked and no one can doubt that it is a formidable question, why for a quarter of a century no litigant has attacked the validity of this obviously illegitimate unions. Why in Alexannder s case (1918) 25, C.L.R. 434) itself was no challenge made ? How came it that in a series of cases, which are enumerated in the majority and the dissentient, judgments it was assumed without question that the provisions now impugned were valid ? It is cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s powers conferred on the legislatures under the Constitution, in particular by the exercise of the power to tax, a power of the largest amplitude. That power can be exercised without discriminating against any section of the people. One of the basic underlying principles of our Constitution is that every governmental power, which includes both the power of the executives as well as of the legislatures, must be so exercised as to give no room for legitimate complaint, that it was exercised with an evil eye or an uneven hand. 778. For the reasons mentioned above, we hold that Article 31C permits the destruction of some of the basic features of our Constitution and consequently, it is void. 779. Lastly, we come to the validity of the 29th Amendment Act, 1972. Contentions relating to the 29th Amendment Act of the Constitution lie within narrower limits. The only plea taken was that if any of the provisions in the two Acts included in the IXth Schedule to the Constitution by means of the 29th Amendment Act does not satisfy the requirements of Article 31A(1)(a), the said provision does not get the protection of Article 31-B. 780. As a result of the 29th Amendment Act, the Keral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pening words of Article 31-B, namely Without prejudice to the generality of the provisions contained in Article 31A showed that the mention of particular statutes in Article 31-B read with the Ninth Schedule was only illustrative, and that, accordingly, Article 31-B could not be wider in scope.. Reliance was placed in support of this argument upon the decision of the Privy Council in Sibnath Banerji s case. (1945) F.C.R. 195). I cannot agree with that view. There is nothing in Article 31-B to indicate that the specific intention of certain statutes was only intended to illustrate the application of the general words of Article 31-A. The opening words of Article 31-B are only intended to make clear that Article 31-A should not be restricted in its application by reason of anything contained in Article 31-B and are in no way calculated to restrict the application of the latter article or of the enactments referred to therein to acquisition of estates . 783. In Vishweshwar Rao v. The State of Madhya Pradesh (1952) S.C.R. 1020 Mahajan J. (as he then was) reiterated the same view. He observed: It was contended that Article 31-B was merely illustrative of the rule stated in Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1B is a Constitutional device to place the specified statutes beyond any attack on the ground that they infringe Part III of the Constitution.... 785. Several other decisions of this Court proceed on the basis that Article 31-B is independent of the Article 31A. It is too late in the day to reopen that question. Whether the Acts which were brought into the IXth Schedule by the 29th Amendment Act or any provision in any of them abrogate any of the basic elements or essential features of the Constitution can be examined when the validity of those Acts is gone into. 786. For the foregoing reasons, we reject the contention of the petitioners that before an Act can be included in the IXth Schedule, it must satisfy the requirements of Article 31- A. 787. In the result we hold: (1) The power to amend the Constitution under Article 368 as it stood before its amendment empowered the Parliament by following the form and manner laid down in that Article, to amend each and every Article and each and every Part of the Constitution. (2) The expression law in Article 13(2) even before Article 13 was amended by the 24th Amendment Act, did not include amendments to the Constitution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar their own costs in these cases uptill this stage. A.N. Ray, J. 788. The validity of the Constitution 24th, 25th and 29th Amendment Acts is challenged. The Constitution 24th Amendment Act amended Article 368. Article 368 in the unamended form speaks of Amendment of this Constitution and how the Constitution shall stand amended. The Constitution 24th Amendment Act enacts that Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in that Article. The other part of the amendment is that nothing in Article 13 shall apply to any amendment under Article 368. The Constitution 25th Amendment Act has amended Article 31(2) and also Article 31(2A). The effect of these two amendments with regard to Articles 31(2) and 31 (2A) is two-fold. First, no property shall be compulsorily acquired or requsitioned save for a public purpose and save by authority of law which provides for an amount which may be fixed by law or which may be determined in accordance with such principles. Secondly, nothing in Article 19(1)(f) shall affect any law as is referred t o in Article 31(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of the Constitution will not be less sacred in the eyes of opponents than in his own. The question is He that planted the car, shall he nor hear? or he that made the eye, shall he no see . 790. The real question is whether there is any power to amend the Constitution and if so whether there is any limitation on the power. The answer to this question depends on these considerations. First, what is the correct ratio and effect of the decision in I.C. Golak Nath and Ors. v. State of Punjab and Anr. (1967) 2 S.C.R. 762. Second, should that ratio be upheld. Third, is there any limitation on the power to amend the Constitution. Fourth, was the 24th Amendment validly enacted. If it was, is there any inherent and implied limitation on that power under Article 368 as amended. 791. The scope and power under Article 368 as it stood prior to the Constitution (24th) Amendment Act to amend the Constitution falls for consideration. 792. Two principal questions arise. First, is the Constitution as well as an amendment to the Constitution law within the meaning of Article 13(2). Seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as it purported to take away or abridge the rights conferred by Part III of the Constitution fell within the prohibition of Article 13(2) of the Constitution. 798. The unanimous view of this Court in Shankari Prasad case was that although law must ordinarily include Constitutional law there is a clear demarcation between ordinary law which is made in exercise of legislative power and Constitutional law which is made in exercise of constituent power. In the absence of a clear indication to the contrary it is difficult to hold that the framers of the Constitution intended to make the fundamental rights immune of Constitutional amendment The terms of Article 368 are general to empower Parliament to amend the Constitution without any exception. Article 13(2) construed in the context of Article 13 means that law in Article 13(2) would be relateable to exercise of ordinary legislative power and not amendment to the Constitution. 799. The Constitution Fourth Amendment Act came into existence on 5 October, 1963. The Constitution Seventeenth Amendment Act came into force on 20 June, 1964. By the Seventeenth Amendment Act Article 31A Clause (1) was amended by inserting one more proviso. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fourth Amendment Act, 1955 and the Constitution Seventeenth Amendment Act, 1964. The validity of the Mysore Reforms Act, 1962 as amended by Act 14 of 1965 was also challenged on the same grounds. The Punjab Act and the Mysore Act were included in the Ninth Schedule. It was common case that if the Seventeenth Amendment Act adding the Punjab Act and the Mysore Act in the Ninth Schedule was valid the two Acts could not be impugned on any ground. 804. The majority decision of this Court in Golak Nath case was that an amendment of the Constitution was law within the meaning of Article 13(2). There were two reasonings in the majority view arriving at the same conclusion. The majority view where Subba Rao, C.J., spoke was as follows: The power to amend the Constitution is derived from Articles 245, 246 and 248 of the Constitution and not from Article 368. Article 368 deals only with procedure. Amendment is a legislative process. Amendment is law within the meaning of Article 13. Therefore, if an amendment takes away or abridges rights conferred by Part III of the Constitution it is void. The Constitution First Amendment Act, the Constitution Fourth Amendment Act and the Constitution Seven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Judges expressed in 3 judgments as against the majority view of six learned Judges in Golak Nath case was this. 808. Wanchoo, J. spoke for himself and two concurring learned Judges as follows. Article 368 contains both the power and the procedure for amendment of the Constitution. It is incomprehensible that the residuary power of Parliament will apply to amendment of the Constitution when the procedure for amendment speaks of amendment by ratification by the States. When an entire part of the Constitution is devoted to amendment it will be more appropriate to read Article 368 as containing the power to amend because there is no specific mention of amendment in Article 248 or in any Entry of List I. The Constitution is the fundamental law and without express power to affect change legislative power cannot effect any change in the Constitution. Legislative Acts are passed under the power conferred by the Constitution. Article 245 which gives power to make law for the whole or any part of India is subject to the provisions of the Constitution. If, however, power to amend is in Article 248 read with the residuary Entry in List I that power is to be exercised subject to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utional amendment though it includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage. The language of Article 368 is perfectly general and empowers Parliament to amend the Constitution without any exception whatever. If it had been intended by the Constitution makers that the fundamental righto guaranteed under Part III should be completely outside the scope of Article 368 it is reasonable to assume that they would have made an express provision to that effect. The expression fundamental does not lift the fundamental rights above the Constitution itself. In a matter of Constitutional amendment it is not permissible to assume that there will be abuse of power and then utilise it as a test for finding out the scope of amending power. 812. The majority view in Golak Nath case was that an amendment of the Constitution pursuant to Article 368 is law within the meaning of Article 13(2), and, therefore, an amendment of the Constitution abridging fundamental rights will be void. The majority view was on the basis that there was conflict between Article 13(2) and Article 368 and this basis was the result of the nature and quality of fundamental rights in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls over any other form of law not because of any provision to that effect either in the Constitution or else where but because of the underlying assumption to that effect by the community. If Parliament passes a law under any of the items in the Union List abridging a fundamental right and also provides in that law itself that it shall not be invalid notwithstanding anything in Article 13 or Part III of the Constitution, yet the law made by Parliament will be invalid to the extent of its inconsistency with Part III of the Constitution. It will be invalid because Article 13 occurs in the Constitution which is supreme. The impugned Act cannot enact that it will be valid notwithstanding the Constitution. 815. The real distinction is that Constitutional law is the source of all legal validity and is itself always valid. Ordinary law on the other hand must derive its validity from a higher legal source, which is ultimately the Constitution. Law in Article 13(2) of the Constitution could only mean that law which needs validity from a higher source and which can and ought to be regarded as invalid when it comes in conflict with higher law. It cannot possibly include a law which is self ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no distinction between Article 13(2) which expressly affirms the doctrine of ultra vires and the necessary implication of the doctrine of ultra vires which has been applied to every part of our Constitution. If the express doctrine of ultra vires prevented an amendment of Part III of the Constitution contrary to its terms, equally an amendment of other parts of the Constitution contrary to their terms would be prevented by the implied doctrine of ultra vires. The result would be that an amendment of the Constitution which contravened the terms of the existing Constitution would be void. This would result in absurdity. That is why Article 368 expressly provides for the amendment of the Constitution. 818. Mr. Palkhivala on behalf of the petitioner submitted that Constitution amendment was law, within Article 13(2) and was void to the extent to which it contravened the fundamental rights and Article 368 did not prevail over or override Article 13 for these reasons. Reference was made to the form of oath in the Third Schedule which uses the words Constitution as by law established . This is said to mean that our Constitution was originally established by law and, therefore, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to Constitutional law which is fundamental law and ordinary law is not a mere homonym. If the word law here is not a mere homonym then it is a mistake to think that all the instances to which it is applied must possess either a single quality or a single set of qualities in common. There is some general test or criterion whereby the rules of the fundamental law or the rules of the system of ordinary laws are tested and identified. When the word law is spoken in connection with Constitutional law it cannot have the same meaning as ordinary law. It is not arbitrary to use the word law in relation to Constitutional law in spite of its difference from ordinary law. 821. Mr. Palkhivala contended that Constitutional laws of Princely States and of British India prior to our Constitution survived as laws in force under Article 372. Article 372 became necessary to make a provision similar to Section 292 of the Government of India Act, 1935 following the repeal of the 1935 Act and the Indian Independence Act, 1947. The purpose of Article 372 is to negative the possibility of any existing law in India being held to be no longer in force by reason of the repeal of the law authorisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming into existence no other Constitutional law survived. Article 393 of our Constitution says that the Constitution may be called the Constitution of India . The Preamble recites that the People in the Constituent Assembly gave this Constitution meaning thereby the Constitution of India. Therefore, the people gave themselves no other Constitution. All other laws whatever their previous status as strict Constitutional law became subordinate laws subject to the provisions of our Constitution and this position is clear from the language of Article 372. 824. In a broad sense law may include the Constitution and the law enacted by the legislature. There is however a clear demarcation between ordinary law in exercise of legislative power and Constitutional law which is made in exercise of constituent power. Therefore, a power to amend the Constitution is different from the power to amend ordinary law. It was said by Mr. Palkhivala that legislative power is power to make law and constituent power is the power to make or amend Constitutional law and since law in its ordinary sense, includes Constitutional law the legislative power is the genus of which the constituent power is the spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng process it is not legislating. It is exercising a particular power which is sui generis bestowed upon it by the amending clause in the Constitution. Thus an amendment of the Constitution under Article 368 is constituent law and not law within the meaning of Article 13(2) and law as defined in Article 13(3)(a). 826. The procedure that Bill for amendment of the Constitution has to be introduced in either House of Parliament and passed by both Houses does not alter the status of Parliament to amend the Constitution as a Constituent Assembly and does not assimilate it to that of the Union legislature. At this stage it may be stated that in Shankari Prasad case it was said that law in general sense may include the Constitution and the procedure of amendment is assimilated to ordinary legislative procedure. Assimilation of procedure does not make both the procedure same. Nor are the two separate powers to be lost sight of. The Constituent Assembly which has summoned on 19 December, 1946 to frame a Constitution was also invested after independence with legislative power. It framed the Constitution as the Constituent Assembly. It enacted ordinary laws as legislature. Under Article V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent is to be introduced in either House of Parliament. Again, a bill must be passed by each House by not less than two thirds of the members present and voting, the requisite quorum in each House being a majority of its total membership. In cases coming under the proviso the amendment must be ratified by the legislatures of not less than half the number of States. Ordinary legislative process is very different; A bill initiating a law may be passed by majority of members present and voting at a sitting of each House and at a joint sitting of House, the quorum for the meeting of either House being one tenth of the total members of the House. 829. The legislative procedure is prescribed in Articles 107 to 111 read with Article 100. Article 100 states save as otherwise provided in the Constitution all questions at any sitting of either House or joint sitting shall be determined by a majority of votes of the members present and voting . Though Article 368 falls into two parts of the Article is one integral whole as is clear from the words the amendment shall also require to be ratified . The first part of Article 368 requires that a bill must be passed in each House (1) by majo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of all amendments. These fou r provisions confer on Parliament limited power of amendment. There are two features common to all these provisions. First, they confer on Parliament a power to make a law which inter alia provides for the specific class of amendments. Second, each of these provisions states that no such law as aforesaid shall be deemed to be an amendment of the Constitution for the purpose of Article 368 . The power to amend under any of these four provisions is a specific power for specific amendments and not a legislative power contained in the Legislative List or Residuary Legislative List. 833. The amendment under Article 4 follows a law providing for the formation of new States and alteration of areas, boundaries and names of existing States. It is obligatory on Parliament to make amendment of Schedules 1 and 4 and it is necessary to make amendments which are supplemental, incidental and consequential. In making such a law in so far as it affects the State but not Union territory a special procedure has to be followed. 834. Under Article 169 which provides for the abolition or creation of a State legislative Council Parliament has power to make a necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to whether such a Constituent Assembly could take away or abridge fundamental rights but the other view expressed the opinion that such a Constituent Assembly could abridge fundamental rights. The majority view in Golak Nath case was that Parliament is a constituted body and not a constituent body and a constituted body cannot abridge or take away fundamental rights. The majority view indicates that a constituent power was required to amend the fundamental rights. 838. The majority view has totally ignored the aspect that constituent power is located in Article 368, and, therefore, amendment under the Article is not a law within the meaning of Article 13(2). If Parliament is a constituted body as was said by the majority view in Golak Nath case it would be difficult to hold that such a body could bring about a Constituent Assembly. The well-known principle that what cannot be done directly cannot be achieved indirectly will establish the basic infirmity in that majority view. If fundamental rights can be abridged by Parliament calling a Constituent Assembly under the Residuary Entry such Constituent Assembly will be a body different from Parliament and will frame its own rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recise as it is used in respect of subject matter of law, e.g. a la w dealing with the legislature. In a rigid or written Constitution whatever is in the Constitution would be the law of the Constitution. 842. In McCawley case the validity of the appointment of McCawley as a Judge of the Supreme Court of Queensland was challenged as void on the allegation that Section 6 Sub-section (6) of the Industrial Arbitration Act of 1916 was contrary to the provisions of the Constitution of Queensland 1867. The Industrial Arbitration Act of 1916 by Section 6 Sub-section (6) authorised the Governor to appoint any Judge of the Court of Industrial Arbitration to be a Judge of the Supreme Court of Queensland and provided that a Judge so appointed shall have the jurisdiction of both offices and shall hold office as a Judge of the Supreme Court during good behaviour. The sub-section further provided that Judge of the Court of Industrial Arbitration shall hold office for seven years. The Governor in Council by commission reciting Section 6 Sub-section (6) appointed McCawley who was a Judge and the President of the Court of Industrial Arbitration to be a Judge of the Supreme Court during good beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use 22 of the Order in Council 1859 and Sections 2 and 9 of the Constitution Act of 1867. 846. The decision in McCawlay case shows that unless there is a special procedure prescribed for amending any part of the Constitution the Constitution is uncontrolled and can be amended by the manner prescribed for enacting an ordinary law and therefore a subsequent law inconsistent with the Constitution would pro tanto repeal the Constitution. The decision also established that a Constitution largely or generally uncontrolled may contain one or more provisions which prescribe a different procedure for amending the provisions of the Constitution. If this is prescribed the procedure for amendment must be strictly followed. 847. The legislature of Queensland was found to be master of its own household except in so far as its powers were restricted in special cases. No such restriction was establishe d in the case before the Privy Council. The legislature had plenary power there. The legislature was not required to follow any particular procedure or to comply with any specified conditions before it made any law inconsistent with any of the provisions of Constitutional document. 848. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Representatives. 850. Section 29 of the Ceylon (Constitution) Order in Council provided in Sub-sections (1), (2), (3) and (4) as follows: 29(1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island. (2) No such law shall-(a) prohibit or restrict the free exercise of any religion; (3) Any law made in contravention of Sub-section (2) of this section shall, to the extent of such contravention, be void. (4) In the exercise of its powers under this section Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island: Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two-thirds of the whole number of Members of the House (including those not present). Every certificate of the Speaker under this sub-section shall be conclusive for all purposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power to make laws by a majority except upon one subject that was not in question and the legislation was held to be valid because it was treated as pro tanto an alternation of the Constitution which was neither fundamental in the sense of being beyond change nor so constituted as to require any special process to pass a law upon the topic dealt with. The word fundamental in the sense of being beyond change refers to express limitations as to power or manner and form of change. These words do not mean as Mr. Palkhivala contended that there are fundamental features of the Constitution which cannot be amended. 854. The legislature purported to pass a law which being in conflict with Section 55 of the Order in Council must be treated if it is to be valid, as an implied alteration of the Constitutional provisions about the appointment of judicial officers. Such alterations could only be made by laws which complied with the special legislative procedure laid down in Section 29(4). The provisions in Section 29(4) were found not to confer on the Ceylon legislature the general power to legislature so as to amend the Constitution by ordinary majority resolution which the Queensland l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ceylon Constitution. Our Constitution in Article 100 makes an identical provision for ordinary legislative procedure. Section 29(2) confers rights of freedom of religion and Section 29(3) states that no laws shall be made prohibiting or restricting such freedom. Part III of our Constitution contains among other fundamental rights, rights to freedom of religion. Section 29(3) expressly makes laws in contravention of Section 29(2) void to the extent of contravention. Article 13(2) of our Constitution expressly makes law which takes away or abridges fundamental rights void to the extent of the contravention. Section 29(4) of the Ceylon Constitution dealing with the amendment of the Constitution does not expressly make void a law amending the Constitution. 858. It follows from McCawley case and Ranasinghe case that a legislature has no power to ignore the conditions of law making imposed upon it which regulate its power to make law. The Ceylon legislature had no general power to legislate so as to amend its general power by ordinary majority resolution such as Queensland legislature was found to have under Section 2 of the Queensland Constitution. Peace, order and good government i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Sub-section (4). The Privy Council affirmed that position. There is nothing to prevent by appropriate amendment a deletion of Section 29(4) of the Ceylon Constitution which would then empower Parliament to achieve the power to amend by an ordinary majority. Section 29(1) is not legislative power alone but a composite power when read along with Section 29(4) in the context of the Ceylon Constitution. It includes both legislative and constituent power. Sub-sections (2) and (3) of Section 29 are not the grant of power but limitation on power. Its terms show that limitation is at any rate on the legislative power of enacting laws contrary to Sub-sections (2) and (3) of Section 29. If Section 29(1) is a composite legislative and constituent power and Sub-section (2) and (3) are a restraint on legislative power the constituent power under Sub-section (4) remains unaffected. The sequiter is that Section 29(4) is consistent only with the view that so far as amendment of Sub-sections (2) and (3) is concerned amendment is permited and there is no limitation on constituent power under Section 29(4). The Privy Council took the widest view of the amending power. In fact the narrower view was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey could have expressly done so. 863. In Ghulam Sarwar v. Union of India (1967 2 S.C.R. 271 it was said there was a distinction between deprivation of fundamental rights by force of a Constitutional provision itself and such deprivation by an order made by President in exercise of a power conferred on him under Constitutional provision. The dissenting view in Ghulam Sarwar case was that an order of the President was not a law within the meaning of Article 13(2). In Mohd. Yakub v. State of Jammu Kashmir (1968) 2 S.C.R. 227 the majority view of the Constitution Bench was that an order of the President under Article 359 was not law within the meaning of Article 13(2). There is no distinction between Article 358 and Article 359(1). Article 358 by its own force suspends the fundamental rights guaranteed by Article 19. Article 359(1) on the other hand does not suspend any fundamental rights of its own force but it gives force to order by the President declaring suspension of the enforcement of any fundamental right during the period of emergency. In Mohd. Yakub case it was said that it could not mean that an order under Article 359(1) suspending the enforcement of a particular fund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter because the entire Constitution was to prevail over law. 868. On 23 April, 1947 the Advisory Committee on Fundamental Rights presented an interim report addressed to the President of the Constituent Assembly containing an annexure providing for justiciable fundamental rights. See Shiva Rao Vol. II pp. 294-296 seq. Clause 2 of the Annexure to that report was as follows: All existing laws, notification, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this part of the Constitution shall stand abrogated to the extent of such inconsistency nor shall the Union or any unit may make any law taking away or abridging any such right. 869. Clause 2 of the annexure to the interim report was discussed in the Constituent Assembly on 29 April, 1947. Shri K. Santhanam moved an amendment to Clause 2. The amendment was as follows : In Clause 2 for the words nor shall the Union or any unit make any law taking away or abridging any such right the following be substituted: Nor shall any such right be taken away or abridged except by an amendment of the Constitution . The amendment was accepted as will appear in Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so appears that no discussion took place after the Draft Constitution had been presented to the Constituent Assembly by Dr. Ambedkar on the deletion or disregard of Shri Santhanam s amendment. The history of Article 13(2) shows that the Constituent Assembly clearly found that it did not apply to an amendment of the Constitution. 874. The distinction between constitutent and legislative power in a written Constitution is of enormous magnitude. No provision of the Constitution can be declared void because the Constitution is the touchstone of validity. There is no touchstone of validity outside the Constitution. Every provision in a controlled Constitution is essential or so thought by the framers because of the protection of being amendable only in accordance with the Constitution. Every Article has that protection. The historical background of Article 13(2) indicates that the Constitution-makers dealt separately with legislative power by providing for the same in Part XI and entrusted the constituent power to authorities mentioned in Article 368 and that authority has the same power as the Constituent Assembly because it has not put any fetter upon it. The draft Article 305 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... governed by Article 13 (2). Article 368 relates to power and procedure of amendment of the Constitution. Upon amendment of the Constitution the Constitution shall stand amended. The Constitution is self validating and self executing. Article 13(2) does not override Article 368. Article 13(2) is not a fundamental right. The Constitution is the touchstone. The constituent power is sui generis. The majority view in Golak Nath case that Article 13(2) prevails over Article 368 was on the basis that there was no distinction between constituent and legislative power and an amendment of the Constitution was law and that such law attracted the opening words of Article 245 which in its turn attracted the provisions of Article 13(2). Parliament took notice of the two conflicting views which had been taken of the unamended Article 368, took notice of the fact that the preponderating judicial opinion, namely, the decisions in Shankari Prasad case Sajjan Singh case and the minority views of five learned Judges in Golak Nath case were in favour of the view that Article 368 contained the power of amendment and that power was the constituent power belonging to Parliament Wanchoo, J. rightly said i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mooth working of the statute. The Court adopts which is just reasonable and sensible rather than that which is none of these things. It is not to be presumed that the legislature intended the legislation to produce inequitable results. Usurpation of power contrary to the Constitution is to be avoided. 880. Reliance was placed by Mr. Palkhivala on American Jurisprudence 2d. Vol. 16 Article 59 at pp. 231-232, Article 72 at p. 251, Article 287 at pp. 270-71 and Article 88 at pp. 273-74 in support of these propositions. First, questions of Constitutional construction are in the main governed by the same general principles which control in ascertaining the meaning of all written instruments particularly statutes. External aids or arbitrary rules applied to the construction of a Constitution are of uncertain value and should be used with hesitation and circumspection. Second, Constitutions are general and many of the essentials with which Constitutions treat are impliedly controlled or dealt with by them and implication plays a very important part in Constitutional construction. What is implied is as much a part of the instrument as what is expressed. Third, a Court may look to the hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed meaning in view of the expression amend by way of addition, variation or repeal any of the provisions of this Schedule occurring in paragraphs 7 and 21 in Schedules 5 and 6, is unsound for the following reasons. 884. First, the power of amendment conferred by the four provisions, namely, Article 4 read with Articles 2 and 3, Article 169, paragraphs 7 and 21 in Schedules 5 and 6 is a limited power. It is limited to specific subjects. The exercise of the power of amendment under those four provisions, if treated by Articles themselves, is an uncontrolled power since the power can be exercised by an ordinary law. But as a part of the Constitution the power is a subordinate power because these Articles themselves are subject to the amending provisions of Article 368. Article 368 is the only provision of the Constitution which provides for the amendment of this Constitution which means the Constitution of India and every part hereto. It may be mentioned that in construing Article 368 the title of the part Amendment of the Constitution is an important aid to construction. The marginal note which speaks of the procedure of amendment is not complete by itself because the procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odification or repeal. It was, therefore, said that when our Constitution did not use the expression by way of addition, modification or repeal the word amendment in Article 368 will have a narrower meaning. The expression amendment has been used in several Articles of the Constitution. These are Articles 4(1) and (2), 108(4), 109(3), and 4, 111, 114(2), 169(2), 196(2), 198(3) and (4), 200, 201, 204(2), 207(1), (2), 240(2), 274(1), 304(b) and 349. In every case amendment is to be by way of variation, addition or repeal. Again, different expression have been used in other Articles. In Article 35(b) the words are alter, repeal. In Article 243(1) the words are repeal or amend. In Article 252(2), the expression is amend or repeal. In Article 254(2) proviso the words are add to, amending, variation or repeal. In Article 320(4) the words are such modifications whether by way of repeal or amendment. In Article 372(1) the words are altered or repealed or amended. In Article 372(2) the words are such adaptations and modifications by way of repeal or amendment. In Article 392(1) the expression is such adaptations by way of modification, addition or commission. Again, in Article 241(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gave two correct reasons for the object and necessity of the power of amendment in a written Constitution. First, the object and necessity of amendment in a written Constitution means that the necessity is for changing the Constitution in an orderly manner, for otherwise the Constitution can be changed only by an extra Constitutional method or by revolution, Second, the very object of amendment is to make changes in the fundamental law or organic law to make fundamental changes in the Constitution, to change the fundamental or the basic principles in the Constitution. Otherwise there will be no necessity to give that importance to the high amending power to avoid revolution. 893. The object of amendment is to see that the Constitution is preserved. Rebellion or revolution is an illegal channel of giving expression to change. The consent of the governed is that each generation has a right to establish its own law. Conditions change. Men Change, Opportunities for corresponding change in political institutions and principles of Government therefore arise. An unamendable Constitution was the French Constitution which by an amendment to the Constitution adopted in 1884 declared th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order to give the expression to social necessity and to give permanence to the Constitution. 897. The people expressed in the Preamble to our Constitution gave the Constitution including the power to amend the Constitution to the bodies mentioned in Article 368. These bodies represent the people. The method to amend any part of the Constitution as provided for in Article 368 must be followed. Any other method as for example convening Constituent Assembly or Referendum will be extra Constitutional or revolutionary. In our Constitution Article 368 restricts only the procedure or the manner and form required for amendment but not the kind or the character of the amendment that may be made. There are no implied limitations to the amending power. The Attorney General summed up pithily that the Constitution Acts not only for the people but on the people. 898. The Attorney General relied on several American decisions in support of these propositions. First, the word amendment does not mean improvement. The view in Livermore v. Waite 102 Cal. 118 of a single learned Judge that amendment means improvement was not accepted in Edwards v. Lesseur South Western Reporter Vol. 33, p. 113 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted here is no restraint on the kind of amendment that may be made. Whitehall v. Elkins 389 U.S. 54. 899. Except for special methods of amendment in a rigid or controlled Constitution although the methods may vary in different Constitutions and except for express limitations, if any, in rigid or controlled Constitutions, the meaning and scope of the amending power is the same in both the flexible and rigid forms. 900. The flexible Constitution is one under which every law of every description can be legally changed with the same case and in the same manner by one and the same body. Laws in a flexible Constitution are called Constitutional because they refer to subjects supposed to affect the fundamenal institutions of the State, and not because they are legally more sacred or difficult to change than other laws. 901. A rigid Constitution is one under which certain laws generally known as Constitutional or fundamental laws cannot be changed in the same manner as ordinary laws. The rigidity of the Constitution consists in the absence of any right of the legislatures when acting in its ordinary capacity to modify or repeal definite laws termed Constitutional or fundamental. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om and the judicial interpretation may all affect the organic structure of the State. These processes of change are the evolution of Constitution. 905. The background in which Article 368 was enacted by the Constituent Assembly has an important aspect on the meaning and scope of the power of amendment. 906. On 12 November, 1946 Sir B.N. Rau Constitutional Adviser prepared a brochure containing Constitution of the British Commonwealth Countries and the Constitutions of other countries. Different countries having different modes of amendments were referred to. In the same volume the fundamental rights under 13 heads were extracted from 13 selected countries like U.S.A., Switzerland, Germany, Russia, Ireland, Canada, Australia. Two features follow from that list. First, there is no absolute standard as to what constitutes fundamental right. There is no such thing as agreed fundamental rights of the world. Second, fundamental rights which are accepted in our Constitution are not superior to fundamental rights in other Constitutions nor can it be said that the fundamental rights are superior to Directive Principles in our Constitution. 907. On 17 March, 1947 a questionnaire was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed. One proposed amendment No. 118 was that amendment was to be passed in two Houses by a clear majority of the total membership of each House. Another proposed amendment No. 210 was that for a period of three years from the commencement of the Constitution, any amendment certified by the President to be not one of substance might be made by a simple majority. This also stated that it would include any formal amendment recommended by a majority of the Judges of the Supreme Court on the ground of removing difficulties in the administration of the Constitution or for the purpose of carrying out the Constitution in public interest. The third proposed amendment No. 212 was that no amendment which is calculated to infringe or restrict or diminish the scope of any individual rights, any rights of a person or persons with respect to property or otherwise, shall be permissible and any amendment which is or is likely to have such an effect shall be void and ultra vires of any legislatur e. It is noteworthy that this amendment was withdrawn. See Constituent Assembly Debates Vol. IX p. 1665. 911. In the first category the framers devised amendment by Parliament by a simple majority. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In Mopherson v. Blacker 146 U.S. 1 it is said that where plain and clear words occur there is no difficulty but where there is doubt and ambiguity contemporaneous and practical exposition is a great weight. In The Automobile Transport (Rajasthan) Ltd. v. The State of Rajasthan and Ors. (1963) 1 S.C.R. 491 this Court took notice of the feature that Constitution makers had deep knowledge of Constitutions and Constitutional problems of other countries. 915. Mr. Seervai relying on British Coal Corporation v. King (1935) A.C. 500 submitted that in interpreting a constituent or organic statute that construction most beneficial to t he widest possible amplitude of powers must be adopted. A strict construction applicable to penal or taxing statute will be subversive of the real intention of Parliament if applied to an Act passed to ensure peace, order and good government. Largest meaning is given to the allocated specific power. If there are no limitations on the power it is the whole power. Grant of power of amendment cannot be cut down except by express or implied limitations. The conclusion is that the meaning of the word amendment is wide and not restricted. 916. The contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia to a status which is neither sovereign nor democratic nor republic and where the basic human rights are conspicuous by their absence. 918. Mr. Palkhivala submits that the principle of inherent or implied limitations on power to amend the controlled Constitution stems from three basic features. First, the ultimate legal sovereignty resides in the people. Second, Parliament is only a creature of the Constitution. Third, power to amend the Constitution or destroy the essential features of the Constitution is an application of ultimate legal sovereignty. 919. Mr. Palkhivala enumerated 12 essential features. These were as follows : (1) The supremacy of the Constitution. (2) The sovereignty of India. (3) The integrity of the country. (4) The democratic way of life. (5) The republican form of Government. (6) The guarantee of basic human rights elaborated in Part III of the Constitution. (7) A secular State. (8) A free and independent judiciary. (9) The dual structure of the Union and the States. (10) The balance between the legislature, the executive and the judiciary. (11) a Parliamentary form of Government as distinct from the presidential form of Government. (12) Article 368 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuent Assembly to show that any limitation on the amending power was never in controversy. The only controversy was regarding the degree of flexibility of an amendment of all the provisions of the Constitution. Our Constitution has adopted three methods of amendment of the Constitution. Certain provisions of the Constitution may be amended by a simple majority in Parliament. Others may be amended by two-thirds majority. The third category relates to provisions where amendments must be ratified by one half of the States. This scheme strikes a good balance by protecting the rights of the States while leaving the remainder of the Constitution easy to amend. Of the three ways of amending the Constitution two are laid down in Article 368 itself and the third is provided for in about 24 other Articles. 923. The Constitutional Adviser incorporated in his draft Constitution prepared by him in October, 1947 a recommendation contained in the supplementary Report of the Union Constitution Committee. Following the recommendation of the Advisory Committee he included a proviso that the provisions in the Constitution relating to the reservation of seats for the Muslims, the Scheduled Castes, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inherent and implied limitations all spring from the Preamble. The Preamble is said not to be a part of the Constitution. The Preamble is said to be unalterable. Therefore, it is contended that other provisions which gave effect to the Preamble cannot be amended. 927. Reliance is placed on the decision of this Court in Berubari case (1960) 3 S.C.R. 250 in support of the proposition that the Preamble is not a part of the Constitution. The conclusion drawn is that no amendment of the Constitution inconsistent with the Preamble can be made. The Preamble is said to be an implied limitation on the power of amendment. This Court in Berubari case said that the Preamble has never been regarded as the source of any substantive power, because such powers are expressly granted in the body of the Constitution. This Court said what is true about the powers is equally true about prohibitions and limitations . In Berubari case it was suggested that the Preamble to the Constitution postulated that like a democratic republican form of the Government the entire territory of India was beyond the reach of Parliament and could not be affected either by ordinary legislation or even by Constitutiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny enactment, Constitution or other, that its spirit no less than its intendment should be collected primarily from the natural meaning of the words used. The words procedure established by law in Article 21 must be taken to refer to a procedure which had a statutory origin. The word law was said not to mean the immutable and universal principle of natural justice. The reasoning given by Patanjali Sastri, J. was no procedure is known or can be said to have been established by such vague and uncertain concepts as the immputable and universal principles of natural justice . This Court in Gopalan case refused to read due process as an implication of the Constitution. 931. In the Kerala Education Bill 1957 case (1959) S.C.R. 995 Das, C.J. referred to the Preamble and said to implement and fortify the supreme purpose set forth in the Preamble, Part III of our Constitution has provided for us certain fundamental rights . In the same case, Das, C.J. said so long as the Constitution stands as it is and is not altere d, it is inconceiveably the duty of this Court to uphold the fundamental rights and thereby honour our sacred obligation to the minority community who are of our o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevance to the constituent power in the future, when that Constitution itself can be changed. The position would be the same so far as the Preamble is concerned whether the constituent power is exercised by the amending body provided for by the people themselves in the Constitution or by referendum if so provided for in the Constitution. The Attorney General supported his submission by relying on the views of Canaway and Wynes on the similar interpretation of Section 128 of the Australian Constitution. 936. Canaway in the Failure of Federalism in Australia in discussing Section 128 of the Australian Constitution under the heading Alteration of the Constitution expresses the view that the section must be read as a substantive grant of power to alter the Constitution and that the negative form of the section in no way detracts from the amplitude of that power. Canaway further says that it is not permissible to refer to the Preamble in connection with the effect of Section 128 and if nevertheless such reference is made there is nothing adverse to the conclusion that there is full power of amendment. The Preamble recites a preliminary agreement to unite in one indissoluble Feder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing negative restrictions on the express power of amendment but is also putting the clock back. One of the salutary principles of construction of a statute is to be found in R.V. Burah 3 A.C. 889. It was a case to determine whether the prescribed limitations of a colonial legislature had been exceeded. The Judicial Committee said that a duty must be performed by looking to the terms of the instrument by which affirmatively legislative powers are created, and by which, negatively, they are restricted. If what has been done is legislation within the general scope of the affirmative words which give power, and if it violates no express condition or restriction by which that power is limited, it is not for, any court of justice to enquire further or to enlarge constructively those conditions and restrictions . The maxim Expressum facit cessare taciturn was similarly applied in Webb v. Outrim 1907 A.C. 89. The theory of implied and inherent limitations can be best described as a subtle attempt to annihilate the affirmative power of amendment. Lord Halsbury in Fielding v. Thomas 1896 A.C. 600 said that if the legislature had full power to make laws it was difficult to see how the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncepts independently of the language of the Constitution to be interpreted. This Court in Deep Chand v. State of Uttar Pradesh and Ors. (1959) Supp. 2 S.C.R. 8 relied on the test laid down in Queen v. Burah (1878) 5 I.A. 179 that the terms of the instrument by which affirmatively the powers are created, and by which they are negatively restricted are to be looked into. The Judicial Committee in Attorney General for Ontario v. Attorney General for Canada 1912 A.C. 571 tersely stated the legal principles as follows : If the text is explicit the text is conclusive, alike in what it directs and what it forbids . This is the golden rule of construction of a written Constitution. 943. In Gopalan case 1950 S.C.R. 88 this Court was invited to read into the Constitution implications derived from the spirit of the Constitution . Kania, C.J. said that to strike down the law on an assumed principle of construction would be to place in the hands of the judiciary powers too great and too indefinite either for its own security or the protection of private rights . Kania, C.J. also said that a large and liberal interpretation should be given to the Constitution. That does not mean that a Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute it is not allowable to insert it by implication. Where the language of an Act is clear and explicit, effect is to be given to it whatever may be the consequences. The words of the statute speak the intention of the legislature. Where the reading of a statute produces an intelligible result there is no ground for reading any words or changing any words according to what may be supposed intention of the legislature. If a statute is passed for the purpose of enabling something to be done but omits to mention in Terms some detail which is of great importance to the proper performance of the work which the statute has in contemplation the courts are at liberty to infer that the statute by implication empowers the details to be carried out. The implication is to empower the authority to do that which is necessary in order to accomplish the ultimate object. 946. The implication sought to be raised by Mr. Palkhivala is for the purpose of reading negative words into Article 368 to destroy the positive power to amend. The provisions of out Constitution in the light of historical background and special problems of the country will show that no provision can be considered as non-essent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion and the States) may be changed. The representation of the States in Parliament (Articles 80 and 81) may be changed. The number of representation may be increased or reduced. The method of election of such representatives as Parliament may by law prescribe and the number of the members of the House of the People may be increased or reduced. The method of election to the House of People may be changed. Finally the provisions of Article 368 itself, which is the most important part of the Constitution may be changed. 949. To find out essential or non-essential features is an exercise in imponderables. When the Constitution does not make any distinction between essential and non-essential features it is incomprehensible as to how such a distinction can be made. Again, the question arises as to who will make such a distinction. Both aspects expose the egregious character of inherent and implied limitations as to essential features or core of essential features of the Constitution being unamendable. Who is to judge what the essential features are ? On what touchstone are the essential features to be measured? Is there any yardstick by which it can be gauged ? How much is essential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly. The process of judicial review of legislation as laid down by Courts is that the Court will star t with the presumption that laws enacted are reasonable. The objective standard is reasonableness. That is why in the law of contract reasonable price is to be ascertained by the Courts. In the law of torts the Courts find out what reasonable care is. In the law of property reasonable conduct is found out by the Courts to avoid evil consequences. Reasonableness is to be judged with reference to the right which is restricted when Article 19 is considered. 952. The American Courts evolved a test of reasonableness by the doctrine of substantive due process which means not that the law is unreasonable but that on political, social and economic grounds the majority of Judges consider that the law ought not be permitted to be made. The crucial point is that in contradistinction to the American Constitution where rights are couched in wide general terms leaving it to the Courts to evolve necessary limitations our Constitution limited it by precise words of limitation as for example in Articles 19 and 21. In Article 21 the Constitution-makers substituted procedure established by law fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The proviso confers that power with relation to the judiciary, the executive and the legislature, none of which could be said to be inessential. Indeed it is difficult to imagine that the Constitution contained any provision which was inessential. It need be hardly said that amendment not only means alteration, addition or repeal of provision but also deletion of some part, partial repeal and addition of a new part. 954. It was said that if our Parliamentary system was changed to a Presidential system it would be amending the core of our Constitution. But such a change is permissible under Article 368. Whether the people would adopt such an amendment is a different matter and does not fall for consideration here. The core of the federal form of Government in our country is greater power in the Union Parliament than States for preserving the integrity of the country. There can be changes by having a confederation or by conferring greater power on the Centre. Those contentions about unamendability of essential features do not take into consideration that the extent and character of any change in the provisions of the Constitution is to be determined by legislatures as amending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Parliament had power to amend the fundamental rights since an amendment of the Constitution was not law within the meaning of Article 13(2). These features give the reason why the expression Parliament may in the exercise of constituent power was introduced by the 24th Amendment. Parliament took notice of two conflicting views and the unamended Article 368. Parliament took notice of the preponderating judicial opinion in favour of the view that Article 368 contained the power of amendment and that power was a constituent power. Wanchoo, J. held that the power under Article 368 is constituent power to change the fundamental law, that is to say the Constitution. The constituent power under the Constitution belonged to Parliament because the Constitution gave it. The Amendment made explicit what the judgment in Shankari Prasad case and the majority judgment in Sajjan Singh case and the dissenting judgment in Golak Nath case said, namely that Parliament has the constituent power to amend the Constitution. 957. The unamended Article used the words An amendment of this Constitution . The 24th Amendment used the words Parliament may...amend by way of addition, variation or rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to increase the power of amendment that was conferred by Article 368. 960. Article 368 in the unamended form contained power as well as self executing procedure which if followed by the prescribed authorities would result in an amendment of the Constitution. Both the Attorney General and Mr. Seervai rightly said that the words Constitution shall stand amended in Article 368 will exclude a simple repeal that is without substituting anything in place of the repealed Constitution. If the Constitution were totally repealed and a vacuum was created it could not be said that the Constitution stands amended. The Constitution means the mode in which a State is constituted or organised specially as to the location of sovereign power. The Constitution also means the system or body of fundamental principles according to which the nation, State and body politic is constituted and governed. In the case of a written Constitution the Constitution is more fundamental than any particular law and contains a principle with which all legislation must be in harmony. Therefore, an amendment of the Constitution is an amendment of something which provides a system according to which a State or nati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) shall not apply to any amendment of the Constitution. If the express limitation which had been judicially held to constitute a bar to the amendment of fundamental rights could be removed by amending Article 368 under Clause (e) to the proviso any other alleged implied limitation can be similarly removed. 965. Secondly, judicial decisions show that by amending the Article conferring the power of amendment a greater power to amend the Constitution can be obtained than was conferred by the original Article. In Ryan case 1935 Irish Report 170 all the learned Judges excepting the Chief Justice held that by first amending Section 50 of the Irish Constitution which conferred the power of amendment subject to certain restrictions thereon so as to remove the restrictions contained in that section, the Irish Parliament effectively increased its power in the sense that an amendment could be made which those express restrictions would have prohibited. Again in Ranasinghe case 1965 A.C. 172 it was said that a legislature has no power to ignore the conditions of law making that are imposed by the instrument which regulates its power. This restriction created by the instrument exists indep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efully expresses a clear and deliberate intention of the Constituent Assembly that apart from providing for a less rigid amending formula the Constituent Assembly took care to avoid the controversy in America as to whether express limitation on Article V of the American Constitution itself regarding equal suffrage of the States in the Senate could be amended or the controversy in Australia as to whether Section 128 of the Australian Constitution itself could be amended as there was no express limitation on such amendment. The Constituent Assembly provided in Clause (e) to Article 368 express and specific power of amendment of Article 368 itself. 968. The amplitude of the amending power in our Constitution stands in bold relief in comparison with Article V of the American Constitution, Section 128 of the Australian Constitution and Section 50 of the Irish Constitution none of which confers such a power. Dr. Wynes in his Legislative Powers in Australia 4th Ed. p. 505 expresses the view that though Section 128 is negative in form but the power of amendment extends to alteration of this Constitution and this power is implied by its terms. Dr. Wynes also states that by the consent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very fact that the Constituent Assembly did not include referendum as one of the methods of amendment and that the Constitution makers excluded no part of the Constitution from amendment established that the amendment of a written Constitution can be legally done only by the method prescribed by the Constitution. If the method of referendum be adopted for purpose of amendment as suggested by Mr. Palkhivala that would be extra Constitutional or revolutionary. The amending body to amend the Constitution represents the will of the people. 971. Therefore, as long as Article 368 may be amended under proviso (e) any amendment of the Constitution by recourse to referendum would be revolutionary. Mr. Palkhivala on behalf of the petitioner did not rely on the majority decision in Golak Nath case that the fundamental rights could be abridged or taken away only by convening a Constituent Assembly, but based his argument on a theory of legal sovereignty of the people. The Constitution is binding on all the organs of government as well as on the people. The Attorney General rightly submitted that the concept of popular sovereignty is well settled in parliamentary democracy and it means that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these are natural rights these cannot be abrogated. Article 34 shows that Parliament may by law indemnify any person in respect of any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area. Article 34 again shows restriction on rights conferred by Part III while martial law is in force in any area. The dominant concept is social good. Where there is no restraint the society fails. 975. Articles 352 and 358 also illustrate as to how while the proclamation of emergency is in operation provisions of Article 19 are suspended during emergency. The framers of the Constitution emphasised the social content of those rights. The basic concept of fundamental right is therefore a social one and it has a social function. These rights are conferred by the Constitution. The nature of restriction on fundamental rights shows that there is nothing natural about those rights. The restrictions contemplated under Article 19(2) with regard to freedom of speech are essential partis of a well organised developed socie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or requisition of property. Article 31(4) deals with legislation pending at the commencement of the Constitution. Articles 31(5) and (6) save certain types of laws. Article 31A saves laws providing for acquisition of estates etc. Article 32 confers right to move the Supreme Court. 978. The Constitution is the higher law and it attains a form which makes possible the attribution to it of an entirely new set of validity, the validity of a statute emanating from the sovereign people. Invested with statutory form and implemented by judicial review higher law becomes juristically the most fruitful for people. There is no higher law above the Constitution. 979. Mr. Palkhivala relied on an Article by Conrad on Limitation of Amendment Procedure and the Constitutional Power. The writer refers to the West German Provincial Constitution which has expressly excluded basic rights from amendment. If that is so the question of basic rights being unamendable on the basis of higher law or natural law does not arise. The conclusion of the writer is that whereas the American courts did not consider declaring a Constitutional norm void because of a conflict with higher law the German Jurispruden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... socialism is bad. On the other hand, the more extreme versions of totalitarian legal philosophy deny the basic value of the human personality as such. Outside these extremes, there is a far greater degree of common aspirations. The basic autonomy and dignity of human personality is the moral foundation of the teaching of modern natural law philosophers, like Maritain. It is in this context that our fundamental rights and Directive Principles are to be read as having in the ultimate analysis a common good. The Directive Principles do not constitute a set of subsidiary principles to fundamental rights of individuals. The Directive Principles embody the set of social principles to shape fundamental rights to grant a freer scope to the large scale welfare activities of the State. Therefore, it will be wrong to equate fundamental rights as natural, inalienable, primodial rights which are beyond the reach of the amendment of the Constitution. It is in this context that this Court in Basheshar Nath v. C.I.T. Delhi (1959) Supp. 1 S.C.R. 528 said that the doctrine of natural rights is nothing but a foundation of shifting sand. 984. Mr. Seervai rightly said that if the power of amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another. Changes in the Constitution are thus actuated by a sense of duty to the people to help them get what they want out of life. There is no destiny of man in whose service some men can rightfully control others; there are only the desires and performances and ambitions that men actually have. The duty to maximise happiness means that it is easier to give people what they want than to make them want what you can easily give. The framers of the Constitution did not put any limitation on the amending power because the end of a Constitution is the safety, the greatness and well being of the people. Changes in the Constitution serve these great ends and carry out the real purposes of the Constitution. 988. The way in which the doctrine of inherent and implied limitations was invoked by Mr. Palkhivala in interpreting the Constitution was that the test of power under the Constitution must be to ascertain the worst that can be done in exercise of such power. Mr. Palkhivala submitted that if unbridled power of amendment were allowed the basic features of our Constitution, namely, the republican and/or democratic form of government and fundamental Tights could be destroyed and India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... functioned as provided by the Constitution. 991. The principle underlying the theory of taking consequences into account is best expressed in Vacher Sons v. London Society of Compositors 1913 A.C. 107, where it was said that if any particular construction in construing the words of a statute was susceptible to more than one meaning, it was legitimate to consider the consequences which would result from any particular construction. The reason is that there are many things which the legislation is presumed not to have intended to bring about and therefore a construction which would not lead to any of these things should be preferred to one which would lead to one or more of them. 992. The doctrine of consequences has no application in construing a grant of power conferred by a Constitution. In considering a grant of power the largest meaning should be given to the words at the power in order to effectuate it fully. The two exceptions to this rule are these. First, in order to reconcile powers exclusively conferred on different legislatures, a narrower meaning can be given to one of the powers in order that both may operate as fully as is possible. (See C.P. Berar case 1938 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e paralysed. Normal operations of the Government assume that all three branches must co-operate if Government is to go on. Where the meaning is plain the Court must give effect to it even if it considers that such a meaning would produce unreasonable result. In the Bihar Land Reforms case 1952 S.C.R. 889 Mahajan, J. said that agrarian laws enacted by the legislature and protected by Articles 31(3) and (4) provided compensation which might appear to the Court unjust and inequitable. But the Court gave effect to Articles 31(3) and (4) because the results were intended and the remedy for the injustice lay with the legislature and not with the Court. The construction to avoid absurdity must be used with great caution. 995. In Grundt case 1948 Ch. 145 it was said in choosing between two possible meanings of ambiguouos words, the absurdity or the nonabsurdity of one conclusion as compared with another might be of assistance and in any event was not to be applied as to result in twisting the language into a meaning which it could not bear. 996. The Attorney General rightly submitted that if power is conferred which is in clear and unambiguous language and does not admit of more than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itations at pages 341-343, 345-348, 351-354 are these. First except where the Constitution has imposed limitations upon the legislative power it must be considered as practically absolute, whether it operates according to natural justice or not in any particular case. Second, in the absence of Constitutional restraint the legislative department of a State Government has exclusive and ample power and its utterance is the public policy of the State upon that subject, and the Courts are without power to read into the Constitution a restraint of the legislature with respect thereto. Third, if the Courts are not at liberty to declare statutes void because of their apparent injustice of impolicy, neither can they do so because they appear to the minds of the Judges to violate fundamental principles of republican Government, unless it shall be found that those principles are placed beyond legislative encroachment by the Constitution. The principles of republican government are not a set of inflexible rules, vital and active in the Constitution, though unexpressed, but they are subject to variation and modification from motives of policy and public necessity. Fourth, the Courts are not at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on published in 33 Harvard Law Review pp. 659-666 as a reply to Marbury. Frierson s view is that the security for the States was provided for by the provision for the necessity of ratification by threefourths of the States. The Constitution committed to Congress and not to the Courts the duty of determining what amendments were necessary. The rights of the States would certainly be safer in the hands of three-fourths of the States themselves. This is considered by the framers of the Constitution to ensure integrity of States. 1004. The Attorney General also relied on the view of McGovney published in Vol. 20 Columbia Law Review. McGovney points out a distinction between a political society or State on the one hand and governmental organs on the other to appreciate that Constitutional limitations are against governmental organs. The writer s view is that an individual has no legal rights against a sovereign organised political society except what the society gives. The doctrine of national sovereignty means that people who made the existing distribution of powers between the federal and the State Governments may alter it. Amendment is left to legislatures because as a matter of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that it overstepped alleged implied limitations on the Constitution amending power. The arguments advanced were these. First, the 18th Amendment which introduced prohibition was not in fact an amendment for an amendment is an alteration or improvement of that which is already contained in the Constitution and the term is not intended to include any addition of entirely new grants of power. Secondly, the amendment was not an amendment within the meaning of the Constitution because it is in its nature legislation and that an amendment of the Constitution can only affect the powers of government and cannot act directly upon the rights of individuals. Third, that the Constitution in all its parts looks to an indestructible nation composed of indestructible States. The power of amendment was given for the purpose of making alterations and improvements and any attempt to change the fundamental basis of the Union is beyond the power delegated by the Fifth Article. The decision in the National Prohibition Cases is that there is no limit on the power to amend the Constitution except that State may not without its consent be deprived of its equal suffrage in the Senate. 1008. In Rhode I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislatures were competent to delegate only the former to the National Government; delegation of the latter required action of the people through conventions in the several states. The 18th Amendment being of the latter character, the ratification by State legislatures was contended to be invalid. The Supreme Court rejected the argument. It found the language of Article V too clear to admit of reading any exceptions into it by implication. 1012. The decisions in Rhode Island v. Palmer 253 U.S. 350, Hawke v. Smith 253 U.S. 221, Leser v. Garnett 258 U.S. 130 and United States v. Sprague 282 U.S. 716 are all authorities for the proposition that there is no implied limitation on the power to amend. The 18th Amendment was challenged on the ground that ordinary legislation could not be embodied in a Constitutional amendment and that Congress cannot Constitutionally propose any amendment which involves the exercise or relinquishment of the sovereign powers of a State. The 19th Amendment was attacked on the narrower ground that a State which had not ratified the amendment would be deprived of its equal suffrage in the Senate because its representatives in that body would be persons not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an prescribed nor by any instrumentality other than there designated. 1016. Mr. Palkhivala relied on some Canadian decisions the Initiative and Referendum case 1919 A.C. 935, Switzmen v. Elbling 1957 Canada Law Reports 285, Rex v. Hess (1949) 4 Dominion Law Report 199; and Saumur v. City of Quebec and Attorney General of Quebec (1953) 4 D.L.R. 641 and Chabot v. School Commissioners of Lamorandiere and Attorney General for Quebec (1958) 12 D.L.R. 796, in support of three propositions. First, unlimited legislative jurisdiction of the Dominion Parliament in Canada is under inherent limitation by reason of the preamble to the British North America Act which states that the Constitution is similar in principle to the United Kingdom. Second, the Dominion legislature cannot detract from the basic rights of freedom of speech and political association which are available in the United Kingdom. Third, rights which find their source in natural law cannot be taken away by positive law. 1017. In the Initiative and Referendum case the Judicial Committee said that Section 92 of the British North America Act entrusted legislative power in a province to its legislature and to that legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the B.N.A. Act that the Provinces expressed their desire to be federally united into one Dominion, with a Constitution similar to that of the United Kingdom. The corollary extracted from the preamble is that neither Parliament nor Provincial legislatures may infringe on the traditional liberties because of the Preamble to the B.N.A. Act and a reference to British Constitutional History. The second view expressed in the decisions is that the basic liberties are guaranteed by implication in certain sectio ns of the B.N.A. Act. Section 17 establishes a Parliament for Canada. Section 50 provides that no House of Commons shall continue longer than five years. These sections are read by the Canadian decisions to mean that freedom of speech and freedom of political association should continue. The third view is that some rights find their source in natural law which cannot be taken away by positive law. 1019. The first view found expression in Switzman case. There was an Act respecting communistic propaganda. The majority Judges found that the subject matter was not within the powers assigned to the Province by Section 92 of the B.N.A. Act. They further held that the Act constituted un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. The Preamble to the B.N.A. Act shows that the Canadian Constitution enjoined observance of fundamental principles in British Constitutional practice. The growth of the Canadian Constitution was through such usage and convention. Our Constitution is of a sovereign independent republican country. Our Constitution does not draw sustenance from any other Constitution. Our Constitution does not breathe through conventions and principles of foreign countries. 1025. There are no explicit guaranteed liberties in the British North America Act. In Canada the Constitutional issue in civil liberties legislation is simply whether the particular supersession or enlargement is competent to the Dominion or the Province as the case may be. Apart from the phrase civil rights in the Province in Section 92(13) there is no language in Sections 91 and 92 which even remotely expresses civil liberties values. 1026. The Canadian Bill of Rights assented to in 1960 in Section 2 states that every law of Canada shall unless it is expressly declared by an Act of Parliament of Canada that it shall operate notwithstanding the Canadian Bill, of Rights be so construed and applied as not to abrogate, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion of the Court were : (1) Is the Constitution Act, Amendment Act of 1908 a valid and effective Act of Parliament? (2) Is the Parliamentary Bills Referendum Act of 1908 a valid and effective Act of Parliament ? (3) Is there power to abolish the Legislative Council of Queensland by an Act passed in accordance with the provisions of the Parliamentary Bills Referendum Act of 1908 ? (4) Was the Referendum valid ? 1031. The Colonial Laws Validity Act 1865 in Section 5 conferred full power on every representative legislature to make laws respecting the Constitution, powers and procedures of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council, or colonial laws for the time being in force in the said colony. The Parliamentary Bills Referendum Act was held to be an Act respecting the powers of the legislature. Section 5 of the Colonial Laws Validity Act provided the authority for the legislation. 1032. Mr. Palkhivala extracted three propositions from the Taylor case. First, probably the power to make laws respecting the Constitution, power and proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abroad . The observations therefore mean that when power to alter the Constitution was conferred upon a colony which is a part of Her Majesty s possessions abroad it is reasonable to assume that such power did not include power to eliminate the Queen as a part of a colonial legislature. 1035. The representative character of the legislature does not involve any theory of implied limitation on the power of amendment. Such legislature as was emphasised by Issacs, J. shows that the limitation on the power of amendment flowed from express language of Section 5 of the Colonial Laws Validity Act and was not dependent upon any implication. 1036. In the State of Victoria case the validity of the Pay-Roll Tax Act, 1941 was impugned on the ground that it was beyond the legislative competence of the Commonwealth. The Pay Roll Tax Assessment Act 1941-69 made the Crown liable to pay tax on the wages payable to named categories of employees of the State of Victoria. The Commonwealth Parliament, in the exercise of its power under Section 51(ii) of the Constitution to make laws with respect to taxation, but so as not to discriminate between States or parts of State was held competent to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Constitution amendments to the Constitution were to be made by ordinary legislation. After the expiry of 8 years amendments were to be made by referendum. The other provision in Article 50 was that amendment shall be subject to the provisions of Article 47 of the Constitution. Article 47 made provisions for the suspension in certain events of any Bill for a period of 90 days and for the submission of any bill so suspended to referendum if demand should be made. By an Amendment Act in 1928 reference to the provisions of Article 47 was repealed. In 1929 before the expiry of 8 years there was an amendment of the Constitution whereby the period of 8 years was changed to 16 years. Both the amendments were upheld. Amendment were challenged on two grounds : First, that many Articles of the Constitution are so fundamental as to be-incapable of alteration. Second, Article 50 does not authorise any change in these fundamental Articles. 1041. The decision of the Judicial Committee in Moore and Ors. v. Attorney General for the Irish Free State and Ors. 1935 A.C. 484 throws a flood of light on the question of amendment of the amending power in a written Constitution. The Treaty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmittee in Moore case noticed that Mr. Wilfrid Greene for the petitioners rightly conceded that Amendment Act No. 16 of 1929 which substituted for the 8 years specified in Article 50 as the period during which amendment might be made without a referendum a period of 16 years was regular and that the validity of the subsequent amendments could not be attacked on the ground that they had not been submitted to the people by referendum. 1044. It was argued by Mr. Greene in that case that the Constituent Assembly having accomplished its work went out of existence leaving no successor and no body in authority capable of amending the Constituent Act. The argument was in effect that the Constitution was a semi rigid Constitution that is one capable of being amended in detail in the different Articles according to their terms, but not susceptible of any alteration so far as concerns the Constituent Act, unless perhaps by the calling together of a new Constitution assembly by the people of Ireland. The decision of the Supreme Court of Ireland in Ryan case was referred to by the Judical Committee. The Judicial Committee held that the Oireachtas had power to repeal or amend the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... United Kingdom, and should not be void on the ground of repugnancy to the law of England did not leave in existence a fetter or repugnancy to some vague and unspecified law of natural justice. The Ceylon Independence Act 1947 conferred on the Ceylon Parliament full legislative powers of a sovereign independent State. The Acts were declared to be bad because they involved a usurpation and infringement, by the legislature of judicial powers inconsistent with the written Constitution of Ceylon. The silence of the Constitution as to the vesting of judicial power was inconsistent with any intention that it should pass to or be shared by the executive or the legislature. The ratio of the decision is that the legislature could not usurp judicial power. There is an observation at page 289 of the report that Section 29(1) of the Ceylon Constitution confers power on Parliament to pass legislation which does not enable a law to usurp the judicial power of the judicature. The Judicial Committee answered the question which was posed as to what the position would be if Parliament sought to procure such a result by first amending the Constitution by a two-thirds majority by stating that such a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the power to amend the essential features but not the core on the theory that only people can change by referendum is to rewrite the Constitution. The decisions in Ranasinghe case 1965 A.C. 172 and Kariappar case 1968 A.C. 717 are authorities for two propositions. First, that in the exercise of the pouter of amendment a controlled Constitution can be converted into an uncontrolled one. Second, the word amendment means alteration. In Ibralebbe case 1964 A.C. 900 the Judicial Committee said that if the Ceylon legislature abrogated the appeal to the Privy Council it would be an amendment of its judicial structure. 1051. The decision in Mangal Singh v. Union of India (1967) 2 S.C.R. 109 has been relied on by Mr. Palkhivala in support of the proposition that the power of amendment is subject to implied limitation. Article 4 of the Constitution which was interpreted in Mangal Singh case has to be read with Articles 2 and 3. Article 4 contains a limited power of amendment, limited to amend Schedules 1 and 4 as may be necessary to give effect to a law mentioned in Articles 2 and 3 and of making supplemental, incidental and consequential provisions. Shah, J. in Mangal Singh case sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o property and the acquisition of property by the State. The Constitution of India was intended to achieve political liberty on the one hand and economic and social, liberty on the other for all citizens of India. The Directive Principles in the Constitution are also fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. That is Article 37. It can be achieved by making changes in the economic and social structure of the society. 1056. The resolutions of the Congress in 1929, 1931, 1945 and the objective resolution of 22 January, 1947 and the resolution of All-India Congress Working Committee in 1947 are not only a remembrance of things past. In 1929 the Congress resolution was that it was essential to make revolutionary changes in the economic and social structure of the society and to remove the gross inequalities. It was also resolved that political freedom must include the economic freedom of the starving millions. In such economic and social programme the State is to own or control the key industries and services, mineral resources, railways, waterways, shipping and other means of public transport. In 1945 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mon good. The ownership and control of the material resources is to subserve common good. The economic system is to work in such a manner that there is no concentration of wealth to the common detriment. Again, the economic system is to work in such a manner that the means of production are not used to the common detriment. 1059. The declaration of human rights on which Mr. Palkhivala relied for the unamendability of fundamental rights is rightly said by the Attorney General to be no impediment to the power of amendment nor to support the petitioner s contention regarding the inviolability of the right to property. For the purpose of promoting the general welfare in a democratic State the Directive Principles were said by the Attorney General to be fundamental in achieving rights of men and economic and social rights for human dignity. Every citizen asserts enjoyment for fundamental rights under the Constitution. It becomes the corresponding duty of every citizen to give effect to fundamental rights of all citizens, dignity of all citizens, by allowing the State to achieve the Directive Principles. The duty of the State is not limited to the protection of individual interest but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution dealt with in the proviso. Article 31(2) as a result of the Constitution (25th) Amendment Act will empower the State to fix an amount on a basis which need not be disclosed even to the members of the legislature and which may have no relation to the property sought to be acquired. The amount is not to satisfy any of the principles of compensation. It need not be paid in cash and it will yet not be considered to be a ground of challenge to the validity of law. Article 31(2) has nothing to do with estate, zamindaries, land reforms or agrarian reforms which are specifically dealt with by Article 31A. 1061. The right to acquire, hold and dispose of property under Article 19(1)(f) is subject under Article 19(5) to reasonable restrictions in the interests of the general public If Article 19(5) permits such reasonable restrictions it is said by the petitioner that the only object of making Article 19(1)(f) inapplicable by Article 31(2B) is to enable acquisition and requisition laws to contain restrictions or provisions which are unreasonable and not in the public interest. Reliance was placed by Mr. Palkhivala on the Bank Nationalisation case (1970) 3 S.C.R. 530 and the observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amendment Act. It cannot be said that the legislature would be under the necessity of providing a standard to measure an adequacy with reference to fixing the amount. The Constitution does not allow judicial review of a law on the ground of adequacy of the amount and the manner as to how such amount is to be given otherwise than in cash. 1063. If the word compensation as it stood prior to the amendment of Article 31(2) must mean equivalent value in cash it is said by the Solicitor General that the concentration of wealth will remain unchanged and justice social, economic, and political amplified in Articles 39, 41, 42, 43, 45, 46 and 47 will be thwarted. The fulfilment of the Directive Principles is in a sense more fundamental than the mere right to property. Readjustment in the social order may not be practicable in a smooth manner unless the Directive Principles are effectively implemented. The emergence of a new social order is a challenge to present day civilisation. If nations wanted independence and supremacy in the latter half of the 19th century and the first half of the 20th century individual dignity, individual freedom, individual status in a well organised and well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uate or the whole or part of it or any part of such amount is given in cash. In Article 31(2) the use of the word amount in conjunction with payment in cash shows that a sum of money is being spoken of. Amount is a sum meaning a quantity or amount of money, or, in other words, amount means a sum of money. 1067. Article 31(2) prior to as well as after the 25th Amendment indicates two alternatives to the legislatures either to specify the principles for determination of the amount or to fix the amount or compensation prior to the amendment. In fixing the amount or compensation the legislature is not required to set out in the law the principles on which compensation had been fixed in the unamended clause or the amount is fixed in the amended clause. 1068. Article 19(1)(f) provides that all citizens shall have the right to hold, acquire or dispose of property whereas Article 31(2) deals with law by which the property is acquired. Such law acquiring property directly extinguishes the right to hold or dispose of property acquired. Article 19(1)(f) is excluded from Article 31(2) in order to make Article 31(2) self contained. The right to hold property cannot coexist with the ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould require a majority of at least two-thirds of the members of Parliament present and voting, a law within Article 31C which overrides and violates several fundamental rights can be passed by a simple majority. Fourthly, every fundamental right is an essential feature of the Constitution and Article 31C purports to take away a large number of those fundamental rights. Fifthly, the Court is precluded from considering whether law under Article 31C is such that it can possibly secure Directive Principles in question. Sixthly, no State legislature can amend the fundamental rights or any other part of the Constitution but Article 31C empowers the State legislaure to pass laws which virtually involve repeal of the fundamental rights. Power of amending the Constitution is delegated to State legislatures. 1071. Finally, it is said that the fundamental rights under Article 14, 19 and 31 which are sought to be superseded by Article 31C are necessary to make meaningful specific rights of the minorities which are guaranteed by Articles 25 to 30. The proviso to Article 31(2) shows that in the case of acquisition of property of an educational institution established by a minority an amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iament and Parliament alone could exercise it by enacting an appropriate provision in that regard. Parliament could not delegate the power of repeal to any executive authority. (See Ch. Tika Ramji and Ors. Etc. v. The State of Uttar Pradesh and Ors. 1956 S.C.R. 393). 1074. Article 31C is inextricably bound up with Article 39(b) and (c) because the purpose and the phraseology in both the Articles are essentially identifical. The legislative efforts to implement Directive Principles in Article 39 (b) and (c) were set in motion in some States to achieve reforms in land law. Articles 31A and 31B were introduced by the Constitution First Amendment Act 1951. The main reason for introducing Articles 31A and 31B was to exclude the operation of Part III as a whole from those provisions. The true relationship between Directive Principles in Part IV and the fundamental rights in Part III became clear. It was realised that though the liberty of individual was valuable it should not operate as an insurmountable barrier against the achievement of Directive Principles. In Sajjan Singh case (1965) 1 S.C.R. 933 it was said that the rights of society are made paramount and they are placed above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislative policy and wisdom to the legislature. The legislative measure might not according to some views give effect to Directive Principles. Therefore, legislatures are left in charge of formulating their policy and giving effect to it through legislation. It is the assessment and judgment of such measures which is sought to be excluded from judicial review by the declaration. 1078. In order to decide whether a statute is within Article 31C the court may examine the nature and the character of legislation and the matter dealt with as to whether there is any nexus or the law to the principles mentioned in Article 39(b) and (c). If it appears that there no nexus between the legislation and the objectives and principles mentioned in Article 39(b) and (c) the legislation will not be within the protective umbrella. The Court can tear the veil to decide the real nature of the statute if the facts and circumstances warrant such a course. 1079. The reason for excepting Articles 14, 19 and 31 from Article 31C is the same as in Article 31A. The Solicitor General rightly said that the fear of discrimination is allayed by three safeguards. The first and the foremost safeguard is the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5)(b)(ii) and Article 33. Each of these Articles carves out an exception to some Article or Articles conferring fundamental rights. The field carved out by the various Articles are of different dimensions. The entire process of exception of the legislative field from the operation of some of the Articles relating to fundamental rights is the mandate of the Constitution. It is wrong to say that the Constitution delegates power of amendment to Parliament or the States. As a result of the 25th Amendment the existing legislative field is freed from the fetters of some provisions of Part III of our Constitution on the legislative power. 1082. Article 31C substantially operates in the same manner in the industrial sphere as Article 31A operates in the agrarian sphere. The problems are similar in nature though of different magnitude. The Constitutional method adopted to solve the problem is similar. The Solicitor General is correct in summing up Article 31C as an application of the principles underlying Articles 31(4) and 31(6) and Article 31A to the sphere of industry. 1083. A class of legislation can be identified and the legislative field can be carved out from the operation of fund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 31(4) and 31(6) that land legislation or agrarian reform was to be enforced and fundamental rights were not to be allowed to stand in the way of implementing the Directive Principles of State Policy contained in Article 39. The fundamental right conferred under Article 31(2) was subordinated to Article 39(b) and (c) in order to protect laws referred to in Article 31(4) and 31(6). When that object failed and the law was struck down under Article 14, Parliament gave effect to the policy underlying Articles 31(4) and 31(6) by excluding a challenge under every Article in Part III. In the Bihar Land Reforms case this Court said that the purpose behind the Bihar Land Reform Act was to bring about a reform of the land distribution system in Bihar for the general benefit of the community and the legislature was the best judge of what was good for the community and it was not possible for this Court to say that there was no public purpose behind the acquisition contemplated in the statute. 1085. This Court in State of West Bengal v. Bela Banerjee 1954 S.C.R. 558 held that the word compensation means just equivalent or full indemnity for the property expropriated. In Dwarkadas Sriniva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general harmony between Part III and Part IV. Secondly, if compensation means market price then the concept of property right in Part III is an absolute right to own and possess property or to receive full price, while the concept of property right in Part IV is conditioned by social interest and social justice. There would be an inherent conflict in working out the Directive Principles of Part IV with the guarantee in Part III. That is why Clauses (4) and (6) of Article 31 illustrate the vital principle that to make effective a legislative effort to bring about changes in accordance with Directive Principles particularly those contained in Article 39(b) and (c) Article 31(2) may have to be abridged. The social interest and justice may vary from time to time and territory to territory and individual rights may have to be limited. 1089. Just as the amount can be fixed on principles of social justice the principles for determining the amount can be specified on the same consideration of social justice. Amount is fixed or the principles are specified by the norm of social justice in accordance with Directive Principles. 1090. In amending Article 31(2) under the 25th Amendment b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(2) and also introduced Article 31(2B) in order to achieve two objects. The first is to eliminate the concept of market value in the amount fixed for acquisition or requisition of the property. The second is to exclude in Clause (2B) of Article 31 the applicability of Article 19(1)(f). Articles 31A and 31B applied to acquisition and requisition of property. The purpose of Article 31C is to confer by Constitutional mandate power on Parliament and State to make laws for giving effect to Directive Principles. The significance of the total exclusion of Part III from Articles 31A and 31B is that it brings about in unmistakable manner the true relationship between the provisions of Part IV and Part III of the Constitution. 1096. With reference to land legislation subordination of fundamental rights of individual to the common good was clear in Clauses (4) and (6) of Article 31. It was made clearer by the Constitution First Amendment Act which introduced Articles 31A, 31B and Schedule 9. Articles 31A, 31B, Schedule 9 and Article 31C merely removed the restrictions which Part III of the Constitution imposes on legislative power. Article 31A after the Fourth Amendment removed the restri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t alone could do it under Article 368 and there was no need for any ratification under the proviso for amendment of Part III is not entrenched in the proviso . 1099. The conclusiveness of declaration introduced by the 25th Amendment in a law under Article 31C is to be appreciated in the entire context of Article 31C. In removing restrictions of Part III in respect of a law under Article 31C there is no delegation of power to any legislature. There is only removal of restriction on legislative power imposed by Articles 14, 19 and 31. Article 31C does not confer any power to amend the Constitution. The exclusion of Article 31 is a necessary corollary to protecting the impugned law from challenge under Articles 14, 19 and 31 because Article 13(2) would but for its exclusion in Article 31C render such laws void. The declaration clause is comparable to Section 6(3) of the Land Acquisition Act 1894 which contains a conclusive evidence clause that declaration shall be conclusive evidence that the land is needed for a public purpose and for a company as the case may be. A conclusive declaration would not be permissible so as to defeat a fundamental right. In Article 31(5) it is provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Pradesh 1952 S.C.R. 1020 it was urged that Article 31B was merely illustrative of Article 31A and as the latter was limited in is application to estates as defined therein Article 31B was also similarly limited. That contention was rejected and it was said that Article 31B specifically validates certain Acts mentioned in the Schedule despite the provisions of Article 31A and is not illustrative of Article 31A but stands independent of it. 1103. Again, in Jeejibhoy v. Assistant Collector (1965) 1 S.C.R. 616 it was contended that Articles 31A and 31B should be read together and if so read Article 31B would only illustrate the cases that would otherwise fall under. Article 31B, and, therefore, the same construction as put upon Article 31B should apply to Article 31A. This Court did not accept the argument It was said that the words without prejudice to the generality of the provisions contained in Article 31A indicate that the Acts and Regulations specified in the Ninth Schedule would have the same immunity even if did not attract Article 31A of the Constitution. If every Act in the Ninth Schedule would be covered by Article 31A, Article 31B would be redundant Some of the Acts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are no express limitations to the power of amendment. Fifth, there are no implied and inherent limitations on the power of amendment. Neither the Preamble nor Article 13(2) is at all a limitation on the power of amendment. Sixth, the power to amend is wide and unlimited. The power to amend means the power to add, alter or repeal any provision of the Constitution. There can be or is no distinction between essential and in-essential features of the Constitution to raise any impediment to amendment of alleged essential features. Parliament in exercise of constituent power can amend any provision of this Constitution. Under Article 368 the power to amend can also be increased. The 24th Amendment is valid. The contention of Mr. Palkhivala that unlimited power of amendment would confer power to abrogate the Constitution is rightly answered by the Attorney General and Mr. Seervai that amendment does not mean mere abrogation or wholesale repeal of the Constitution. The Attorney General and Mr. Seervai emphasised that an amendment would leave an organic mechanism providing the Constitution organisation and system for the State. If the Constitution cannot have a vital growth it needs must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outside the scope of the power of amendment conferred on Parliament by Article 368 of the Constitution and consequently void. 1113. The validity of the Twenty-fourth Amendment would depend upon the interpretation of two crucial articles, Article 13 and Article 368, and two words, one in each article, namely, law in the former, and amendment in the latter. For the purposes of ascertaining the true intent and scope of these articles in I.C. Golaknath and Ors. v. State of Punjab, (1967) 2 S.C.R. 762 the basic question which the Court first considered was, where was power to amend the Constitution of India to be found? Subba Rao, C.J., with whom Shah and Sikri, JJ., as they then were, and Shelat and Vaidialingam, JJ., concurred, (hereinafter referred to as the leading majority judgment), held that the power was contained in Articles 245, 246 and 248 read with Entry 97 of List I of Schedule VII, and not in Article 368 which only provided for the procedure to amend the Constitution. Hidayatullah, J., as he then was, in his concurring judgment held that the procedure of amendment, if it can be called a power at all, is a legislative power, but it is sui generis and outside the thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts conferred by Part III of the Constitution. That question being answered in the affirmative by the majority, the ratio of Golaknath s decision is that an amendment under Article 368 is a law within the meaning of Article 13(2). What the leading majority judgment in that case did not decide, however, is whether Article 368 itself could be amended under the proviso of that article conferring a power to amend the whole Constitution. At p. 805, Subba Rao, C.J., observed, In the view we have taken on the scope of Article 368 vis-a-vis the fundamental rights, it is also unnecessary to express our opinion on the question whether the amendment of the fundamental rights is covered by the proviso to Article 368. While five Judges who were in minority held that each and every article of the Constitution could be amended in exercise of the power under, and by following the procedure in, Article 368, Hidayatullah, J., held that by amending. Article 368, Parliament could not do indirectly what it could not do directly, namely, amend Article 13(2) or override the provisions thereunder, because as he said, The whole Constitution is open to amendment. Only two dozen articles are outside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may not prima facie be of significance. There are, however, two aspects to this problem, firstly, whether law in Article 13(2) includes an amendment of the Constitution under Article 368: and secondly, if this Court holds that law in Article 13(2) does not include an amendment under Article 368, then the question would be, has the Constitution (Twenty-fourth) Amendment purported to exercise a power in effecting that amendment which was not granted under that Article ? In other words, are there any limitations to the amending power under Article 368 ? If, as was held by Hidayatullah, J., that the power of amendment conferred on Parliament under Article 368 is not a constituent power, and any amendment made thereunder is a legislative power, which is law within the meaning of Article 13(2), then Parliament cannot do indirectly what it cannot do directly. 1119. The first question which would arise for decision is what does law in Article 13(2) signify, and is there any internal evidence which would indicate that that word has been used to include an amendment under Article 368, and if it does, whether it is subject to any limitations, and if so, what ? It is contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respective Sub-clause (2) has the same force and effect as an act of Parliament or the Legislature of a State assented to by the President or the Governor, as the case may be, is included in Article 13(3)(a), a law passed by Parliament or a Legislature of a State under Article 245 which specifically empowers Parliament for making laws for the whole or any part of India or any part of a State and the Legislature of a State for the whole or any part of a State, would be equally included within the definition of law . Article 246 to 255 deal with the distribution of legislative powers between Parliament and the State Legislatures to make laws under the respective Lists in the Seventh Schedule, and further provides under Article 248(1) and (2) that Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List including the power of imposing tax not mentioned in either of those Lists. 1122. Whereas Article 13(3)(a) has sepcifically included within the definition of law , custom or usage having in the territory of India the force of law, and even though it has not specifically mentioned an amendment made under Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 33, 34 and Clause (a) of Article 35, is, in my view, a law which the Parliament or a Legislature of the State or both, as the case may be, is required to make for giving force to the rights or is permitted to make to restrict the rights conferred by Part III. In other words, the permissible limits are indicated therein. Further under Article 15 the words special provision and in Clause (4) of Article 16 the making of any provision by the State, and Clause (2) of Article 23 imposing of a compulsory service by the State for public purposes, or preventing the State from doing or permitting it to take certain actions under Article 28, Clause (2) of Article 29 and Clause (2) of Article 30 can either be by an ordinary legislative law or by an order or notification issued by the Government which may or may not be under any law but may be in the exercise of a purely executive power of the Government of India or the Government of a State having the force of law. 1124. Even where reasonable restrictions are permitted as in Clauses (2) to (6) of Article 19 or where restrictions or abrogation of the totality of fundamental rights contained in Part III have been permitted in respect of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o what extent it is permitted, is to be regulated only by an ordinary law. If so, the bar against exceeding the permissible limits must prima facie be against the State making such a law. In the circumstances, could it be said that the framers of the Constitution contemplated the inhibition in Article 13(2) to operate on any thing other than ordinary law ? To limit the extent and ambit of the power under Article 368 in which there is no reference to a law, by including within the ambit of the definition of law in Article 13(3)(a) for purposes of Article 13(2), an amendment effected under Article 368, is to restrict the power of amendment by a strained construction or to impute to the framers of the Constitution a lack of respect to the amending power by making the bar of Article 13(2) applicable to it by mere implication, when in respect of minor instruments they were careful enough to include them in the definition of law . 1126. While this is so, a consideration of the conspectus of various rights in Part III when read with Article 13(2) would, in my view, prohibit the taking away or abridging of those rights by a law made by the Legislature namely the Parliament, Legislatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, defamation, contempt of court or any matter which offends against the decency or morality or which undermines the security of, tends to overthrow, the State. In each of the Clauses (3) to (6) of Article 19 the expression any existing law in so far as it imposes or prevents the State from making any law imposing has been uniformly used, and if these clauses are read as provisos just in the same way as Clause (2) of Article 19 has been read in either of the manner indicated above, the word law in all these clauses as well as in Clause (2) of Article 13 would be the same and must have the same meaning. Similarly, Article 16(3) and (5) and Article 22(3) may also be so read. In reading the above articles or any other article in Part III with Article 13(2) it appears to me that the words law , in accordance with law , or authority of law clearly indicate that law in Article 13(2) is that which may be made by the ordinary legislative organs. I shall also show, when I examine the various stages through which the corresponding draft article which became Article 13(2), passed through the Drafting Committee and the Constituent Assembly, that the proviso to Article 8 would lead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Fundamental rights, it ignores the injunction against it and even if the two Houses pass the Bill the injunction is next operative against the President since the expression Government of India in the General Clauses Act means the President of India. This is equally true of ordinary laws and laws seeking to amend the Constitution . He drew support from Article 325 of the Constitution of Nicargua in which specifically it was stated that, That agencies of the Government, jointly or separately, are forbidden to suspend the Constitution or to restrict the rights granted by it, except in the cases provided therein . In our Constitution he observed, the agencies of the State are controlled jointly and separately and the prohibition is against the whole force of the State acting either in its executive or legislative capacity . With great respect this argument is based on an assumption which is not warranted by the definition of the word State in Article 12. Nor is it in my view permissible to draw support from a provision of another Constitution which is differently worded. The assumption that State would mean all the agencies of the Government jointly or separately when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. In Article 60 the President, and in Article 159 the Governor, is required to take oath when assuming office, to preserve, protect and defend the Constitution and the law. Under Article 61 the President can only be impeached for the violation of the Constitution. While specifying the extent of the executive power in Sub-clauses (a) and (b) of Clause (1) of Article 73 it is provided by the proviso that the power referred to in Sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. Here the words law and laws are definitely referable to the law made by Parliament and the Legislature of the State. The oath that a Minister of the Union is to take under Article 75(1) is set out in Schedule III, that he will do right to all manner of people in accordance with the Constitution and the law. Judges of the Supreme Court and the High Court are required to uphold the Constitution and the laws : see Articles 124(6) and 219 each read with Schedule III. It is provided in Article 76(2) that the Attorney-General is required to dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, Article 13(1), it is said, has been incorporated in Part III, and for the same reason in order to protect fundamental rights which were basic human freedoms from being taken away or abridged even by an amendment of the Constitution, that Article has been incorporated. A reference to the latter would show that what Sardar Vallabhbhai Patel said was that they had not sufficient time to examine in detail the effect of Clause (2) of the draft article on the mass of existing legislation and that clause was, therefore, subject to examination of its effect on the existing laws which will be done before the Constitution is finally drafted and the clause finally adopted. There is nothing in the proceedings or debates to indicate that certain Constitutional laws were intended to be saved or that that law was to include an amendment of the Constitution, nor is the contention that Article 13(1) was specially designed to save pre-existing Constitutional laws notwithstanding that the Government of India Act and the Indian Independence Act were repealed by Article 395. If there be in force any Constitutional laws other than those repealed these are by Article 372(1) given the same force as any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y had to invoke and evolve the doctrine of judicial review over the years. Mere general declarations of rights were without enforceability. As experience showed such general rights were found ineffective to check the growing power of the modern State, our framers examined judicial review of fundamental rights in various Constitutions and provided in our Constitution an effective remedy against encroachment of these rights. Article 32(2) provided for a direct approach to the Supreme Court in cases where fundamental rights are infringed, which without that provision would only come before it by way of an appeal under Article 133 or by special leave under Article 136 from a decision of the High Court rendered under Article 226. It is this purpose that Article 13(2) read with Article 12 emphasises. The framers of our Constitution conscious of the pitfalls and difficulties that were confronted by the varying exercise of judicial review in America wanted to ensure that the doctrine of void and relatively void-a typically American concept - should find no place in our Constitution. If as stated in Golaknath s case by the leading majority judgment and by Hidayatullah, J., that fundamental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is, therefore, difficult to get a resultant of the views in a debate except for the ultimate result that a particular provision or its amendment has been adopted or rejected, and in any case none of these can be looked into as an aid to construction except that the legislative history of the provision can be referred to for finding out the mischief sought to be remedied or the purpose for which it is enacted, if they are relevant. But in Travancore Cochin and Ors. v. Bombay Co. (1952) S.C.R. 113, the Golaknath s case, the Privy Purses case and Union of India v. H.S. Dhillon (1972) 3 S.C.R. 33 there are dicta it is drafted by people who wanted it to be a national instrument to against referring to the speeches in the Constituent Assembly and in the last mentioned case they were referred to as supporting the conclusion already arrived at. In Golaknath s case as well as Privy Purses case the speeches were referred to though it was said not for interpreting a provision but for either examining the transcendental character of Fundamental rights or for the circumstances which necessitated the giving of guarantees to the rulers. For whatever purpose speeches in the Constituent Assembly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd heated debate, which often times may not throw any light on the issues which come before the Court but the proceedings in a Constituent Assembly have no such partisan nuances and their only concern is to give the nation a working instrument with its basic structure and human values sufficiently balanced and stable enough to allow an interplay of fortes which will subserve the needs of future generations. The highest Court created under it and charged with the duty of understanding and expounding it, should not, if it has to catch the objectives of the framers, deny itself the benefit of the guidance derivable from the records of the proceedings and the deliberations of the Assembly. Be that as it may, all I intend to do for the present is to examine the stages through which the draft passed and whether and that attempts were made to introduce words or expressions or delete any that were already there and for what purpose. If these proceedings are examined from this point of view, do they throw any light on or support the view taken by me? 1132. The various stages of the Constituent Assembly proceedings, while considering the draft Articles 8 and 304 corresponding to Articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unit . The amendment of Shri Santhanam was incorporated by the draftsmen in the Supplementary Report on Fundamental Rights which was presented to the Constituent Assembly on August 25, 1947, but subsequently this amendment of Shri K. Santhanam incorporated in the draft Article was deleted by the Drafting Committee. After the Draft Constitution was submitted to the President of the Constituent Assembly on February 21, 1948, and was given wide circulation, there appears to have been some criticism with respect to what had then become draft Article 8(2), which was in the following terms: The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void: Provided that nothing in this clause shall prevent the State from making any law for the removal of any inequality, disparity, disadvantage or discrimination arising out of any existing law. The note relating to the addition of the proviso is stated thus: The proviso has been added in order to enable the State to make laws removing any existing discrimination. Such laws will necessarily be discriminatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y difficulty he moved an amendment to Clause (3) of Article 8 to read unless the context otherwise requires which governed Clauses (a) and (b). This was adopted. (See C.A.D. Vol. VII, p. 644). It was after this that the proviso was deleted. 1134. It would appear from the proviso before it was deleted, if read with Clause (2) of draft Article 8, as also the note showing the pupose for which it was incorporated, that the law referred to therein was a legislative law. It could not by any stretch of the language be construed as including an amendment under draft Article 304, because the proviso was making the restriction in Clause (2) of Article 8 inapplicable to the State from making any law for the removal of any inequality, disparity, disadvantage or discrimination arising out of any existing law. If the State and the law have to be given a particular meaning in the proviso the same meaning has to be given to them in Clause (2) and since the proviso clearly envisages a legislative law it furnishes the key to the interpretation of the word law in Clause (2) of draft Article 8 that it is also a legislative law that is therein referred. 1135. To Article 304 also amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first) category was amendable by a bare majority, and as to the second category he had said: If future Parliament wishes to amend any particular article which is not mentioned in Part III or Article 304, all that was necessary for them is to have two-thirds majority. The third category for the purposes of amendment he explained required two-thirds majority plus ratification. It is submitted on behalf of the first respondent that what was stated about Part III being excepted from the second category was a mistake and that he must be thinking that, alonfi with Article 304, Part III was also included in the third category. The Advocate-General of Nagaland said Part III was a mistake for third category. Instead of third category, he either said or is reported to have said, Part III. Whether it is a correct reading of his speech or not, it is not relevant, for in interpreting a provision the words used, the context in which it was used, the purpose which it intended to subserve in the scheme of the Constitution, will alone have to be considered. For the same reasoning the fact that none of the members who were also members of the Provisional Parliament ever entertained a doubt as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing for amendment Constitution may be initiated only Parliament anything in this of the by the introduction of a Bill to amend Constitution Parliament Constitution. for the purpose in either House the may in exercise of its of Parliament, and when Constitution constituent power amend the Bill is passed in each House and procedure by way of addition, by a majority of the total therefor. variation or repeal any membership of the House provision of this and by a majority of not less Constitution in accordance than two-thirds of the members with the procedure laid of that House present and voting down in this article. it shall be presented to the President for his assent and upon such assent being given to (2) An Amendment of the bill, the Constitution shall this Constitution may be stand amended in accordance initiated only by the with the terms of the Bill. introduction of a Bill for the purpose in Provided that if such amendment either House of Parliament, seeks to make any change in- and when the Bill is passed in each House by a ... majority of the total membership of that House and the amendment shall also require by a majority of not less to be ratified by the Legislatures than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o permit the removal of the fetter of Article 13 on the ordinary legislative laws which can thereafter be empowered and left free to abrogate or take away fundamental rights, it would be an essential feature. 1142. The question whether there are any implied limitations on the power to amend under Article 368 or whether an amendment under that Article can damage or destroy the basic features of the Constitution would depend, as I said earlier, on the meaning of the word amendment before the Twenty-Fourth Amendment. If that word has a limited meaning, which is the case of the petitioner, it is contended that that power of amendment could not be enlarged by the use of the words amend by way of addition, variation and repeal . 1143. It may be mentioned that arguments similar to those which were addressed before us were advanced in Golaknath s case, namely, (i) that the expression amendment in Article 368 has a positive and negative content and that in exercise of that power Parliament cannot destroy the structure of the Constitution, but it can only modify the provisions thereof within the framework of the original instrument for its better effectuation; (ii) that if the fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome to the conclusion that no limitations can be and should be implied upon the power of amendment under Article 368.... We fail to see why if there was any intention to make any part of the Constitution unamendable, the Constituent Assembly failed to include it expressly in Article 368...on the clear words of Article 368 which provides for amendment of the Constitution which means any provision thereof, we cannot infer any implied limitations on the power of amendment of any provision of the Constitution, be it basic or otherwise. It was further observed at p. 831: that the President can refuse to give his assent when a Bill for amendment of the Constitution is presented to him, the result being that the Bill altogether, falls, for there is no specific provision for anything further to be done about the Bill in Article 368 as there is in Article 111 . 1146. Bachawat, J., noticed the argument on the basic features but did not express any opinion because he said it is sufficient to say that the fundamental rights are within the reach of the amending power . Ramaswami, J., on the other hand rejected the thesis of implied limitations, because Article 368 does not expressly say s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it takes. We should free ourselves of any considerations which tend to create pressures on the mind. In our view, it is not the gloom that should influence us, as Milton said, we cannot leave the real world for a Utopia but instead ordain wisely , and, if I may add, according to the well-accepted rules of construction and on a true interpretation of the Constitutional provisions. 1148. Lengthy arguments on the rules of construction were addressed, by referring particularly to a Urge number of American cases to show what our approach should be in determining Constitutional matters, having regard to the paramount need to give effect to the will of the people which the Legislatures and the Governments represent and for exercising judicial restraint. I must confess that some of these arguments show that the tendency has been to depend more on the views of Judges from other lands, however eminent when have in this, the Highest Court of the land during the last over two decades, forged an approach of our own and set out the rules applicable to the interpretation of our Constitution. There is no Constitutional matter which is not in some way or the other involved with political, soci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have force till eternity as it were. The concept, on the other hand, is that the law declared in the past was in accord with the settled judgment of the society, the social and economic conditions then existing, and that if those judgments are not likely to subserve the subsequent generations or the requirements and needs of the society as it may be then conditioned, they will have to be changed by the process known to law, either by legislative action or judicial re-review where that is possible. The Courts, therefore, have a duty, and have indeed the power, to re-examine and re-state the law within the limits of its interpretative function in the fulness of the experience during which it was in force so that it conforms with the socioeconomic changes and the jurisprudential outlook of that generation. The words of the law may be like coats of Biblical Joseph, of diverse colours and in the context in which they are used they will have to be interpreted and wherever possible they are made to subserve the felt-needs of the society. This purpose can hardly be achieved without an amount of resilience and play in the interpretative process. 1151. On the desirability of drawing heavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decisions of other Courts require to be treated with greater caution than of federal and provincial powers, for in the last analysis the decision must depend upon the words of the Constitution which the Court is interpreting; and since no two Constitutions are in identical terms, it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another. This observation was approved and adopted by Gajendragadkar, C.J., (speaking for 7 Judges) in Special Reference 1 of 1964. (1965) 1 S.C.R. 413 at 487. 1152. The American decisions which have been copiously cited before us, were rendered in the context of the history of the struggle against colonialism of the American people, the sovereignty of several States which came together to form a Confederation, the strains and pressures which induced them to frame a Constitution for a Federal Government and the underlying concepts of law and judicial approach over a period of nearly 200 years, cannot be used to persuade this Court to apply their approach in determining the cases arising under our Constitution. For one thing, the decisions of the Supreme Court of the United States though were for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reath and vigor. The underlying understandings of a Constitutional system are modified from age to age by changes of life and circumstances and corresponding alterations of opinion. It does not remain fixed in any unchanging form, but grows with the growth and is altered with the change of the nation s needs and purposes (page 22). 1156. Roger Sherman Hoar in his book on Constitutional Conventions-Their Nature, Powers and Limitations , speaking of the American Constitution as the one based upon popular sovereignty, says: The Federal Constitution was ordained and established by the people of the United States (U.S. Constitution, Preamble) and guarantees to each of the several states a republican form of government (U.S. Constitution, Article IV). This means, in other words, a representative form. It is founded upon the theory that the people are fit to rule, but that it would be cumbersome for them to govern themselves directly. Accordingly, for the facilitation of business, but for no other purposes the people choose from their own number representatives to represent their point of view and to put into effect the collective will (page 11). Quoting from Jameson s Work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g away or abridging that right. With this or the several aspects of the American Constitution we are not called upon to expound nor have we any concern with it except with the claim of the petitioner that the fundamental; rights have been reserved by the people to themselves and the counter-claim by the learned Attorney-General that it is the people who have inscribed Article 368 by investing that Article with the totality of the sovereignty of the people which when exercised in the form and manner prescribed in that Article would amend any provision of the Constitution without any limitations as to the nature or kind of the amendment. The people, the learned Attorney-General submitted, have been eliminated from the amending process because being illiterate and untutored they would not be able to take part in that process with proper understanding or intelligence. This to my mind, appears somewhat incongruous. When they can be trusted to vote in much more complicated issues set out in election manifestos involving economic and political objectives and social benefits which accrue by following them, surely they could be trusted with deciding on direct issues like amending the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 368 of our Constitution, would show that there is no resemblance between the amending procedure provided in either of them. Such a comparison would, in my view, be misleading, if we were to apply the concepts and dicta of the eminent Judges of the Supreme Court of the U.S. in interpreting our Constitution. If we were to accept the contention of the learned Attorney-General that the sovereignty is vested in Article 368, then one is led to the conclusion on an examination of the history of the Constitutionmaking that the people of India had never really taken part in the drafting of the Constitution or its adoption, nor have they been given any part in its amendment at any stage except indirectly through representatives elected periodically for conducting the business of the Government of the Union and the States. It cannot be denied that the members of the Constituent Assembly were not elected on adult franchise, nor were the people of the entire territory of India represented therein even on the very limited franchise provided for under the Cabinet Mission Plan of May 16, 1946 which was restricted by the property, the educational and other qualification to approximately 15% of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers of the Legislature of the Dominion of India shall include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the Dominion (See Sub-section (2) of Section (6). These powers of the Legislature of the Dominion, under Sub-section (1) of Section 8, for the purposes of making a Constitution, were conferred on the Constituent Assembly and reference in the Act to the Legislature of the Dominion was to be construed accordingly. 1161. It was only in November 1949 after the work of the framing of the Constitution was completed that the ruling Princes accepted it on behalf of themselves and the people over whom they ruled. The Constitution was not ratified by the people but it came into force, by virtue of Article 394, on January 26, 1950. Article 395 repealed the Indian Independence Act, 1947 and the Government of India Act, 1935. 1162. Reference may also be made to the fact that during the debates in the Constituent Assembly it was pointed out by many speakers that that Assembly did not represent the people as such, because it was not elected on the basis of adult franchise, that some of them even moved resolutions suggesting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution, elected their representatives to Parliament and the State Legislatures in five general elections, makes the proposition indisputable that the source and the binding force of the Constitution is the sovereign will of the people of India. 1165. On this assumption no state need have unlimited power and indeed in Federal Polities no such doctrine is sustainable. One has only to take the examples of U.S.A., Australia or Canada, and our own where the Central and the State Legislatures are supreme within the respective fields allotted to them. Any conflict between these is determined by the Supreme Court, whose duty is to declare the law. Those brought up in the unitary State find it difficult to recognise such of those limitations as are found in Federal Constitutions. Constitutions have been variously described as rigid or flexible, controlled or uncontrolled, but without going into these concepts it is clear that if the State is considered as a society, to which certain indefinite but not unlimited powers are attributed then there is no difficulty in holding that the exercise of State power can be limited (A.L. Goodhart, English Law and the Moral Law , p. 54). Eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. These are- (a) In the marginal note, instead of the expression Procedure for amendment of the Constitution , it was substituted by Power of Parliament to amend the Constitution and Procedure therefor . This was to meet any possible doubt that the marginal note only indicated a procedure and not the power of amendment, though the majority in Golaknath s case had held that Article 368 contains both power and procedure; (b) By the addition of Clause (1), three changes were effected namely, (i) a non obstante clause Notwithstanding anything in this Constitution , (ii) Parliament may in exercise of its constituent power ; and (iii) amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down in this article . It has already been seen that both in Sankari Prasad s and Sajjan Singh s cases, the two Houses of Parliament have been construed as Parliament and not a different body. In Golaknath s case also all the Judges held that it is only Parliament which makes the amendment. The question Whether the power in Article 368 is a constituent power or a legislative power has of course been debated. The law in its gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 368 . These additions, having regard to the view I have taken that Article 13(2) does not impose any express limitation on Article 368, unless of course, there is a limitation in Article 368 itself on the width of the power which the word amendment in the context of that article and the other provisions of the Constitution might indicate, again make explicit what was implicit therein. 1168. The outstanding question then is, what is the meaning of the word amendment - whether it has wide or a restricted meaning, whether the word amendment includes repeal or revision, and whether having regard to the other provisions of the Constitution or the context of the word amendment in Article 368 itself it has a restricted meaning, and consequently does not confer a power to damage or destroy the essential features of the Constitution. 1169. The existence or non-existence of any implied limitations on the amending power in a written Constitution, which does not contain any express limitations on that power has been hotly debated before us for days. I have earlier set out some of these contentions. If the word amendment has the restricted meaning, has that power been enlarged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile making this submission, however, he has pointed out that though our Constitution has used different expressions at several places, it does not follow that they do not necessarily mean the same thing. The Advocate for the petitioner on the other hand says that this word has no precise and definite or primary and fundamental meaning and hence the cases on construction cited by the respondents that the Court is not concerned with the policy of the Legislature are not applicable. On the contrary, he points out, that since the word is ambiguous, the width of the power has to be ascertained by courts from the general scheme and context of the Constitution in which it appears and other relevant indications and principles. He relies on the observations of Lord Wright in James v. Commonwealth of Australia, [1936] A.C. 578 at p. 627 (P.C.) cited on behalf of the first respondent that, A Good draftsman would realise that the mere generality of the word must compel limitation in its interpretation. Free in itself is vague and indeterminate. It must be its colour from the context . 1171. The learned Attorney-General further submits, relying again on the decisions of the American Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvation of seats for the minorities shall not be amended during a period of ten years from the commencement of this Constitution and shall cease to have effect on the expiration of that period unless continued in operation by an amendment of the Constitution . This clause instead of throwing any light on the width of the power of amendment shows that it is completely restricted in that nothing can be done to affect that provision for ten years which limitation with the non-obstante clause excludes Article 304 altogether during that period. If after that period it is to be extended that Article can be amended but this does not mean that it can be repealed, for it is only concerned with either extension of the period or change in the terms or conditions under which the reservation would continue to apply. 1173. It was contended that the word amendment in Article 368 must be construed as meaning change for the better, improvement, etc. In Golaknath s case a similar contention was rejected by some of the learned Judges. Subba Rao, C.J., (speaking for 5 Judges) did not express any view though he said that the argument that Parliament cannot destroy the structure of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressed to apply to amendments which seek to make any change in certain articles. The main part of Article 368 thus gives the power to amend or to make changes in the Constitution. A change is not necessarily an improvement Normally the change is made with the object of making an improvement, but the experiment may fail to achieve the purpose. Even the plain dictionary meaning of the word amend does not support the contention that an amendment must take an improvement, see Oxford English Dictionary, where the word amend is defined thus : 4. To make professed improvements (in a measure before Parliament) formally to alter in detail though practically it may be to alter its principle so as to thwart it . The 1st, 4th, 16th and 17th Amendment Acts made changes in Part III of the Constitution. All the changes are authorised by Article 368 . Ramaswami, J., has not specifically dealt with the meaning of the word amendment . 1176. It is obvious from these observations that the attempt to restrict the meaning of the word amendment to improvement has been rejected by five of the learned Judges in Golaknath s case. 1177. The learned Attorney-General, however, in the wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n improvement of the Constitution. The following abservations in Livermore s case were cited by him: On the other hand, the significance of the term amendment implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed. With respect to this passage, Bachawat, J., observed: Now an attack on the eighteenth amendment of the U.S. Constitiution based on this passage was brushed aside by the U.S. Supreme Court in the decision in the National Prohibition case (Rhode Island v. Palmer, 253 US 350; 64 L. ed. 947, 960, 978). The decision totally negatived the contention that an amendment must be confined in its scope to an alteration or improvement of that which is already contained in the Constitution and cannot change its basic structure, include new grants of power to the Federal Government nor relinquish in the State those which already have been granted to it. (See Cooley on Constitutional Law, Chapter III, Article V, pp. 46 47). 1180. I find from the reference to the National Prohibition case and the pages of that report given by Bachawat, J., namely, 64 L. ed. 947, 960 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 7 and Schedule VI, Para 21, he none the less thought the presence or absence of the explanatory words made no difference to the meaning of the word amendment . In other words, according to the learned Advocate-General, the word amendment in Article 368 is synonymous with the expression amend by way of addition, variation or repeal so that the Twenty-Fourth Amendment according to this view, and probably to conform with it, used the clarificatory words and means even after this amendment the same meaning as the word amendment had before Article 368 was amended. What an amendment can do has also been stated, by Wanchoo J., namely, that the existing Constitution can be changed and this change can take the form either of addition to the existing provisions or alteration of the existing provisions and their substitution by others or deletion of certain provisions altogether. Though all this can be done, he said, it may be open to doubt whether the power of amendment contained in Article 368 goes to the extent of completely abrogating the present Constitution and substituting it by an entirely new one . 1182. It is also not disputed by the learned Attorney-General, the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a similar criticism which was directed against Article V of the U.S. Constitution. According to Advocate-General for Maharashtra, Clause (e) of the proviso was inserted to meet the assumption of Chief Justice in the Irish case of The State (Ryan and Ors.) v. Lennon and Ors. (1935) Irish Reports 170 that if amending provision could have been amended, then no limitation can be read. Hon ble the Chief Justice has dealt with this aspect in full and I do not, therefore, propose to refer to it except to say that the analogy is inapplicable to the interpretation of Article 368. 1187. Apart from the power of amendment not extending to the abrogation of the Constitution, it will appear on the submission of respondents, the Union of India and the State of Kerala, that the office of the President cannot be abolished without the concurrence of at least half the States even though Articles 52 and 53 are not included in the proviso to Article 368. The very fact that Article 54 and Article 55 are included in the proviso, it would, according to the learned Solicitor-General imply that the office of the President cannot be abolished without the concurrence of the States. Wanchoo, J., in Golaknat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (1) of Article 368 was intended to subserve that end. What has to be considered is whether the word amendment is wide enough to confer a plenitude of power including the power to repeal or abrogate. 1189. The learned Advocate-General has further submitted that there is intrinsic evidence in the Constitution itself that the word amendment in Article 368 means amend by way of addition, variation or repeal , because if that were not so, sub-para (2) of para 7 of Schedule V would not have taken out the law made under sub-para (1) empowering Parliament to amend by way of addition, variation or repeal any of the provisions of the Schedule from the operation of Article 368. The same meaning should also be given to para 21 of Schedule VI. The learned Attorney-General has referred to several articles in which the word amendment has been used, as also to several others in which that word or its variation has been used in continuation with other words. But these expressions do not show that the word amendment is narrow or limited. In every case where an amendment has been made in the Constitution, he says, something has been added, something substituted, something repealed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds provided for whether expressly or by necessary implication. And the question is whether there are any such in our Constitution, and if so, whether they can be damaged or destroyed by an amending power? 1191. The petitioner s counsel, learned Advocate-General and the learned Attorney- General have furnished us with the extracts from various Dictionaries, and the learned Attorney-General has further referred us to a large number of Constitutions in which the word amendment or words used for amending the Constitution have been employed, to show that there is no difference or distinction between these words and the word amendment . In all these Constitutions, subject to which I said of the inappropriateness of comparing other world Constitutions made for different people with their differing social, political and economic outlook, the words used are either amendment or a combination of that word with others or a totally different word. In some of the Constitutions given in the compilations made available to us where the word amendment alone is used, the exercise of the power of amendment was inextricably linked with the ratification by the people in whom the sovereignty r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, addition, or repeal in the manner provided by the Article, and the Constitution of Malaya has defined the word in Clause (6) of Article 159 that amendment includes addition and repeal. Even the Constitution of the Islamic Republic of Pakistan has used the words amended or repealed. The Constitution of the Union of South Africa has used the words repeal or alter and the Constitution of the United States of Brazil has an entrenched provision in Clause (6) of Article 217 that the Bills tending to abolish the Federation and the Republic shall not be admitted to consideration. 1193. These references not only do not show that the word amendment has been used by itself to denote the plenitude of power but on the other hand show that these prescribe a procedure in which the people have been associated or a Constituent Assembly has to be called or fresh elections are required to be held to consider the amendments. In some of these Constitutions there was also difference made between total and partial amendments and where the word alteration has been used, it has been defined as to what is included therein. No assistance can, therefore, be derived from the Constitutions either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough amendment may not directly amount to repeal, it may have such a consequential effect . Crawford in his book on The Construction of Statutes 1940, pp. 170-171 which is quite often referred to and used in this Court, states that a law is amended when it is in whole or in part permitted to remain and something is added to, or taken from it, or it is in some way changed or altered in order to make it more complete, or perfect or effective. It should be noticed, however, that an amendment is not the same as a repeal, although it may operate as a repeal to a certain degree. A repeal is the abrogation or destruction of a law by a legislative act. Hence we may see that it is the effect of the Legislative act which determines its character . The first part of this definition may be compared with the meaning indicated by Wanchoo, J. in Golaknath s case at p. 833 to which a reference has already been made. 1196. Both the learned Advocate for the petitioner and the learned Attorney-General have referred to the decisions of the State Courts of the United States for the meaning of the word amend in support of their respective contentions, but these decisions which are rendered in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be noticed that before the repeal of Article 243, Clause (2) thereof provided that the President may make regulations for the peace and good government of territories in Part D of the First Schedule and any regulation so made may repeal or, amend any law made by Parliament or any existing law. It will, therefore, be observed that even where power has been given to a competent legislature or any other competent authority over a law in force to continue by virtue of the above referred; provisions, the framers have used the word repeal of a law in contradistinction to the word amend of a law. It may be contended with some force that where the framers intended to give full and plenary powers to competent legislatures to deal with laws in force, they were meticulous enough to use two distinct words. If the word amend or amendment in its generic connotation meant repeal then this word would not have been used in contradistinction with the word amendment or amend in some articles, and only the word amend or amendment in others. In so far as the laws in force are concerned, it would appear that the intention was not to add to them, though the word alter could imply also a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpowers only a change in the Constitution as is evident from the proviso which requires that where the provisions specified in Clauses (a) to (e) have to be amended they have to be ratified by the resolution of not less than one-half of the Legislatures of the States. This proviso furnishes a key to the meaning of the word amendment , that they can be changed without destroying them just in the same way as the entire Constitution cannot be abrogated and a new Constitution substituted therefor. In this view, I agree with My Lord the Chief Justice, for the reasons given by him, that the amplitude of the power of amendment in Article 368 cannot be enlarged by amending the amending power under proviso (e) to Article 368. 1198. What follows from this conclusion is the next question to be considered. It is submitted that an amendment should not alter the basic structure of the Constitution or be repugnant to the objectives set out in the Preamble and cannot be exercised to make the Constitution unidentifiable by altering its basic concept governing the democratic way of life accepted by the people of this country. If the entire Constitution cannot be abrogated, can all the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or are capable of two meanings, in interpreting them some assistance may be sought in the objectives enshrined in the preamble. Therefore, Mr. Chatterjee is not right in contending that the preamble imports any limitation on the exercise of what is generally regarded as a necessary and essential attribute of sovereignty. It may be pointed out that the passage from Story and Willoughby cited therein have not been fully extracted. For a proper appreciation of the views of these authors it is necessary to examine the relevant passages in, full. Story says, It is an admitted maxim...that the preamble of a statute is a key to open the mind of the makers as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute...the will and intention of the legislature is to be regarded and followed. It is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the preamble. There does not seem any reason why, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution. 2. The denomination of the instrument as a Constitution . 2. The description of the federation entered into as a more perfect Union. 3. The enumeration of the common defence and general welfare among the objects which the new Government is established to promote (Willoughby, Vol. I, p. 62). 4. These American authors, therefore, recognise the use of the Preamble to ascertain the essential concepts underlying the Constitution. 1202. The English cases show that the preamble can be resorted to as a means to discover the legislative intent of which one may be cited. In the Attorney-General v. Prince Earnest Augustus of Hanover, (1957) A.C. 436 the House of Lords considered the question whether and to what extent Preamble of a statute can be relied upon to construe the enacting part of the statute. Viscount Simond (with whom Lord Tucker agreed), observed at p. 461 : For Words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive to be my right and duty to examine every word of a statute in its context, and I use context in its widest sense, which I have alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this knowledge whether the enacting words admit of both the rival constructions put forward.... If they admit of only one construction that construction will receive effect even if it is inconsistent with the preamble, but if the enacting words are capable of either of the constructions offered by the parties, the construction which fits the preamble may be preferred. Lord Somervell said at p. 474, that, The word unambiguous must mean unambiguous in their context . Lord Thring, one of the great draftsmen of England in his book on Practical Legislation , Chapter IV, pp. 92-93, made this pertinent observation as to preambles. He said, a preamble may also be used to limit the scope of certain expressions in the Act, and sometimes a preamble is inserted for political reasons when the object of an Act is popular, and admits of being stated in a telling sentence or sentences. In Sajjan Singh s case at p. 968, Mudholkar, J., while taking note of the contention that it has been said that the preamble is not a part of the Constitution observed: But, I think, that if upon a comparison of the preamble with the broad features of the Constitution it would appear that the preamble is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that case, nor was it in fact considered at all. 1206. I will now consider the question which has been streneously contended, namely, that there are no essential features, that every feature in the Constitution is essential, and if this were not so, the amending power under the Constitution will apply only to nonessential features which it would be difficult to envisage was the only purpose of the framers in inscribing Article 368 and that, therefore, there is no warrant for such a concept to be read into the Constitution. The argument at first flush is attractive, but if we were to ask ourselves the question whether the Constitution has any structure or is structureless or is a jelly fish to use an epithet of the learned Advocate for the petitioner, the answer would resolve our doubt. If the Constitution is considered as a mechanism, or call it an organism or a piece of Constitutional engineering, whichever it is, it must have a structure, or a composition or a base or foundation. What it is can only be ascertained, if we examine the provisions which the Hon ble Chief Justice has done in great detail after which he has instanced the features which constitute the basic stru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as these will fall for consideration in any concrete case where they are said to have been abrogated and made non-existent. The fact that a complete list of these essential elements constituting the basic structure are not enumerated, is no ground for denying that these exist. Are all the elements which make a law void and unConstitutional ever required to be concatenated for the recognition of the validity or invalidity of laws judged on the anvil of the Constitution? A sovereign democratic republic, Parliamentary democracy, the three organs of the State, certainly in my view constitute the basic structure. But do the fundamental rights in Part III and Directive Principles in Part IV constitute the essential element of the basic structure of our Constitution in that the Constitution will be the Constitution without them ? In other words, if Parts III and IV or either of them are totally abrogated, can it be said that the structure of the Constitution as an organic instrument establishing sovereign democratic republic as envisaged in the preamble remains the same? In the sense as I understand the sovereign democratic republic, it cannot: without either fundamental rights or directi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these rights, the report said: 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.... The Karachi Resolution of March 1931 on Fundamental Rights on economic and social change added a new dimension to Constitutional rights because till then State s negative obligations were alone being emphasised. By that Resolution the demand now equally emphasised the State s positive obligations to provide its people with the economic and social conditions in which their negative rights would have actual meaning . (Granville Austin, p. 56). The Sapru Committee also incorporated these fundamental rights and for the first time divided them into justiciable and non-justiciable rights. During the Constituent Assembly Debates, Pt. Jawahar Lal Nehru in dealing with the confusion existing in the minds of the members in respect of the fundamental rights, said: There is this confusion, this overlapping, and hence I think a great deal of difficulty has been brought into the picture. A fundamental rights should be looked upon not from the point of view of any particular difficulty of the mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not say that either the judicial review could be abrogated or taken away by an amendment or the Court itself can be abolished. Nor was any question raised by any one in this regard. Dr. Ambedkar s observations cannot be read to suggest that by an amendment of the Constitution, Article 32 could be abrogated, for if it were so, his observations could be in clear conflict with the express language of Clause 4 of Article 32. The guarantee in Clause 4 of Article 32 could be conceived of only against amending power, for no ordinary law can suspend a right given by the Constitution unless permitted by the Constitution itself. When Clause 4 of Article 32 does not even permit suspension of the right under Article 32 except as otherwise provided in the Constitution, that is, by Article 359, it is highly unthinkable that by an amendment this right could be abrogated. This pivotal feature of the Fundamental Rights demonstrates that this basic structure cannot be damaged or destroyed. When a remedy cannot be abrogated, it should follow that the fundamental rights cannot be abrogated for the reason that the existence of a remedy would be meaningless without the rights. There is nothing else ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Law Amendment Act XIV of 1908, etc., which were used to suppress the freedom of the people and detain persons on political grounds when they were found inconvenient to the rulers. The demand for securing fundamental rights since then became an Article of faith, which, as Dr. Ambedkar said, became part and parcel of the mental makeup and the silent immaculate premise of their outlook. The outlook of the framers of the Constitution could not have provided for such a contingency where they can be abrogated, nor in any view, is it a necessary concommitant of the Jeffersonian theory that no one can bind the succeeding generations who by the will of the majority of the people of the country, can bind themselves. One of the views in America since then held and which still persists, was expressed by Justice Hugo Black, one of the eminent Judges of the Supreme Court in these terms: I cannot consider the Bill of Rights to be an outworn 18th century straight-jacket . Its provisions may be thought out-dated abstractions by some. And it is true that they are designed to meet ancient evils. But they are the same against all human evils that have emerged from century to century whenever excessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case). The previous decisions of this Court beginning from the State of West Bengal v. Mrs. Bela Banerjee (1954) S.C.R. 558 on account of which the Constitution (Fourth Amendment) Act, 1955, was enacted and the subsequent cases in P. Vajravelu Mudaliar v. Special Deputy Collector, Madras and Anr. (1965) 1 S.C.R. 614 Union of India v. The Metal Corporation of India Ltd., and Anr. (1967) 1 S.C.R. 255 State of Gujarat v. Shantilal Mangaldas and Ors. (1969) 3 S.C.R. 341 have been examined by my learned brother Hegde, J., in his judgment just pronounced, in the light of the contentions urged by the respondents, as such I do not find it necessary to refer to them or set out the ratio of these decisions again. 1211. It will be observed from the amendment in Clause (2) of Article 31 enacted by Section 2 of the above amendment that: (1) the word amend has been substituted for the word compensation ; and (2) that the words or that the whole or any part of such amount is to be given otherwise than in cash have been added. The effect of the amendment is that the law now need not provide for giving compensation in the sense of equivalent in value or just equivalent of the value of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislature, either of the opposition or of the ruling party, need not be told on what basis or principles the amount has been fixed, lest if this was disclosed the Courts would examine them. But how can this be avoided because if principles are fixed, the relevancy can be gone into as has been the consistent view of this Court, and yet it is said that if an amount is fixed without reference to any principles and arbitrarily, the Court cannot examine it. Such a view has no rational or logical basis. The Legislature, even in cases where it fixes an amount for the acquisition or requisition of a property, must be presumed to have fixed it on some basis, or applied some criteria or principles to determine the amount so fixed, and, therefore, where the law is challenged on the ground of arbitrariness, illusoriness or of having been based on irrelevant principles or any other ground that may be open to challenge by an expropriated owner, the State will have to meet the challenge, and the Court will have to go into these questions. This will be so even in respect to the manner of payment. Once it is satisfied that the challenge on the ground that the amount or the manner of its payment is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct . Two constructions are possible: one is that Article 19(1)(f) will not be available at all to an expropriated owner under a law of acquisition made under Article 31(2) or to put it in another way, any law made under Article 31(2) for acquisition or requisitioning of any property abrogates Article 19(1)(f). Secondly, Clause (2B) was intended to provide that the law of acquisition or requisition will not be void on the ground that it abridges or affects the right under Article 19(1)(f). In choosing either of these constructions, regard must be had to that construction which would not result in the amendment being held invalid and void. Applying this approach, the second construction is more in consonance with the amendment because what the amendment provides for is that Article 19(1)(f) shall not affect any such law and this would imply that the bar against the application of Article 19(1)(f) to such a law may vary from a slight or partial encroachment to total prohibition or inapplicability. But since an amendment cannot totally abrogate a fundamental right, it can only be read by the adoption of the doctrine of severability in application and, accordingly, Clause (2B) must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question whether acquisition for a private person or company is for public purpose may be open to challenge and determined by Courts in an appropriate action. As for the principles applicable in the Bill for the acquisition of Bardoli lands for determining the amount payable for acquisition, as admitted by both the learned Solicitor-General for the Union and the Advocate-General of Maharashtra will be applicable, then at any rate that will not be a case of confiscation, because an owner will at any rate get the amount paid by him together with the loss of interest for the years he had it. The plea that religious freedoms will be stifled also is not sustainable, because it has been already held by this Court in Khajamain Wakf Estates etc. v. The State of Madras (1971) 2 S.C.R. 790, that Article 26(c) and (d) of the Constitution provide that religious denominations shall have the right to own and acquire property and administer them according to law. But that does not mean that the properties owned by them cannot be acquired by the State. In the view I have taken, and for the reasons set out above, I hold Section 2 of the Twenty-fifth Amendment valid. 1218. Section 3 of the Twenty-f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ively silenced by a law passed by a simple majority in the Legislature; (iv) ten Fundamental Rights which are vital for the survival of democracy, the rule of law, and the integrity and unity of the Republic, are in effect abrogated. Seven of these ten Fundamental Rights are unconnected with property; (v) Judicial Review and enforceability of Fundamental Rights another essential feature of the Constitution is destroyed, in that the Court is prohibited from going into the question whether the impugned law does or does not give effect to the Directive Principles; (vi) the State Legislatures which cannot otherwise amend Article 368 are permitted to supersede a whole series of Fundamental Rights with the result that Fundamental Rights may prevail in some States and not in others, depending upon the complexion of the State Government; and (vii) the protection to the minorities and their religious, cultural, linguistic and educational rights can be seriously affected on the ground that the law was intended to give effect to the Directive Principles. 1220. On behalf of the respondent-State of Kerala-the learned Advocate-General of Maharashtra submitted that Article 31C was introduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e . The observations of Das Gupta, J., in The Provincial Transport Service v. State Industrial Court [1963] 3 S.C.R. 650, were cited. Answering the contention that since the principles in Article 39(b) (c) are widely expressed and as such there would always be some connection between them and practically any kind of law, the learned Advocate-General of Maharashtra said that the principles in Article 39(b) (c) were designedly widely expressed but that is not an objection to a law implementing those directives because public interest is a very wide concept and several rights are made subject to public interest, and that should not be the objection for upholding the validity of a law. This answer appears to be vague and uncertain, for what is conceded in the earlier part is withdrawn in the latter. 1221. The submission of the learned Solicitor-General is, firstly, that Article 31C protects only law and not mere executive action; secondly, the law referred to therein must be made either by Parliament or State Legislature and does not include within itself ordinance, order, rule, regulation, notification, custom or usage in accordance with the procedure prescribed in Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which could not be protected by a declaration nor can a law not attracting Article 31C be protected by a declaration by merely mixing it with other laws really falling within Article 31C with those under that Article. In such a case, therefore, the Court will always be competent to examine the true nature and character of the legislation in the particular instance under discussion-its design and the primary matter dealt with-its object and scope (1882) 7 A.C. at pp. 838-840 . It was further averred that if a legislation enacted ostensibly under one of the powers conferred by the Constitution, is in truth and fact, really to accomplish an unauthorised purpose, the Court would be entitled to tear the veil and decide according to the real nature of the statute, as in Attorney-General v. Queen Insurance Co. [1873] 3 A.C. 1090, and that except Articles 14, 19 and 31 the rest of the relevant provisions of the Constitution will apply and the Court is entitled to go into and consider the challenge of infringement of other rights, and that there are only three safeguards against the evil of discrimination, namely, (a) the innate good sense of the community and of the legislature and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an amending machinery and procedure, will operate as a partial modification of Article 368. 1223. It is contended that Article 31C is similar to the legislative device adopted in Articles 31A and 31B, which was added by the Constitution (First Amendment) Act, 1950, the first of which declared that Notwithstanding anything in the foregoing provisions of this Part (i.e. Part III), no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part , namely, Part III. Article 31B is also in similar terms and gives complete protection to the Acts specified in the Ninth Schedule from any of the provisions of Part III. 1224. In so far as Article 31A was concerned, it authorised a law for the acquisition of an estate as defined in Clause (2). Article 31B as introduced by the First Amendment protected from challenge, on the ground of infringement of the rights in Part III, certain Acts enacted for agrarian reforms which, after very careful scru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the object because of lacunae in the language of the Article. The Prime Minister said: If there is one thing to which we as a party have been committed in the past generation or so it is the agrarian reforms and the abolition of the Zamindari system. Shri Hussain Imam (Bihar) : With compensation. Shri Jawaharlal Nehru : With adequate proper compensation not too much . Shri Hussain Imam : Adequate is quite enough . Shri Shyama Prasad Mukherjee, representing the opposite view, pointed out the dangers inherent in the amendment, not because he was against the agrarian reforms but because of the precedent this would create. He said : By this amendment to the Constitution you are saying that whatever legislation is passed it is deemed to be the law. Then why have your fundamental rights? Who asked you to have these fundamental rights at all? You might have said : Parliament is supreme and Parliament may from time to time pass any law in any matter it liked and that will be the law binding on the people . In referring to a few excerpts, I merely want to show what was the object of the amendment and what were the fears entertained in respect thereof. 1225. The F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspect can be reconsidered. In this regard Gajendragadkar, C.J., while considering the question of stare decisis, observed in Sajjan Singh s case at pp. 947-948): It is true that the Constitution does not place any restriction on our powers to review our earlier decisions or even to depart from them and there can be no doubt that in matters relating to the decision of Constitutional points which have a significant impact on the fundamental rights of citizens, we would be prepared to review our earlier decisions in the interest of public good. The doctrine of stare decisis may not strictly apply in this context, and one can dispute the position that the said doctrine should not be permitted to perpetuate erroneous decisions pronounced by this Court to the detriment of general welfare. Even so, the normal principle that judgments pronounced by this Court would be final, cannot be ignored and unless considerations of substantial and compelling character make it necessary to do so, we should be slow to doubt the correctness of previous decisions or to depart from them. 1226. I have already pointed out that two of the learned Judges did doubt the power of Parliament to amend funda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the services under the State. The effect of these amendments is to permit the making of classification for favourable treatment on the ground that the persons so favoured were Scheduled Castes, Scheduled tribes, etc., which would otherwise have been permissible under Article 14 to the extent of its reasonable relationship with the objects of the law, had the same not been prohibited by Article 15(1) and Article 16(2). These provisions do not in anyway abrogate the right in Article 14 and I do not think the analogy between these provisions and Article 31C is apt. 1227. The Directives under Article 39(b) (c) are wide and indeterminate. They affect the whole gamut of human activity vis-a-vis the society. The State is enjoined to ensure that ownership and control of the material resources of the community are so distributed as best to subserve the common good and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. These objectives are ends which may be implemented by a party in power through legislative action by resort to any one of the diverse philosophies, political ideologies and economic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove objectives. But if the power to commit any mistake through democratic process is taken away as by enabling an authoritarian system, then it will be the negation of parliamentary democracy. The State, therefore, has the full freedom to experiment in implementing its policy for achieving a desired object. Though the Courts, as I said, have no function in the evaluation of these policies or in determining whether they are good or bad for the community, they have, however, in examining legislative action taken by the State in furthering the ends, to ensure that the means adopted do not conflict with the provisions of the Constitution within which the State action has to be confined. It is, therefore, necessary to keep in view, the wide field of Governmental activity enjoined in Article 39(b) (c) in determining the reach of the means to achieve the ends and the impact of these means on the Fundamental Rights which Article 31C effects. 1228. The impugned Article 31C enables Parliament and the State legislarures to make laws unfettered by Articles 14, 19 and 31 in respect of the wide and undefined field of objectives indicated in Article 39(b) (c). All these objectives before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution, the question that may have to be considered is whether the amendment by the addition of Article 31C as a fundamental right in Part III of the Constitution has abrogated, damaged or destroyed any of the fundamental rights. 1231. Article 31C has 4 elements : (i) it permits the legislature to make a law giving effect to Article 39(b) and Article 39(c) inconsistent with any of the rights conferred by Articles 14, 19 and 31; (ii) it permits the legislature to make a law giving effect to Article 39(b) and Article 39(c) taking away any of the rights conferred by Articles 14, 19 and 31; (iii) it permits the legislature to make a law giving effect to Article 39(b) and (c) abridging any of the rights conferred by Articles 14, 19 and 31; and (iv) it prohibits calling in question in any Court such a law if it contains a declaration that it is for giving effect to the policy of State towards securing the principles specified in Clauses (b) and (c) of Article 39 on the ground that it does not give effect to such a policy of the State. 1232. The first element seems to have been added by way of abundant caution, for it takes in the other two elements, namely, taking away ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sitive aspect Again, Subha Rao, J., in his dissenting judgment in Lachhman Das on behalf of Firm Tilak Ram Ram Bux v. State of Punjab (1963) 2 S.C.R. 353 while holding that the Patiala Recovery of State Dues Act did not offend Article 14 of the Constitution, said at p. 395: It shall also be remembered that a citizen is entitled to a fundamental right of equality before the law and that the doctrine of classification is only a subsidiary rule evolved by Courts to give a practical content to the said doctrine. Over emphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the article of its glorious content That process would inevitably and in substituting the doctrine of classification for the doctrine of equality: the fundamental right to equality before the law and equal protection of the laws may be replaced by the doctrine of classification. In Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. (1959) S.C.R. 279, Das, C.J., summed up the principle enunciated in several cases referred to by him and consistently adopted and applied in subsequent cases, thus: It is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Article 368 abrogate, damage or destroy any of the fundamental rights though it can abridge to an extent where if does not amount to abrogation, damage or destruction. The question is, whether the words inconsistent with or takes away, or , if severed, will achieve the purpose of the amendment? In what way can the abridgement of Article 14 be effected without robbing the content of that right? Can a law permitted under Article 31C affect persons similarly situated unequally or would equal protection of laws not be available to persons similarly situated or placed in like circumstances? While Article 39(b) (c) can provide for a classification, that classification must have a rational relation to the objectives sought to be achieved by the statute in question. 1237. In so far as the abridgement of the right conferred by Article 14 is concerned, it would be ultra vires for the reason that a mere violation of this right amounts to taking away or damaging the right. The protection of the right was denied in Article 31A because the Courts had held invalid under Article 14, the provisions of certain land reform legislations relating to compensation for the acquisition etc., o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plantation crop, the aggrieved party can approach the court for appropriate relief. It may be mentioned that in that case Section 3 of the Act, in so far as it related to the transfer of forests in Janman estates to the Government was concerned, was held to be violative of the Constitution. It cannot, therefore, be said that this aspect of the matter is not res integra. On the other hand, it lends support to the view that the law can be challenged. 1238. The decisions of this Court in Nagpur Improvement Trust v. Vithal Rao(2), and the other two cases following it also do not affect my view that Article 14 is inapplicable to matters dealing with compensation under laws enacted to give effect to policies of Article 39(b) (c). In the above case it was the State which was given the power to acquire property for the same public purpose under two different statutes, one of them providing for lesser compensation and the other providing for full compensation. My Lord the Chief Justice, delivering the judgment of the Constitution Bench of seven Judges, while holding that these provisions contravened Article 14, observed at p. 506: It would not be disputed that different principles o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic power they possess or in payment of compensation at different rates to differrent classes of persons depending on the extent or the value of the property they own or possess, or in respect of classes of persons to whom the material resources of the country are distributed. The object of Clauses (b) and (c) of Article 39 is the breaking up of concentration of wealth or the distribution of material resources. If full compensation is paid for the property taken in furtherance of the objectives under Article 39(b) (c), that very objective sought to be implemented would fail, as there would in fact be no breaking up of concentration of wealth or distribution of material resources. It is, therefore, clear that the very nature of the objectives is such that Article 14 is inapplicable, firstly, because in respect of compensation there cannot be a question of equality, and, secondly, the exclusion thereof is not necessary because any law that makes a reasonable classification to further the objectives of Article 39(b) (c) would undoubtedly fulfil the requirements of Article 14. The availability of Article 14 will not really assist an expropriated owner or holder because the objective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achieved under Article 39(b) (c) can be achieved even if this article is severed. 1265. In respect of the exclusion of Article 19 by Article 31C a question was asked by one of us during the course of arguments addressed by the learned Advocate-General for Maharashtra on January 12, 1973, the thirtyfifth day, as to, what is the social content of the restriction on freedom of speech and freedom of movement which are not already contained in the restrictions to which those rights are subject? The learned Advocate- General said he would consider and make his submissions. On March, 1, 1973, he made his submissions on the understanding that the question was asked in the context of Article 31C which excludes the operation of whole of Article 19 and not only Article 19(1)(f) and Article 19(1)(g). The learned Advocate-General characterised the question as raising a matter of great importance. In my view, what was implied in the question was the core of the issue before us, as to whether there can be any justification for imposing more restrictions on such valuable rights as freedom of movement and freedom of speech than what the framers of the Constitution had already provided for in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 42. The social content of restrictions which can be imposed under Article 19(2) to (6) naturally does not take in the injury to the public good by dilatory litigation holding up large schemes of social legislation. The fundamental rights conferred by Article 19(1)(a) to (g) are not mutually exclusive but they overlap. For example, the right to move peaceably and without arms conferred by Article 19(1)(b) may be combined with the right to freedom of speech and expression, if those who assemble peaceably carry placards or deliver speeches through microphones. Again, the right to carry on business under Article 19(1)(g) would overlap the right to hold, acquire and dispose of property, for ordinarily, business cannot be carried on without the use of property. This consideration must be borne in mind in considering the question why Article 31C excluded the challenge to the laws protected by Article 31C under the whole of Article 19, instead of excluding a challenge only under Article 19(1)(f) which relates to property; and Article 19(1)(g) which relates to business which would ordinarily require the use of property. 1243. Under the second head, he submitted that it is well settled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Article 19(1)(d) and (e) to foreclose any argument that the rights under Article 19(1)(d), (e) and (f) are so closely connected that to take away the right under Article 19(1)(f) is to drain the rights under Article 19(1)(d) and (e) of their practical content. For these reasons, Parliament in enacting the First, Fourth and Seventeenth Amendments rightly excluded the challenge under the whole of Article 19 to the laws protected by those amendments and not merely a challenge under Article 19(1)(f) and (g). In the result, it was submitted that Article 31C only contemplates the process of giving primacy to the Directive Principles of State policy over fundamental rights, first recognised in Article 31(4) and (6) and then extended by Articles 31A and 31B and Schedule IX as first enacted and as subsequently amplified by the Fourth and the Seventeenth Amendments all of which have been held to be valid. Directive Principles are also fundamental and the amending power is designed to enable future Parliament and State Legislatures to provide for the changes in priorities which take place after the Constitution was framed and the amending power is extended to enacting Article 31C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, has any relevance or nexus with the movement of the citizens throughout India or to settle in any part of India ? Are those to whom property is distributed in furtherance of the directive principles, ought not to be secured against infringement of those rights in property so distributed by laws made under Article 31C? It would seem that those for whose benefit legislation deprives others in whom wealth is concentrated themselves may not be protected by Article 19 and Article 14, if Article 31C can take away or destroy those rights. Without such a protection they will not have a stake in the survival of democracy, nor can they be assured that economic justice would be meted out to them. Nor am I able to understand why where an industry or undertaking is taken over, is it necessary Co take away the right of the workers in that industry or undertaking to form associations or unions. The industry taken away from the owners has nothing to do with the workers working therein, and merely because they work there they will also be deprived of their rights. I have mentioned a few aspects of the unrelated rights which are abridged by Article 31C. No doubt, the recognition of the freedom o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... untry under a Constitution and a Preamble proclaiming the securing of fundamental rights to its citizens, will be without them. The individual rights which ensure political rights of the citizens in a democracy may have to be subordinated to some extent to the Directive Principles for achieving social objectives but they are not to be enslaved and driven out of existence. Such could not have been contemplated as being within the scope of the amending power. 1249. Although Article 31A protected the laws coming within its purview from the rights conferred by Article 19, such a protection could only be against the rights conferred by Clauses (f) and (g) of Article 19(1), as its subjected-matter was expressly stated to be the acquisition of or extinguishment or modification of rights in any estate as defined in Clause (2) thereof, and the taking over or amalgamation or termination etc., of rights of management and certain leasehold interests. Article 31C protects laws giving effect to the policies in Article 39(b) (c). For achieving these twin objects the rights of the persons that have to be abridged could only be those rights in Article 19 which relate to property and trade, bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning and conclusion of my learned brother Khanna, J., whose judgment I have had the advantage of perusing, in so far as it relates only to the severance of the part relating to the declaration, and with great respect I also adopt the reasoning on that aspect alone as an additional reason for supporting my conclusions on the first three elements also. 1252. If the first part of Article 31C is read in this manner, then it may be held to be intra vires the amending power only if those portions of the Article which make it ultra vires the amending power are severed from the rest of it. The portions that may have to be severed are the words, is inconsistent with or takes away, or and the words Article 14 and the part dealing with the declaration by reason of which judicial review is excluded. The severability of these portions is permissible in view of the decision of the Privy Council in Punjab Province v. Daulat Singh and Ors. (1946) 73 Indian Appeals 59 and the principles laid down by this Court in B.M.D. Chamarbdugwalla v. The Union of India (1957) S.C.R. 930. 1253. The doctrine that the general words in a statute ought to be construed with reference to the powers of the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deletion of the words, either before or from Section 5 of the impugned Act, the rest of the provisions of the impugned Act, may be left to operate validly. 1254. In Chamarbaugwalla s case, Venkatarama Aiyer, J., after referring to the various cases including F.N. Balsara s case accepted the principle that when a statute is in part void, it will be enforced as regards the rest, if that is severable from what is invalid. It is immaterial for the purpose of this rule whether the invalidity of the statute arises by reason of its subject-matter being outside the competence of the legislature or by, reason of its provisions contravening Constitutional prohibitions. He enunciated seven rules of separability. In F.N. Balsara s case, apart from Section 23(a) and (b) and Section 24(1)(a) relating to commendation and incitement from the definition of the word liquor in Section 2(24)(a) the words all liquids consisting of or containing alcohol were severed as these would include medicinal preparations. It will be seen that neither the whole Subclause (a) was deleted nor the whole of Clause (24) was separated. It is only the above words that were severed and held to make the remai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .C.R. 489 the doctrine of severability was not applied. In that case the term grant was defined in Section 2(1) of the Madhya Pradesh Abolition of Cash Grants Act, 1963, in a language which was wide without making a distinction between various types of cash grants. This Court did not find any basis for severing some out of the several grants included therein and hence expressed the view that it is impermissible to rewrite that clause and confine the definition to such of the cash grants which the Legislature might be competent to abolish. The case is, therefore, distinguishable as the rule is inapplicable to such instances. 1257. I have considered the validity of Article 31C by applying the doctrine of severability although neither side dealt with this aspect in relation to Article 31C, because both had taken an extreme position, which if accepted, will either result in the total invalidation or in upholding its validity in entirety. If as the petitioner had contended that by an amendment any of the fundamental rights cannot be damaged or destroyed, the next logical step of the argument on his behalf should have been to establish that the entire Article 31C is bad on that acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from Article 31C. In the result, on the construction of Article 31C after severing the portions indicated above, I hold Section 3 of the Twenty-fifth Amendment valid. 1258. On the validity of the Constitution (Twenty-ninth) Amendment, my Lord the Chief Justice has come to the conclusion that notwithstanding this amendment the Constitution Bench will decide whether the impugned Acts take away fundamental rights or only abridge them and whether they effect reasonable abridgements in publiic interest, and if they take away, they will have to be struck down. My learned brothers Hegde and Mukherjea, JJ., have in effect come to the same conclusion, when they hold that this amendemnt is valid, but whether the Acts which were brought into the IXth Schedule by that Amendment or any provision in any of them abrogate any of the basic elements or essential features of the Constitution will have to be examined when the validity of those Acts is gone into. With respect, I agree in effect with these conclusions which are consistent with the view I have expressed in respect of Articles 31A and 31B. I also agree that the contention of the learned Advocate for the petitioner that Article 31B is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t equivalent of the value of the property acquired no longer applies. The word amount which has no legal concept and, as the amended clause indicates, it means only cash which would be in the currency of the country, and has to be fixed on some principle. Once the Court is satisfied that the challenge on the ground that the amount or the manner of its payment is neither arbitrary or illusory or where the principles upon which it is fixed are found to bear reasonable relationship to the value of the property acquired, the Court cannot go into the question of the adequacy of the amount so fixed or determined on the basis of such principles. (b) Clause (2B) as added.-On the applicability of Article 19(1)(f) to Clause (2) of Article 31, the word affect makes two constructions possible, firstly, that Article 19(1)(f) will not be available at all to an expropriated owner, and this, in other words, means that it totally abrogates the right in such cases, and secondly, Clause (2B) was intended to provide that the law of acquisition or requisition will not be void on the ground that it abridges or affects the right under Article 19(1)(f). The second construction which makes the amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delivered by my lord the Chief Justice and it is not therefore necessary to recount the same. 1265. In this petition the Constitutional validity of the Kerala Land Reforms (Amendment) Act, 1969 and the Kerala Land Reforms (Amendment) Act, 1971 has been challenged. As the petitioner apprehended that he would not succeed in the challenge in view of the recently passed Constitution Amendment Acts, he has also challenged the validity of these Acts. They are: (1) The Constitution 24th Amendment Act, 1971; (2) The Constitution 26th Amendment Act, 1971 and (3) The Constitution 29th Amendment Act, 1972. 1266. The crucial point involved is whether the Constitution is liable to be amended by the Parliament so as to abridge or take away fundamental rights conferred by Part III of the Constitution. 1267. By the 24th Amendment, some changes have been made in Articles 13 and 368 with the object of bringing them in conformity with the views expressed by a majority of Judges of this Court with regard to the scope and ambit of Articles 13 and 368. In Sankari Prasad Singh v. Union of India [1952] S.C.R. 89 the Constitutional Bench of five Judges of this Court unanimously held that fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liament to amend the Constitution under Article 368 did not extend to the damaging or destroying what he called the essential features and basic principles of the Constitution and since fundamental rights came in that category, any amendment which damaged or destroyed the core of these rights was impermissible. The argument on behalf of the State of Kerala and the Union of India was that an amendment of the Constitution abridging or taking away fundamental rights was not only permissible after the clarificatory 24th Amendment but also under the unamended Articles 13 and 368, notwithstanding the refinement in the arguments of Mr. Palkhivak with regard to essential features and basic principles of the Constitution. We are, therefore, obliged to go back to the position before the 24th Amendment and consider whether the majority view in Golak Nath was not correct. A fuller bench of 13 Judges was, therefore, constituted and it will be our task to deal with the crucial question involved. This course cannot be avoided, it is submitted; because if the fundamental rights were unamendable by the Parliament so as to abridge or take them away, Parliament could not increase its power to do so b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution) can legally be changed with the same ease and in same manner by one and the same body. A rigid Constitution is one under which certain laws generally known as Constitutional or fundamental laws cannot be changed in the same manner (as ordinary laws). See Dicey s Law of the Constitution 10th edition, 1964 p. 127. It will be noted that the emphasis is on the word change in denoting the distinction between the two types Constitutions. Lord Birkanhead in delivering the judgment of the judcial Committee of the Privy Council in McCawley v. The King [1920] A.C. 691 used the words uncontrolled and controlled for the words flexible and rigid respectively which were current then. He had to examine the type of Constitution Queensland possessed, whether it was a flexible Constitution or a rigid one in order to decide the point in controversy. He observed at page 703 The first point which requires consideration depends upon the distinction between Constitutions the terms of which may be modified or repealed with no other formality than is necessary in the case of other legislation, and Constitutions which can only be altered with some special formality and in some c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Seventh Schedule and the State Legislatures with regard to those in List II. There is also List III enumerating matters in respect of which both the Parliament and the State Legislatures have concurrent powers to make laws. This power to make laws is given to these bodies by Articles 245 to 248 and the law making procedure for the Parliament is contained in Articles 107 to 122 and for the State Legislatures in Articles 196 to 213. The three Lists in the Seventh Schedule no where mention the Amendment of the Constitution as one of the subject matters of legislation for either the Parliament or the State Legislatures. On the other hand, after dealing with all important matters of permanent interest to the Constitution in the first XIX parts covering 367 Articles, the Constitution makes special provision for the Amendment of the Constitution in Part XX in one single Article, namely, Article 368. A special procedure is provided for amendment which is not the same as the one provided for making ordinary laws under Articles 245 to 248. The principle features of the legislative procedure at the Centre are that the law must be passed by both Houses of Parliament by a majority of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the other for amending the Constitution were not just an accident of drafting. The two procedures have been delibarately provided to conform with well-know Constitutional practices which make such separate provisions to highlight the different procedures one commonly known as the legislative procedure and the other the constituent procedure. The word constituent is so well-known in modern Political Constitutions that it is defined in the dictionaries as able to frame or alter a Constitution. And the power to frame or alter the Constitution is known as constituent power. See The Concise Oxford Dictionary. 1275. Where then in our Constitution lie the legislative power and the constituent power? The legislative power is given specifically by Articles 245 to 248, subject to the Constitution, and these Articles are found under the heading Distribution of legislative powers . That alone is enough to show that these articles do not deal with the constituent power. The point is important because the leading majority judgment in Golak Nath s case proceeds on the footing that the power lies in Article 248 read with the residuary entry 97 in List I of the Seventh Schedule. That f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent so made by law is not to be deemed an amendment of the Constitution for the purpose of Article 368. The warning was necessary to emphasise that an amendment of the Constitution in accordance with the procedure laid down in Article 368 was of a special quality-a quality different from amendments made by law by the Parliament. The special quality flowed from the fact that the Parliament and the States which were to participate in the process performed not their ordinary legislative function but a special function known in all Federal or quasi-federal or controlled Constitutions as a constituent function. The difference between the ordinary function of making law and the function of amending the Constitution loses its significance in the case of a sovereign body like the British Parliament or a Parliament like that of Newzealand which has a written Constitution of the Unitary type. These bodies can amend a Constitutional law with the same ease with which they can make an ordinary law. The reason is that their Constitutions are flexible Constitutions. But in countries which have a written Constitution which is a rigid or controlled Constitution the Constitution is liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to propose amendments in certain matters and Parliament had to ratify such amendments. There was thus a reverse process of amendment. There was no residuary power in the States and the amendment of the Constitution was not a specific subject of legislative power in draft List II. This goes to show that in the Draft Constitution, in all but two matters, the proposal for amendment was to be made by the Parliament and in two specified matters by the State Legislatures. If the power for the latter two subjects was to be found in Clause 2 of Article 304 of the Draft Constitution it is only reasonable to hold that the power of Parliament to amend the rest of the Constitution was to be found in Article 304(1) which corresponds to the present Article 368. 1279. Moreover the actual wording of Article 245 which along with Articles 246 to 248 comes under the topic Distribution of legislative powers is important. Article 245 provides that Parliament may make laws for the whole or any part of India and the legislature of a State may make laws for the whole or any part of the State. Thus Article 245 confers the power to make laws on Parliament and the Legislatures of the State for and withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary laws. The conclusion, therefore, is that the power of amendment cannot be discovered in Article 248 read with the residuary entry. The argument that Article 368 does not speak of the power to amend but only of the procedure to amend in pursuance of the power found elsewhere is clearly untenable. The true position is that the alchemy of the special procedure prescribed in Article 368 produces the constituent power which transports the proposed amendment into the Constitution and gives it equal status with the other parts of the Constitution. 1280. Moreover, if an amendment of the Constitution is a law made under Article 248 read with entry 97 List I strange results will follow. If the view taken in Golak Nath s case is correct, such a law being repugnant to Article 13(2) will be expressly invalidated so far as Part III of the Constitution is concerned. And such a law amending any other article of the Constitution will also be invalid by reason of the governing words subject to the provisions of the Constitution by which Article 245 commences. In that event no article of the Constitution can be amended. On the other hand, if the law amending an article of the Constitution i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even though that assembly be nothing more than the ordinary legislature acting under certain restrictions. (emphasis supplied) 1282. Authorities are not wanting who declare that such amending power is sovereign constituent power. Orfield in his book, the Amending of the Federal Constitution (1942) page 155 (1971 Edn.) says that in America the amending body is sovereign in law and in fact Herman Finer in his book The Theory and Practice of Modern Government, fourth edition 1961 reprinted in 1965, pages 156/157 says Supremacy is shown and maintained chiefly in the amending process.... Too difficult a process, in short, ruins the ultimate purpose of the amending clause.... The amending clause is so fundamental to a Constitution that I am tempted to call it the Constitution itself. Geoffery Marshall in his Constitutional Theory (1971) p. 36 says there will in most Constitutional systems, be an amending process and some collection of persons, possibly complex, in whom sovereign authority to alter any legal rule inheres....Constitutions unamendable in all or some respects are non-standard cases and a sovereign entity whether (as in Britain) a simple legislative majority, or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pen to the people through a convention or a constituent assembly to make any amendments to the Constitution in any manner it liked, there were limitations on the power of an ordinary Parliament- a constituted body , which precluded it from making the amendments which damaged or destroyed the essential features and elements of the Constitution. We shall deal with the latter argument in its proper place. But for the present we are concerned to see whether the power to amend becomes more or less in content according to the nature of the body which makes the amendment. In my view it does not. Because as explained by Strong in the passage already quoted In short it (i.e. the constituent assembly which framed the Constitution) attempts to arrange for the recreation of a constituent assembly whenever such matters are in future to be considered even though that assembly be nothing more than the ordinary legislature acting under certain restrictions. Only the methods of making amendments are less rigid or more rigid according to the historical or political background of the country for which the Constitution is framed. For example Article V of the American Constitution divides the procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Objection was raised to the validity of the amendment on the ground that since the amendment affected the personal liberty of the subject and under Article X the people had still retained rights which had not been surrendered to the Federal Constitution, the ratification ought to have been by the representatives of the people at a special convention and not by the State legislatures. That objection was rejected on the ground that the Congress alone had the choice as to whether the State legislatures or the conventions had to ratify the amendment. Conversely, in Hawke v, Smith 253 U.S. 221 which also related to the 18th amendment it was held that the State of Ohio could not provide for the ratification of the 18th amendment by popular referendum since such a procedure altered the plain language of Article V which provides for ratification by State legislatures rather than by direct action of the people. It will be seen from this case that the State legislature for Ohio, instead of deciding on the ratification itself as it was bound to do under Article V, decided to obtain the opinion of the people by a referendum but such a procedure was held to be illegal because it did not find a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution and the other with a written Constitution-governed by Parliamentary democracy, the Constitution could be changed by an ordinary majority. 1286. Why the power to amend the Constitution was given in the main to Parliament is not fully clear. But two things are clear. One is that as in America the people who gave us the Constitution completely withdrew themselves from the process of amendment. Secondly, we have the word of Dr. Ambedkar-one of the principal framers of our Constitution that the alternative methods of referendum or convention had been considered and definitely rejected. See Constituent Assembly Debates, Vol. VII page 43. They decided to give the power to Parliament, and Dr. Ambedkar has gone on record as saying that the amendment of the Constitution was deliberately made as easy as was reasonably possible by prescribing the method of Article 368. The Constituent Assembly Debates show that the chief controversy was as to the degree of flexibility which should be introduced into the Constitution. There may have been several historical reasons for the constituent assembly s preference for Parliament. Our country is a vast continent with a very large population. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to us extracts from nearly seventy one modem Constitutions of the world and more than fifty of them show that those Constitutions have provided for their amendment. They have used the word amend , revise , or alter , as the case may be, and some of them have also used other variations of those words by showing that the Constitutional provisions may be changed in accordance with some special procedures laid down. Some have made the whole of the Constitution amendable some others have made some provisions unamendable; and two Constitutions - that of Somalia and West Germany have made provisions relating to Human Rights unamendable. In some of the Constitutions a few provisions are made partially amendable and other provisions only under special restrictions. But all have given what is commonly known as the Amending power to be exercised in circumstances of more or less rigidity. The methods or processes may be more rigid or less rigid-but the power is the same, namely, the amending power. 1289. The raison d etre for making provisions for the amendment of the Constitution is the need for orderly change. Indeed no Constitution is safe against violent extra- Constitutional uph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution as precise and as detailed as possible so that one need not depend upon judicial interpretation to make it survive. Correspondingly they have made it more flexible so that it is amenable to amendment whenever a change in the Constitution is necessary. 1290. A good deal of unnecessary dust was raised over the question whether the amendment of the Constitution would extend to the repeal of the Constitution. That is an interesting subject for speculation by purists and theoretical jurists, but politicians who frame a Constitution for the practical purposes of government do not generally concern themselves with such speculations. The pre-eminent object in framing a Constitution is orderly government. Knowing that no Constitution, however, good it may seem to be when it was framed, would be able to bear the strain of unforeseen developments, the framers wisely provide for the alteration of the Constitution in the interest of orderly change. Between these two co-ordinates, namely, the need for orderly government and the demands for orderly change, both in accordance with the Constitution, the makers of the Constitution provide for its amendment to the widest possible limit. If a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of addition, variation or repeal of any provision of the Constitution which is the clarification of that expression accepted by the Constitutional 24th Amendment. 1292. We shall now see if there are express or implied limitations in Article 368 itself. Article 368 is found in Part XX of the Constitution which deals with only one subject, namely, the Amendment of the Constitution. The article provides that when the special procedure directed by it is successfully followed the Constitution stands amended in terms of the proposal for amendment made in the Bill. Whatever provision of the Constitution may be sought to be amended, the amendment is an Amendment of the Constitution. The range is the whole of this Constitution which means all the provisions of the Constitution. No part of the Constitution is expressly excepted from amendment. Part XX and Article 368 stand in supreme isolation, after the permanent provisions of the Constitution are exhausted in the previous XIX parts. The power to amend is not made expressly subject to any other provision of the Constitution. There are no governing words like subject to the Constitution or this or that part of the Constitution. If the fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tist s Act. (Law of the Constitution page 145). We know that by the statute of Westminster the British Parliament removed most of the Imperial fetters from the self governing colonies and by the Independence of India Act, 1947 surrendered its Indian Empire. Recently the British Parliament invited inroads on its sovereignty by joining the Common Market. Similarly, as we have seen in McCawley s case, referred to earlier, the legislature of queensland, whose Constitution was a flexible Constitution, was held competent to amend its Constitutional provisions with regard to the tenure of office of the Judges of the Supreme Court by a subsequent Act passed in 1916 on the subject of Industrial Arbitration. To the objection that so important a provision of the Constitution was not permissible to be amended indirectly by a law which dealt with Industrial arbitration, Lord Birkenhead made the reply at page 713. Still less is the Board prepared to assent to the argument, at one time pressed upon it, that distinctions may be drawn between different matters dealt with by the Act, so that it becomes legitimate to say of one section: This section is fundamental or organic; it can only be altered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions is either important or unimportant. The amending power operates on all provisions as effectively as it does in a flexible Constitution. If the nature of the provision is so important that the Constitution itself provides against its amendment the amending power will have to inspect the provision. But if it is not so protected, every provision, important or otherwise, can be amended by the special procedure provided. In that respect the fact that the Constitution is a rigid Constitution does not place any additional restraint. 1295. We have already referred to the principle underlying the Amending provision in a written Constitution. In some Constitutions, the special procedure is very rigid as in the American Constitution. In others, especially in more modern Constitutions, having regard to the disadvantages of providing too rigid and restrictive procedures, amending procedures have been made more and more flexible. Our Constitution which learnt from the experience of other similar Constitutions made the amending procedure as flexible as was reasonably possible. There are several articles in the Constitution which permit the Parliament to make laws which are of a Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to express itself truthfully therein, but must writhe under the bonds of its Constitution until it perishes or breaks them asunder, this is again indisputable evidence that the law of its organization within the Constitution is imperfect and false. To my mind the error lies in the artificially excessive majorities required in the production of Constitutional changes. These passages express the deep anguish of the jurist and his disappointment with the current process of amendment prescribed in the U.S. Constitution. He gives the amending provision supreme importance in the Constitution and wants it to be very much less rigid than what it is, so that the Constitution can correspond with the truth of contemporary, social and political changes. The whole object of providing for amendment is to make the Constitution as responsive to contemporary conditions as possible because, if it is not the danger of popular revolt, civil war or even revolution in a rapidly changing world may soon overtake the people. That being the political philosophy behind the amending provision it is obvious that the provision must serve the same purpose as in a Parliamentary democracy with a flexible Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments. Passing a provision long since expired (that provision expired in 1808) it subjects this power to only two restrictions: one that the proposal shall have the approval of two thirds of both Houses, and the other excluding any amendment which will deprive any state, without its consent, of its equal suffrage in the Senate. A further mode of proposal-as yet never invoked-is provided, which is, that on application of the two thirds of the states Congress shall call a convention for the purpose. When proposed in either mode, amendments, to be effective, must be ratified by the legislatures, or by conventions, in three fourths of the states, as the one or the other mode of ratification may be proposed by the Congress. Thus the people of the United States, by whom the Constitution was ordained and established, have made it a condition to amending that instrument that the amendment be submitted to representative assemblies in the several states and be ratified in three fourths of them. The plain meaning of this is (1) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not act in the exercise of its ordinary legislative authority of its general powers; but it possesses and acts in the character and capacity of a convention, and is, quoad hoc, a convention expressing the supreme will of the sovereign people and is unlimited in its powers save by the Constitution of the United States. Therefore, every change in the fundamental law, demanded by the public will for the public good, may be made, subject to the limitation above named. 1298. In Downs v. City of Birmingham 198 Southern Reporter, 231 the Supreme Court of Alabama held that an amendment to state Constitution may extend to a change in form of the state s government, which may be in any respect except that the government must continue to be a republican form of government as required by the U.S. federal Constitution, which was inviolable, and that rights acquired under the Constitution are subject to Constitutional provisions permitting amendments to the Constitution, and no right can be acquired under the State consitution which cannot be abridged by an amendment of the Constitution and such a rule extends to contract and property rights. 1299. In Schneiderman v. United States of America ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st one, namely, what an amendment means in the context of a Constitution which contains an amending clause. In the Oxford English Dictionary, Vol. I the word amend is stated to mean To make professed improvements in (a measure before Parliament); formally, to alter in detail, though practically it may be to alter its principle so as to thwart it. 1303. Sutherland in his Statutes and Statutory Construction, third edition, Vol. I, p. 325 has explained an amendatory act , as any change of the scope or effect of an existing statute, whether by addition, omission, or substitution of provisions, which does not wholly terminate its existence, whether by an act purporting to amend, repeal, revise, or supplement, or by an act independent and original in form. 1304. In Words and Phrases, Permanent edition Vol. 3, p. 447 it is generally stated that the word amendment involves an alteration or change, as by addition, taking away or modification. It is further explained that the words amend , alter , and modify are in general use and their meaning is not uncertain. Each means to change. A broad definition of the word amendment would include any alteration or change. Further on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f providing an amendment clause in a modern Constitution, amendment must stand for alteration and change in its provisions. 1308. That this was intended is clear from the wording of Article 368. The main part of the Article speaks only of an amendment of this Constitution. It shows how a proposal for amendment becomes part of the Constitution. The language structure of Article 368 recalls the language structure of Article V of the American Constitution. There also the words used are amendment of this Constitution , and nothingmore. No such supplementary words like by addition, alteration or repeal are used. Yet we have seen that so far as Article V is concerned an amendment under Article V involves alteration and change in the Constitution. Article 368 has a proviso which begins with these words provided that if such amendment seeks to make any change in-(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... importance of the amending clause in a Constitution, the philosophy underlying it and the amplitude of its power, it will be improper to try to cut down the meaning of the word amendment in the expression amendment of the Constitution by comparing it with the same word used in other provisions of the Constitution or other statutes in a different context. Not that such a comparison will in any way serve the object with which it is made, but it will amount to comparing, in effect, two words-one operating on a higher plane and the other on a lower. The word amendment in the expression amendment of the Constitution operates on a higher plane and is substantially different in connotation from the same word used on a lower plane in some other provision of the Constitution or any other statute in an entirely different context. To say that the word amendment in amendment of the Constitution is used in a low key because padding words like amendment by way of addition, variation or repeal are used elsewhere in the Constitution would be to ignore the status of the word amendment when used in the context of amending the Constitution. Indeed the expression amendment by way of add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns can be drawn with regard to the power under Article 368 by a reference to another statute where a particular phraseology is adopted in its own context. On the other hand this may be contrasted with the wording of Section 308 (later repealed) which provided for the amendment of the Act and the Orders in Council on the proposals made by the Federal and State legislatures. The Act referred to is the Government of India Act, 1935. No padding words are used in the section although the context shows that amendment would inevitably involve adding, altering or repealing certain provisions of the Government of India Act or Orders in Council. 1312. The structure of Article 368 is now changed by the 24th amendment and the expanded expression amendment by way of addition, variation or repeal, any provision of this Constitution is adopted. The language structure of the original Article 368 was, however, different and there was no reference to the provisions of the Constitution therein. The article commenced with the words An amendment of this Constitution without reference to any provisions. Reference to provisions of the Constitution having been eschewed, to pad the expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of course this is a fortiori the case, if a reference is suggested, not to something within, but to considerations extraneous to, the Act itself. If, for instance, it be argued that the mind of Parliament looking before and after, having in view the past history of a question and the future consequences of its language, must have meant something different from what is said, then it must be answered that all this essay in psychological dexterity may be interesting, may help to whittle language down or even to vaporize it, but is a most dangerous exercise for any interpreter like a Court of law, whose duty is loyally to accept and plainly to expound the simple words employed. 1315. We have to see next whether there are express limitations on the amending power elsewhere in the Constitution. The only provision to which our attention is drawn in Article 13(2). The article, before its amendment by the 24th amendment, was as follows: 13. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who agreed with the conclusion did not agree that the power to amend was traceable to the residuary article referred to above. Nevertheless he held it was indistinguishable from the other laws of the land for the purpose of Article 13(2). The other five judges who were in the minority agreed substantially with the view taken in Sankari Prasad s case and by the majority in Sajjan Singh s case that this was not a law within the meaning of Article 13(2) because, in their opinion, an amendment of the Constitution under Article 368 was an act in exercise of the constituent power and was, therefore, outside the control of Article 13(2). 1317. Mr. Palkhivala submitted that he was not interested in disputing where the power to amend actually lay. Even assuming, he contended, the power to amend was to be found in Article 368, the worst that could be said against him was that the amendment was a Constitutional law and in his submission even such a law would be taken in by Article 13(2). In this connection he argued that there were certain laws made in the Indian States or even other laws which could be properly described as Constitutional laws which continued in force after the commence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution and to the extent that they were inconsisent with the fundamental rights, they stood on the same footing as any other laws which continued in force after the commencement of the Constitution. Their status was entirely subordinate to the Constitution. On the other hand, the stature of a Constitutional amendment, as already seen, is the stature of the Constitution itself and, therefore, it would be wrong to equate the amendment of the Constitution with a so-called Constitutional law or document which survived after the commencement of the Constitution under Article 372(1). 1318. An amendment of the Constitution cannot be regarded as a law as understood in the Constitution. The expressions law , by law , make a law , are found scattered throughout the Constitution. Some articles, as shown by Bachawat, J. in Golak Nath s case at pages 904 and 905, are expressly continued until provision is made by law. Some articles of the Constitution continue unless provision is made otherwise by law; some continue save as otherwise provided by law. Some articles are subject to the provisions of any law to be made and some are expnessed not to derogate from the power of making la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 60 and of the Governor of a State in Article 159 it would have been sufficient for him to swear that he would preserve, protect and defend the laws instead of swearing that he would preserve, protect and defend the Constitution and the law . Similarly the Attorney General under Article 76 and the Advocate Generals of the States under Article 165 need have merely sworn that he would discharge the functions conferred on him by law instead of that he would discharge the functions conferred by and under this Constitution or any other law for the time being in force . Similar is the case with the oaths prescribed in the IIIrd Schedule for the judges of the Supreme Court and the High Courts and the Comptroller and Auditor General. Indeed it is quite possible to urge that the Constitution has been specially mentioned in order to emphasize its importance. But that is the very point. Its importance lies in its supremacy over all kinds of others laws-a special position which the framers of the Constitution, thoroughly acquainted with federal and quasifederal Constitutions of the more important countries in the world, must have always known. In any case they knew that the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r obligation to the Constitution. It would be, therefore, wrong to identify state in Article 13(2) with anything more than the instruments created or adopted by the Constitution and which are required to work in conformity with the Constitution. Nor can the word state be regarded as standing for a Nation or a Conglomeration of all the governmental Agencies. The Nation is an amorphous conception. The bar under Article 13(2) is against concrete instrumentalities of the State, instrumentalities which are capable of making a law in accordance with the Constitution. 1321. By its very definition as discussed earlier, a body or set of bodies exercising, as indicated in the Constitution, sovereign constituent power whether in a flexible or a rigid Constitution is not a governmental organ owing supreme obligation to the Constitution. The body or bodies operate not under the Constitution but over the Constitution. They do not, therefore, while amending the Constitution, function as governmental organs and, therefore, cannot be regarded as the State for the purposes of Part III of the Constitution. 1322. We thus reach the conclusion that an amendment of the Constitution is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared in the garb of Article 368 of the Constitution with some additional subjects in the proviso. 1325. In adopting the distinction between the Constitution and the law the framers of the Constitution did not create any new concept of the law being subordinate to the Constitution. That was a concept which was well-recognized in Federal Constitutions specially providing for the amendment of the Constitution by a special procedure. 1326. No body disputes that law in its widest sense includes Constitutional law as it does natural law, customary law or ecclesiastical law. The point is whether in our Constitution law includes an amendment of the Constitution . As already shown our Constitution has maintained a meticulous distinction between ordinary law made by the legislature by ordinary legislative procedure and an amendment of the Constitution under Article 368. This is highlighted even when certain provisions of the Constitution are amended by ordinary law. As already shown Articles 4, 169 and paras 7 and 22 of the Fifth and Sixth Schedules respectively permit the Parliament to make by law certain amendments in the Constitution, but in every case it is further provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able was not necessary except by way of abundant caution. (See : Shiva Rao The Framing of India s Constitution, Vol. IV, page 26). That was apparently the reason for deleting that part of Article 13 which said that Article 13 should not come in the way of an amendment to the Constitution by which fundamental rights were abridged or taken away. Neither the speeches made by the leaders connected with the drafting of the Constitution nor their speeches (the same constituent assembly had continued as the provisional Parliament) when the first amendment was passed incorporating serious inroads into the fundamental rights conferred by Articles 15, 19 and 31 show that the fundamental rights were intended or understood to be unamendablerather the contrary. 1328. The further argument that fundamental rights are inalienable natural rights and, therefore, unamendable so as to abridge or take them away does not stand close scrutiny. Articles 13 and 32 show that they are rights which the people have conferred upon themselves. A good many of them are not natural rights at all. Abolition of untouchability (Article 17), abolition of titles (Article 18); protection against double jeopardy (Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he principal objectives of our Constitution as stated in the Preamble and Article 38, and any move on the part of the society or its government made in the direction of such justice would inevitably impinge upon the sanctity attached to private property and the fundamental right to hold it. The Directive Principles of State Policy, which our Constitution commands should be fundamental in the governance of the country, require the state to direct its policy towards securing to the citizens adequate means of livelihood. To that end the ownership and control of the material resources of the community may be distributed to serve the common good, and care has to be taken that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. See : Articles 37 to 39. This mandate is as important for the State as to maintain individual freedoms and, therefore, in the final analysis it is always a continuous endeavour of a State, having the common good of the people at heart, so to harmonize the Directive Principles and the fundamental rights that, so far as property rights are concerned, the unlimited freedom to hold it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, we all have to make up our minds as responsible human beings and citizens what stand we will take, for example, in the tension between state security and individual freedom. The danger is that by giving our faith the halo of natural law we may claim for it an absolute character from which it is only too easy to step to the condemnation or suppression of any different faith . pp. 357-358. The time is past when Western beliefs can be regarded as a measure of all things. Nor will the natural law hypothesis aid much in the solution of the agonising problem of the limits of obedience to positive law. p. 359; The main forces in the development of modern democratic thought have been the liberal idea of individual rights protecting the individual and the democratic idea proper, proclaiming equality of rights and popular sovereignty. The gradual extension of the idea of equality from the political to the social and economic field has added the problems of social security and economic planning. The implementation and harmonisation of these principles has been and continues to be the main problem of democracy. But democratic communities have universally, though with varying speed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able private right. 1330. Nor is it correct to describe the fundamental rights, including the right to property, as rights reserved by the people to themselves. The Constitution does not use the word reserved . It says that the rights are conferred by the people upon themselves, suggesting thereby that they were a gift of the Constitution. The Constitution had, therefore, a right to take them away. This is indirectly recognised in Golak Nath s case where the majority has conceded that all the fundamental rights could be taken away by a specially convened constituent assembly. When rights are reserved by the people the normal mode, as in the several states of America, is a referendum, the underlying principles being that ultimately it is the people, who had given the Constitution and the rights therein, that could decide to take them away. In our Constitution the people having entrusted the power to the Parliament to amend the whole of the Constitution have withdrawn themselves from the process of amendment and hence clearly indicated that there was no reservation. What the Constitution conferred was made revocable, if necessary, by the amendatory process. In my view, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight to property. Right to property has been subject to abridgement right from the Constitution itself (See : Article 31(4) (6)) and the 25th amendment is a further inroad on the right to property. In Golak Nath s case, the first, fourth and the seventeenth amendments were held by the majority as having contravened Article 13(2). Nevertheless the amendments were not struck down but permitted to continue as if they were valid. Since I have come to the conclusion that Article 13(2) does not control an amendment of the Constitution, it must be held that all previous amendments to the Constitution, so far made, could not be challenged on the ground of repugnancy to Article 13(2). It follows that any amendment of the Constitution cannot be challenged on that ground, and that would be true not only of the 24th amendment but also the 25th amendment, and the 29th amendment. 1336. The question still survives whether the 25th amendment and the 29th amendment are invalid because, as contended by Mr. Palkhivala, an essential feature of the Constitution has been substantially affected. The argument proceeds on the assumption that in the absence of any express limitation on the power of ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndable by implying limitations on the Amending power. Indeed this Court is a guardian of the Constitution in the sense that will not permit its contravention by any of its instrumentalities, but it cannot constitute itself a guardian against change Constitutionally effected. 1337. Though the argument had a wide sweep, namely, that the several essential features catalogued by Mr. Palkhivala were not liable to be damaged or destroyed, in the ultimate result the case really boils down to whether the core of the fundamental right to property has been damaged or destroyed principally by the 25th amendment, and, if so whether there was any implied or inherent limitation on the amendmg power which prohibited such an amendment. The several essential features listed by Mr. Palkhivala do not come into the picture in the present case. It is not the case that by the recent 25th amendment either the sovereignty of India is affected or the Republican form of Government has been destroyed. One of the several essential fca tures listed by him is fundamental rights. Amongst fundamental rights also most are untouched by the amendment. The 25th amendment deals principally with property rights and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first two clauses of which spelt out the fundamental right to property. Apart front what Pandit Jawaharlal Nehru said about the Article in the Constituent Assembly Debates-and what he said was not at all sympathetic to Mr. Palkhivala s argument before us-the fundamental right to receive compensation under Clause (2), as then framed, was completely nullified by Clauses (4) (6) in at least one instance of concentration of wealth and material resources viz. Zamindaris and landed estates. These clauses were deliberately inserted in the original Article 31 leaving no manner of doubt that Zamindaris and Estates were sought to be abolished on payment of even illusory compensation. The various States had already passed laws or were in the process of passing laws on the subject, and specific provision was made in the two clauses, securing such laws from challenge on the ground that they were not acquired by the State for a public purpose or that adequate compensation was not paid. The first case under the Bihar Land Reforms Act, 1950, State of Bihar v. Kameshwar Singh [1952] S.C.R. 889 shows that the law was highly unjust (from the prevailing point of view of justice ) and the compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... related to very necessary agrarian reforms to which the majority party in the Constituent Assembly was for years before the Constitution, committed. But that is not a legal argument. Articles 31(4)(6) and Article 31A clearly show that community interests were regarded as supreme and those Articles were only a step in the implementation of the Directive Principles in Article 39(b) (c). (Compare the observations of Das J. in 1952 S.C.R. 889 at pages 996 to 999.) The Constitution definitely refused to accept the core principle with regard to property rights, if property was required to be expropriated in the common interest in pursuance of the Directive Principles. The mood of the majority party is reflected in the speech of Pandit Govind Vallabh Pant, the then Chief Minister of Uttar Pradesh. Speaking in the Constituent Assembly on Article 31 and after justifying the provision of Article 31(4) (6) in relation to laws regarding Zamindaris and agricultural estates (there were 20 lakh Zamindars) according to him, in U.P. alone (he said I presume that if at any time this legislature chooses to nationalise industry, and take control of it, whether it be all the industries or any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other words, Article 368 contains unqualified and plenary powers to amend the provisions of the Constitution including the Amending clause. Prima facie, therefore, to introduce implied prohibitions to cut down a clear affirmative grant in a Constitution would be contrary to the settled rules of construction. (See the dissenting judgment of Isaacs and Rich JJ in McCawley v. The King 26 C.L.R. 43-68 approved by the Privy Council in 1920 A.C. 691). 1340. When such an Amending clause is amended without affecting the power the amendment will principally involve the Amending procedure. It may make amendment easier or more difficult. The procedure may also differ substantially. Parliament may be eliminated from the process leaving the amendment to the States. The proviso might be dropped, enlarging the role of the Parliament. On the other hand, the Parliament and State Assemblies may be divested of the function by providing for a referendum plebiscite or a special convention. While, thus the power remains the same, the instrumentalities may differ from time to time in accordance with the procedure prescribed. Hidayatullah, J., with respect, was right in pointing out that the power to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power is entrusted. Therefore, this reason also viz. that Parliament is a constituted body and, therefore, it suffers from inherent limitations does not hold good. 1343. From the conclusion that the power of Amendment remains unqualified by whomsoever it is exercised, it follows that there can be no implied or inherent limitations on the Amending power. If a special convention admittedly does not suffer from limitations, any other constituent body cannot be subject to it. 1344. The leading majority judgment in Golak Nath s case had seen some force in this, doctrine of implied limitations (808), but did not find it necessary to decide on the issue. To remove all doubts on that score the 24th Amendment is now suitably amended. Its first clause says that Parliament may amend any provision of the Constitution notwithstanding anything in it. Therefore, in the matter of amendment Parliament may not, now, be inhibited by the other express provisions of the Constitution, which would mean that it may also ignore all implications arising therefrom. 1345. Where power is granted to amend the Amending power, as in our Constitution, there is no limit to the extent this may be done. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 368 power is given to amend the amendatory power, it was open to Parliament to enlarge the power by amendment. If it is assumed-and we have shown there is no ground to make such an assumption-that there was some implied limitation to be derived from other provisions of the Constitution, that limitation, if any, is now removed by the non-obstante clause in Clause 1 of the Amended Article 368. 1346. It is of some interest to note here that in a case which later went to the Privy Council, Moore v. Attorney General for the Irish State [1935] A.C. 484 and in which a Constitutional amendment made by the Irish Parliament in 1933 (Amendment No. 22) was challenged, Mr. Greene (Later Lord Greene) conceded before the Privy Council that Amendment No. 16 of 1929 was valid and their Lordships observed (494) Mr. Wilfied Greene for the petitioners rightly conceded that Amendment No. 16 was regular and that the validity of these subsequent amendments could not be attacked on the ground that they had not been submitted to the people by referendum. The question of validity of Amendment No. 16 was so vital to the petitioner s case that it is impossible to believe that a counsel of the stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of construction that though a provision granting the power does not contain any limitation that may not be conclusive. That limitation may be found in other parts of the statute. But we have to remember that Article 368 permits the amendment of all the provisions of the Constitution expressly. And if that power is to be cut down by something that is said in some other provision of the Constitution the latter must be clear and specific. As far back as 1831 Tindal, C.J. delivering the unanimous opinion of the Judges in the House of Lords in Warburton v. Loveland (1831) II Dow Clark, 480 observed at page 500 No rule of construction can require that, when the words of one part of a statute convey a clear meaning...it shall be necessary to introduce another part of the statute which speaks with less perspicuity, and of which the words may be capable of such construction as by possibility to diminish the efficacy of the other provisions of the Act. To control the true effect of Article 368 you must have a context even more plain or at least as plain as the words to be controlled . See : Jessel M.R. in Bentley v. Rotherham (1876-77) 4 Ch. D. 588 (592). Neither the text nor the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l right to property or any related provisions of the Constitution contain words of prohibition or limitation on the amending power. Right to property is sought to be safeguarded under Article 31, and Article 19 deals with freedoms having relation to property, profession, trade and business. We find nothing in these provisions to suggest that rights to property cannot be abridged by an amendment of the Constitution. On the other hand, Article 31(1) suggests that one can be deprived of property under the authority of law. The right to receive compensation under Clause (2) of Article 31, as it stood at the time of the commencement of the Constitution, had been considerably cut down by several provisions contained in the other clauses of that article. Article 31(4) (6) not only envisaged breaking up of concentration of landed property in the hands of Zamindars and the like but also expropriation without payment of just compensation. That necessarily called for the exclusion of Articles 14, 19 and 31, because no scheme for expropriation or extinguishment of rights in property would succeed without their exclusion. Thereafter there has been a spate of amendments curtailing property rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the preamble. According to him the Preamble sets out the objectives of the Constitution and, therefore, any tampering with these objectives would destroy the identity of the Constitution. And since an amendment of the Constitution, howsoever made, must preserve the identity of the Constitution the objectives of the Preamble should be treated as permanent and unamendable. On that basis he further contended that since the fundamental rights are mostly an elaboration of the objectives of the Preamble, it was implied that the fundamental rights or, at least, the essence of them was not liable to be damaged or destroyed by an amendment. 1352. The submission that the fundamental rights are an elaboration of the preamble is an over-statement and a half truth. According to the Preamble the people of India have given unto themselves the Constitution to secure to all its citizens (a) JUSTICE, social, economic and political; (b) LIBERTY of thought, expression, belief, faith and worship; (c) EQUALITY of status and of opportunity; and to promote among the citizens (d) FRATERNITY assuring the dignity of the individual and the unity of the Nation. There is no doubt that the Constitution is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attained. Without expansion of that authority, which Federal States must find more difficult to achieve than a unitary State like the United Kingdom, there is inevitably a risk that the Constitution may break down before a force which is not limited by considerations of Constitutional niceties. Again he points out at pages xxiv and xxv that the modern House of Commons is a forum in which both parties put forward incessant demands for the remedying of some social or economic ill of the body politic...and the changing conditions have all been brought about by the action of Parliament. In doing that, Wade says, it could not be denied that legislation has shifted the emphasis on individual liberty to the provision of services for the public good. In the terms of our Constitution especially the Preamble and Article 38, the shift of emphasis is from individual liberty to Justice-social, economic and political. 1354. The absolute concepts of Liberty and Equality are very difficult to achieve as goals in the present day organised society. The fundamental rights have an apparent resemblance to them but are really no more than rules which a civilized government is expected to follow in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in social and economic justice which it has achieved during the last half a century would have been difficult. Even so, though very much more advanced than our country, U.K. cannot claim that it has fully achieved social and economic justice for all its citizens. But there is no doubt that the parties which form the Governments there have always this goal in view though their methods may be different. In a country like ours where we have, on the one hand, abject poverty on a very large scale and great concentration of wealth on the other, the advance towards social and economic justice is bound to be retarded if the old concept of individual liberty is to dog our footsteps. In the ultimate analysis, liberty or freedoms which are so much praised by the wealthier sections of the community are the freedom to amass wealth and own property and means of production, which, as we have already seen, our Constitution does not sympathise with. If the normal rule is that all rules of civilized government are subject to public interest and the common weal, those rules will have to undergo new adjustments in the implementation of the Directive Principles. A blind adherence to the concept of fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oad to the objectives, the Constitution was liable to be appropriately amended. Even the Preamble, which, as we know, had been adopted by the constituent assembly as a part of the Constitution. (Constituent Assembly Debates Vol. X p. 456) was liable to be amended. Right to property was, perhaps, deliberately not enthroned in the Preamble because that would have conflicted with the objectives of securing to all its citizens justice, social, economic and political, and equality of opportunity, to achieve which Directive Principles were laid down in Articles 38 to 51. Moreover the Preamble, it is now well settled-can neither increase nor decrease the power granted in plain and clear words in the enacting parts of a statute. See : The Berubari Union and Exchange of Enclaves [1960] 3 S.C.R. 250 at pp. 281 and 282. Further, the legislature may well-intend that the enacting part do extend beyond the apparent ambit of the Preamble. See : Secretary of State v. Maharajah of Bobbili 43 Madras 529 P.C. at 536. As a matter of fact if the enacting part is clear and unambiguous it does not call for construction. In Sprague s case the Supreme Court of America had been called upon to construe Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 51(ii) of the Constitution to make laws with respect to taxation under the Pay-roll Tax Assessment Act, 1941-1969. It was unanimously held by the court that the Commonwealth Parliament had the power. During the course of arguments, the question arose, which has been troubling the Australian courts for years, whether there were implied limitations on commonwealth Legislative power under the Constitution in view of the fact that the Preamble to the Constitution recited that the people had agreed to unite in one indissoluble federal commonwealth under the Crown. In Amalgamated Engineers case, already referred to, which had been regarded for a long time as the final word on the question, the alleged implied prohibition or limitation had been rejected. The question was held to be a question of construction with regard to the extent of power and if the power was ascertained from the express words, there could be no further limitation thereon by implication. But in the case referred to above, while three Judges accepted that view as still good, the other four were of the contrary opinion. Whichever view is correct that really makes no difference to me question before us. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act was ultra vires the Constitution. Some more cases like Ranasinghe s [1965] A.C. 172 case, Taylor v. Attorney General of Queensland 23 C.L.R. 457, Mangal Singh v. Union of India [1967] 2 S.C.R. 109 at 112, were cited to show that Constitutional laws permit implications to be drawn where necessary. No body disputes that proposition. Courts may have to do so where the implication is necessary to be drawn. In Ranasinghe s case the Privy Council is supposed to have expressed the opinion on a construction of Section 29 of the Ceylon (Constitution) Order in Council, 1946 that Sub-sections 2 and 3 are unamendable under the Constitution. In the first place, the observation is obiter, and it is doubtful if their Lordships intended to convey that even under Section 29(4), they were unamendable. A plain reading of the latter provision shows they were amend able by a special majority. Secondly, in an earlier portion of the judgment provisions 29(2) (3) are described as entrenched , the plain dictionary meaning of which is that they are not to be repealed except under more than stringent conditions. See also Wade s Introduction to Dicey pages xxxvi to xxxvii. Jennings in his Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. The opinion of the court did not accept any of them, in fact, did not even notice them. American jurists are clearly of the opinion that the Supreme Court had rejected the argument of implied limitations. See for example Cooley Constitutional Law, 4th edition, 46-47; Burdick Law of American Constitution pp. 45 to 48. 1360. The argument that essential features (by which Mr. Palkhivala means essential features, basic elements or fundamental principles ) of the Constitution, though capable of amendment to a limited extent are not liable to be damaged or destroyed is only a variation on the argument previously urged before this Court on the basis of the socalled spirit of the Constitution which had been rejected as far back as 1952. See : State of Bihar v. Kameshwar Singh [1952] S.C.R. 889. That case arose out of the Bihar Land Reforms Act, 1950 which was pending in the Bihar Legislature at the time of the commencement of the Constitution. After it became law it was reserved for the consideration of the President who gave assent to it. Thus it became one of the laws referred to in Article 31(4) of the Constitution and in virtue of that provision it could not be called in ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , unConstitutional. (Emphasis supplied) This argument was rejected in these words In the face of the limitations on the State s power of compulsory acquisition thus incorporated in the body of the Constitution, from which estates alone are excluded, it would, in my opinion, be contrary to elementary canons of statutory construction to read, by implication, those very limitations into entry 36 of List II, alone or in conjunction with entry 42 of List III of the Seventh Schedule, or to deduce them from the spirit of the Constitution , and that too, in respect of the very properties excluded. The argument was that having regard to the Preamble and the fundamental rights which established liberty, justice and equality and a government of a free people with only limited powers, taking of private property without just compensation and in the absence of a public purpose was unConstitutional, and this conclusion should be drawn by implied prohibition in spite of Article 31(4), 31A 31B expressly barring challenge on those very grounds. In other words, an express provision of the Constitution validating a state law was sought to be nullified on the basis of essential features and ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is clear that he wants to divide the Constitution into parts-one of provisions containing the essential features and the other containing non-essential features. According to him the latter can be amended in any way the Parliament likes, but so far as the former provisions are concerned, though they may be amended, they cannot be amended so as to damage or destroy the core of the essential features. Two difficulties arise. Who is to decide what are essential provisions and nonessential provisions ? According to Mr. Palkhivala it is the court which should do it If that is correct, what stable standard will guide the court in deciding which provision is essential and which is not essential? Every provision, in one sense, is an essential provision, because if a law is made by the Parliament or the State legislatures contravening even the most insignificant provision of the Constitution, that law will be void. From that point of view the courts acting under the Constitution will have to look upon its provisions with an equal eye. Secondly, if an essential provision is amended and a new provision is inserted which, in the opinion of the constituent body, should be presumed to be mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution as it stood with all its amendments upto date. The former procedure is clearly absurd because the Constitution has already undergone vital changes by amendments in the meantime. So the challenged amendment will have to be assessed on the basis of the Constitution with all its amendments made prior to the challenged amendment. All such prior amendments will have to be accepted as good because they are not under challenge, and on that basis Judges will have to deal with the challenged amendment. But the other amendments are also not free from challenge in subsequent proceedings, because we have already seen that every amendment can be challenged several years after it is made, if a law made under it affects a private individual. So there will be a continuous state of flux after an amendment is made and at any given moment when the court wants to determine the core of the essential feature, it will have to discard, in order to be able to say where the core lies, every other amendment because these amendments also being unstable will not help in the determination of the core. In other words, the courts will have to go by the original Constitution to decide the core of an essen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, to consider how, in our opinion, the several provisions of the Constitution react on one another, their relative importance from our point of view, the limits on such imponderable concepts as liberty, equality, justice, we think proper to impose, whether we shall give preponderance to directive principles in one case and fundamental rights in another-in short, determine the spirit of the Constitution and decide how far the amendment conforms with that spirit . We are no longer, than construing the words of the Constitution which is our legitimate province but determining the spirit of the Constitution-a course deprecated by this Court in Gopalan s case at pages 120-121. When concepts of social or economic justice are offered for our examination in their interaction on provisions relating to right to property-matters traditionally left to legislative policy and wisdom, we are bound to flounder in labyrinths to the character of which we have no sufficient guides. 1364. It is true that Judges do judicially determine whether certain restrictions imposed in a statute are reasonable or not. We also decide questions involving reasonableness of any particular action. But Judges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution. If the court holds the opinion that the provision with regard to preventive detention in Article 22 damages the core of personal liberty it will be struck down. The same can be said about the freedom in Article 19. If this Court feels that the provision with regard to, say State monopolies damages the fundamental right of trade of a citizen, it can be struck down. In other words, if an amendment which has become part of the Constitution is liable to be struck down because it damages an essential feature it should follow that every restriction originally placed on that feature in the Constitution would necessarily come under the pruning knife of the courts. 1367. In short, if the doctrine of unamendability of the core of essential feature is accepted, it will mean that we add some such proviso below Article 368 : Nothing in the above Amendment will be deemed to have authorized an Amendment of the Constitution, which has the effect of damaging or destroying the core of the essential features, basic principles and fundamental elements of the Constitution as may be determined by the Courts. This is quite impermissible. 1368. It is not necessary to refer to the numerous a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was attacked on the grounds that it was legislative in its character, an invasion of natural rights and an encroachment on the fundamental principles of dual sovereignty, hut the contention was overruled. The decision totally negatived the contention that An amendment must be confined in its scope to an alteration or improvement of that which is already contained in the Constitution and cannot change its basic structure, include new grants of power to the Federal Government, nor relinquish to the State those which already have been granted to it. Quick and Carran writing in the Annotated Constitution of the Australian Commonwealth (1901) observe as follows at p. 989 with regard to the amending clause of the Constitution namely Section 128. It may be concluded that there is no limit to the power to amend the Constitution, but that it can only be brought into action according to certain modes prescribed. We will consider the modes and conditions of Constitutional reforms further; meanwhile it is essential to grasp the significance and comprehensiveness of the power itself. For example, the Constitution could be amended either in the direction of strengthening or weakening the Fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which this Court construed to mean a just equivalent but to receive an amount which the legislature itself may fix or which may be determined in accordance with the principles as may be specified by the law. Then again the amount may be given in cash or in such manner as the law may specify. The principal objection to the amendment is that the clause arms the legislature with power to fix any amount which it considers fit and such fixation may be entirely arbitrary having no nexus whatsoever with the property of which a person is actually deprived. In similar cases, it is submitted, the amount fixed may be more in one and very much less in another depending entirely on the whim of the legislature. Conceivably the amount may be illusory having regard to the value of the property. The principles for determining the amount may equally be arbitrary and unrelated to the deprivation. Therefore, it is contended, the amendment is bad. It is difficult to understand how an amendment to the Constitution becomes invalid because the Constitution authorizes the legislatures to fix an amount or to specify the principles on which the amount is to be determined instead of fixing the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. See : Sitabati Debi and Anr. v. State of West Bengal and Anr. [1967] (2) S.C.R. 949. That principle is now embodied in the new amendment. 1372. The only substantial objection to the twenty-fifth amendment is based on the new Article 31C inserted in the Constitution by Section 3 of the twenty-fifth amendment act. 1373. The new article is as follows: 31C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the state towards securing the principles specified in Clause (b) or Clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a declaration chat it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. 1374. Ignoring the proviso for the moment, one finds that the main claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o is expressed in this way: By establishing these positive obligations of the state, the members of the Constituent Assembly made it the responsibility of future Indian governments to find a middle way between individual liberty and the public good, between preserving the property and the privilege of the few and bestowing benefits on the many in order to liberate the powers of all men equally for contributions to the common good. p. 52. The philosophy which informs the Constitution looks on concentration of wealth and means of production as a social evil because such concentration, resulting in the concentration of political and economic power in the hands of a few private individuals, not only leads to unequal freedom, on the one hand, but results, on the other, in undermining the same in the case of many. In such conditions it is widely believed that the goals of Equality and Justice, social, economic and political, become unreal, and since the Constitution itself directs that laws may be made to inhibit such conditions it is inevitable that these laws aimed at the reduction of unequal freedoms enjoyed by a few will impair to some extent their fundamental rights under Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. The Constitution, it is pointed out, may be amended only in the way prescribed in Article 368 and no other and, therefore, Article 31C authorising an amendment in a way other than the one laid down in Article 368, which still forms part of the Constitution with full force, is invalid. 1377. On behalf of the Union, however, it is claimed that the new Article 31C does not have the effect, attributed to it on behalf of the petitioners. It is, submitted, that Article 31C does not prevent judicial review as to whether the law referred to therein is of the description it maintains it is. If on a consideration of its true nature and character the court considers that the legislation is not one having a nexus with the principles contained in Article 39(b) or (c), it will not be saved under Article 31C. The sole purpose of the declaration , according to the submission is to remove from the scope of judicial review a question of a political nature the reason for it being, as explained in Beauharanis v. Illinois 343 U.S. 250. The legislative remedy in practice might not mitigate the evil or might itself give rise to new problems which would only manifest once again the paradox of reform. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or policy of the legislation. Prohibition laws-for example in U.S.A. and elsewhere, though made in order to give effect to the policy of the State to secure the eradication of the evil of drink did not have that effect. That may have been so because the law was inadequate or because the law gave rise to problems which were unforeseen. But that did not impair the genuineness of the law as being reasonably calculated to achieve a certain result. The two questions are different. One involves the process of identification of the type of legislation by considering its scope and object, its pith and substance. The other involves a process of evaluation by considering its merits and defects, the adequacy or otherwise of the steps taken to implement it or their capability of producing the desired result. A law made to give effect to the State s policy of securing eradication of the drink evil can be properly identified, as such, if such identification is necessary to bemade by a court in order to see the application of a Constitutional provision. But it is an entirely different proposition to say that thelaw does not actually give effect to the State s policy of securing the eradication of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the amendment is invalid. 1383. The twenty-fifth Amendment Act is, therefore, valid. 1384. By the twenty-ninth Amendment, the two Kerala Acts challenged in this petition were included in the Ninth Schedule. Like other Acts included in that Schedule they are immune from challenge by reason of the protection given to the Schedule by Article 31B. It was sought to be argued that unless the Acts related to agrarian reform, implicit in the words Without prejudice to the generality of the provisions contained in Article 31A with which Article 31B opens, the protection was not available. That argument has been rejected previously. See for example N.B. Jeejeebhoy v. Assistant Collector, Thana [1965] (1) S.C.R. 636. Actually the argument does not amount to a challenge to the validity of the Amendment, hut an attempt to show that in spite of the Amendment, the two laws would not be saved by Article 316. The twenty-ninth Amendment is not different from several similar Amendments made previously by which Statutes were added from time to time to the ninth schedule and whose validity has been upheld by this Court. The twenty-ninth Amendment is, therefore, valid. 1385. My conclusions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kerala High Court. A Full Bench of the Kerala High Court as per its decision in V.N. Narayanan Nair v. State of Kerala ILR [1970] (II) Kerala 315 upheld the validity of the said Act, except in respect of certain provisions. Those provisions were declared to be invalid. The State of Kerala came up in appeal to this Court against the judgment of the Kerala High Court in so far as that court had held a number of provisions of the Act to be invalid. This Court dismissed the appeals of the State as per judgment dated April 26, 1972. (1972) 2 S.C.C. 364. Appeals filed by private parties against the judgment of the Kerala High Court upholding the validity of the other provisions too were dismissed. Some writ petitions filed in this Court challenging the validity of the above mentioned Act were also disposed of by this Court in accordance with its decision in the appeals filed by the the State of Kerala and the private parties. 1389. The Kerala High Court as per judgment dated October 21, 1970 declared some other provisions of the Kerala Land Reforms Act as amended by Act 35 of 1969 to the invalid and unConstitutional. After the above judgment of the High Court the Kerala Land Reforms A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substituted; (d) after Clause (2) as so re-numbered, the following clause shall be inserted, namely: (3) Nothing in Article 13 shall apply to any amendment made under this article. We may set out Articles 13 and 368 as they existed both before and after amendment made by the Twentyfourth Amendment Act: Before the Amendment After the Amendment 13. (1) All laws in force in the territory of 13. (1) All laws in force in the territory India immediately before the of India immediately before commencement of this Constitution, the commencement of this Consitution, so far as they are inconsistent in far so as they are inconsistent with the provisions of this part, shall with the provisions of this Part, to the extent of such inconsistency, shall to the extent of such inconssistency be void. be void. (2) The State shall not make any law (2) The State shall not make any law which takes away or abridges the rights which takes away or abridges the conferred by this Part and any law made rights conferred by this Part and any in contravention of this clause shall, law made in contravention of this to the extent of the contravention, clause shall, to the extent of the be void. contrav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution shall Stand amended in accordance with the terms of the Bill : Provided that if such amendment seeks to make any change in- (a) Article 54, Article 55, Article 73, (a) Article 54, Article 55, Article 73, Article 162 or Article 241, or Article 162 or Article 241, or (b) Chapter IV of Part V, Chapter V (b) Chapter IV of Part V, Chapter : V of Part VI, or Chapter I of Part XI or of Part VI, or Chapter I of Part XI or (c) any of the Lists in the Seventh (c) any of the Lists in the Seventh Schedule, or Schedule, or (d) the representation of States in (d) the representration of States in Parliament, or Parliament, or (e) the provisions of this article, (e) the provisions of this article, the amendment shall also require to the amendment shall also require to be ratified by the Legislatures of not be ratified by the Legislatures of less than one-half of the States by not less than one-half of the States by resolutions to that effect passed by resolutions to that effect passed by those Legislatures before the Bill making those Legislatures before the Bill provision for such amendment is presented making provision of or such amendment to the President for assent. is presented to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration of the President, has received his assent. 1395. The Constitution (Twentyninth Amendment) Act, as mentioned earlier, inserted the following as entries No. 65 and 66 respectively in the Ninth Schedule to the Constitution: (i) The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969); and (ii) The Kerala Land Reforms (Amerdment) Act, 1971 (Kerala Act 25 of 1971). 1396. The question as to whether the fundamental rights contained in Part III of the Constitution could be taken away or abridged by amendment was first considered by this Court in the case of Sri Sankari Prasad Singh Deo v. Union of India And Anr. [1952] S.C.R. 89 In that case the appellant challenged the First Amendment of the Constitution. The First Amendment made changes in Articles 15 and 19 of the Constitution. In addition, it provided for insertion of two Articles, 31A and 31B, in Part III. Article 31A provided that no law providing for acquisition by the State of any estate or of any such rights therein or the extinguishment or modification of any such right, shall be deemed to be void on the ground that it was inconsistent with or took away or abridged any of the rights conferred by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power to make such amendments. In consequence, the First Amendment to the Constitution was held to be valid. 1398. The second case in which there arose the question of the power of the Parliament to amend fundamental rights was Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R. 933. In this case the Seventeenth Amendment made on June 29, 1964 was challenged. By the Seventeenth Amendment changes were made in Article 31A of the Constitution and 44 Acts were included in the Ninth Schedule to the Constitution to give them complete protection from attack under any provision of Part III of the Constitution. One of the contentions advanced in Sajjan Singh s case was that, as Article 226 was likely to be affected by the Seventeenth Amendment, it required ratification under the proviso to Article 368 and that the decision in Sankari Prasad s case (supra) which had negatived such a contention required reconsideration. It was also urged that the Seventeenth Amendment was legislation with respect to land and the Parliament had no right to legislate in that respect. It was further argued that as the Seventeenth Amendment provided that Acts put in the Ninth Schedule would be valid in spi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is a legislative process. (2) Amendment is law within the meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void. (3) The Constitution (First Amendment) Act, 1951 Constitution (Fourth Amendment) Act, 1955, and the Constitution (Seventeenth Amendment) Act, 1964, abridge the scope of the fundamental rights. But, on the basis of earlier decisions of this Court, they were valid. (4) On the application of the doctrine of prospective over-ruling , as explained by us earlier, our decision will have only prospective operation and, therefore, the said amendments will continue to be valid. (5) We declare that the Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein. (6) As the Constitution (Seventeenth Amendment) Act holds the field, the validity of the two impugned Acts, namely, the Punjab Security of Land Tenures Act X of 1953, and the Mysore Land-Reforms Act X of 1962, as amended by Act XIV of 1965, cannot be questioned on the ground that they o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no express limitation on power of amendment in Article 368 and no limitation can or should be implied therein. If the Constitution makers intended certain basic provisions in the Constitution, and Part III in particular, to be not amendable there is no reason why it was not so stated in Article 368. (iii) The power conferred by the words of Article 368 being unfettered, inconsistency between that power and the provision in Article 13(2) must be avoided Therefore in keeping with the unfettered power in Article 368 the word law in Article 13(2) must be read as meaning law passed under the ordinary legislative power and not a Constitutional amendment. (iv) Though the period for which Sankari Prasad s case has stood unchallenged is not long, the effects which have followed on the passing of State laws on the faith of that decision, are so overwhelming that the decision should not be disturbed, otherwise chaos will follow. This is the fittest possible case in which the principle of stare decisis should be applied. (v) The doctrine of prospective overruling cannot be accepted in this country. The doctrine accepted here is that courts declare law and that a declaration made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. (iii) There is no room for an implication in the construction of Article 368. If the Constitution makers wanted certain basic features to be unamendable they would have said so. (iv) It cannot be assumed that the Constitution makers intended to forge a political strait-jacket for generations to come. Today at a time when absolutes are discredited, it must not be too readily assumed that there are basic features of the Constitution which shackle the amending power and which take precedence over the general welfare of the nation and the need for agrarian and social reform. (v) If the fundamental rights are unamendable and if Article 368 does not include any such power it follows that the amendment of, say Article 31 by insertions of Articles 31A and 31B can only be made by a voilent revolution. It is doubtful if the proceedings of a new Constitutent Assembly that may be called will have any legal validity for if the Constitution provides its own method of amendment, any other method will be unConstitutional and void. (vi) It was not necessary to express an opinion on the doctrine of prospective overruling of legislation. 1400. Before dealing with Article 368, we may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endment made by the Twentyfourth Amendment, we shall deal with the article as it was before that amendment. It may be mentioned in this context that Article 4, Article 169, Fifth Schedule Para 7 and Sixth Schedule Para 21 empower the Parliament to pass laws amending the provisions of the First, Fourth, Fifth and Sixth Schedules and making amendments of the Constitution consequential on the formation of new States or alteration of areas, boundaries, or names of existing States, as well as on abolition or creation of legislative councils in States. Fifth Schedule contains provisions as to administration of controlled areas and scheduled tribes while Sixth Schedule contains provisions as to the administration of tribal areas. It is further expressly provided that no such law would be deemed to be an amendment of the Constitution for the purpose of Article 368. There are a number of articles which provide that they would continue to apply till such time as a law is made in variance of them. Some of those articles are: 10, 53(3), 65(3), 73(2), 97, 98(3), 106, 120(2), 135, 137, 142(1), 146(2), 148(3), 149, 171(2), 186, 187(3), 189(3), 194(3), 195, 210(2), 221(2), 225, 229, 239(1), 241 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the Bill passed by the two Houses of Parliament by necessary majority, as mentioned earlier, is ratified by the Legislatures of not less than one-half of the States by iresolutions to that effect. In such a case, the Bill has to be presented to the President for his assent only after the necessary ratification by the State Legislatures. On the assent being given, the Constitution stands amended in accordance with the terms of the Bill. 1405. The words in Article 368 the Constiuttion shall stand amended in accordance with the terms of the Bill , in my opinion, clearly indicate that the said article provides not merely the procedure for amending the Constitution but also contains the power to amend Article 368. The fact that a separate Part was provided with the heading Amendment of the Constitution shows that the said part was confined not merely to the procedure for making the amendment but also contained the power to make the amendment. It is no doubt true that Article 248 read with item 97 of List I has a wide scope, but in spite of the width of its scope, it cannot, in my opinion, include the power to amend the Constitution. The power to legislate contained in Articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learly be discerned in the scheme and language of Article 368 cannot be ruled out or denied by invoking the marginal note of the article. 1408. The various subjects contained in entries in List I, List II and List III of Seventh Schedule to the Constitution were enumerated and specified at great length. Our Constitution in this respect was not written on a tabula rasa. On the contrary, the scheme of distribution of legislative lists in the Government of India Act, 1935 was to a great extent adopted in the Constitution. Referring to the said distribution of lists and the residuary provisions in the Government of India Act, Gwyer C.J. observed in the case In re. The Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 [1939] F.C.R. 38. The attempt to avoid a final assignment of residuary powers by an exhaustive enumeration of legislative subjects has made the Indian Constitution Act unique among federal Constitutions in the length and detail of its Legislative Lists. Our Constitution-makers made list of the legislative entries still more exhaustive and the intention obviously was that the subjects mentioned should be covered by one or other of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment subject to ratification by State Legislatures in certain cases, would not go to show that the residuary clause included the power to amend the Constitution. 1411. I am therefore of the view that Article 368 prescribes not only the procedure for the amendment of the Constitution but also confers power of amending the Constitution. 1412. Irrespective of the source of power, the words in Article 368 that the Constitution shall stand amended indicate that the process of making amendment prescribed in Article 368 is a self-executing process. The article shows that once the procedure prescribed in that article has been complied with, the end product is the amendment of the Constitution. 1413. Question then arises as to whether there is any power under Article 368 of amendment of Part III so as to take away or abridge fundamental rights. In this respect we find that Article 368 contains provisions relating to amendment of the Constitution. No words are to be found in Article 368 as may indicate that a limitation was intended on the power of making amendment of Part III with a view to take away or abridge fundamental rights. On the contrary, the words used in Article 368 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution intended that Part III of the Constitutilon relating to fundamental rights should not be amended, by inadvertent omission they failed to make an express provision for the purpose. Reference to the proceedings dated September 17, 1949 of the Constituent Assembly shows that an amendment to that effect was moved by Dr. P.S. Deshmukh. This amendment which related to insertion of Article 304A after Article 304 (which corresponded to present Article 368) was in the following words: Notwithstanding anything contained in this Constitution to the contrary, no amendment which is calculated to infringe or restrict or diminish the scope of any individual rights, any rights of a person or persons with respect to property or otherwise, shall be permissible under this Constitution and any amendment which is or is likely to have such an effect shall be void and ultra vires of any Legislature. The above amendment, which was subsequently withdrawn, must have been incorporated in the Constitution if the framers of the Constitution had intended that no amendment of the Constitution should take away or abridge the fundamental rights in Part III of the Constitution. 1416. Before the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and shall cease to have effect on the expiration of that period unless continued in operation by an amendment of the Constitution. Article 305 of the Draft Constitution reproduced above makes it manifest that the Drafting Committee made express provision for limitation on the power of, amendment in case such a limitation was desired. The fact that in the Constitution as ultimately adopted, there was no provision either in Article 368 or in any other article containing a limitation on the power of amendment shows that no such limitation was intended. 1417. The speech of Dr. Ambedkar made on September 17, 1949 while dealing with the provision relating to amendment of the Constitution also makes it clear that he divided the various articles of the Constitution into three categories. In one category were placed certain articles which would be open to amendment by Parliament by simple majority. To that category belonged Articles 2 and 3 of the Draft Constitution relating to the creation and reConstitution of the existing States as well as some other articles like those dealing with upper chambers of the State Legislatures. The second category of articles were those which could be ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the framers of the Constitution that the provisions relating to fundamental rights contained in Part III of the Constitution could not be amended, it is difficult to believe that Pt. Nehru and Dr. Ambedkar who played such an important role in the drafting of the Constitution would have supported the amendment of the Constitution or in any case would have failed to take note of the fact in their speeches that Part III was not intended to be amended so as to take away or abridge fundamental rights. Pt. Nehru in the course of his speech in support of the First Amendment after referring to the need of making the Constitution adaptable to changing social and economic conditions and changing ideas observed: It is of the utmost importance that people should realise that this great Constitution of ours, over which we laboured for so long, is not a final and rigid thing, which must either be accepted or broken. A Constitution which is responsive to the people s will which is responsive to their ideas, in that it can be varied here and there, they will respect it all the more and they will not fight against, when we want to change it. Otherwise, if you make them feel that it is unchangeab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emporaneous practical exposition of the Constitution being too strong and obstinate to be shaken or controlled. I may also reproduce in this context the following passage from pages 49- 50 of Willoughby s Constitution of the United States, Vol. I: In Lithographic Co. v. Sarony 111 U.S. 53 the court declared : The construction placed upon the Constitution by the first act of 1790 and the act of 1802 by the men who were contemporary with its formation, many of whom were members of the Convention who framed it, is of itself enttitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive. 1421. So far as the question is concerned as to whether the speeches made in the Constituent Assembly can be taken into consideration, this Court has in three cases, namely, I.C. Golak Nath and Ors. v. State of Punjab and Anr. (supra), H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Ors. v. Union of India [1971] 3 S.C.R. 9 and Union of India v. H.S. Dhillon [1972] 2 S.C.R. 33 taken the view that such speeches can be taken into account. In Golak Nath s case Subba Rao C.J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e requires, the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. The stand taken on behalf of the petitioners is that amendment of the Constitution constitutes law for the purpose of Article 13(2). As such, no amendment of the Constitution can take away or abridge the fundamental rights conferred by Part III of the Constitution. Reference has also been made to Clause (1) of Article 13, according to which all laws in force in the territory of India immediately before the commencement of this Constitution in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. It is urged that word law in Article 13(2) should have the same meaning as that word in Article 13(1) and if law in Article 13(1) includes Constitutional law, the same should be its meaning for the purpose of Article 13(2). Our attention has also been invited to Article 372(1) of the Constitution which provides that notwithstanding the repeal by this Constitution of the enactment referred to in Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and embracing the settled policy of the nation. A statute on the other hand is law made by the representatives of the people acting in their legislative capacity, subject to the superior authority, which is the Constitution. Statutes are enactments or rules for the government of civil conduct or for the administration or for the defence of the government. They relate to law and order, criminal offences, civil disputes, fiscal matters and other subjects on which it may become necessary to have law. Statutes are quite often tentative, occasional, and in the nature of temporary expedients (see Constitutional Law and Its Administration by S.P. Weaver, p. 3), Article 13(2) has reference to ordinary piece of legislation. It would also, in view of the definition given in Clause (a) of Article 13(3), include any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. The Constitution has thus made it clear in matters in which there could be some doubt as to what would constitute law . If it had been the intention of the framers of the Constitution that the law in Article 13 would also include Constitutional law incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution which deal with the making of laws. The words make any law in Article 13 as well as the above three articles should carry, in my opinion, the same meaning, namely, law made in exercise of legislative power. In addition to that, the law in Article 13 in view of the definition in Article 13(3) shall also include special provisions mentioned in Clause (3). 1427. It has already been mentioned above that there is no question in the case of a law made by the Parliament of its ratification by the resolutions passed by the State Legislatures. The fact that in case of some of the amendments made under Article 368 such ratification is necessary shows that an amendment of the Constitution is not law as contemplated by Article 13(2) or Articles 245, 246 and 248. 1428. Article 395 of the Constitution repealed the Indian Independence Act, 1947 and the Government of India, Act, 1935, together with all enactments amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949. The law in force mentioned in Article 372(1) has reference not to any Constitutional law in the sense of being a law relating to the Constitution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... British India or the territory comprised in Indian States. The opening words of Article 372(1) notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 indicate that the laws in force contemplated by Article 372 are those laws which were framed under the repealed Indian Independence Act, 1947 and the Government of India Act, 1935 or similar other legislative enactments or orders made under the provisions of Constitutions of erstwhile Indian States. Such legislative enactments or Orders were inferior in status to a Constitution. I am, therefore, of the view that the word law in Article 372 has reference to law made under a Constitution and not to the provisions of a Constitution itself. 1430. Article 372(1) is similar to the provisions of Section 292 of the Government of India Act, 1935. As observed by Gwyer C.J. in the case of The United Provinces v. Mst. Atiqa Begum and Ors. [1940] 2 F.C.R. 110 such a provision is usually inserted by draftsmen to negative the possibility of any existing law being held to be no longer in force by reason of the repeal of the law which authorized its enactment. The question with which we are concerned is wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beginning of Article 245. The absence of those words in Article 368 thus shows that an amendment of the Constitution made under that article has a status higher than that of legislative law and the two are of unequal dignity. If there is any limitation on power of amendment, it must be found in Article 368 itself which is the sole fountain-head of power to amend, and not in other provisions dealing with ordinary legislation. As stated on pages 24-26 in the Amending of Federal Constitution by Orfield, limitation on the scope of amendment should be found written in the amending clause and the other articles of the Constitution should not be viewed as limitations . The very fact that the power of amendment is put in a separate Part (Part XX) and has not been put in the Part and Chapter (Part XI Chapter I) dealing with legislative powers shows that the two powers are different in character and operate in separate fields. There is also a vital difference in the procedure for passing ordinary legislation and that for bringing about a Constitutional amendment under Article 368. The fact that an amendment Bill is passed by each House of Parliament and those two Houses also pass ordinary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art, shall, to the extent of such inconsistency, be void. (2) The State shall not make law which takes away or abridges the rights conferred by this Part and any law made in contravention of this subsection shall, to the extent of the contravention be void. (3) In this section, the expression law includes any ordinance, order, byelaw, rule, regulation, notification, custom or usage having the force of law in the territory of India or any part thereof. On February 21, 1948 Dr. Ambedkar forwarded the Draft Constitution of India to the President of the Constituent Assembly along with a covering letter. Clause 9 in this Draft Constitution was numbered as Clause 8. Sub-clause (2) of Clause 9 was retained as Subclause (2) of Clause 8. A proviso was also added to that sub-clause, but that is not material for the purpose of the present discussion. The Constitution was thereafter finally adopted and it contained Article 13, the provisions of which have been reproduced earlier. 1434. It has been argued on behalf of the petitioners that the members of the Drafting Committee who were eminent lawyers of India, deliberately revised Clause 9 of the Draft Constitution prepared by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 8 does not override the provisions of Article 304 of the Constitution. The expression law used in the said clause is intended to mean ordinary legislation . However, to remove any possible doubt, the following amendment may be made in Article 8: In the proviso to Clause (2) of Article 8, after the words nothing in this clause shall the words affect the provisions of Article 304 of this Constitution or be inserted. (see page 26 Shiva Rao s The Framing of India s Constitution Vol. IV). The above note and other such notes were made by the Constitutional Adviser and reproduced fully the views of the Drafting Committee and/or of the Special Committee (see page 4 Shiva Rao s The Framing of India s Constitution Vol. I). It would thus appear that there is no indication that the members of the Drafting Committee wanted to deviate from the decision of the Constituent Assembly by making the provisions relating to fundamental rights unamendable. On the contrary, the note shows that they accepted the view embodied in the decision of the Constituent Assembly. 1436. Apart from that I am of the view that if the preservation of the fundamental rights was so vital an importa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each lasted on an average for less than ten years, and have frequently perished by violence. Louis Phillipe s monarchy was destroyed within seven years of the time when Tocqueville pointed out that no power existed legally capable of altering the articles of the Charter. On one notorious instance at least-and other examples of the same phenomenon might be produced from the annals of revolutionary France-the immutability of the Constitution was the ground or excuse for its voilent subversion. To quote the words of Dicey: Nor ought the perils in which France was involved by the immutability with which the statement of 1848 invested the Constitution to be looked upon as exceptional; they arose from a defect which is inherent in every rigid Constitution. The endeavour to create laws which cannot be changed is an attempt to hamper the exercise of sovereign power; it therefore tends to bring the letter of the law into conflict with the will of the really supreme power in the State. The majority of the French electors were under the Constitution the true sovereign of France; but the rule which prevented the legal re-election of the President in effect brought the law of the land into c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajority, where the sovereignty of the bare majority is acknowledged. The safeguards against too radical change must not be exaggerated to the point of dethroning the real sovereign. (ibid p. 152) Justfying the amendment of the Constitution to meet the present conditions, relations and requirements, Burgess said we must not, as Mirabeau finely expressed it, lose the grande morale in the petite morale. 1438. According to John Stuart Mill, no Constitution can expect to be permanent unless it guarantees progress as well as order. Human societies grow and develop with the lapse of time, and unless provision is made for such Constitutional readjustments as their internal development requires, they must stagnate or retrogress (see Political Science and Government by J.W. Garner p. 536, 537). 1439. Willis in his book on the Constitutional Law of the United States has dealt with the question of amendment of the Constitution in the following words: Why should change and growth in Constitutional law stop with the present? We have always had change and growth, We have needed change and growth in the past because there have been changes and growth in our economic and social life. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the problems of life and society are infinitely variable. A draftsman thinks of the problems that he can foresee, but he sees through a glass, darkly. He cannot know what problems will arise in ten, twenty, fifty or a hundred years. Any restriction on legislative power may do harm, because the effect of that restriction in new conditions cannot be foreseen. 1443. The machinery of amendment, it has been said, should be like a safety valve, so devised as neither to operate the machine with too great facility nor to require, in order to set it in motion, an accumulation of force sufficient to explode it. In arranging it, due consideration should be given on the one hand to the requisities of growth and on the other hand to those of conservatism. The letter of the Constitution must neither be idolized as a sacred instrument with that mistaken conservatism which ding to its own worn out garments until the body is ready to perish from cold, nor yet ought it to be made a plaything of politicians, to be tampered with and degraded to the level of an ordinary statute (see Political Science and Government by J.W. Garner, p. 538). 1444. The framers of our Constitution were conscious of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration and replacement even though the future generations want to change, alter or replace them. The guidelines and norms would in such an event be looked upon as fetters and shackles upon the free exercise of the sovereign will of the people in times to come and would be done away with by methods other than Constitutional. It would be nothing short of a presumptous and vain act and a myopic obsession with its own wisdom for one generation to distrust the wisdom and good sense of the future generation and to treat them in a way as if the generations to come would not be sui juris. The grant of power of amendment is based upon the assumption that as in other human affairs, so in Constitutions, there are no absolutes and that the human mind can never reconcile itself to fetters in its quest for a better order of things. Any fetter resulting from the concept of absolute and ultimate inevitably gives birth to the urge to revolt. Santayana once said : Why is there sometimes a right to revolution? Why is there sometimes a duty to loyalty? Because the whole transcendal philosophy, if made ultimate, is false, and nothing but a selfish perspective hypostasized, because the will is absolute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... touched or modified, even to make them answer their and, because of rights gratuitously supposed in those employed to manage them in the trust for the public, may perhaps be a salutary provision against the abuses of a monarch, but is most absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine and suppose that preceding generations held the earth more freely than we do, had a right to impose laws on us, unalterable by ourselves, and that we, in the like manner, can make laws and impose burdens on future generations, which they will have no right to alter; in fine that the earth belongs to the dead and not the living. The above words were quoted during the course of the debate in the Constituent Assembly (see Vol. XI Constituent Assembly debates, p. 975) 1448. Thomas Paine gave expression to the same view in the following words: There never did, there never will, and there never can, exist a parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the end of time , or of commanding for ever how the world shall be governed, or who shall g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. 1450. The aforesaid discussion would also reveal that the consequences which would follow from the acceptance of the view that there is no power under Article 368 to abridge or take away fundamental rights would be chaotic because of the resort to extra- Constitutional methods. As against that the acceptance of the opposite view would not result in such consequences. Judged even in this light, I find it difficult to accede to the contention advanced on behalf of the petitioner. 1451. I may at this stage deal with the question, adverted to by the learned Counsel for the petitioners as to how far the consequences have to be taken into account in construing the provisions of the Constitution. In this connection, I may observe that it is one of the well-settled rules of construction that if the words of a statute are in themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature. It is equally well-settled that where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Counsel for the petitioners has argued that such an amendment is possible by making law for convening a Constituent Assembly or for holding a referendum. It is urged that there would be an element of participation of the people in the conventing of such a Constituent Assembly or the holding of a referendum and it is through such means that Part III of the Constitution can be amended so as to take away or abridge fundamental rights. The above argument, in my opinion, is untenable and fallacious. If Parliament by a two-thirds majority in each House and by following the procedure laid down in Article 368 cannot amend Part III of the Constitution so as to take away or abridge fundamental rights, it is not understood as to how the same Parliament can by law create a body which can make the requisite amendment. If it is not within the power of Parliament to take away or abridge fundamental rights even by a vote of two-thirds majority in each House, would it be permissible for the same Parliament to enact legislation under entry 97 List I of Seventh Schedule by simple majority for creating a Constituent Assembly in order to take away or abridge fundamental rights ? Would not such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Australia over 30 amendments were submitted to referendum, out of which only four were adopted and two of them were of trivial nature. As against that we find that the method of referendum for amending the Constitution has hardly provided much difficulty in Switzerland. Out of 64 amendments proposed for amending the federal Constitution, 49 were adopted in a popular referendum. So far as the method of amendment of the Constitution by two-third majority in either House of the Central Legislature and the ratification by the State Legislatures is concerned, we find that during first 140 years since the adoption of the United States Constitution, 3,113 proposals of amendment were made and out of them, only 24 so appealed to the Congress as to secure the approval of the Congress and only 19 made sufficient appeal to the State legislatures to secure ratification (see Constitutional Law of United States by Willis, p. 128). It, therefore, cannot be said that the method of referendum provides a more effective check on the power of amendment compared to the method of bringing it about by prescribed majority in each house of the Parliament. 1458. Apart from that I am of the view that it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution of Rumania. According to Article 146 of the Constitution of USSR the Constitution may be amended only by a decision of Supreme Soviet of USSR adopted by a majority of not less than two-thirds of the votes in each of its chambers. A second sort of restriction is that which requires a dissolution and a general election on the particular issue, so that the new legislature, being returned with a mandate for the proposal, is in essence, a constituent assembly so far as that proposal is concerned. This additional check is applied in Belgium, Holland, Denmark and Norway (in all of which, however, also a two-thirds parliamentary majority is required to carry the amendment after the election) and in Sweden. A third method of Constitutional change by the legislature is that which requires a majority of the two Houses in joint session, that is to say, sitting together as one House, as is the case, for example, in South Africa. 1461. The second method is that which demands a popular vote or referedum or plebiscite. This device was employed in France during the Revolution and again by Louis Napoleon, and in Germany by Hitler. This system prevails in Switzerland, Australia, Eire, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the French Fifth Republic like-wise makes provision for referendum for amendment of Constitution. It is, however, provided in that article that the proposed amendment is not submitted to a referendum when the President of the Republic decides to submit it to Parliament convened in Congress; in that case the proposed amendment is approved only if it is accepted by three-fifth majority of the votes cast. 1465. We may at this stage advert to Article 5 of the United States Constitution which reads as under: The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislature of two-thirds of the several States, shall call a convention for proposing amendments, which in either case, shall be valid to all intents and purposes, as part of this Constitution when ratified by the legislatures of three fourths of the several States, or by conventions in three fourth thereof, as the one or the other mode of ratification may be proposed by the Congress; Provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way the powers of the States and conferred new direct powers over individuals. The trial court rejected all these views and yet held the Eighteenth Amendment unConstitutional on theories of political science, the political thought of the times, and a scientific approach to the problem of government. The United States Supreme Court on appeal upheld the Eighteenth Amendment. After referring to the provisions of Article 5 Roberts J., who gave the opinion of the court, observed: The choice, therefore, of the mode of ratification, lies in the sole discretion of Congress. Appellees, however, pointed out that amendments may be of different kinds, as e.g., mere changes in the character of federal means or machinery, on the one hand, and matters affecting the liberty of the citizen on the other. They say that the framers of the Constitution expected the former sort might be ratified by legislatures, since the States as entities would be wholly competent to agree to such alterations, whereas they intended that the latter must be referred to the people because not only of lack of power in the legislatures to ratify, but also because of doubt as to their truly representing the people. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in Parliament under Article 368 to take away or abridge fundamental rights, the power would be, or in any case could be, so used as would result in repeal of all provisions containing fundamental rights. India, it is urged, in such an event would be reduced to a police state wherein all cherished values like freedom and liberty would be non-existent. This argument, in my opinion, is essentially an argument of fear and distrust in the majority of representatives of the people. It is also based upon the belief that the power under Article 368 by two-thirds of the members present and voting in each House of Parliament would be abused or used extravagently. I find it difficult to deny to the Parliament the power to amend the Constitution so as to take away or abridge fundamental rights by complying with the procedure of Article 368 because of any such supposed fear or possibility of the abuse of power. I may in this context refer to the observations of Marshall C.J. regarding the possibility of the abuse of power of legislation and of taxation in the case of The Providence Bank v. Alpheus Billings. 29 U.S. 514 This vital power may be abused; but the Constitution of the United St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the ratification of the amendment by not less than one-half of the State Legislature in case the amendment relates to certain provisions which impinge upon the rights of the States. The fact that a prescribed majority of the people s representatives is required for bringing about the amendment is normally itself a guarantee that the power would not be abused. The best safeguard against the abuse or extravagant use of power is public opinion and not a letter on the right of people s representatives to change the Constitution by following the procedure laid down in the Constitution itself. It would not be a correct approach to start with a distrust in the people s representatives in the Parliament and to assume that majority of them would have ah aversion for the liberties of the people and would act against the public interest. To quote the words of Justice Holmes in Missouri Kansas Texas Ry. v. May 194 U.S. 267 (on p. 270). Great Constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... society where freedom is the possession of only a savage few; as we have learned to our sorrow. (see pages 189-190 Spirit of Liberty edited by Irving Dilliard). Similar idea was expressed in another celebrated passage by Learned Hand in the Contribution of an Independent Judiciary to Civilization: You may ask what then will become of the fundamental principles of equity and fair play which our Constitutions enshrine; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say what will be left of those principles; I do not know whether they will serve only as counsels; but this much I think I do know that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish. (see p. 164 supra). 1475. It is axiomatic that the involvement of a nation in war by a declaration of war against another country can change the entire course of history of the nation. A wrong decision in this respect can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would acquire sudden aversion and dislike for these values and show an anxiety to remove them from the Constitution. There is a vital distinction, in my opinion, between the vesting of a power, the exercise of the power and the manner of its exercise. What we are concerned with is as to whether on the true construction of Article 368, the Parliament has or has not the power to amend the Constitution so as to take away or abridge fundamental rights. So far as this question is concerned, the answer, in my opinion, should be in the affirmative, as long as the basic structure of the Constitution is retained. 1476. In the context of abuse of power of the amendment, reference has been made on behalf of the petitioners to the Constitution of Weimar Republic and it is urged that unless there are restrictions on the power of amendment in so far as fundamental rights are concerned, the danger is that the Indian Constitution may also meet the same fate as did the Weimar Constitution at the hands of Hitler. This argument, in my opinion, is wholly misconceived and is not based upon correct appreciation of historical facts. Following military reversals when Kaiser fled to Holland in 1918 his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were ignored, and Hitler s Third Reich was launched (see Modern Constitutions by R.F. Moore, p. 86-87 and The Constitutions of Europe by E.A. Goerner, p. 99-100). It would thus appear that it was not by use of the power of amending the Constitution but by acting under the cover of Article 48 of the Constitution dealing with emergency powers that Hitler brought about the Nazi dictatorship. He thus became what has been described as ...the supreme political leader of the people, supreme tender and highest superior of the administration, supreme judge of the people, supreme commander of the armed forces and the source of all law. 1477. Apart from the fact that the best guarantee against the abuse of power of amendment is good sense of the majority of the members of Parliament and not the unamendability of Part III of the Constitution, there is one other aspect of the matter. Even if Part III may be left intact, a mockery of the entire parliamentary system can be made by amending Articles 85 and 172, which are not in Part III and according to which the life of the Lok Sabha and Vidhan Sabhas of the States, unless sooner dissolved, would be five years, and by providing that the life ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... go into the question as to whether the court would also intervene in such an event. It is, in my opinion, inconceivable that a party would dare to so abuse the powers granted by the emergency provisions. The grant of the above power under Article 83 (2) is necessarily on the assumption that such a power would not be abused. 1479. Argument has then been advanced on behalf of the petitioners that the power of amendment might well be used in such a manner as might result in doing away with the power of amendment under Article 368 or in any case so amending that articles as might make it impossible to amend the Constitution. It is, in my opinion, difficult to think that majority of members of future Parliament would attempt at any time to do away with the power of amendment in spite of the knowledge as to what was the fate of unamendable Constitutions in other countries like France. Assuming that at any time such an amendment to abolish all amendments of Constitution is passed and made a part of the Constitution, it would be nothing short of laying the seeds of a future revolution or other extra-Constitutional methods to do away with unamendable Constitution. It is not necessary fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to embody the death wish of the Constitution or provide sanction for what may perhaps be called its lawful harakiri. Such subversion or destruction cannot be described to be amendment of the Constitution as contemplated by Article 368. 1481. The words amendment of this Constitution and the Constitution shall stand amended in Article 368 show that what is amended is the existing Constitution and what emerges as a result of amendment is not a new and different Constitution but the existing Constitution though in an amended form. The language of Article 368 thus lends support to the conclusion that one cannot, while acting under that article, repeal the existing Constitution and replace it by a new Constitution. 1482. The connotation of the amendment of the Constitution was brought out clearly by Pt. Nehru in the course of his speech in support of the First Amendment wherein he said that a Constitution which is responsive to the people s will, which is responsive to their ideas, in that it can be varied here and there, they will respect it all the more and they will not fight against, when we want to change it. It is, therefore, plain that what Pt. Nehru contemplated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very structure change the fundamental pillars supporting its Constitutional authority. It has further been observed: The amending procedure is concerned with the statutory framework of which it forms part itself. It may effect changes in detail, remould the legal expression of underlying principles, adapt the system to the needs of changing conditions, be in the words of Calhoun the medicatrix of the system , but should not touch its foundations. A similar idea has been brought out in the, following passage by Carl J. Friedrich page 272 of Man and His Government (1963): A Constitution is a living system. But just as in a living, organic system, such as the human body, various organs develop and decay yet the basic structure or pattern remains the same with each of the organs having its proper function, so also in a Constitutional system the basic institutional pattern remains even though the different component parts may undergo significant alterations. For it is the characteristic of a system that it perishes when one of its essential component parts is destroyed. The United States may retain some kind of Constitutional government, without, say, the Congress or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... article become necessary to replace it by a new provision. Necessity may also be felt in respect of a third article to add some further clauses in it. The addition of the new clauses can be either after repealing some of the earlier clauses or by adding new clauses without repealing any of the existing clauses. Experience of the working of the Constitution may also make it necessary to insert some new and additional articles in the Constitution. Likewise, experience might reveal the necessity of deleting some existing articles. All these measures, in my opinion, would lie within the ambit of the power of amendment. The denial of such a broad and comprehensive power would introduce a rigidity in the Constitution as might break the Constitution. Such a rigidity is open to serious objection in the same way as an unamendable Constitution. 1489. The word amendment in Article 368 must carry the same meaning whether the amendment relates to taking away or abridging fundamental rights in Part III of the Constitution or whether it pertains to some other provision outside Part III of the Constitution. No serious objection is taken to repeal, addition or alteration of provisions of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arily to be different from the approach to the question relating to the legality of amendment of pleadings. A Constitution is essentially different from pleading filed in court by litigating parties. Pleadings contain claim and counter-claim of private parties engaged in litigation, while a Constitution provides for the framework of the different organs of the State, viz., the executive, the legislature and the judiciary. A Constitution also reflects the hopes and aspirations of a people. Besides laying down the norms for the functioning of different organs a Constitution encompasses within itself the broad indications as to how the nation is to march forward in times to come. A Constitution cannot be regarded as a mere legal document to be read as a will or an agreement nor is Constitution like a plaint or a written statement filed in a suit between two litigants. A Constitution must of necessity be the vehicle of the life of a nation. It h as also to be borne in mind that a Constitution is not a gate but a road. Beneath the drafting of a Constitution is the awareness that things do not stand still but move on, that life of a progressive nation, as of an individual is not static a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution, a mechanism under which laws are to be made and not a mere Act which declares what the law is to be. In In re The Central Provinces and Berar Act XIV of 1938 [1939] F.C.R. 18 (at 37), Sir Maurice Gwyer C.J. after adopting these observations said : Especially is this true of a Federal Constitution with its nice balance of jurisdictions. I conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert to language of the enactment in the interest of any legal or Constitutional theory or even for the purpose of supplying omissions or of correcting supposed errOrs. There is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words. Where the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any Provincial Legislature with respect to the matters specified in that section. A clarification by way of abundant caution would not go to show that in the absence of the clarification, the power which inheres and is implicit would be nonexistent. Apart from that, I am of the view that sub-paragraph (2) of paragraph 7 of the Fifth Schedule indicates that the word amendment has been used in the sense so as to cover amendment by way of addition, variation or repeal. According to that paragraph, no law mentioned in sub-paragraph (1) shall be deemed to be an amendment of the Constitution for purpose of Article 368. As sub-paragraph (1) deals with amendment by way of addition, variation or repeal, the amendment of Constitution for purpose of Article 368 referred to in sub-paragraph (2) should be construed to be co-extensive and comprehensive enough to embrace within itself amendment by way of addition, variation or repeal. The same reasoning would also apply to sub-paragraph (2) of paragraph 21 of the Sixth Schedule. 1493. The Judicial Committee in the case of British Coal Corporation v. The King [1935] A.C. 500 laid down the following rule: In interpreting a constituent or or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1495. I cannot subscribe to the view that an amendment of the Constitution must keep alive the provision sought to be amended and that it must be consistent with that provision. Amendment of Constitution has a wide and broad connotation and would embrace within itself the total repeal of some articles or their substitution by new articles which may not be consistent with or in conformity with earlier articles. Amendment in Article 368 has been used to denote change. This is clear from the opening words of the proviso to Article 368 according to which ratification by not less than half of State Legislatures would be necessary if amendment seeks to make a change in the provisions of the Constitution mentioned in the proviso. The word change has a wide amplitude and would necessarily cover cases of repeal and replacement of earlier provisions by new provisions of different nature. Change can be for the better as well as for the worse. Every amendment would always appear to be a change for the worse in the eyes of those who oppose the amendment. As against that, those who sponsor an amendment would take the stand that it is a change for the better. The court in judging the validity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emphatically refuse to go back to the time when courts used the Due Process Clause to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought . 1496. It has also been urged on behalf of the petitioners that the framers of the Constitution could not have intended that even though for the amendment of articles referred to in the proviso to Article 368, ratification of not less than one half of the State Legislatures would be necessary, in the case of an amendment which deals with such a vital matter as the taking away or abridgement of fundamental rights, the amendment could be brought about without such a ratification. This argument, in my opinion, is untenable. The underlying fallacy of this argument is that it assumes that ratification by the State Legislatures is necessary under the proviso in respect of Constitutional amendments of great importance, while no such ratification is necessary in the case of comparatively less important amendments. Plain reading of Article 368, however, shows that ratification by the State Legislatures has been made imperative in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have in a large number of cases invaded provincial autonomy, we still intend and have as a matter of fact seen to it that the federal structure of the Constitution remains fundamentally unaltered. We have by our laws given certain rights to provinces, and reserved certain rights to the Centre. We have distributed legislative authority; we have distributed executive authority and we have distributed administrative authority. Obviously to fay that even those articles of the Constitution which pertain to the administrative, legislative, financial and other powers, such as the executive powers of the provinces should be made liable to alteration by the Central Parliament by two-thirds majority, without permitting the provinces or States to have any voice, is in my judgment altogether nullifying the fundamentals of the Constitution. 1497. learned Counsel for the petitioners has addressed us at some length on the point that even if there are no express limitations on the power of amendment, the same is subject to implied limitations, also described as inherent limitations. So far as the concept of implied limitations is concerned, it has two facets. Under the first facet, they are l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with different Constitutional matters at considerable length and made detailed and exhaustive provisions about them. Is it then conceivable that after having dealt with the matter so exhaustively and at such great length in express words, they would leave things in the realm of implication in respect of such an important article as that relating to the amendment of the Constitution. If it was intended that limitations should be read on the power of making amendment, question would necessarily arise as to why the framers of the Constitution refrained from expressly incorporating such limitations on the power of amendment in the Constitution itself. The theory of implied limitations on the power of making amendment may have some fascination and attraction for political theorists, but a deeper reflection would reveal that such a theory is based upon a doctrinaire approach and not what is so essential for the purpose of construing and working a Constitution, viz., a pragmatic and practical approach. This circumstance perhaps accounts for the fact that the above theory of implied limitations has not been accepted by the highest court in any country. 1501 As the concept of implied limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dapted to common wants, designed for common use, and fitted for common understandings. 1502. In the National Prohibition Cases (supra) the petitioners challenged before the US Supreme Court the validity of the Eighteenth Amendment relating to prohibition. It was urged that the aforesaid amendment had resulted in encroachment upon the police power of the States. There was implied limitation on the power to make such an amendment, according to the petitioners in those cases under Article 5 of the US Constitution. Although the Supreme (Joint gave no reasons in support of its conclusion, it upheld the validity of the Eighteenth Amendment. Argument about the implied limitations on the power of amendment was thus tacitly rejected. 1503. Eminent authors like Rottschaefer and Willis have taken the view that the theory of implied limitations should be taken to have been rejected in the National Prohibition Cases (supra) by the US Supreme Court. Rottschaefer in Handbook of American Constitutional Law has observed on pages 8 to 10: The only assumption on which the exercise of the amending power would be inadequate to accomplish those results would be the existence of express or impli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7) Act, 1931 the Constitution was amended by inserting therein a provision relating to the establishment of a Tribunal consisting of officers of Defence Forces to try a number of offences. Power of detention on suspicion in certain cases was also conferred. It was in the context of the validity of the establishment of such Tribunals that the question arose as to whether there was an implied limitation on the power to make amendment. It was held by the Supreme Court (FitzGibbon and Murnaghan JJ. and Kennedy C.J. dissenting), while dealing with the first two amendments, that these enactments were within the power of amendment conferred on the Oireachtas by Article 50 and were valid amendments of the Constitution; and that, consequently, an amendment of the Constitution; enacted after the expiry of the original period of eight years was not invalid by reason of not having been submitted to a referendum of the people under Article 50 or Article 47 as originally enacted. Dealing with the Constitution (Amendment No. 17) Act, 1931 it was held by the same majority that it was a valid amendment and was not ultra vires by reason of involving a partial repeal of the Constitution or by reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and there is not in the Article any express limitation which excludes Article 50 itself from the power of amendment. I cannot, therefore, find any ground upon which the suggested limitation can be properly based. 1506. The theory of implied limitations on the power of amendment was thus rejected by the majority of the Judges of the Irish Supreme Court. It would further appear that the crucial question which arose for determination in that case was whether there was any power to amend the article relating to amendment of the Constitution or whether there was any restriction in this respect. No such question arises under our Constitution because there is an express provision in Clause (e) of the proviso to Article 368 permitting such amendment. Apart from that I find that in the case of Moore and Ors. v. The Attorney-General for the Irish Free State and Ors. [1935] A.C. 484 the counsel for the appellant did not challenge the Constitutional validity of the 1929 Amendment. The counsel conceded that the said Amendment was regular and that the validity of the subsequent amendments could not be attacked on the ground that they had not been submitted to the people in a referendum. Deali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sely the amending process both as to procedure and as to substance. But when so large a majority as threefourths has finally expressed its will in the highest possible form outside of revolution, it becomes perilous for the judiciary to intervene. (see ibid. p. 120). Orfield in this context quoted the following passage from a judicial decision: Impressive words of counsel remind us of our duty to maintain the integrity of Constitutional government by adhering to the limitations laid by the sovereign people upon the expression of its will.... Not less imperative, however, is our duty to refuse to magnify their scope by resort to subtle implication.... Repeated decisions have informed us that only when conflict with the Constitution is clear and indisputable will a statute be condemned as void. Still more obvious is the duty of caution and moderation when the act to be reviewed is not an act of ordinary legislation, but an act of the great constituent power which has made Constitutions and hereafter may unmake them. Narrow at such times are the bounds of legitimate implications. (see ibid. p. 121). H.E. Willis has rejected the theory of implied limitations in his book Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to be granted by the Constitutional or statutory provisions, and to the extent and subject to such limitations as are contained in those provisions, those rights, having been once incorporated in the Constitution or the statute, can be abridged or taken away by amendment of the Constitution or the statute. The rights, as such, cannot be deemed to be supreme or of superior validity to the enactments made by the state, and not subject to the amendatory process. 1510. It may be emphasised in the above context that those who refuse to subscribe to the theory of enforceability of natural rights do not deny that there are certain essential values in Me, nor do they deny that there are certain requirements necessary for a civilized existence. It is also not denied by them that there are certain ideals which have inspired mankind through the corridor of centuries and that there are certain objectives and desiderata for which men have struggled and made sacrifices. They are also conscious of the noble impulses yearning for a better order of things, of longings natural in most human hearts, to attain a state free from imperfections where higher values prevail and are accepted. Those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involve us in a theory of natural law. In so far as we accept rules and principles of morality prescribing how men ought to behave, we may speak of there being moral or natural rights; and in so far as these rules lay down that men have certain rights, we may speak of moral or natural rights. The fact that such natural or moral rights and duties are not prescribed in black and white like their legal counterparts points to a distinction between law and morals; it does not entail the complete non-existence of moral rights and duties. (see p. 218-219). 1513. The observations on page 61 of P.W. Peterson s Natural Law and Natural Rights show that the theory of natural rights which was made so popular by John Locke has since ceased to receive general acceptance. Locke had propounded the theory that the community perpetually retains a supreme power of saving themselves from the attempts and designs of anybody, even of their legislators whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject (see Principles of Civil Government Book 2 S 149). 1514. While dealing with natural rights, Roscoe Pound states on page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution are subject to amendatory process and cannot claim exemption from that process by being described essential features. 1517. Distinction has been made on behalf of the petitioners between a fundamental right and the essence, also described as core, of that fundamental right. It is urged that even though the Parliament in compliance with Article 368 has the right to amend the fundamental right to property, it has no right to abridge or take away the essence of that right. In my opinion, this differentiation between fundamental right and the essence or core of that fundamental right is an over-refinement which is not permissible and cannot stand judicial scrutiny. If there is a power to abridge or take away a fundamental right, the said power cannot be curtailed by invoking the theory that though a fundamental; right can be abridged or taken away, the essence or core of that fundamental right cannot be abridged or taken away. The essence or core of a fundamental right must in the nature of things be its integral part and cannot claim a status or protection different from and higher than of the fundamental right of which it is supposed to be the essence or core. There is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so expressed that Clause 11 as worded might hamper social legislation. Although the members of the Committee felt that there was no case for giving a carte blanche to the Government to arrest, except in a grave emergency, any person without due process of law , there was considerable support for the view that due process clause might hamper legislation dealing with property and tenancy. A compromise formula was then suggested by Mr. Panikkar and with the support of Mr. Munshi, Dr. Ambedkar and Mr. Rajagopalachari the suggestion was adopted that the word property should be omitted from the clause. In the meanwhile, Mr. B.N. Rau during his visit to America had discussion with Justice Frankfurter of the US Supreme Court who expressed the opinion that the power of review implied in the due process clause was not only undemocratic (because it gave a few judges the power of vetoing legislation enacted by the representatives of the nation) but also threw an unfair burden on the judiciary. This view was communicated to the Drafting Committee which replaced the expression without due process of law by the expression except according to procedure established by law . The newly insert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernational law which results (see Maxwell on The Interpretation of Statutes, Twelfth Edition, p. 183). It has been observed on page 185: But if a statute is clearly inconsistent with international law or the comity of nations, it must be so construed, whatever the effect of such a construction may be. There is, for instance, no doubt that a right conferred on an individual by a treaty made with the Crown may be taken from him by act of the legislature. The above observations apply with greater force to a Constitutional provision as such provisions are of a paramount nature. It has already been mentioned above that the provisions of our Constitution regarding the power of making amendment are clear and unambiguous and contain no limitation on that power. I, therefore, am not prepared to accede to the contention that a limitation on the power of amendment should be read because of the declaration of Human Rights in the UN Charter. 1521. I may mention in the above context that it is always open to a State to incorporate in its laws the provisions of an international treaty, agreement or convention. In India the provisions of the Geneva Conventions have been incorporated in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can it be said that there did not exist conditions for dignified way of living for Indians during the period between August 15, 1947 and January 26,. 1950. The plea that provisions of the Constitution, including those of Part III, should be given restrospective effect has been rejected by this Court. Article 19 which makes provision for fundamental rights, is not applicable to persons who are not citizens of India. Can it, in view of that, be said that the non-citizens cannot while staying in India lead a dignified life ? It would, in my opinion, be not a correct approach to say that amendment of the Constitution relating to abridgement or taking away of the fundamental rights would have the effect of denuding human beings of basic dignity and would result in the extinguishment of essential values of life. 1523. It may be mentioned that the provisions of Article 19 show that the framers of the Constitution never intended to treat fundamental rights to be absolute. The fact that reasonable restrictions were carved in those rights clearly negatives the concept of absolute nature of those rights. There is also no absolute standard to determine as to what constitutes a fundamental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution . Article 394 would thus show that except for sixteen articles which were mentioned in that article, the remaining provisions of the Constitution came into force on the 26th day of January, 1950. The words the remaining provisions , in my opinion, would include the Preamble as well as Part III and Part IV of the Constitution. It may also be mentioned that a proposal was made in the Constituent Assembly by Mr. Santhanam that Preamble should come into force on November 26, 1949 but the said proposal was rejected. 1526. As Preamble is a part of the Constitution, its provisions other than those relating to basic structure or framework, it may well be argued, are as much subject to the amendatory process contained in Article 368 as other parts of the Constitution. Further, if Preamble itself is amendable, its provisions other than those relating to basic structure cannot impose any implied limitations on the power of amendment. The argument that Preamble creates implied limitations on the power of amendment cannot be accepted unless it is shown that the Parliament in compliance with the provisions of Article 368 is debarred from amending the Preamble in so far as it rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mble may legitimately prevail.... If they (the enacting words) admit of only one construction, that construction will receive effect even if it is inconsistent with the preamble, but if the enacting words are capable of either of the constructions offered by the parties, the construction which fits the preamble may be preferred. 1527. In the President s reference In Re : The Berubari Union and Exchange of Enclaves, [1963] S.C.R. 250 the matter related to the implementation of the agreement between the Prime Ministers of India and Pakistan regarding the division of Berubari Union and for exchange of Cooch-Bihar Enclaves in Pakistan and Pakistan enclaves in India. The contention which was advanced on behalf of the petitioner in that case was that the agreement was void as it ceded part of India s territory, and in this connection, reference was made to the Preamble to the Constitution. Rejecting the contention this Court after referring to the words of Story that preamble to the Constitution is a key to open the minds of the makers which may show the general purposes for which they made the several provisions, relied upon the following observations of Willoughby about the Preamb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vals. The prevention of such upheavals is not merely necessary for the peaceful evolution of society, it is also in the interest of those who belong to the upper strata to ensure that the potential causes for violent upheaval are eliminated. Various remedies have been suggested in this connection and the stress has been laid mainly upon having what is called a welfare state. The modern states have consequently to take steps with a view to ameliorate the conditions of the poor and to narrow the chasm which divides them from the affluent sections of the population. For this purpose the state has to deal with the problems of social security, economic planning and industrial and agrarian welfare. Quite often in the implementation of these policies, the state is faced with the problem of conflict between the individual rights and interests on the one side and rights and welfare of vast sections of the population on the other. The approach which is now generally advocated for the resolving of the above conflict is to look upon the rights of the individuals as conditioned by social responsibility. Harold Laski while dealing with this matter has observed in Encyclopaedia of the Social Scie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... social justice. As observed by Roscoe Pound on page 434 of Volume I of Jurisprudence under the heading Limitations on the Use of Property : Today the law is imposing social limitations-limitations regarded as involved in social life. It is endeavouring to delimit the individual interest better with respect to social interests and to confine the legal right or liberty or privilege to the bounds of the interest so delimited. To quote the words of Friedmann in Legal Theory: But modern democracy looks upon the right to property as one conditioned by social responsibility by the needs of society, by the balancing of interests which looms so large in modern jurisprudence, and not as preordained and untouchable private right. (Fifth Edition, p. 406). 1532. With a view to bring about economic regeneration, the state devises various methods and puts into operation certain socio-economic measures. Some of the methods devised and measures put into operation may impinge upon the property rights of individuals. The courts may sometimes be sceptical about the wisdom behind those methods and measures, but that would be an altogether extraneous consideration in determining the validity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer of amendment under Article 368 and the consideration of the Nehru Report in this context would be not helpful. If the language of Article 368 warrants a wide power of amendment as may include the power to take away or abridge fundamental rights, the said power cannot be held to be nonexistent nor can its ambit be restricted by reference to Nehru Report. The extent to which historical material can be called in aid has been laid down in Maxwell on Interpretation of Statutes on page 47-48 as under: In the interpretation of statutes, the interpreter may call to his aid all those external or historical facts which are necessary for comprehension of the subject-matter, and may also consider whether a statute was intended to alter the law or to leave it exactly where it stood before. But although we can have in mind the circumstances when the Act was passed and the mischief which then existed so far as these are common knowledge...we can only use these matters as an aid to the construction of the words which Parliament has used. We cannot encroach on its legislative function by reading in some limitation which we may think was probably intended but which cannot be inferred from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the above words of Pt. Nehru has stated: Two revolutions, the national and the social, had been running parallel in India since the end of the First World War. With independence, the national revolution would be completed, but the social revolution must go on. Freedom was not an end in itself, only a means to an end , Nehru had said, that end being the raising of the people...to higher levels and hence the general advancement of humanity . The first task of this Assembly (Nehru told the members) is to free India through a new Constitution, to feed the starving people, and to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity. K. Santhanam, a prominent southern member of the Assembly and editor of a major newspaper, described the situation in terms of three revolutions. The political revolution would end, he wrote, with independence. The social revolution meant to get (India) out of the medievalism based on birth, religion, custom, and community and reconstruct her social structure on modern foundations of law, individual merit, and secular education . The third revolution was an economic one : The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... institutions of the Constitution) had assumed economic as well as political control of the country, and that Indian capitalists should not inherit the empire of British colonialists. 1536. Pt. Nehru, in the course of his speech in support of the Constitution (First Amendment) Bill, said: And as I said on the last occasion the real difficulty we have to face is a conflict between the dynamic ideas contained in the Directive Principles of Policy and the static position of certain things that are called fundamental whether they relate to property or whether they relate to something else. Both are important undoubtedly. How are you to get over them ? A Constitution which is unchanging and static, it does not matter how good it is, how perfect it is, is a Constitution that has past its use. 1537. Again in the course of his speech in support of the Constitution (Fourth Amendment) Bill, Pt. Nehru said: But, I say, that if that is correct, there is an inherent contradiction in the Constitution between the fundamental rights and the Directive Principles of State Policy. Therefore, again, it is up to this Parliament to remove that contradiction and make the fundamental rights subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of human affairs. 1540. The argument that Parliament cannot by amendment enlarge its own powers is untenable. Amendment of the Constitution, in the very nature of things, can result in the conferment of powers on or the enlargement of powers of one of the organs of the state. Likewise, it can result in the taking away or abridgement of the powers which were previously vested in an organ of the state. Indeed nearly every expansion of powers and functions granted to the Union Government would involve consequential contraction of powers and functions in the Government of the States. The same is true of the converse position. There is nothing in the Constitution which prohibits or in any other way prevents the enlargement of powers of Parliament as a result of Constitutional amendment and, in my opinion, such an amendment cannot be held to be impermissible or beyond the purview of Article 368. Indeed, a precedent is afforded by the Irish case of Jeremish Ryan (supra) wherein amendment made by the Oirechtas as a result of which it enlarged its powers inasmuch as its power of amending the Constitution without a referendum was increased from eight years to 16 years was held to be vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of any power derived from Section 6 of the Indian Independence Act. On the contrary, the members of the Constituent Assembly framed and adopted the Constitution as the representatives of the people and on behalf of the people of India. This is clear from the opening and concluding words of the Preamble to the Constitution. There is, indeed, no reference to the Indian Independence Act in the Constitution except about its repeal in Article 395 of the Constitution. 1542. Apart from the above, I find that all that Sub-section (6) of Section 6 of the Indian Independence Act provided for was that the power referred to in Sub-section (1) would extend to the making of laws limiting for the future the powers of the Legislature of the Dominion. The Provisional Parliament acting as the Constituent Assembly actually framed the Constitution which placed limitations on the ordinary legislative power of the future Parliaments by providing that the legislative laws would not contravene the provisions of the Constitution. At the same time, the Constituent Assembly inserted Article 368 in the Constitution which gave power to the two Houses of future Parliaments to amend the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to bring into existence the United States of America and where further each one of the States ratified the Constitution after it had been prepared by the Philadelphia Convention, the above concept has plainly no relevance in the context of the Indian Constitution. The whole of India was, as already mentioned, one country long before the Constitution was adopted. There was also no occasion here for the ratification of the Constitution by each State after it had been adopted by the Constituent Assembly. 1545. Reference has been made on behalf of the petitioners to the case of Mangal Singh and Anr. v. Union of India [1967] 2 S.C.R. 109 which related to the Punjab Reorganization Act, 1966. This Court while upholding the validity of the Act dealt with Article 4, according to which any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces; and for greater certainty, but not so as to restrict the generality of the foregoing terms of the section, it is hereby declared that (notwithstanding anything in this Act) the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated; that is to say, ___. There follows a list of different subjects. The first amongst the subjects, which was inserted by British North America Act 1949, is : The amendment from time to time of the Constitution of Canada, except as regards matters coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces, or.... It is not necessary to give the details of other limitations on the power of amendment. Section 92 of the British North America Act enumerates the subjects of exclusive provincial legislation. According to this section, in each province the Legislature may exclusively make laws in relation to matters coming within the classes of subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was Switzmand v. Elbing and Attorney-General of Quebec [1957] S.C.R. 285 (Canada). In that case the Supreme Court declared invalid the Quebec Communistic Propaganda Act. All the judges but one were agreed that the statute did hot fall within provincial competence under property and Civil rights or matters of a merely local or private nature in the province. Abbott J. held that the Parliament itself could not abrogate the right of discussion and, debate. 1550. An article by Dale Gibson in Volume 12-1966-67 in McGill Law Journal shows that though the proposition enunciated by Duff C.J. has commanded the allegiance of an impressive number of judges and has not been decisively rejected, it has never been accepted by a majority of the members of the Supreme Court of Canada or of any other court. Some judges have assumed that basic freedoms may properly be the subject matter of legislation separate and apart from any other-subject matter. Others have taken the view that unlimited jurisdiction falls within Dominion control under its general power to make laws for the peace, order and good government of Canada . A third view which has been taken is mat the creation of a Parliament and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociation; and (f) freedom of the press. According to Section 2 of the Bill, every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorise the abrogation, abridgement or infringement of any of the rights or freedoms therein recognized and declared. The relevant part of Section 2 reads as under: Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to... (underlining supplied). Plain reading of Section 2 reproduced above makes it manifest that the human rights and fundamental freedoms mentioned in Section 1 of the Bill are not absolute but are subject to abrogation or abridgement if an express declaration to that effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... government of the Island. (2) No such law shall- (a) prohibit or restrict the free exercise of any religion; or (b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable; or (c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions; or (d) alter the Constitution of any religious body except with the consent of the governing authority of that body, so, however, that in any case where a religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body: 1555. Provided, however, that the preceding provisions of this, subsection shall not apply to any law making provision for, relating to, or connected with, the election of Members of the House of Representatives, to represent persons registered as citizens of Ceylon under the Indian and Pakistani Residents (Citizenship) Act. 1556. This proviso shall cease to have effect on a date to be fixed by the Governor- General by Proclamation published in the Gazette. (3) A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was that the Ceylon Parliament was limited by an inability to pass legislation which was contrary to fundamental principles of justice. The two Acts of 1962, it was stated, were contrary to such principles in that they were not only directed against individuals but also ex post facto created crimes and for which those individuals would otherwise be protected. The second contention was that the Acts of 1962 offended against the Constitution in that they amounted to a direction to convict the appellants or to a legislative plan to secure the conviction and severe punishment of the appellants and thus constituted an unjustifiable assumption of judicial power by the legislature, or an interference with judicial power, which was outside the legislature s competence and was inconsistent with the severance of power between legislature, executive, and judiciary which the Constitution ordained. Dealing with the first contention, the Judicial Committee referred to the provisions of the Ceylon (Constitution) Order in Council, 1946 and the Ceylon Independence Act, 1947 and observed that the joint effect of the said Order and Act was intended to and resulted in giving the Ceylon Parliament the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a legislature in contravention of the Constitutional provisions Reference has been made on behalf of the petitioners to a passage in the judgment wherein while dealing with Sub-section (2) of Section 29 of the Ceylon Constitution, the provisions of which have been reproduced earlier, the Judicial Committee observed that the various clauses of Sub-section (2) set out entrenched religious and racial matters which shall not be the subject of legislation. It was further observed that those provisions represented the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution and these are therefore unalterable under the Constitution. It is contended that those observations show that the rights mentioned in Section 29(2) of the Ceylon Constitution which were similar to the fundamental rights in Part III of the Indian Constitution, were held by the Judicial Committee to be unalterable under the Constitution. There was, it is further submitted, similarity between the provisions of Section 29(3) of the Ceylon Constitution and Article 13(2) of the Indian Constitution because it was provided in Section 29(3) that an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the above passage indicates that the Judicial Committee took the view that the amendment of all the provisions of the Ceylon Constitution including those contained in Sub-sections (2) and (3) of Section 29 could be passed by a two-thirds majority. It is also stated that the restrictions imposed by Sub-section (2) of Section 29 of the Ceylon Constitution are on the power of ordinary legislation by simple majority and not on the power of making Constitutional amendment by two-thirds majority in compliance with Section 29(4) of the Constitution. It was in that sense that the Judicial Committee, according to the submission, used the word entrenched . Our attention has also been invited to the observations on pages 83 and 84 of the Constitutional structure by K.C. Wheare 1963 Reprint that these safeguards (contained in Section 29) of the rights of communities and religions could be repealed or amended by the Parliament of Ceylon provided it followed the prescribed procedure for amendment of the Constitution . These submissions may not be bereft of force, but it is, in my opinion, not necessary to dilate further upon this matter and discuss the provisions of the Ceylon Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er which the appellant had been appointed a judge of the Supreme Court were held to be inconsistent with the provisions of the Constitution Act and as such void. On appeal four out of the seven judges of the High Court of Australia agreed with the Supreme Court of Queensland, while the three other judges took the opposite view and expressed the opinion that the appeal should be allowed. The matter was then taken up in appeal to the Privy Council. Lord Birkenhead giving the opinion of the Judicial Committee held (1) that the Legislature of Queensland had power, both under the Colonial Laws Validity Act, 1865, and apart therefrom, to authorise the appointment of a judge of the Supreme Court for a limited period; and (2) that Section 6 of the Industrial Arbitration Act authorised an appointment as a judge of the Supreme Court only for the period during which the person appointed was a judge of the Court of Industrial Arbitration. The appellant was further held to have been validly appointed. The above case though containing observations that a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the Australian High Court which had held by majority that the Bills had not been passed in the manner and form within the meaning of Section 5 of the Colonial Laws Validity Act, and as such could not be presented for Royal assent. The Privy Council based its decision upon the language of the above section and the meaning of the word passed in that section. We are not concerned in the present case with the aforesaid provisions. There is also nothing in the conclusions at which I have arrived which runs counter to the principles laid down in the Trethowan s case. 1567. Another Australian case to which reference has been made during the course of arguments is The State of Victoria v. The Commonwealth. 45 Australian Law Journal Reports 251 It has been laid down by the High Court of Australia in that case that the Commonwealth Parliament in exercise of its powers under Section 51(ii) of the Constitution may include the Crown in right of a State in the operation of a law imposing a tax or providing for the assessment of a tax. The inclusion of the Crown in right of a State, according to the court, in the definition of employer in the Pay-roll Tax Assessment Act, thus mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndamental rights. The result of the judgment is that Parliament is considered to have no power to take away or curtail any of the fundamental rights guaranteed by Part III of the Constitution even if it becomes necessary to Jo so for giving effect to the Directive Principles of State Policy and for the attainment of the objectives set out in the Preamble to the Constitution. It is, therefore, considered necessary to provide expressly that Parliament has power to amend any provision of the Constitution so as to include the provisions of Part III within the scope of the amending power. 1570. The Bill seeks to amend Article 368 suitably for the purpose and makes it clear that Article 368 provides for amendment of the Constitution as well as procedure therefor. The Bill further provides that when a Constitution Amendment Bill passed by both Houses of Parliament is presented to the President for his assent, he should give has assent thereto. The Bill also seeks to amend Article 13 of the Constitution to make it inapplicable to any amendment of the Constitution under Article 368. 1571. Section 2 of the Bill which was ultimately passed as the Constitution (Twentyfourth Amendment) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticles 14, 19 and 31 inapplicable to certain categories of laws passed by the Parliament or by any State Legislature. So far as the substitution of the word amount for the word compensation for property acquired or requisitioned in Article 31(2) is concerned, we find that this Court held in Mrs. Bela Bose [1954] S.C.R. 558 case that by the guarantee of the right to compensation for compulsory acquisition under Article 31(2), before it was amended by the Constitution (Fourth Amendment) Act, the owner was entitled to receive a just equivalent or full indemnification . In P. Vajravelu Mudaliar s [1965] 1 S.C.R. 614 case this Court held that notwithstanding the amendment of Article 31(2) by the Constitution (Fourth Amendment) Act and even after the addition of the words and no such law shall be called in question in any Court on the ground that the compensation provided by that law is not adequate , the expression compensation continued to have the same meaning as it had in Article 31(2) before it was amended, viz., just equivalent or full indemnification. Somewhat different view was taken by this Court thereafter, in the case of Shantilal Mangaldas [1969] 3 S.C.R. 341. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dilate upon this aspect because whatever may be the connotation of the word amount , it would not affect the validity of the amendment made in Article 31(2). 1574. Another change made in Article 31(2) is that the law for the purpose of acquisition or requisition shall not be called in question on the ground that the whole or any part of the amount fixed or determined for the acquisition or requisition of the property is to be given otherwise than in cash. I have not been able to find any infirmity in the above changes made in Article 31(2). 1575. According to Clause (2B) which has been added as a result of the Twentyfifth Amendment in Article 31, nothing in Sub-clause (f) of Clause (1) of Article 19 shall affect any such law as is referred to in Clause (2). In this connection we find that this Court held in some cases that Articles 19(1)(f) and 31(2) were exclusive. In A.K. Gopalan v. The State of Madras [1950] S.C.R. 88 a person detained pursuant to an order made in exercise of the power conferred by the Preventive Detention Act applied to this Court for a writ of habeas corpus claiming that the Act contravened the guarantee under Articles 19, 21 and 22 of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proceeded to hold that the expression authority of law means authority of a valid law, and on that account validity of the law seeking to deprive a person of his property is open to challenge on the ground that it infringes other fundamental rights, e.g., under Article 19(1)(f). It was also observed that after the Constitution (Fourth Amendment) Act, 1955 Bhanji Munji s case (supra) no longer holds the field . After the decision in K.K. Kochuni s case (supra) there arose two divergent lines of authority. According to one view, authority of law in Article 31(1) was liable to be tested on the ground that it violated other fundamental rights and freedoms, including the right to hold property guaranteed by Article 19(1)(f). The other view was that authority of a law within the meaning of Article 31(2) was not liable to be tested on the ground that it impaired the guarantee of Article 19(1)(f) in so far as it imposed substantive restrictions-though it may be tested on the ground of impairment of other guarantees. In the case of R.C. Cooper (supra), Shah J. speaking for the majority held that in determining the impact of State action upon Constitutional guarantees which are fund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... called in question in any court on the ground that it does not give effect to such policy. There then follows the proviso, according to which where such law is made by the Legislature of a State, the provisions of the article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. 1578. The first part of Article 31C is similar to Article 31A except in respect of the subject matter. Article 31A was inserted by the Constitution (First Amendment) Act, 1951. Clause (1) of Article 31A as then inserted was in the following words: (1) Notwithstanding anything in the foregoing provisions of this Part, no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part: Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ownership and control of the material resources of the community are so distributed as best to subserve the common good and that operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. But for the difference in subjects, the language of the first clause of Article 31A and that of the first part of Article 31C is identical. Both Articles 31A and 31C deal with right to property. Article 31A deals with certain kinds of property and its effect is, broadly speaking, to take those kinds of property from the persons who have rights in the said property. The objective of Article 31C is to prevent concentration of wealth and means of production and to ensure the distribution of ownership and control of the material resources of the community for the common good. Article 31C is thus essentially an extension of the principle which was accepted in Article 31A. The fact that the provisions of Article 31C are more comprehensive and have greater width compared to those of Article 31A would not make any material difference. Likewise, the fact that Article 31A deals with law providing for certain subjects, while Article 31C de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sustained the validity of Clause (1) of Article 31A, would equally sustain the validity of the first part of Article 31C. I may in this context refer to the observations of Brandeis J. in Lesses v. Garnet (258) U.S. 130 while upholding the validity of the 19th Amendment, according to which the right of citizens of the United States to vote shall not be denied or abridged by the United States or by States on account of sex. This case negatived the contention that a vast addition to the electorate destroyed the social compact and the residuary rights of the States. Justice Brandeis observed: This amendment is in character and phraseology precisely similar to the 15th. For each the same method of adoption was pursued. One cannot be valid and the other invalid. That the 15th is valid...has been recognized and acted upon for half a century.... The suggestion that the 15th was incorporated in the Constitution not in accordance with law, but practically as a war measure which has been validated by acquiesence cannot be entertained. 1580. We may now deal with the second part of Article 31C, according to which no law containing a declaration that it is for giving effect to the policy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e integrity and unity of the country. Such a law might also provoke the Legislatures of other States to make laws which may discriminate in the economic sphere against the persons hailing from the State which was the first to enact such discriminate law. There would thus be a chain reaction of laws which discriminate between the people belonging to different States and which in the very nature of things would have a divisive tendency from a national point of view. The second part of Article 31C would thus provide the cover for the making of laws with a regional or local bias even though such laws imperil the oneness of the nation and contain the dangerous seeds of national disintegration. The classic words of Justice Holmes have a direct application to a situation like this. Said the great Judge: I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States. (Holmes, Collected Legal Papers (1920) 295-96). The fact that the assent of the President would have to be obtained for such a law might not provide an effective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d cannot be deemed to be void or ever to have become void on the ground that the statute or any provisions thereof is inconsistent with or takes away or abridges any of the rights conferred by any provision of Part III. In such a case, the provisions of the entire statute are placed before each House of Parliament. It is open to not less than one-half of the members of each House and not less than two-thirds of the members of each House voting and present after applying their mind to either place the statute in the Ninth Schedule in its entirety or a part thereof or not to do so. It is only if not less than one-half of the total members of each House of Parliament and not less than two-thirds of the members present and voting in each House decide that the provisions of a particular statute should be protected under Article 31B either in their entirety or partly that the said provisions are inserted in the Ninth Schedule. A Constitutional amendment of this type relates to an existing statute of which the provisions can be examined by the two Houses of Parliament and gives protection to the statute from being struck down on the ground of being violative of any provision of Part III o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its second part. The law made under Article 31C is not examined and approved for the purpose of protection by not less than one-half of the members of each House of Parliament and not less than two-thirds of the members present and voting in each House, as is necessary in the case of laws inserted in the Ninth Schedule of the Constitution. Nor can the law made under Article 31C be subject to judicial review with a view to find out whether the law has, in fact, been made for an object mentioned in Article 31C. Article 31C thus departs from the scheme of Article 31A, because while a judicial review is permissible under Article 31A to find out as to whether a law has been made for any of the objects mentioned in Article 31A, such a judicial review has been expressly prohibited under Article 31C. The result is that even if a law made under Article 31C can be shown in court of law to have been enacted not for the purpose mentioned in Article 31C but for another purpose, the law would still be protected and cannot be assailed on the ground of being violative of Articles 14, 19 and 31 of the Constitution because of the declaration made by the legislature as contemplated by second part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtance can neither be delegated nor can those vested with the authority to amend abdicate that power in favour of another body. Further, once such a power is granted, either directly or in effect, by a Constitutional amendment to the State Legislatures, it would be difficult to take away that power, because it can be done only by means of a Constitutional amendment and the States would be most reluctant, having got such a power, to part with it. In empowering a State Legislature to make laws violative of Articles 14, 19 and 31 of the Constitution and in further empowering the State Legislature to make laws immune from attack on the ground of being violative of Articles 14, 19 and 31 by inserting the requisite declaration, the authority vested with the power to make amendment under Article 368 (viz., the prescribed majority in each House of Parliament) has, in effect, delegated or granted the power of making amendment in important respects to a State Legislature. Although the objects for which such laws may be made have been specified, the effect of the latter part of Article 31C relating to the declaration is that the law in question may relate even to objects which have not been s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as would appear from what has been stated above, Article 31C goes much beyond the scope of Articles 31A and 31B. 1590. In a federal system where the spheres of legislative powers are distributed between the Central Legislature and the State Legislatures, there has to be provided a machinery to decide in case of a dispute as to whether the law made by the State Legislatures encroaches upon the field earmarked for the Central Legislature as also a dispute whether a law made by the Central Legislature deals with a subject which can be exclusively dealt with by the State Legislatures. This is true not only of a federal system but also in a Constitutional set up like ours wherein the Constitution-makers, though not strictly adopting the federal system, have imbibed the features of a federal system by distributing and setting apart the spheres of legislation between the Central Legislature and the State Legislatures. The machinery for the resolving of disputes as to whether the Central Legislature has trespassed upon the legislative field of the State Legislatures or whether the State Legislatures have encroached upon the legislative domain of the Central Legislature is furnished by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. According to Article 31B, none of the Acts and regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void or ever to have become void on the ground that such Act, regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by any provision of Part III of the Constitution. The one thing significant to be noted in this connection, however, is that the power under Article 31B of exclusion of judicial review, which might be undertaken for the purpose of finding whether there has been contravention of any provision of Part III, is exercised not by the legislature enacting the impugned law but by the authority which makes the Constitutional amendment under Article 368, viz., the prescribed majority in each House of Parliament. Such a power is exercised in respect of an existing statute of which the provisions can be scrutinized before it is placed in the Ninth Schedule. It is for the prescribed majority in each House to decide whether the particular statute should be placed in the Ninth Schedule, and if so, whether it should be placed there in its entirety or partly. As against that, the position un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e certainly carried weight if the second part of the article relating to the declaration were not there. In the absence of the declaration in question, it would be open to, and indeed necessary, for the court to find whether the impugned law is for giving effect to the policy of the State towards securing the principles specified in Clauses (b) or (c) of Article 39 before it can uphold the validity of the impugned law under Article 31C. Once, however, a law contains such a declaration, the declaration would stand as bar and it would not be permissible for the court to find whether the impugned law is for giving effect to the policy mentioned in Article 31C. Article 31C protects the law giving effect to the policy of the State towards securing the principles specified in Clauses (b) or (c) of Article 39 and at the same time provides that no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. It is, therefore, manifest that once a law contains the requisite declaration, the court would be precluded from going into the question that the law does not give effect to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in such disputes in order to be binding upon others be based upon a concession even though the concession emanates from the State counsel. The concession has to be made good and justified in the light of the relevant provisions. 1594. The position as it emerges is that it is open to the authority amending the Constitution to exclude judicial review regarding the validity of an existing statute. It is likewise open to the said authority to exclude judicial review regarding the validity of a staute which might be enacted by the legislature in future in respect of a specified subject. In such an event, judicial review is not excluded for finding whether the statute has been enacted in respect of the spcified subject Both the above types of Constitutional amendments are permissible under Article 368. What is not permissible, however, is a third type of Constitutional amendment, according to which the amending authority not merely excludes judicial review regarding the validity of a statute which might be enacted by the legislature in future in respect of a specified subject but also excludes judicial review for finding whether the statute enacted by the legislature is in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision. The sobering reflection has always to be there that the Constitution is meant not merely for people of their way of thinking but for people of fundamentally differing views. As observed by Justice Holmes while dealing with the Fourteenth Amendment to the US Constitution: The Fourteenth Amendment does not enact Mr. Herbert Spencer s Social Statics.... Some of these laws embody convictions or prejudices which judges are likely to share. Some may not But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 31C: and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. 1598. We may now deal with the Constitution (Twentyninth Amendment) Act. This Act, as mentioned earlier, inserted the Kerala Act 35 of 1969 and the Kerala Act 25 of 1971 as entries No. 65 and 66 in the Ninth Schedule to the Constitution. I have been able to find no infirmity in the Constitution (Twentyninth Amendment) Act. It may be mentioned that an argument was advanced before us that Articles 31B and 31A are linked together and that only those enactments can be placed in the Ninth Schedule as fall within the ambit of Article 31A. Such a contention was advanced in the case of N.B. Jeejeebhoy v. Assistant Collector, Thana Prant, Thana [1965] 1 S.C.R. 636. Repelling the contention Subba Rao J. (as he then was) speaking for the Constitution Bench of this Court observed: The learned Attorney-General contended that Articles 31-A and Article 31-B should be read together and that if so read Article 31-B would only illustrate cases that would otherwise fall under Article 31-A and, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. No generation has a monopoly of wisdom nor has it a right to place fetters on future generations to mould the machinery of governments. If no provision were made for amendment of the Constitution, the people would have recourse to extra-Constitutional method like revolution to change the Constitution. (v) Argument that Parliament can enact legislation under entry 97 List I of Seventh Schedule for convening a Constituent Assembly or holding a referendum for the purpose of amendment of Part III of the Constitution so as to take away or abridge fundamental rights is untenable. There is no warrant for the proposition that as the amendments under Article 368 are not brought about through referendum or passed in a Convention the power of amendment under Article 368 is on that account subject to limitations. (vi) The possibility that power of amendment may be abused furnishes no ground for denial of its existence. The best safeguard against abuse of power is public opinion and the good sense of the majority of the members of Parliament, It is also not correct to assume that if Parliament is held entitled to amend Part III of the Constitution, it would automatically and necessari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seed of national disintegration and is invalid on the following two grounds: (1) It gives a carte blanche to the Legislature to make any law violative of Articles 14, 19 and 31 and make it immune from attack by inserting the requisite declaration. Article 31C taken along with its second part gives in effect the power to the Legislature, including a State Legislature, to amend the Constitution in important respects. (2) The legislature has been made the final authority to decide as to whether the law made by it is for objects mentioned in Article 31C. The vice of second part of Article 31C lies in the fact that even if the law enacted is not for the object mentioned in Article 31C, the declaration made by the Legislature precludes a party from showing that the law is not for that object and prevents a court from going into the question as to whether the law enacted is really for that object. The exclusion by Legislature, including a State Legislature, of even that limited judicial review strikes at the basic structure of the Constitution. The second part of Article 31C goes beyond the permissible limit of what constitutes amendment under Article 368. The second part of Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. 1603. As the arguments were addressed mainly in Writ Petition No. 135/1970, I will deal with it now. In this writ petition the petitioner challenged the validity of the Kerala Land Reforms Amendment Act, 1969, and the Kerala Land Reforms Amendment Act, 1971, for the reason that some of the provisions thereof violated Article 14, 19(1)(f), 25, 26 and 31 of the Constitution. 1604. During the pendency of the Writ Petition, the Amending Body under the Constitution passed three Constitutional amendments, namely, the Constitution 24th, 25th and 29th Amendment Acts. 1605. The 24th Amendment made certain changes in Article 368 to make it clear that the Parliament, in the exercise of its constituent power, has competence to amend by way of addition, variation or repeal, any of the provisions of the Constitution in accordance with the procedure laid down in the article and that Article 13(2) would not be a bar to any such amendment. By the 25th Amendment, the word amount was substituted for the word compensation in Clause (2) of Article 31. That was done in order to make it clear that the law for acquisition or requisition of the property need only fix an amount or lay d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... colleagues, substantially agreed with the reasoning of Patanjali Sastri, J. in Sankari Prasad v. The Union of India [1952] S.C.R. 89. Hidayatullah and Mudholkar, JJ. expressed certain doubts as to whether Fundamental Rights could be abridged or taken away by amendment of the Constitution under Article 368. 1610. The question again came up before this Court in Golaknath v. State of Punjab [1967] 2 S.C.R. 762, hereinafter called Golaknath Case where the validity of the 17th Amendment was challenged on much the same grounds. The majority constituting the Bench decided that Parliament has no power to amend the Fundamental Rights in such a way as to take away or abridge them, but that the 1st, 4th and 17th Amendments were valid for all time on the basis of the doctrine of prospective overruling and that the Acts impugned in the case were protected by the Amendments. 1611. The reasoning of the leading majority (Subba Rao, C.J., and the colleagues who concurred in the judgment pronounced by him) was that Article 368, as it stood then, did not confer the substantive power to amend the provisions of the Constitution but only prescribed the procedure for the same that the substantiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the article could only mean a change with a view to make improvement; that in the context, the term connoted only power to make such changes as were consistent with the nature and purpose of the Constitution, that the basic structure and essential features of the Constitution cannot be changed by amendment, and that the assumption made by these judges that the word amendment in the article was wide enough to make any change by way of alteration, addition or repeal of any of the provisions of the Constitution was unwarranted. He said that the article was silent as regards the subject matter in respect of which amendments could be made or the extent and the width thereof, that it was set in a low key as it did not contain the words amend by way of addition, variation or repeal , that these circumstances should make one pause before ascribing to the word amendment its widest meaning and that, in the context, the word has only a limited meaning. 1616. I do not think that there is any substance in this contention. 1617. In the Oxford English Dictionary, the meanings of the word amend are given as: to make professed improvements (in a measure before Parliament); formally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning of the word. 1621. In this context it is relevant to keep in mind the general rules of construction for interpreting a word like amendment occurring in a constituent Act like the Constitution of India. 1622. In In Re the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, etc (1939) F.C.R. 18. Sir Maurice Gwyer said that a broad and liberal spirit should inspire those whose duty it is to interpret a Constitution, that a Court should avoid a narrow and pedantic approach and that when a power is granted without any restriction, it can be qualified only by some express provision or by scheme of the instrument. 1623. The basic principles of construction were definitively enunciated by the Privy Council in The Queen v. Burah (1878) 3 A.C. 889, 904-905 and those principles were accepted and applied by Earl Loreburn in Attorney General for Ontario v. Attorney General for Canada (1912) A.C. 572 at 583 Lord Selborne said in the former case that the question whether the prescribed limits of a power have been exceeded has to be decided by looking to the terms of the instrument by which, affirmatively, the power was created, and by which, ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e most gifted of its begetters.... 1626. Every well drawn Constitution will therefore provide for its own amendment in such a way as to forestall as is humanly possible, all revolutionary upheavals See Carl J. Friedrich, Constitutional Government and Democracy , p. 135. That the Constitution is a framework of great governmental power to be exercised for great public ends in the future, is not a pale intellectual concept but a dynamic idea which must dominate in any consideration of the width of the amending power. No existing Constitution has reached its final form and shape and become, as it were a fixed thing incapable of further growth. Human societies keep changing; needs emerge, first vaguely felt and unexpressed, imperceptibly gathering strength, steadily becoming more and more exigent, generating a force which, if left unheeded and denied response so as to satisfy the impulse behind it, may burst forth with an intensity that exacts more than reasonable satisfaction See Felik Frankfurter, Of Law and Men , p. 35. As Wilson said, a living Constitution must be Darwinian in structure and practice See Constitutional Government in the United States, p. 25. The Constitution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hink the argument is too speculative to be countenanced. It is just like the argument that if men and women are given the freedom to choose their vocations in life, they would all jump into a monastery or a nunnery, as the case may be, and prevent the birth of a new generation; or the argument of some political thinkers that if freedom of speech is allowed to those who do not believe in it, they would themselves deny it to others when they get power and, therefore, they should be denied that freedom today, in order that they might not deny it to others tomorrow. 1627. Seeing, therefore, that it is a Constitution that we are expounding and that the Constitution-makers had before them several Constitutions where the word amendment or alteration is used to denote plenary power to change the fundamentals of the Constitution, I cannot approach the construction of the word amendment in Article 368 in niggardly or petty fogging spirit and give it a narrow meaning; but being a familiar expression, it was used in its familiar legal sense See Justice Holmes in Henry v. United States 251 U.S. 293, 295. 1628. However, Mr. Palkhivala contended that there are provisions in the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution, to alter any provision, substitute any other provision in its place and to delete any provision. But when the article said that, on the bill for the amendment of the Constitution receiving the President s assent, the Constitution shall stand amended , it seems to be fairly clear that a simple repeal or abrogation of the Constitution without substituting anything in the place of the repealed Constitution would be beyond the scope of the amending power, for, if a Constitution were simply repealed, it would not stand amended. An amendment which brings about a radical change in the Constitution like introducing presidential system of government for cabinet system, or, a monachy for a republic, would not be an abrogation or repeal of the Constitution. However radical the change might be, after the amendment, there must exist a system by which the State is constituted or organised. As already stated, a simple repeal or abrogation without more, would be contrary to the terms of Article 368 because it would violate the Constitutional provision that the Constitution shall stand amended . 1631. Even if the word amendment in Article 368 as it stood originally was wide enough to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the power is located in Articles 245, 246 and 248 read with entry 97 of List I of the Seventh Schedule or in Article 368, I do not think that there could be any doubt that Article 368 as it stood before the 24th Amendment contained not only the procedure but also the substantive power of amendment. As the article laid down a procedure different from the procedure for passing ordinary laws, our Constitution is a rigid one and the power to amend a constituent power. 1635. The vital distinction between Constitutional law and ordinary law in a rigid Constitution lies in the criterion of the validity of the ordinary law. An ordinary law, when questioned, must be justified by reference to the higher law embodied in the Constitution; but in the case of a Constitution, its validity is, generally speaking, inherent and lies within itself. Kelsen has said, the basic norm (the Constitution) is not created in a legal procedure by a law-creating organ. It is not-as a positive legal norm is-valid because it is created in a certain way by a legal act, but it is valid because it is presupposed to be valid; and it is presupposed to be valid because, without this presupposition, no human act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... theory of the sovereignty of the British Parliament, is certainly not the ideal Constitution to choose for appreciating the distinction between Constitutional law and ordinary law under our polity. Sir Ivor Jennings said that there is no clear distinction between Constitutional law and ordinary law in England and that the only fundamental law there is that parliament is supreme See Jennings, The Law and the Constitution (1933). p. 614. Strictly speaking, therefore, there is no Constitutional law at all in Britain; there is only arbitrary power of parliament. 1640. It is said that The Bill of Rights (1689), Act of Settlement (1701), etc., partake the character of Constitutional law and there is no reason to exclude that type of law from the ambit of the word law in Clause (2) of Article 13. 1641. In a flexible Constitution like the British Constitution the only dividing line between Constitutional law and ordinary law is that Constitutional law deals with a particular subject matter, namely, the distribution of the sovereign power among the various organs of the State and other allied matters; but in India, as I have said, that distribution may not be quite relevant. For o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld take in also all Constitutional law existing in the territory of India immediately before the coming into force of the Constitution, and therefore, the word law in Clause (2) of Article 13 must also include Constitutional law. Assuming that the expression laws in force in Article 13(1) and 372 is wide enough to include Constitutional law, the question is, what is the type of Constitutional law that would be included? So far as British India was concerned, Article 395 repealed the Indian Independence Act, 1947, and the Government of India Act, 1935, together with all enactments amending and supplementing the latter Act. I am not sure whether there were any Orders passed under the Government of India Act which could be called Constitutional law. That apart, I doubt whether the Government of India Act, 1935, and the Indian Independence Act, 1947, were Constitutional laws in the sense of their being the supreme law of the land like the Constitution of India, for, both of them could have been repealed by the legal sovereign, namely, the British Parliament. And the reason why their provisions could not have been challenged in a Court of Law was not that they were the supreme law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by itself is not crystal clear. It is the context that gives it the colour. In the setting of Article 13(2), what was prohibited that the Parliament shall not pass a law in pursuance of its powers under Chapter I of Part XI or any other provisions enabling it to pass laws, which were legislative in character. The Constitution-makers only wanted to provide against the more common invasion of Fundamental Rights by ordinary legislation. 1645. If the power to amend was to be found within Article 368 and not under Article 248 read with entry 97 of List I of the Seventh Schedule, it stands to reason to hold that constituent power for amend ment of the Constitution is distinct from legislative power. The leading majority in the Golaknath Case [1967] 2 S.C.R. 762 took pains to locate the power to amend in Article 248 read with entry 97 of List I of the Seventh Schedule to show that the Constitution can be amended by an ordinary law and that such a law would be within the purview of Article 13(2). But if the power to amend the Constitution is a legislative power and is located in the residuary entry (97 of List I of the Seventh Schedule), then any law amending the Constitution by virtu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to pass a bill in each House is not a majority of the members of that House present and voting but a majority of the total membership of each House and a majority of not less than two-thirds of the members of that House present and voting. As regards matters covered by the proviso, there is a radical departure from the legislative procedure prescribed for Parliament by Articles 107 to 111. Whereas in ordinary legislative matters Parliament s power to enact laws is not dependent on the State legislatures, in matters covered by the proviso to Article 368, even if the two Houses pass a bill by the requisite majorities, the bill cannot be presented to the President for his assent unless she bill has been ratified by resolutions to that effect passed by the legislatures of not less than half the number of States. 1649. Subba Rao, C.J., in his judgment in Golaknath case (1967) 2 S.C.R. 762 relied on McCawley v. The King (1920) A.C. 691 and The Bribery Commissioner v. Ped-rick Ranasinghe (1964) 2 W.L.R. 1301; (1965) A.C. 172 to show that the power to amend the Constitution was a legislative power. In McCawley s Case, Lord Birkenhead said that it is of the utmost importance to notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of His Majesty in Council in its application to the Island : Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented to the Royal Assent unless it has endorsed on it a certificate under the hand of the speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two-thirds of the whole number of members of the House (including those not present). Every certificate of the Speaker under this sub-section shall be conclusive for all purpose and shall not be questioned in any court of law. The appellant contended that whereas Section 29(3) expressly provided that a law which contravened Section 29(2) was void, there was no such provision for the violation of Section 29(4) which was merely procedural and that as Ceylon was a sovereign State, and had the power to amend the Constitution, any law passed by the legislature was valid even if it contravened the Constitution, and McCawley s case was cited as supporting this contention. But the Privy Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled Constitution is ultra vires See Seervai Constitutional Law , Vol. 2, pp. 1102-1103; also Dr. Wynes Legislative, Executive and Judicial Powers in Australia , footnote at p. 508. 1651. The Substance of the decision in Ranasinghe s Case is that though Ceylon Parliament has plenary power of ordinary legislation, in the exercise of its Constitution power it was subject to the special procedure laid down in Section 29(4). The decision, therefore, makes a clear distinction between legislative and constituent powers. 1652. It was contended that the amending power can be a legislative power as in Canada and, therefore, there was nothing wrong in the leading majority in Golaknath Case [1967] 2 S.C.R. 762, locating the power of amendment in the residuary entry. 1653. Section 91(1) of the British North America Act provides for a restricted power of amendment of the Constitution. This power, undoubtedly, is a legislative power and the Constitution, therefore, to that extent is an uncontrolled or a flexible one. There is no analogy between the power of amendment in Canada which is legislative in character and the power of amendment under Article 368 which is a constituent power. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... never entertained any doubt as to the amendability of the Fundamental Rights in such a way as to abridge them. Strong opponents of the amendments like S.P. Mukherjee, never made even the whisper of a suggestion in their speeches that Fundamental Rights were not amendable in such a way as to abridge them. Contemporaneous practical exposition is a valuable aid to the meaning of a provision of the Constitution or a statute See McPherson v. Blacker, 146 U.S.I., 27. 1656. Mr. Palkhivala also relied upon the speech of Dr. Ambedkar made on September 17, 1949, in the Constituent Assembly to show that Fundamental Rights could not be taken away or abridged by an amendment of the Constitution. 1657. The question whether speeches made in the Constituent Assembly are admissible to ascertain the purpose behind a provision of the Constitution is not free from doubt. In A.K. Gopalan v. The State of Madras (1950) S.C.R. 88 Kania, C.J. said that while it is not proper to take into consideration the individual opinions of members of Parliament or Convention to construe the meaning of a particular clause when a question is raised whether a certain phrase or expression was up for consideration a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the speeches made by various members to show that their construction was the correct one. Cooley said : When a question of Federal Constitutional law is involved, the purpose of the Constitution, and the object to be accomplished by any particular grant of power, are often most important guides in reaching the real intent; and the debates in the Constitutional Convention, the discussions in the Federalist, and in the conventions of the States, are often referred to as throwing important light on clauses in the Constitution which seem blind or of ambiguous import See Cooley on Constitutional Law, 4th ed. (1931), pp. 195-196. Julius Stone, the Australian jurist, has expressed the opinion that in principle the Court should be free to inform itself concerning the social context of the problems involved from all reliable sources and that it is difficult to see in principle why British courts should exclude rigidly all recourse to the debates attending the legislative process. He asked the question on what basis is it explicable that lawyers can regard with equanimity cases in which judges may pronounce ex-cathedra that so and so clearly could not have been in the legislators min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... get to knowing what was intended the better. Indeed the search for intention is justified as a search for the meanings that the framers had in mind for the words used. But it is a search that must be undertaken in humility and with an awareness of its great difficulties See The Intention of the Framers : A Note on the Constitutional Interpretation, American Political Science Review, Vol. XLIX, June, 1955. That awarness must make one scrutinize the solemnity of the occasion on which the speech was made, the purpose for which it was made, the preparation and care with which it was made and the reputation and scholarship of the person who made it. A painstaking detailed speech bearing directly on the immediate question might be given the weight of an encyclical and would settle the matter one way or the other; but a loose statement made impromptu in the heat of the debate will not be given a decisive role in decision making process. I should have thought that if there was a definitive pronouncement from a person like Dr. Ambedkar in the Constituent Assembly, that would have thrown considerable light upon the matter in controversy. In the speech relied on by counsel Dr. Ambedkar i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ...The Constitution has invested the Supreme Court with these rights and these writs could not be taken away unless and until the Constitution itself is amended by means left open to the Legislature (emphasis added). On November 25, 1949, Dr. Ambedkar refuted the suggestion that Fundamental Rights should be absolute and unalterable. He said after referring to the view of the Jefferson already referred to, that the Assembly has not only refrained from putting a seal of finality and infallibility upon the Constitution by denying to the people the right to amend the Constitution as in Canada or by making the amendment of the Constitution subject to the fulfilment of extraordinary terms and conditions as in America or Australia but has provided a most facile procedure for amending the Constitution Constituent Assembly Debates, Vol. XI, pp. 975-976. 1661. It is difficult to understand why the Constitution-makers did not specifically provide for an exception in Article 368 if they wanted that the Fundamental Rights should not be amended in such a way as to take away or abridge them. Article 304 of the draft Constitution corresponds to Article 368 of the Constitution. Article 305 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Article 13(2), as, even otherwise, under the general doctrine of ultra vires, any law which is repugnant to the provisions of the Constitution, would, to the extent of the repugnancy, become void and inoperative See Ivor Jennings, Some Characteristics of the Indian Constitution , pp. 38-39. 1663. However, I think that Article 13(2) was necessary for a different purpose, namely, to indicate the extent of the invasion of the fundamental right which would make the impugned law void. The word abridge has a special connotation in the American Constitutional jurisprudence; and, it is only fair to assume that when the Constitutionmakers who were fully aware of the language of the First Amendment to the United States Constitution, used that expression, they intended to adopt the meaning which that word had acquired there. Every limitation upon a fundamental right would not be an abridgement of it. Whether a specific law operates to abridge a specifically given fundamental right cannot be answered by any dogma, whether of a priori assumption or of mechanical jurisprudence. The Court must arrive at a value judgment as to what it is that is to be protected from abridgement, and then, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basic structure was decided upon by the people, in the exercise of their constituent revolutionary power. Counsel also argued that it is Constitutionally impermissible for one constituent assembly to create a second perpetual constituent assembly above the nation with power to alter its essential features and that Fundamental Rights constitute an essential feature of the Constitution. 1665. The basic premise of counsel s argument was that the ultimate legal sovereignty under the Constitution resides in the people. The preamble to the Constitution of India says that We the people of India...adopt, enact and give unto ourselves this Constitution . Every one knows that historically this is not a fact. The Constitution was framed by an assembly which was elected indirectly on a limited franchise and the assembly did not represent the vast majority of the people of the country. At best it could represent only 28.5 per cent of the adult population of the provinces, let alone the population of the Native States See Granville Austin, The Indian Constitution (1972), p. 10 and Appendix I, pp. 331-332, And who would dare maintain that they alone constituted the people of the country ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have yielded up to him all their power and authority. The sole difference between the Constitution of the United States and the imperial legislation justified in this famous text is that the former is assumed to have proceeded immediately from the people, while the latter proceeded from a like source only mediately See Edward Gorwin, The Higher Law Background of American Constitutional Law , pp. 3-4. 1666. It is said that the assertion in the preamble that it was the people who enacted the Constitution raises an incontravertible presumption and a Court is precluded from finding out the truth. There is a similar preamble to the Constitution of the U.S.A. Yet, when Chief Justice Marshall was called upon to decide the question whether that Constitution proceeded from the people, he did not seek shelter under the preamble by asserting that the Court is concluded by the recital therein, but took pains to demonstrate by referring to historical facts that the Constitution was ratified by the people in the State conventions and, therefore, in form and substance, it proceeded from the people themselves See McCulloch v. Maryland, 4 Wheaton 316 (1819). It does not follow that because t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awal or resumption of all the powers of sovereignty into the people of this country and that the ...Legal sovereignty of the Indian nation is vested in the people of India, who, as stated by the preamble, have solemnly resolved to constitute India into a Sovereign Democratic Republic.... I am not quite sure of the validity of the assumption implicit in this dictum. The Supreme Court: of U.S.A. has held that sovereignty vests in the people See Chisholm v. Georgia (1973) 2 Dallas 419, 470-471. The same view has been taken by writers like Jameson, Willis, Wilson and others, But it is difficult to understand how the unorganised mass of the people can legally be sovereign. In no country, except perhaps in a direct democracy, can the people en masse be called legally sovereign. This is only to put more explicitly what Austin meant when he said that political power must be in a determinate person or body of persons, for, the people at, large, the whole people, as distinct horn particular person or persons, are incapable of concerted action and hence, of exercising political power and therefore of legal supremacy See From John Austin to John C. Hurd by Irving B. Richman in Harward Law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urce in the whole citizen body or in an electorate representing the governed See Willoughby, Fundamental Concepts of Public Law , pp. 99-100. Probably, if sovereignty is dropped as a legal term and viewed as a term of political science, the view of the Supreme Court of the U.S.A. and the writers who maintain that the people are sovereign might be correct. No concept has raised so many conflicting issues involving jurists and political theorists in so desperate a maze as the genuine and proper meaning of sovereignty. 1670. Seeing, however, that the people have no Constitutional or legal power assigned to them under the Constitution and that by virtue of their political supremacy they can unmake the Constitution only by a method not sanctioned by the juridical order, namely, revolution, it is difficult to agree with the proposition of counsel that the legal sovereignty under the Constitution resides in the people, or, that as ultimate legal sovereign the people can Constitutionally change the basic structure of the Constitution even when the Constitution provides for a specific mechanism for its amendment. In the last, analysis, perhape, it is right to say that if sovereignty is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, by designating their representatives and by transmitting to them the power to amend the Constitution, did not lose or give up possession of their inherent, constituent power. (There was great controversy among the civilians in the Middle Ages whether, after the Roman people had Transferred their authority to legislate to the emperor, they still retained it or could reclaim it See Carlyle, A History of Medieval Political Theory in the West Vol. VI, pp. 514-515. There is always a distinction between the possession of a right or power and the exercise of it. It was in the exercise of the constituent power that the people framed the Constitution and invested the Amending Body with the power to amend the very instrument they created with a super-added power to amend that very power. The instrument they created, by necessary implication, limits the further exercise of the power by them, though not the possession of it. The Constitution, when it exists, is supreme over the people and as the people have voluntarily excluded themselves from any direct or immediate participation in the process of making amendment to it, and have directly placed that power in their representatives withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considerable part of the community to change or replace an established order by a new Constitution. The constituent power is the power exercised in establishing a Constitution, that is the fundamental decision on revolutionary measures for the organisation and limitation of a new government. From this constituent power must be distinguished the amending power which changes an existing Constitution in form provided by the Constitution itself, for the amending power is itself a constituted authority. And he further points out that in French Constitutional Law the expression pouvoir constituant is often used to describe the amending authority as well as the constituent power, but the expression constituent power used by him is not identical with the pouvoir constituant of the French Constitutional Law See Carl J. Friedrich, Constitutional Government and Politics (1937), pp. 113, 118, 162 521. It is, however, unnecessary to enter this arid tract of what Lincoln called pernicious abstraction where no green things grow, or resolve the metaphysical niceties, for under our Constitution, there is no scope for the constituent power of amendment being exercised by the people after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act of the full or complete sovereign has been called by Max Radin the pro-sovereign , the holder of the amending power under the Constitution. The hundred per cent sovereign is established only by revolution and he can come into being again only by another revolution See Max Radin, Intermittent Sovereign , 39 Yale Law Journal, 514. As Wheare clearly puts it, once the Constitution is enacted, even when it has been submitted to the people for approval, it binds thereafter, not only the institutions which it establishes, but also the people themselves. They may amend the Constitution, if at all, only by the method which the Constitution itself provides See Wheare, Modern Constitutions (1966), p. 62. This is illustrated also in the case of the sovereign power of the people to make laws. When once a Constitution is framed and the power of legislation which appertains to the people is transferred or delegated to an organ constituted under the Constitution, the people cannot thereafter exercise that power. The legal assumption that sovereignty is ultimately vested in the people affords no legal basis, for the direct exercise by the people of any sovereign power, whose direct exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been held a valid instrument both by the people of the State and by the National Government of the United States Willoughby, The Fundamental Concepts of Public Law , p. 96. 1679. I think it might be open to the Amending Body to amend Article 368 itself and provide for referendum or any other method for ascertaining the will of the people in the matter of amendment of Fundamental Rights or any other provision of the Constitution. If the basic and essential features of the Constitution can be changed only by the people, and not by a constituted authority like the Amending Body, was it open to the Amending Body, or, would it be open to the Amending Body today to amend Article 368 in such a way as to invest the people with that power to be exercised by referendum or any other popular device ? If counsel for the petitioner is right in his submission that the power to amend the amending power is limited, this cannot be done, for the Constitution would lose its identity by making such a radical change in the Constitution of the Amending Body, and, therefore, there would be implied limitation upon the power to amend the amending power in such a way as to change the locus of the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 81-282 it was argued that the preamble to the Constitution clearly postulates that like the democratic republican form of government, the entire territory of India is beyond the reach of Parliament and cannot be affected either by ordinary legislation or even by Constitutional amendment, but the Court said: it is not easy to accept the assumption that the first part of the preamble postulates a very serious limitation on one of the very important attributes of sovereignty itself . This case directly negatived any limitation of what is generally regarded as a necessary and essential attribute of sovereignty on the basis of the objectives enshrined in the preamble. 1682. Story s view of the function of the preamble, that it is a key to open the mind of the makers, as to the mischiefs which are to be remedied and the objects which are to be accomplished by the provisions of the Act or a Constitution is not in dispute. There is also no dispute that a preamble cannot confer any power per se or enlarge the limit of any power expressly given nor can it be the source of implied power. Nor is it necessary to join issue on the proposition that in case of ambiguity of the enacting part, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Dunn 6 Wheat 204, 206 U.S. 1821. And for making the experiment for building up the social order which the dominant opinion of the community desires, these Delphic concepts can offer no solution in respect of their priority value as among themselves. They offer no guide in what proportion should each of them contribute, or which of them should suffer subordination or enjoy dominance in that social order. How then can one of them operate as implied limitation upon the power of amendment when the object of the amendment is to give priority value to the other or others? 1685. Mr. Palkhivala in elaborating his submission on implied limitations said that in a Constitution like ours there are other essential features besides the Fundamental Rights, namely, the sovereignty and integrity of India, the people s right to vote and elect their representatives to Parliament or State legislatures, the republican form of government, the secular State, free and independent judiciary, dual structure of the Union, separation of the executive, legislative and judicial powers, and so on, and for changing these essential features, the Parliament being a constituted authority, has no power. 1686. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and morals of their inhabitants. The only inference to be drawn from the Court upholding the validity of the Amendment is that the Court did not countenance any of the arguments advanced in the case. 1688. The result of the National Prohibition Cases See Rhode Island v. Palmer 253 U.S. 350 seems to be that there is no limit to the power to amend the Constitution except that a State may not be deprived of its equal suffrage in the Senate. This means that by action of two-third of both Houses of Congress and of the legislatures in three-fourth of the States, all the powers of the national, government could be surrendered to the State and all the reserved powers of the States could be transferred to the Federal Government See Burdick, The Law of the American Constitution , pp. 44-49. 1689. Dodd, speaking about the effect of the decision of the Supreme Court in National Prohibition Cases See Rhode Island v. Palmer 253 U.S. 350 said that the Court has necessarily rejected substantially all of the arguments presented in favour of the implied limitations upon the amending power, although this statement does not necessarily go to the extent of denying all limitation other than thos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Law , Vol. I, p. 153; Colley, Constitutional Limitations , pp. 41-43; D.O. McGovney, Is the Eighteenth Amendment Void Because of Its Contents , Columbia Law Review, Vol. 20, May 1920 No. 5; W.F. Dodd, Amending the Federal Constitution , 30 Yale Law Journal 329; W.W. Willoughby, Constitutional Law of the United States , 2nd ed., Vol. 1, 598. 1694. In Ryan s Case [1935] Irish Reports, 170, the Supreme Court of Ireland has occasion to discuss and decide two questions: (1) the meaning to be given to the word amendment in Article 50 of the Irish Constitution which provided for the amendment of the Constitution and (2) whether there are any implications to be drawn from the Constitution which would cut down the scope of the amendment which could be made under Article 50. I have already dealt with the decision in the case with respect to the first point. 1695. As regards the second point, Kennedy, C.J. was of the opinion that there were certain implied limitations upon the power of amendment while the other two learned judges held that there were no such limitations. However, it is not necessary to deal with the suggested implied limitations relied on by the learned Chief Jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of 1962 passed by Parliament of Ceylon was valid. The Act purported ex-post facto to create new offences and to alter the rules of evidence and the criminal procedure obtaining under the general law at the time of the commission of the offence and also to impose enhanced punishment. The appellants contended that the Act was passed to deal with the trial of the persons who partook in the abortive coup in question and the arguments before the Privy Council were that the Act of 1962 was contrary to fundamental principles of justice in that it was directed against individuals, that it ex-post facto created crimes and their punishments, and that the Act was a legislative plan to secure the conviction of these individuls and this constituted an usurpation of the judicial power by the legislature. 1697. The Privy Council rejected the contention that the powers of the Ceylon Legislature could be cut down by reference to vague and uncertain expressions like fundamental principles of British Law, and said that although there are no express provisions in the Ceylon Constitution vesting judicial power in the judiciary, the judicial system in Ceylon has been established by the Charter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... North America Act requires the eablishment of one Parliament for Canada and since the term parliament means, when interpreted in the light of the preamble s reference to a construction similar in principle to that of the United Kingdom , a legislative body elected and functioning in an atmosphere of free speech, and that a legislation abrogating freedom of speech in a particular province would be an interference with the character of the federal parliament, and therefore, ultra vires the provincial legislature. This dictum logically involves a restriction of the powers of the dominion parliament also as was pointed out by Abbott, J. in the Padlock Law case See Switzman v. Elbling, (1957) 7 D.L.R. 337. In that case he expressed the view, although it was not necessary so to decide, that parliament itself could not abrogate the right of discussion and debate since the provisions of the British North America Act are as binding on Parliament as on the provincial legislatures. 1701. In Saumur v. City Quebec [1953] 4 D.L.R. 641 the preamble of the British North America Act was referred to as supporting the Constitutional requirement of the religious freedom especially by Rand, J. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it must follow that the legislature is supreme as that is the fundamental law of the British Constitution. Therefore no subject would be beyond the legislative competence of both parliament and provincial legislatures. Whether there are any implied limitations upon the power of parliament or not, it is clear that the dictum of Abbott, J. in Switzman s case is based on no high authority as there is nothing in the British North America Act to indicate that civil liberties are beyond the legislative reach of the parliament and the provincial legislatures. There was no express guarantee of civil liberties in the British North America Act, nothing comparable to the Bill of Rights in the American Constitution or to the Fudamental Rights under our Constitution. 1704. It is, however, impossible to see the relevance of these dicta so far as the interpretation of Article 368 is concerned as none of these cases are cases relating to implied limitation on the power of amendment of any Constitution. They are cases on the legislative competence of legislatures to affect civil liberties. The Canadian Bill of Rights 1960, makes it clear that parliament of Canada can dispense with the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment can be subject to implied limitation. The questions which the Court had to consider in the case were: (1) Was the Parliamentary Bills Referendum Act of 1908 a valid and effective Act of Parliament? and (2) Was there power to abolish the Legislative Concil of Queensland by an Act passed in accordance with the provisions of the Parliamentary Bills Referendum Act of 1908? These Acts did not alter the representative character of the Legislature as defined in Section 1 of the Colonial Laws Validity Act, 1865, nor did they affect the position of the Crown. Therefore, the question whether the representative character of the Legislature could be changed, or the Crown eliminated did not call for decision. This will be clear from the observations of Gavan Duffy and Rich, JJ. at p. 477. 1708. The judgment of Issacs, J. shows that the opinion expressed by him as regards the representative character of the legislature is based on the meaning to be given to the expression Constitution of such legislature on a true construction of Section 5 of the Colonial Laws Validity Act. Issacs, J. held that the word legislature did not include the Crown. Having reached this conclusion on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for alteration of that Constitution. There are certain restrictions upon the power of amendment. We are not concerned with the controversy whether those restrictions can be taken away in the exercise of the power of amendment, as proviso (e) of Article 368 makes it clear that the amending power itself can be amended. Leading writers on the Constitution of Australia have taken the view that there are no other limitations upon the power of alteration and that all the provisions of the Constitution can be amended. See A.P. Canaway, K.C., The Safety Valve of the commonwealth Constitution , Australian Law Journal, vol. 12, (1938-39), p. 108 at 109; A.P. Canaway, K.C. (N.S.W.), The Failure of the Federalism in Australia , Appendix : Power to Alter the Constitution, A Joint Legal Opinion, p. 211; John Quick and Robert Randolph Garran, Annotated Constitution of the Australian Commonwealth , pp. 988-9; W. Anstey Wynes, Legislative, Executive and Judicial Powers in Australia , Third Ed. pp. 695-698; Colin Howard, Australian Federal Constitutional Law (1968). 1713. Reference was made to the case of Victoria v. Commonwealth 45 Australian Law Journal 251 in support of the propositio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e comment that it is an interpretation of the Constitution depending on an implication which is formed on a vague, individual conception of the spirit of the compact . It is difficult to state in clear terms from the judgments of these judges as to what kind of legislative action by the Commonwealth will be invalid because of the application of the general principle. 1716. The stated purpose of the general principle is to protect the continued existence and independence of the States. Do the judgments of Menzies, Walsh and Gibbs, JJ. disclose any reason why that existence and independence of the States will be threatened in the absence of the implied general principle? 1717. Windeyer, J. s judgment is a little uncertain. He said that once a law imposes a tax it is a law with respect to taxation and that if it is invalid it must be for reasons that rest on other Constitutional prohibitions, e.g., an implied prohibition on a tax discriminating against a State. However, many cases arise in which competing possible characterizations of a Commonwealth law are possible; on one characterization it is valid, on another it is invalid. The Courts, when faced with competing possible ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine was thus based upon the necessity supposed to arise in a federal system . The progressive retreat from the doctrine in its original form has been traced by Dixon, J. in Essendon Corporation v. Criterion Theatres (1947) 74 C.L.R. 19- 22. He said: The shifting of judicial opinion shown in the foregoing formed a prelude to the decision of the Court in Graves v. New York 306 U.S. 466 where the Court thought it imperative to consider anew the immunity...for the salary of an employee of a Federal instrumentality (at p. 485) from State Income tax and decided that there should be no immunity . Frankfruter, J. remarked: In this Court dissents have gradually become majority opinions and even before the present decision the rationale of the doctrine had been undermined (at p. 491). This case marked the end of the old doctrine 1722. I would add that the theory of immunity of instrumentalities was definitely rejected by this Court in State of West Bengal v. Union of India A.I.R. 1963 S.C. 1241. 1723. Mr. Palkhivala argued with considerable force that if there are no limitations upon the power of amendment, the consequences would be far reaching. He said that it will be open to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a tax . 1726. In Ex-parte Crossman 267 U.S. 120, 121 it was held that the presumption is that every organ of a State will act in coordination, that though one organ can, by its action, paralyse the functions of the other organs and make the Constitution come to a standstill, yet no Constitution proceeds on the assumption that one organ will act in such a way as to defeat the action of the other. 1727. Our Constitution, in its preamble has envisaged the establishment of a democratic sovereign republic. Democracy proceeds on the basic assumption that the representatives of the people in Parliament will reflect the will of the people and that they will not exercise their powers to betray the people or abuse the trust and confidence resposed in them by the people. Some of the great powers appertaining to the sovereignty of the State are vested in the representatives of the people. They have the power to declare war. They have power over coinage and currency. These disaster-potential powers are insulated from judicial control. These powers, if they are imprudently, exercised, can bring about consequences so extensive as to carry down with them all else we value: War and inflation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y virtue of the fact that they are human beings and that these rights were reserved by the people to themselves when they framed the Constitution and cannot be taken away or abridged by a constituted authority like Parliament. He said that the implied limitation stems from the character of those rights as well as the nature of the authority upon which the power is supposed to be conferred. 1731. On the other hand, the respondents submitted that the people of India have only such rights as the Constitution conferred upon them, that before the Constitution came into force, they had no Fundamental Rights, that the rights expressly conferred upon the people by Part III of the Constitution and that there is no provision in our Constitution like Article 10 of the United States Constitution which reserved the rights of the people to themselves. They also said that the characterisation of Fundamental Rights, as tran cendental, sacrosanct or promodial in the sense that they are not of today or yesterday but live eternally and none can date their birth smacks of sentimentalism and is calculated to cloud the mind by an out-moded political philosophy, and would prevent a dispassionate ana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of natural law See Jacques Maritain, Man and the State , pp. 80-81. That law is deduced not from any speculative void but from the general condition of mankind in society. According to St. Thomas Aquinas the order of the precepts of the natural law follows the order of natural inclinations, because, in man there is first of all an inclination to good in accordance with the nature which he has in common with all substances in as much as every substance seeks the preservation of its own being, according to its nature; and by reason of this inclination, whatever is a means of preserving human life, and the warding off its obstacles, belongs to the natural law See Summa Theologica, Part II, Section I, Question 91, Article 2 (translated by the English Dominicans), Vol. 3. In a different context Spinoza proclaimed the very same principle in his famous words Every being strives to persevere in being See Ethics , Part III, Proposition No. 6 . Secondly, according to St. Thomas Aquinas, there is in man an inclination to things that pertain to him more specially, according to that nature which he has in common with other animals: and in virtue of this inclination, those things are said to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the collective reason of civilized mankind, and as such is adopted by the Common Law in substance chough not always by name See Sir Frederic Pollock, The Expansion of the Common Law (1904), p. 128. 1738. The sacred rights of mankind are not to be rummaged for among old parchments of musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of Divinity itself, and can never be obscured by mortal power (See Canadian Bar Review, Vol. XXXIV (1956), footnote on p. 219). 1739. In State of West Bengal v. Subodh Gopal [1954] S.C.R. 587, 596. Patanjali Sastri, J. said that article (Article 19) enumerates certain freedoms under the caption right to freedom and deals with those great and basic rights which are recognized and guaranteed as the natural rights inherent in the status of a citizen of a free country. 1740. In the United States of America, reliance upon natural law on the part of vested interests inimical to the economic freedom of man was destined to prove a persistent feature in the 19th century. In the second half of the 19th century, the ideas of natural law and of natural rights were resorted to in an attempt to curb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id, these are rights which belong to man as a rational and moral being. Man s only right, in the last analysis is the right to be a man, to live as a human person. Specific human rights are all based on man s right to live a human life See Weapons for Peace by Thomas P. Neill, quoted in The Natural Law by Rommnen, footnote at p. 243. Harold Laski said : Harold Laski, Grammar of Politics (New Haven) (1925), pp. 39-40. I have rights which are inherent in me as a member of society; and I judge the state, as the fundamental instrument of society, by the manner in which it seeks to secure for me the substance of those rights.... Rights in this sense, are the groundwork of the state. They are the quality which gives to the exercise of its power a moral penumbra. And they are natural rights in the sense that they are necessary to good life. 1742. Mr. Seervai submitted that Article 33 of the Constitution which states that Parliament may, by law determine to what extent the Fundamental Rights, in their application to members of the Armed Forces or forces charged with the maintenance of public order be restricted or abrogated so as to ensure the proper discharge of their duties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, are not a recognition of the bask human rights or that those rights are not liable to be limited by positive law for common good. Natural law cannot supplant positive law; positive law must provide the practical solution in the choice of one measure rather than another in a given situation. Sir Frederick Pollock said that natural justice has no means of fixing any rule to terms defined in number or measure, nor of choosing one practical solution out of two or more which are in themselves equally plausible. Positive law whether enacted or customary, must come to our aid in such matters. It would be no great feat for natural reason to tell us that a rule of the road is desirable; but it could never have told us whether to drive to the right hand or to the left, and in fact custom has settled this differently in different countries, and even, in some parts of Europe, in different provinces of one State. See Pollock, The Expansion of the Common Law (1904), p. 128. 1744. Nor am I impressed by the argument that because non-citizens are not granted all the Fundamental Rights, these rights, by and large, are not a recognition of the human or natural rights. The fact that Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y his crime he has deprived himself of the possibility of justly asserting this right. He has morally cut himself off from the human community as regards this right. See Jacques Maritain, Man and State, p. 102. 1746. Perceptive writers have always taken the view that human rights-are only prima facie rights to indicate that the claim of any one of them may be overruled in special circumstances. As I said the most fundamental of the pre-existing rights-the right to lifeis sacrificed without scruple in a war. A prima fade right is one whose claim has prima facie justification, i.e., is justified, unless there are stronger counterclaims in the particular situation in which it is made, the burden of proof resting always on the counterclaims. To say that natural rights or human rights are prima fade rights is to say that there are cases in which pit is perfectly just to disallow their claim. Unless we have definite assurance as to the limits within which this may occur, we may have no way of telling whether we are better off with these prima fade rights than we would be without them. Considerations of justice allow us to make exceptions to a natural right in special circumstances as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt how the general welfare of our democratic society requires limitation or even taking away of Fundamental Rights in certain circumstances. 1750. The framers of our Constitution realised that the Fundamental Rights, like natural rights, were not absolute and it was because of this that they provided for restrictions being imposed upon the exercise of these rights by law. But it was impossible for them, or for that matter, for any person, however, gifted they or he might be, to foresee the type of restrictions which would be necessary to meet the changing needs of a society. Even men with the most prophetic vision could not have foreseen all the developments of the body politic in the future and the type of restrictions necessary upon the Fundamental Rights to meet them. The question whether a particular Fundamental Right should be taken away or abridged for the common good of the society must be decided in the light of the experience of each generation and not by what was said or laid down at the time of the framing of the Constitution. It would be asking the impossible to expect one generation to plan a government that would pass through all the revolutionary changes in every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prevent the State from making any law relating to libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State. After the amendment, the same clause reads: Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interest of the...security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence. This amendment was necessitated by the decision of this Court in Romesh Thapar v. State of Madras [1950] S.C.R. 594 wherein it was held that the disturbance of public order did not come within the expression undermines the security of the State.... No doubt, in State of Bihar v. Shaila bala Devi [1952] S.C.R. 654 this Court said that it did not intend to by down in Romesh Thapar s case that in no case will an offence against public order affect the security of the State, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e standard was suggested for the Court to decide what is the core or essence of a right except the perception of the trained judicial mind and that whereas judicial review of the question whether a restriction imposed by a law is reasonable or not is based on the objective standard of reason, there is no divining rod for the Court to locate and find the core of a right. He referred to the dissenting judgment of Holmes in Lochner v. New York 198 U.S. 45 and to the dictum of Patanjali Sastri, J. in State of Madras v. V.G. Row (1952) S.C.R. 597 and said that the concept of reasonable man , that latch key to many legal doors, or, reasonable, restriction in the interest of public mentioned in Clauses 2 to 6 of Article 19 or reasonable restrictions in Article 304(b) are objective in character, though there might be difference of opinion in a particular case in the application of the concepts; but the task of finding the core of a Fundamental Right is like the quest for the philosopher s stone , and that the Amending Body will be left without chart or compass when it proceeds to make an amendment. Mr. Seervai further submitted that our Constitution makers deliberately omitted the ph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ican Supreme Court has adopted in adjudging reasonableness of a legislation under the due process clause. In Municipal Committee v. The State of Punjab [1969] 3 S.C.R. 447, 453 this Court said that due process clause has no application in India and that a law cannot be struck down as constituting an unreasonable restriction upon Fundamental Rights merely because its terms were vague. The Court said that a law whose terms were vague would be struck down as violative of due process in America but, nevertheless, the principle has no application here because there is no due process clause in our Constitution. With great respect, I should think that this is not correct, as the concept of due process enters into the meaning of reasonableness of restrictions in Clauses 2 to 6 of Article 19. In Collector of Customs v. Sampathu [1962] 3 S.C.R. 786, 816, Rajagopala Ayyangar, J. said that though the tests of reasonableness laid down by Clauses (2) to (6) of Article 19 might in great part coincide with that for judging for due process it might not be assumed that these are identical, as the Constitution-framers deliberately avoided in this context the use of the expression due process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of icy certainty; but, for that reason, I am not presuaded to hold that they do not exist, or that they are too elusive for judicial perception. Most of the things in life that are worth talking about are matters at degree and the great judges are those who are most capable of discerning which of the gradations make genuine difference. 1759. Nor do I think that all the provisions in the Constitution are equally essential. Gladstone said, the most wonderful work ever struck off at a given time by the brain and purpose of man is the Constitution of the United States of America. Lord Bryce said much the same thing when he observed that it is one of the greatest contributions ever made to politics as a practical art. Yet it consists only of VII articles with the Amendments. A Constitution need not partake the prolixity of a code. And our Constitution could very well have dropped many of its provisions. Merely because all the provisions of the Constitution have equal importance in one respect, namely, they are all embodied in one document, and can be amended only by the procedure prescribed in Article 368, it does not follow that all of them are essential features of the document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution. Both Part III and IV enumerate certain moral rights. Each of these Parts represents in the main the statements in one sense of certain aspirations whose fulfilment was regarded as essential to the kind of society which the Constitution-makers wanted to build. Many of the articles, whether in Part III or Part IV, represent moral rights which they have recognized as inherent in every human being in this country. The task of protecting and realising these rights is imposed upon all the organs of the State, namely, legislative, executive and judicial. What then is the importance to be attached to the fact that the provisions of Part III are enforceable in a Court and the provisions in Part IV are not? Is it that the rights reflected in the provisions of Part III are somehow superior to the moral claims and aspirations reflected in the provisions of Part IV? I think not. Free and compulsory education under Article 45 is certainly as important as freedom of religion under Article 25. Freedom from starvation is as important as right to life. Nor are the provisions in Part III absolute in the sense that the rights represented by them can always be given full implementation i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not affect its fundamental character. From a juridical point of view, it makes sense to say that Directive Principles do form part of the Constitutional Law of India and they are in no way subordinate to Fundamental Rights. Prof. A.L. Goodhart said: ...if a principle is recognized 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 recognizes as binding on it.(1) Enforcement by a Court is not the real test of a law. See A note on the theory of Law , Law and the Constitution 5th ed. p. 330 by Ivor Jennings. The conventions of English Constitution are not enforceable in a Court of law but they are, nevertheless, binding and form part of the Constitutional law of the land. The similarity between the Constitutional conventions in England and Directive Principles of State Policy in India cannot be disputed. 1764. The only purpose of Article 37 is to prevent a citizen from coming forward and asking for specific performance of the duties cast upon the State by the Directive Principles. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that whenever by any action of a State, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or colour, from serving as...jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied. 1766. If convicting and punishing a person twice for an offence by a judgment is equivalent to the State passing a law in contravention of the rights conferred by Part III for the purpose of enabling the person to file a petition under Article 32 to quash the judgment, I can see no incongruity in holding, when Article 37 says in its latter part. it shall be the duty of the State to apply these principles in making laws , that judicial process is state action and that the judiciary is bound to apply the Directive Principles in making its judgment. 1767. The judicial function is, like legislation, both creation and application of law. The judicial function is ordinarily determined by the general norms both as to procedure and as to the contents of the norm to be created, whereas legislation is usually determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the one who originally wrote it. See Nature and Sources of the Law pp. 102, 125, 172. 1768. It is somewhat strange that judicial process which involves law-making should be called finding the law . Some simple-hearted people believe that the names we give to things do not matter. But though the rose by any other name might smell as sweet, the history of civilization bears ample testimony to the momentous influence of names. At any rate, whether the process of judicial legislation should be called finding or making the law is undoubtedly of great practical moment . See M.R. Cohen, Law and the Social Order (1933), pp. 121-124. Nobody doubts today that within the confines of vast spaces a judge moves with freedom which stamps his action as creative. The law which is the resulting product is not found, but made. The process, being legislative, demands the legislator s wisdom . See Benjamin N. Cardozo, The Nature of the Judicial process , p. 115. 1769. It is relevant in this context to remember that in building up a just social order it is sometimes imperative that the Fundamental Rights should be subordinated to Directive Principles. The makers of the Constitution had the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The concept of liberty or equality can have meaning only when men are alive today and hope to be alive tomorrow. One hates to think how few Indians, for example, have any idea that their Constitution provides basic rights, let alone what those rights are or how they could be defended when violated by Government . See Carl J. Friedrich, Man and His Government, p. 272. So the main task of freedom in India for the large part of the people is at the economic level. 1772. Roscoe Pound who expounded his theory of interest as a criterion of justice insists without qualification that the interest or claims or demands with which he is concerned are de facto psychological phenomena which pre-exist and are not merely the creation of the legal order. See Pound, 3 Jurisprudence, 5-24, esp. 16-21. 1773. Pound s proposals seem, in the last analysis, to be an attempt to implement the familiar thought that there should be a correspondence between the demands made by man in a given society at a given time and its law at that time. 1774. The scheme of interests should include, all the de facto claims actually made. This, of course, is not to say that every de facto claim or interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I think there are rights which inhere in human beings because they are human beings-whether you call them natural rights or by some other appellation is immaterial. As the preamble indicates, it was to secure the basic human rights like liberty and equality that the people gave unto themselves the Constitution and these basic rights are an essential feature of the Constitution; the Constitution was also enacted by the people to secure justice, political, social and economic. Therefore, the moral rights embodied in Part IV of the Constitution are equally an essential feature of it, the only difference being that the moral rights embodied in Part IV are not specifically enforceable as against the State by a citizen in a Court of law in case the State fails to implement its duty but, nevertheless, they are fundamental in the governance of the country and all the organs of the State, including the judiciary, are bound to enforce those directives. The Fundamental Rights themselves have no fixed content; most of them are mere empty vessels into which each generation must pour its content in the light of its experience. Restrictions, abridgement; curtailment, and even abrogation of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or damage even the core or essence of the rights and the 24th Amendment, by its language, makes it clear beyond doubt. The opening words of the amended article should make it clear that no invisible radiation from any other provision of the Constitution would operate as implied limitation upon the power of amendment. Further, the amended Article 368 puts it beyond doubt that the power to amend the provisions of the Constitution is in the article itself that the power includes the power to add, vary or repeal any provision of the Constitution, that the power is a constituent power, that the assent of the President to a bill for amendment is compulsory and that nothing in Article 13(2) will apply to an amendment under the article. 1777. Article 368, as it stood before the Amendment, conferred plenary power to amend all the provisions of the Constitution and the 24th Amendment, except in one respect, namely, the compulsory character of the assent of the President to a bill for amendment, is declaratory in character. To put it in a different language, as the majority decision in the Golaknath case [1967] 2 S.C.R. 762 negatived the constituent power of the Parliament to amend the Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment seeks to make any change...(e) in the provision of this article makes it clear chat the object of the amendment of the article is to make change in Article 368. On what basis is the assumption made that by making change in the article, the area of the power, if actually limited, cannot be enlarged? I must confess my inability to perceive any limit as to the character of the change that might be made in the amending power. It was assumed by Hidayatullah, J. in his judgment in Golaknath Case that the article can be so amended and a Constituent Assembly convoked to amend the Fundamental Rights. Is such an amendment of Article 368 possible if the argument of the petitioner is right that the power to amend the amending power cannot be exercised so as to change the locus or the width of the amending power? The only thing required would be that the amending power should be amended in the manner and form prescribed by the article itself. And there is no case that that has not been done. 1780. Counsel also submitted that the operation of Article 13(2) was not liable to be taken away by the amendment. He said that although there was no express provision in Article 13(2) or in Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Articles 14, 19 and 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy : Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President has received his assent. 1782. Mr. Palkhivala contended that the Fundamental Right to acquire, hold and dispose of property is an essential feature of the Constitution, that there can be no dignified citizens in a State unless they have the right to acquire and hold property, that the right to acquire and hold property is essential for the enjoyment of all other Fundamental Rights as it is the basis on which all other rights are founded, that the Fundamental Rights guaranteed to the minorities would become a rope of sand if the right to hold and dispose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. They exist on the surface; they cannot strike roots, and establish permanency. Holland, Property : Its Duties and Rights , pp. 183-192. 1788. In short, the concept of property is not an arbitrary ideal but is founded on man s natural impulse to extend his own personality. In the long run, a man cannot exist, cannot make good his right to marriage or found a family unless he is entitled to ownership through acquisition of property. 1789. However, it is a very common mistake to speak of property as if it were an institution having a fixed content constantly remaining the same; whereas in reality, it has assumed the most diverse forms and is still susceptible to great unforeseen modifications. 1790. The root of the difficulty is that in most of the discussions the notion of private property is used too vaguely. It is necessary to distinguish at least three forms of private property : (i) property in durable and non-durable consumer s goods; (ii) property in the means of production worked by their owners; (iii) property in the means of production not worked or directly managed by their owners, especially the accumulations of masses of property of this kind in the hands of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cteristics of the Indian Constitution , pp. 31-32. 1795. His Holiness Pope Paul VI, following the previous encyclicals on the subject has said : See Encyclical Letter of Pope Paul VI (1967), On the Development of Peoples , pp. 18, 58, footnote at p. 58. To quote St. Ambrose : ...the world is given to all, and not only to the rich . That is, private property does not constitute for anyone as absolute and unconditioned right. No one is justified in keeping for his exclusive use what he does not need, when others lack necessities. In a word, according to the traditional doctrine as found in the Fathers of the Church and the great theologians, the right to property must never be exercised to the detriment of the common good. God has intended the earth and all that it contains for the use of all men and all peoples. Hence, justice, accompanied by charity, must so regulate the distribution of created goods that they are actually available to all in an equitable measure. Moreover, all have the right to possess a share of earthly goods sufficient for themselves and their families. In extreme necessity all goods are common, that is, are to be shared. 1796. The basic ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sea of freedom without compensation is another matter. When prohibition was introduced in America, there was virtual confiscation of many millions of dollars worth of property. Were the distillers and brewers entitled to compensation for their losses?. The shock to the distillers and brewers was not as serious as to others e.g., saloon keepers and bartenders who did not lose any legal property since they were only employees, but who found it difficult late in life to enter new employments. These and other examples of justifiable confiscation without compensation are inconsistent with the absolute theory of private property . See generally M.R. Cohan, Property and Sovereignty , Law and Social Order, p. 45 onwards. 1798. An adequate theory of social justice should enable one to draw the line between justifiable and unjustfiable cases of confiscation. 1799. The intention of the framers of the Constitution, when they drafted Article 24 [the original Article 31(2)], can be seen from the speech of Pandit Jawaharlal Nehru in the Constituent Assembly on September 10, 1949. Constituent Assembly Debates, Vol. IX, 1193. ...Eminent lawyers have told us that on a proper constructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws that a Legislautre in making a law of acquisition or requisition shall provide for a just equivalent of what the owner has been deprived of or specify the principles for the purpose of ascertaining the just equivalent of what the owner has been deprived of. 1803. In Union of India v. Metal Corporation (1967) 1 S.C.R. p. 255, it was laid down that to provide written down value of a machinery (as it was understood under the Income Tax Act) was not in compliance with Article 31(2) because it did not represent the just equivalent of the machinery, meaning thereby, the price at or about the time of its acquisition. Subba Rao, J. said that the law to justify itself has to provide for the payment of a just equivalent to the land acquired or lay down principles which will lead to that result. 1804. Two years later, in Gujarat v. Shantilal (1969) 3 S.C.R. 341, this Court overruled the decision in the Metal Corporation Case and Shah, J. observed that if the quantum of compensation fixed by the Legislature is not Habile to be canvassed before the Court on the ground that it is not a just equivalent, the principles specified for determination of compensation will also not be open ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it will have the relevant materials to fix the amount to be paid to the owner or the principles for its fixation. Several factors will have to be taken into account for fixing the amount or laying down the principles; the nature of the property sought to be acquired, the purpose for which the acquisition is being made, the real investment of the owner excluding the fortuitous circumstances like unearned increment and also marginal utility of the property acquired to the owner. Principles of social justice alone will furnish the yardstick for fixing the amount or for laying down the principles. The proposal becomes embodied in law, if the Parliament agrees to the Bill embedying the proposal. The whole point is that the fixation of the amount or the laying down of the principle for fixing it is left to the absolute discretion of the Parliament or the State Legislatures on the basis of consideration of social justice. That the fixation is in the absolute discretion of Parliament or the State Legislature is further made clear when it is laid down that no such law shall be called in question in any Court on the ground that the amount so fixed or determined is not adequate. If the Parl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a law fixing an amount which is illusory or which is a fraud on the Constitution, can be struck down by Court. It is said that the instances in which the Court can interefere to test the adequacy of compensation or the relevancy of the principles for determination of compensation had been laid down in the Bank Nationalisation Case and when the 25th Amendment did not make any change in the clause, namely, no such law shall be called in question in any court on the ground that the amount so fixed or determined is not adequate but retained it in its original form, the only inference is that the Parliament approved the interpretation placed upon the clause by this Court and, therefore, the Court has power to examine the question Whether the amount fixed by law is adequate or illusory or that the principles for fixation of the amount are relevant. I am not quite sure about the nature of the presumption when the word compensation has, been deleted from the sub-article and the word amount substituted. 1815. In The Royal Court Derby Procelain Co. Ltd. v. Raymond Russel [1949] 2 K.B. 417 at 429 Denning, L.J. said: I do not believe that whenever Parliament re-enacts a provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant, cannot be adjudged bad on the ground of some invisible radiation from the concept that the right to acquire, hold or dispose of property is a Fundamental Right. 1820. If full moon compensation has to be paid, concentratiion of wealth in the form of immovable or movable property will be transformed into concentration of wealth in the form of money and how is the objective underlying Article 39(b) and (c) achieved by the transformation ? And with there be enough money in the coffers of the State to pay full compensation? 1821. As the 24th Amendment which empowers Parliament to take away or abridge Fundamental Right has been held by me to be valid, I do not think there is any conceivable basis on which I can strike down the amendment to Article 31(2). Nor can I read any implication in to the word amount and say that it must be reasonable as that would imply a standard. Having regard to the neutral and colourless character of the word amount and the express provision excluding judicial review of the question of the adequacy of the amount, the question of reasonableness of the amount or the relevancy of the principle is entirely outside the judicial ken. 1822. Now I t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fundamental Rights in such a way as to take away or abridge them is valid, what is there to prevent Parliament or state legislatures to pass law for implementing the Directive Principles specified in Article 39(b) and (c) which would be immune from attack on the ground that those laws violate Articles 14, 19 and 31? Is it not open to the Amending Body to enact an amendment saying in effect that although all laws passed by Parliament and State legislatures, which violate fundamental rights are void, laws passed by Parliament and State legislatures for giving effect to the policy of the State towards securing directive principles specified in Article 39(b) and (c) would not be void, even if they contravene some of the fundamental rights, namely, those under Articles 14, 19 and 31? Article 31C merely carves out a legislative field with reference to a particular type of law, and exempts that law from the ambit of Article 13(2) in some respects. Parliament or State legislatures pass a law for giving effect to the Directive Principles specified in Article 39(b) or (c), not by virtue of Article 31C, but by virtue of their power under the appropriate legislative entires. What Article 31C d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 31C which in effect has made a pro-tanto amendment of Article 13(2) in respect of that category of laws. It is a mistake to suppose that every time when Parliament in its legislative capacity or a State legislature passes such a law and if the law violates the Fundamental Rights under Articles 14, 19 and 31, it is that law which amends the Constitution and makes it valid. The amendment of the relevant provision of the Constitution, namely Article 13(2), has already been made by the 25th Amendment. And as I said it is that amendment which confers upon the law immunity from attack on the ground that it violates the Fundamental Rights under the above said articles. 1829. Parliament in its legislative capacity or the State legislatures cannot confer any immunity upon the laws passed by them from the attack and they do not do so. They rely upon the 25th Amendment as conferring the immunity upon the law which gives effect to the State Policy towards securing the above mentioned purpose. I confess my inability to understand the distinction between a law passed in pursuance of an amendment of the Constitution which lifts the ban of Article 13(2) and a law passed in pursuance of an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner and form required for amendment of Article 368. I cannot read any limitation upon the power to amend the amending power which would preclude Article 368 from being amended in such a way as to invest part of the amending power in Parliament in its ordinary legislative capacity or in State legislature, to be exercised by them in a form and manner different from that prescribed by Article 368. 1831. The supposed bad odour about the article should not upset our judgment in adjudging its Constitutionality. We have no power under the Constitution to adjudge a Constitutional amendment as unConstitutional on the ground that the amendment would in effect vest large powers in Parliament and State legislatures to pass laws which might violate Articles 14, 19 and 31. 1832. Counsel for the petitioner asked the question why the right to pass laws violating the freedom of speech guaranteed under Article 19(1)(a) is given to Parliament in its legislative capacity and to the State legislatures by Article 31C when it is seen that Clauses (b) and (c) of Article 39 are concerned with matters which have no connection with that freedom. 1833. In my dissenting judgment in Bennett Coleman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be served with a substantial and honest basis of fact for its judgments of public affairs. Of these two, it is the latter which today tends to take precedence in importance. The freedom of the press has changed its point of focus from the editor to the citizen. This aspect of the question was considered by the United States Supreme Court in United States v. Associated Press 326 U.S. 20. Mr. Justice Black who wrote the majority opinion sees the welfare of the public as the central issue. The fundamental acknowledgement that press functions are now, in the eyes of the law as well as common sense clothed with a public interest suggest an affirmative obligation on the part of the Government. 1835. Nobody demurs when a law preventing adulteration of food is passed. Is the adulteration of news, the everyday mental pabulum of the citizen, a less serious matter? The need of the consumer to have adequate and uncontaminated mental food is such that he is under a duty to get it. Because of this duty his interest acquires the status of a right since the consumer is no longer free not to consume and can get what he requires only through the existing press organs, the protection of the fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive Principles under Article 39(b) and (c) from attack on the ground that its provisions violate Articles 14, 19 and 31. A law which will never give effect the State policy towards securing these principles will enjoy no immunity, if any of its provisions violates these articles. It is only a law for giving effect to the State policy towards securing the principles specified in Article 39 (b) and (c) that can contain a declaration that it is for giving effect to such a policy and it is only such a declaration that will bar the scrutiny by the Court of the question that the law does not give effect to the policy. The expression no law in the latter part of Article 31C can only mean the type of law referred to in the first part. To be more specific the expression no law occurring in the latter part of the article can only mean no such law as is referred to in the first part. It would be very strange were it otherwise. If any other construction were to be adopted, a declaration could shield any law, even if it has no connection with the principles specified in Article 39(b) or (c) from attack on the ground of violation of these articles. Any law under the Sun can be brought und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly to give effect to the policy of the State is, in truth and substance, one for accomplishing an unauthorized object, the Court would be entitled to tear the veil created by the declaration and decide according to the real nature of the law. 1840. Apart from the safeguard furnished by judicial scrutiny, there is sufficient guarantee in Article 31C that a State legislature will not abuse the power as the law passed by it will be valid only when it has been reserved for the assent of the President and has obtained his assent. In the light of what I have said, the apprehension expressed in some quarters that if judicial scrutiny of the question whether the law gives effect to the policy of the State towards securing these Directive Principles is barred, it will lead to the disintegration of the country has no real foundation. Nor has the dictum of Justice Holmes : Holmes, Collected Legal Papers , pp. 295-296. I do not think that the United States would come to an end if the Supreme Court lost our power to declare an Act of the Congress void. But I do think that the Union would be imperilled if we could not make that declaration as to the laws of the several States , any relevanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution can be amended by way of addition, variation or repeal. The only limitation is that the Constitution cannot be repealed or abrogated in the exercise of the power of amendment without substituting a mechanism by which the State is constituted and organized. That limitation flows from the language of the article itself. 1845. I do not think there were or are any implied or inherent limitations upon the power of amendment under the article. 1846. The 24th Amendment is valid. 1847. The 25th Amendment, including Article 31C, is valid. The word amount in Article 31(2), as amended, does not convey the idea of any norm. The fixation of the amount or the principle for determining the amount is a matter within the absolute discretion of the Parliament or the State Legislatures. The Court cannot go into the question whether the amount fixed by law or the principle laid down for determining the amount is adequate or relevant. 1848. The declaration visualized in Article 31C that the law gives effect to the policy of the State towards securing the principles specified in Article 39(b) and (c) of the Constitution would not oust the jurisdiction of the Court to go into the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary for me to repeat such views as I accept as correct expressed by my learned brethren with whose conclusion I agree. The reasons for my very respectful disagreement with those conclusions of some of my other learned brethren with which I do not concur will become evident in the course of the few observations with which I shall content myself before recording my conclusions. I venture to make these observations because, as my learned Brother Mathew has pointed out, in cases of the nature before us, the healthier practice is to follow the example of House of Lords even though a multiplicity of opinions may produce a thicket , which, according to Judge Learned Hand, it is the function of judicial learning and wisdom to remove. I do hope that my observations will not add to the thickness of this thicket without some useful purpose served by making them. 1853. I think that we do stand in danger, in the circumstances stated above, of losing sight of the wood for the trees, and, if we get entangled in some of the branches of the trees we may miss reaching the destination; the correct conclusion or decision. I think I can speak for all my learned brethren as well as myself when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eat respect that it would be impossible to deal with the questions relating to the 24th and 25th Amendments without deciding the true ambit of the amending power . The questions of the correct interpretation of the 24th Amendment and its validity cannot be decided unless this Hon ble Court first comes to a conclusion as to whether the original power was limited or unlimited. If it was originally limited the question would arise whether the 24th Amendment should be read down or whether it should be held to be unConstitutional. Even the question of the correct construction of the 24th Amendment cannot be decided unless the starting point is first established, namely, the true, scope of the original amending power . Again, it would be impossible to decide the question whether Article 31(2) which has been altered by the 25th Amendment should be read down in such a way as to preserve the right to property or should be declared unConstitutional as abrogating the right to property,-unless and until it is first decided whether Parliament has the right to abrogate the right to property. This directly involves the question whether the amending power is limited or unlimited. When ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India constituted a sovereign democratic Republic . 1858. A modern democratic Constitution is to my mind, an expression of the sovereign will of the people, although, as we all know, our Constitution was drawn up by a Constituent Assembly which was not chosen by adult franchise. Upon this Constituent Assembly was conferred the legal power and authority, by Section 8 of the Indian Independence Act, passed by the British Parliament, to frame our Constitution. Whether we like it or not, Section 6 and 8 of an Act of the British Parliament transferred, in the eye of law, the legal sovereignty, which was previously vested in the British Parliament, to the Indian Parliament which was given the powers of a Constituent Assembly for framing our Constitution. 1859. The result may be described as the transfer of political as well at legal sovereignty from one nation to another, by means of their legally authorised channels. This transfer became irrevocable both as a matter of law and even more so of fact. Whatever theory some of the die-hard exponents of the legal omnipotence of the British Parliament may have expounded, the modern view, even in Britain, is that what was so transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try s progress towards the allied objectives and aims stated in the Preamble, with fundamental rights as the limits of that path, like the banks of a flowing river, which could, be mended or amended by displacements replacements or curtailments or enlargements of any part according to the needs of those who had to use the path. In other words, the requirements of the path itself were more important. A careful reading of the debates in the Constituent Assembly also lead me to this premise or assumption. If the path needed widening or narrowing or changing, the limits could be changed. It seems to be impossible to say that the path laid down by the Directive Principles is less important than the limits of that path. Even though the Directive Principles are non-justiciable, in the sense that they could not be enforced through a Court, they were declared, in Article 37, as the principles...fundamental in the governance of the country . The mandate of Article 37 was : it shall be the duty of the State to apply these principles in making laws . Primarily the mandate was addressed to the Parliament and the State Legislatures, but, in so far as Courts of justice can indulge in some jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; (f) that childhood and youth are protected against exploitation and against moral and material abandonment. 1866. On the views stated above, it would be difficult to hold that, the necessarily changeable limits of the path, which is contained in the Directive Principles, are more important than the path itself. I may mention here that it was observed in one of the early Full Bench decisions of the Allahabad High Court in Motilal and Ors. v. The Government of the State of Uttar Pradesh and Ors. A.I.R. 1951 All. 257 @ 296 by Sapru J.: I shall also say a few words about the directives of State policy which, though not justiciable, may be taken info account in considering the Constitution as a whole. These directives lay down the principles which it will be the duty of the State to apply in the making of laws and their execution. Article 38 states that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in his Law of the Constitution (tenth edition), discussing the nature of Parliamentary Sovereignty said (at page 73): The matter indeed may be carried a little further, and we may assert that the arrangements of the Constitution are now such as to ensure that the will of the electors shall by regular and Constitutional means always in the end assert itself as the predominant influence in the country. But this is a political, not a legal fact. The electors can in the long run, always enforce their will. But the courts will take no, notice of the will of the electOrs. The judges know nothing about any will of the people except in so far as that will be expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electOrs. The political sense of the word sovereignty is, it is true, fully as important as the legal sense or more so. But the two significations, though intimately connected together, are essentially different, and in some part of his work Austin has apparently confused the one sense with the other . 1870. Legally, the British Parl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll legal issues which arise in its ambit. The legal association will not be a single unit, and law will not be a unity, unless there is somewhere one authority to which crucial differences ultimately come, and which gives, as the authority of last resort, the ultimate and final decision. Different social groups may press different views of what is, or ought to be, law; it is even possible that different departments of the State may hold, and seek to enforce, different notions of what is legally right; there must be a final adjustment centre. That final adjustment-centre is the sovereign, the topmost rung of the ladder, the superanus or soverano, the authority of the last word . Sovereignty is not the same as general State-authority, or puissance publique : it is the particular sort of State authority which is the power and the right of ultimate decision . In one sense sovereignty is unlimited-unlimited and illimitable. There is no question arising in the legal association, and belonging to the sphere of its operation, which may not come up to the sovereign, and which will not be finally decided by the sovereign if it so comes up to the topmost rung. The adjustment-centre must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... body of persons which can alter and amend the Constitution (and which, by the way, can act only under the Constitution, and in virtue of the Constitution) is a body which acts only at moments of interruption,, and therefore at rare intervals. The continuous control may more properly be termed sovereign than the occasional interruption; and we may accordingly say that the Constitution itself, in virtue of being such a control, is the ultimate sovereign . (b) Secondarily, however, and subject to the ultimate sovereignty of the Constitution we may say that the body which makes ordinary law, in the sense of issuing the day-to-day and the year-by-year rules of legal conduct, is the immediate sovereign. That body may be differently composed in different political systems. In the United States, for example, it is composed of Congress and President acting independently (though with mutual checks and reciprocal powers of overriding one another s authority) on a system of co-ordination. In the United Kingdom it is composed of Parliament and His Majesty s Ministers acting interdependently, and with a mutual give and take (though here too there are mutual checks, the Parliament can dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egins his exposition by citing the Preamble to the Constitution of India; and, he gives this explanation in his preface for such a beginning: I ought to explain, as I end, why the preamble to the Constitution of India is printed after the table of contents. It seemed to me, when I read it, to state in a brief and pithy form the argument of much of the book; and it may accordingly serve as a key-note. I am the more moved to quote it because I am proud that the people of India should begin their independent life by subscribing to the principles of a political tradition which we in the West call Western, but which is now something more than Western. 1875. The sovereignty of the Constitution , as I see it, is a feature , as Bosanquet put it in his Theory of the Stale, inherent in a genuine whole . This means that it is not vested in all its aspects in any one of the three organs of the State but may be divided between them A mark of such sovereignty is certainly the possession of Constituent Power , although the totality of sovereign power may be divided. Laski wrote, in his Grammar of Politics (pages 296-297): It may yet be fairly argued that, in every State, some disti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sclosed by the speeches in the Constituent Assembly, which is found embodied in the Preamble as well as the Directive Principles of our Constitution. Granville Austin observed in the Indian Constitution : Cornerstone of a Nation (at page 43): What was of greatest importance to most Assembly members, however, was not that socialism be embodied in the Constitution, but that a democratic Constitution, with a socialist bias be framed so as to allow the nation in the future to become as socialist as its citizens desired or as its needs demanded. Being, in general, imbued with the goals, the humanitarian bases, and some of the techniques of social democratic thought, such was the type of Constitution that Constituent Assembly members created. 1879. Thus, the direction towards which the nation was to proceed was indicated but the precise methods by which the goals were to be attained, through socialism or state action, were left to be determined by the State organs of the future. In laying down the principles, by means of which the poverty-stricken, exploited, down-trodden, ignorant, religion and superstition ridden masses of India, composed of diverse elements, were to be transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution as the movement of the chakra. Such a movement naturally involves that a part of the nation which may have been at the top at one time may move towards the bottom and then come back to the top again. The Constitution, however, visualizes the progress of the whole nation towards greater equality as well as prosperity. The function of the amending provision, in such a Constitution, must necessarily be that of an instrument for dynamic and basic changes in the future visualized by our Constitution makers. The whole Constitution is based on the assumption that it is a means of progress of all the people of India towards certain goals. The course of progress may involve, as choices of lesser of two evils, occasional abrogations or sacrifices of some fundamental rights, to achieve economic emancipation of the masses without which they are unable to enjoy any fundamental rights in any real sense. The movement towards the goals may be so slow as to resemble the movement of a bullock-cart. But, in this age of the automobile and the aeroplane, the movement could be much faster. 1885. The Constitutional function with which the judiciary is entrusted, in such a Constitution, is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture. In any case, in such a Constitution as ours, we must strongly lean against a construction which may enable us to hold that any part of the Constitution is exempt from the scope of Article 368 as originally framed. Without express words in Article 368 itself to that effect, I am not prepared to merely presume or infer the presence of any casus omissus here. 1888. It was no doubt argued, on the strength of the Golak Nath case (supra), that direct or indirect abridgement or taking away of a fundamental right by an amendment under Article 368 was expressly barred by the language of Article 13(2) of the Constitution. I am in agreement with the views of my learned brethern who hold that Article 13(2) is meant to deal with ordinary laws or the functions of the Parliament and of State Legislatures in their ordinary law-making capacities. It was not intended to extend its scope indirectly to Article 368 which deals with the amendment of the fundamental law itself of which Article 13(2) is a part. The language and the context as well as the subject matter of it, found stated in Article 13(2) of the Constitution itself, preclude me from holding that it could possibly operate as a res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstituent Assembly merely because it considered the additional words to be otiose and unnecessary. 1891. Our Constitution itself contains in various places a distinction between the Constitution and the law. It mentions both the Constitution and the law suggesting that there is a difference between them made by the Constitution itself. See : e.g.: (1) Form of oath of the President prescribed by Article 60 of the Constitution to preserve protect, and defend the Constitution and the law . (2) The form of oath or affirmation, prescribed by Article 159 of the Constitution for the Governor of a State to protect and defend the Constitution and the law . (3) The form of oath prescribed by Article 75(4) for a Union Minister given in Schedule III-Form I to do right to all manner of people in accordance with the Constitution and the law , (4) The form of oath prescribed for a Judge of the Supreme Court, under Article 124(6) of the Constitution, given in Third Schedule-Form IV, to uphold the Constitution and the laws . The form is the same for the Comptroller and Auditor-General of India under Article 148(2) of the Constitution. (5) The form of the oath prescribed by Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciple indicated above has been usually applied between different pieces of legislation or to different Acts. There is no doubt that when the subsequent Act is general and the prior Act is special, the Special Act is not repealed by the provisions of the general Act by the application of the maxim : Generalia specialibus non derogant i.e. provisions will not abrogate special provisions (See : Crates on Statute Law p. 376). Again, if a special enactment, whether it be in a public or private Act, and a subsequent general Act or absolutely repugnant and inconsistent with one another , it has been said that the Courts have no alternative but to declare the prior special enactment repealed by the subsequent general Act . See : Craies on Statute Law p. 380). On the same principle, it has been held that a subsequent particular Act may have the effect of partially repealing the earlier general Act. (See : Mirfin v. Attwood [1869] L.R. 4 Q.B. 330 Heston Isleworth U.D.C. v. Grout [1897] 2 Ch. 306 Harishankar Bagla v. M.P. State). A.I.R. 1954 S.C. 465. 1896. The above mentioned principle has been applied generally where the question has arisen whether the particular law prevails over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the term itself may exclude a possible complete abrogation of the present Constitution although that could be done, step by step, by the bodies empowered to amend if they so desired and followed the appropriate procedure. 1898. For the reasons already given at length by my brethern Ray, Palekar, Mathew and Dwivedi with whom I concur, I find that there is nothing in cases cited which could enable us to put in implied limitations, in a Constitution such as ours, on Article 368, containing expressly the sovereign law-making power of amendment of every part of it. The cases have really little bearing on the interpretation of such a provision containing the constituent power. As they were cited before us and examined by us, I will very briefly refer to the main cases cited. 1899. The American cases really go against the submission that relied limitations could be put on expressly stated Constitutional powers. They were : Oscar Leser v. J. Mercer Garnett 258 U.S. p. 130 U.S.A. v. William H. Sprague William J. Howey 282 U.S. p. 716 State of Rhode Island v. A. Mitchell Palmer, Attorney General etc. 253 U.S. p. 350. Schneiderman v. U.S. 320 U.S. p. 118 @ p. 137-145. 1900. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner who had challenged the validity of an Act of the Irish Parliament that the majority decision in Ryan s case was correct. I do not think that the Irish cases give much help to the petitioners submissions on implied limitation. 1903. Cases coming up from Ceylon also do not assist the petitioners. In the Bribery Commissioner v. Pedrick Ranasinghe 1965 A.C. p. 172 a provision of the Bribery Amendment Act, 1958, was held to be bad because it conflicted with the provisions of Section 29 of the Ceylon (Constitution) Order in Council, 1946, by which the Constituion of Ceylon was governed. It is, therefore, a simple case of conflict of an enactment of subordinate law making authority with the instrument of Government which regulated subordinate law-making powers and was, therefore, supreme. In that case the requirements of manner and form as laid down in Attorney-General for New South Wales and Ors. v. Trethowan and Ors. 1932 A.C. p. 526 were also held not to have been complied with. In Don John Francis Douglas Liyanage and Ors. v. The Queen 1967 (1) A.C. p. 259 it was held, with regard to the Acts the validity of which was impugned: ...the Acts could not be challenged on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispensed with by any particular ordinary enactment it may be possible to assail the validity of that enactment when Articles 14 and 19 of the Constitution apply. The exclusion of Articles 14 and 19 by a Constitutionally valid amendment only carves out or creates a new legislative field by a provision which becomes a part of the Constitution by amendment, so that the Constitutional validity of its creation cannot be assailed in any court of law so long as the form and manner prescribed by Article 368 of the Constitution have been observed in making the necessary amendment. Enactments properly falling within this field would be immune from attack for any alleged violations of Articles 14 and 19 and 31. 1907. Mr. Palkiwala then made an impassioned appeal to the theories of natural law and natural rights sought to be embodied in present day international laws as well as Constitutional laws. It is not necessary for me to deal at length with the political philosophy or the juristic implications of various and conflicting natural law theories, such as those of Spinoza, Hobbes, Locke or Rousseau, discussed by T.H. Green in his Principles of Political Obligation . I also do not find it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vity of values. It is as easy to deride natural law as it is to deride the futility of mankind s social and political life in general, in its unceasing but hitherto vain search for a way out of the injustice and imperfection for which Western civilisation has found no other solution but to move from one extreme to another . The appeal to some absolute ideal finds a response in men, particularly at a time of disillusionment and doubt, and in times of simmering revolt. Therfore natural law theories, far from being theoretical speculations, have often heralded powerful political and legal developments . 1908. I am not prepared to use any natural law theory for putting a construction on Article 368 of the Constitution which will defeat its plain meaning as well as the objects of the Constitution as stated in the Preamble and the Directive Principles of State Policy. I do not know of any case in which this has been done. Even in the Golak Nath s case (supra) Subba Rao, C.J. relied on a natural law theory to strengthen his views really based on an application of the supposed express bar contained in Article 13(2). 1909. I have already stated my point of view, that we should appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due performance of their social obligations by individuals before claiming any right however fundamental or important it may be because rights and duties are correlative. 1912. Another contention advanced was that a creature of the Constitution could not possibly possess the power to create or recreate the Constitution. Therefore, it was contended, resort could not be had to Article 368 to expand the power of amendment. I am unable to accept this contention in the face of the express provision in Clause (e) to the proviso to the Article 368(2) of the Constitution. There Article 368 expressly provided either for the expansion or diminution of the scope of the powers of amendment. It cannot, therefore, be reasonably contended that the power of recreation even of the whole Constitution by stages was not already contained in the unamended Article 368. This part of proviso also shows that the Constitution makers contemplated a wide amending power so as to meet the challenges of the times offered by rapidly changing social, political, economic, national and international conditions and situations. We cannot contract what the Constitution makers clearly intended to make elastic and ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take the place of a judicial verdict on relevancy of the grounds to the principles found in Clauses (b) and (c) of Article 39 as well as on effectiveness of these laws for the intended purposes. Nevertheless, the Attorney General and the Solicitor General, appearing for the Union of India, conceded, both in written submissions and in the course of arguments, that the question of relevancy or nexus with the specified principles would be open to judicial scrutiny in such cases of declarations annexed to laws passed. 1915. My learned brother Khanna has been pleased, despite the concession mentioned above, to declare the second part of Article 31C to be void on the ground among others, that it involves a trespass on the judicial field. It was said that, under the guise of exercise of the power of amendment, one of the pillars of the Constitution or one of the essential features of its basic structure, that is to say, judicial review, had been removed. 1916. I think that the concession made on behalf of the Union of India is quite justifiable on a ground which I now proceed to adopt. It is that a declaration by itself is not part of the law made, but it is something only attached ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 39(b) and (c) of the Constitution, and, therefore, the jurisdiction of the Court is not ousted. The Courts can still consider and decide whether the declaration is really good or a mere pretence attached to a colourable piece of legislation or to a law which has no bearing on or nexus with the principles found in Article 39(b) and (c) of the Constitution. Out of two equally acceptable views, even on the question of nexus, the one in conformity with the legislative verdict should prevail. (6) The 29th Amendment is valid. 1921. I would also have the petitions disposed of in the light of decisions given above. I make no order as to costs incurred by parties for this stage of hearing S.N. Dwivedi, J. 1922. I concur with the conclusions reached by brother Ray with respect to the Constitutionality, of the 24th, 25th and 29th amendments. But in view of the importance of the case I wish to add my own reasons in support of those conclusions. 1923. Ideas which failed to win the minds of Englishmen in the Stuart period and died in discomfiture are seeking transmigration into the Constitution of India now. Perceive some resemblances: Ideas during the Stuart Period Arguments of Sr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Common Law will control it and adjudge Law and an amendment in violation such act to be void. Coke in Dr. Bonham s of these principles will be void. case, quoted in the Revival of Natural Law concepts by C.G. Heines, 1930 Edn. pages 33-34. 7. Cases which concern the life or 7. The inherent and implied limitations inheritance, or goods or fortunes of to the amending power in Article 368 subjects...are not to be decided will be determined by judges possessing by natural reason, but by artificial a trained and perceptive judicial mind. reason and judgment of law, which law is an act which requires long study and experience before that a man can attain to the cognizance of it. Coke as quoted in the English Constitutional Conflicts of the Seventeenth Centure 1603-1689 by J.R. Tanner, 1961 Student Edn. p. 37. 1924. Of the three contenders for primacy in the Stuart period-King, Parliament, Common Law-Parliament came out victorious. F.W. Maitland, Constitutional History of England (Paper back reprint (1963) pages 300-301. The King and the Common Law accepted its supremacy. Stuart England was passing through an age of transition. So is India today. We are passing through the grea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flects the hopes and aspirations of the people of India emerging from colonial economy in the second half of the 20th century. Constitutions framed in the past for organising political democracy cannot serve as a safe guide in construing the Constitution of India framed for ushering in social and economic democracy. 1926. Constitutions which grew up in the preceding three centuries were understood to sanctify the Supremacy of Property. Said Tocqueville : The French Revolution has allowed one exclusive right to remain, the right of property, and the main problems of politics will deal with the alterations to be brought about in the right of property-holders. As quoted in French Political Thought in the 19th Century by Roger Henry Soltau, p. 55. Our Constitution is conceived in a radically different tradition. Our forbears did not believe in the acquisition of things of pleasure (Preya); they stood for the good and the whoelsome (Shrey). They addressed their king as Rajan because it was his duty to secure the welfare of his people (See Richard Henry Tawney, The Acquisitive Society , Chapter II IV) Their rule of law (Dharma) was intended to help the power-minus keep the pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nehru was influenced by modern progressive thinking. But the common denominator in their philosophies was humanism. The humanism of the Western Enlightenment comprehended mere poltical equality; the humanism of Mahatama Gandhi and Jawaharlal Nehru was instinct with social and economic equality. The former made man a political citizen; the latter aims to make him a perfect citizen. This new humanist philosophy became the catalyst of the National Movement for Swaraj. 1931. In 1929 the All India Congress Committee resolved that the great poverty and misery of the Indian people was due also to the economic structure of the society. Indian National Congress Resolutions on Economic Policy, Programme and Allied Matters, 1924-1969, p. 3. The Karachi Congress resolution, on fundamental rights and economic programme revised in the All India Congress Session of Bombay in 1931 declare that in order to end the exploitation of the masses political freedom must include economic freedom of the starving millions. Resolutions, supra pp. 6-9. It provided that property was not to be sequestered or confiscated save in accordance with law Ibid (emphasis added). It also provided that the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p of the means of production and material resources and the resultant incarceration of wealth in a few profit-seeking hand may bring into being an economic power as all-assimilating and omnicompetent as the Hegelian State. It may manipulate a fall in the prices of raw-materials; it may inflate the prices of manufactures by low production and hoarding; it may increase unemployment and bring down wages; it may shrink investments and control the industrial progress of the nation. J.K. Gailbraith : American Capitalism, pp. 21, 40 and 64; Report of the Monopolies Inquiry Commission (1965) Vol. 1 pp. 125, 128, 132 and 134. It may seek to influence politics and public opinion. J.K. Gailbraith, Ibid, p. 123; Bertrand Russel : Power (Unwin Books) p. 85; Monopolies Inquiry Commission Report p. 136. It may try to threaten, restrain and change governments in self-interest. B. Russel, Ibid. pp. 86, 88 and 124; Monopolies Inquiry Commission Report pp. 1, 135 and 193. It may endanger liberty, the rule of law and peace. J.K. Gailbraith, Ibid, pp. 67 and 70; W. Friedmann. An Introduction to World Politics : London Macmillan and Co. Ltd. 1962, p. 4. It may retard national unity, the growth of cultur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power is lodged therein. 1938. Power to amend the Constitution cannot reasonably be located in Entry 97 of List I of Schedule VII read with Article 248 of the Constitution. The idea of a provision for amending the Constitution was indisputably present in the minds of the Constitutionmakers. If they had considered that the power to amend the Constitution was in its nature legislative, they would have surely included in express words this power in a specific entry in List I. Article 248 and Entry 97 of List I confer residuary power on Parliament. Article 246 and List I confer certain specific powers on Parliament. Residuary power is intended to comprehend matters which could not be foreseen by the Constitution-makers at the time of the framing of the Constitution. As the topic of amending the Constitution was foreseen by them, it could not have been put in the residuary power. Article 245(1) confers power on Parliament subject to the provisions of this Constitution. Articles 246 and 248 are subject to Article 245. Accordingly, a law made under Article 348 and Entry 97 of List I cannot be inconsistent with any provision of the Constitution. But a law made under Entry 97 for amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted by the framers of the Constitution. Dr. B.R. Ambedkar said : The Draft Constitution has eliminated the elaborate and difficult procedure such as a decision by a convention or a referendum. The powers of amendment are left with the Legislatures, Central and Provincial . C.A.D. Vol. 7, page 43. Nature of Amending Power 1940. With respect I find it difficult to share the view of Hidayatullah J. that the amending power in Article 368 is a legislative power. (Golaknath, Supra at page 900). 1941. During the British period neither the people of this country nor their elected representatives were endowed with the power to make or amend their Constitution Act. The Constitution Act by which they were governed until August 14, 1947 was enacted by the British Parliament. The power to amend that Act was vested in that Parliament. The elected representatives of the people could until that date make only legislative laws under the Constitution Act. The Constitution Act endowed them with a legislative power. Under Sections 99 and 100 of the Government of India Act, 1935, the Union and Provincial Legislatures made legislative laws. Under Sections 42, 43 and 44 and Section 72 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority. It rejected by drawing a distinction between the exercise of constituent powers and ordinary legislative activity... (In re. The Delhi Laws Act 1912 (Supra) at page 1112). 1943. Parliament s additional power to amend certain provisions of the Constitution by ordinary law would not obliterate the distinction between constituent power and legislative power. Constitutions may be uncontrolled like the British Constitution, or controlled like the Constitution of the United States of America. There may be a hybrid class of Constitutions, partly controlled and partly uncontrolled. In an uncontrolled Constitution the distinction between constituent power and legislative power disappears, because the legislature can amend by the law-making procedure any part of the Constitution as if it were a statute. In a controlled Constitution the procedure for making laws and for amending the Constitution are distinct and discrete. No part of the Constitution can be amended by the law-making procedure. This distination between constituent power and legislative power in a controlled Constitution proceeds from the distinction between the law-making procedure and the Constitution-amending p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nthanam s question in regard to the date of the coming into force of the Preamble, Shri Alladi Krishnaswami Ayyar said : The Preamble will come into force in all its plentitude when the Constitution comes into force. C.A.D. Vol. X, p. 418. 1947. A statute has four parts-title, preamble, enacting clause and purview or body. Crawford : Statutory Construction (1948 Edn.) p. 123 : Sutherland : Statutory Construction (1943 Edn.) Vol. 2, pp. 348-349; Haloburg s : Laws of England, Vol. 36, p. 370, Craies on Statute Law (1963 Edn.) pp. 190 and 201. The Preamble to the Constitution of the United States of America is regarded as a part of the Constitution. Willoughby, Constitutional Law of the United States (1929 Edn.), Vol. I, p. 62. The heading the Constitution of India above the Preamble shows that the Preamble is a part of it. 1948. As the Preamble is a part of the Constitution, it is liable to amendment under Article 368. Those parts of the Preamble which operate on the past such as this 26th day of November, 1949 may perhaps not be capable of miodification. Even Jove hath not power on the past . But there is little doubt that such parts can be deleted by the exertion of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hange in some of the existing provisions of a statute. Or stated in more detail, a law is amended when it is in whole or in part permitted to remain and something is added to or taken from it or it is in some way changed or altered in order to make it more complete or perfect or effective. According to these definitions the power to amend means the power to make an addition to or alteration in or subtraction from the text The purpose of addition, alteration or subtraction may vary; it may be to make the text or some part of it more complete or perfect or effective. It also appears that the whole text of a law cannot be repealed or abrogated in one step; some part of it must remain while the other is repealed. 1951. The Constitution does not define the word amendment . Article 367(1) applies the General Clauses Act to the interpretation of the Constitution. The Act also does not define amendment . However, Section 6A provides that where any Central Act repeals any enactment by which, the text of any Central Act was amended by express omission, insertion or substitution of any matter the repeal unless different intention appears, shall not affect the continuance of any suck ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India emerges it will be bound down by anything that even this House might lay down for it ? A free India will see the bursting forth of the energy of a mighty nation. What it will do and what it will not, I do not know, but I do know that it will not consent to be bound down by anything.... It may be that the Constitution, this House may frame may not satisfy an India, that free India. This House cannot bind down the next generation or people who will duly succeed us in this task. C.A.D. Vol. 2, pages 322-323. On November 8, 1948 he reiterated : While we who are assembled in this House undoubtedly represent the people of India, nevertheless, I think it can be said and truthfully that when a new House, by whatever name it goes, is elected in terms of this Constitution and every adult in India has the right to vote, the House that emerges then will certainly be fully representative of every section of the Indian people. It is right that that House elected so...should have an easy opportunity to make such changes as it wants to.... C.A.D. Vol. V, pp. 322-323. The Constitution-makers conferred very wide amending power on Parliament because it was believed that Parliament elected o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means of its conservation. Without such means it might even risk the loss of that part of the Constitution which it wished the most religiously to preserve. Burke : Recollections on the Revolution in France and other writings Oxford University Press, 1958 Reprint, p. 23. 1956. The context also reinforces the widest meaning of the word amendment . The proviso to Article 368 states that if an amendment of the Constitution seeks to make any change in the provisions specified therein, such amendment shall also require the ratification by at least half of the State Legislatures. Thus the proviso contemplates an amendment by way of a change in certain provisions of the Constitution. According to the Shorter Oxford English Dictionary (3rd Edition Vol. 1, page 291) change means substitution, or succession of anything in place of another; alteration in the State or quality of anything; variation, mutation, that which is or may be substituted for another of the same kind. The power to amend accordingly includes the power to substitute one provision for another. For instance, it will be open to Parliament to remove List II in the Seventh Schedule and substitute another List ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of Article 368. 1958. In paragraph 7(1) the words, addition, variation, or repeal do not enlarge the meaning of amend ; they are expositive of it. If the word amendment in Article 368 did not include the power of repealing a provision of the Constitution, sub-paragraph (2) could not have been enacted. It has been held by this Court that Parliament may change the boundaries of a State by a law enacted under Article 3 or by an amendment of the Constitution under Article 368. (Berubari Union, supra). It would follow from this decision that Parliament may repeal any provision of Schedule V by an ordinary law enacted under paragraph 7 of Schedule V or by an amendment under Article 368. The amending power under Article 368 which provides for amendment of the Constitution by a more difficult procedure than the one by which any provision of Schedule V may be repealed under paragraph 7 cannot surely be narrower than the power under paragraph 7 of Schedule V. The same consideration equally applies to paragraph 21 of Schedule VI to the Constitution. 1959. According to Article 33 Parliament may by law determine to what extent any of the rights conferred by Part III shall i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions prescribing the reservations. As Article 305 was an exception to Article 304, the word amendment in Article 304 would include the power of abrogating the reservations. As in Article 304, so in Article 368 amendment should include the sense of repeal and abrogation. 1963. According to Sri Palkhiwala, whenever the Constitution-makers intended to confer the power of repeal on any authority, they have expressly said so as in Articles 35(b), 252(2), the proviso to Article 254(2) and Article 372(1) and (2). In all these provisions the Words alter, repeal or amend are used with reference to a law. As amend would not authorise repeal simpliciter of the entire law, the framers of the Constitution have expressly conceded the power of repealing the entire law. So these provisions do not help the argument of Sri Palkhiwala that amendment in Article 368 should be given a narrow meaning. 1964. To sum up, the nature, object and history of the amending power and the context of Article 368 leave little room for doubt that the word amendment includes the power of repealing or abrogating each and every provision of the Constitution. It may be that Parliament may not be able to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h. A Minister of the Union and a State, the Judges of the Supreme Court and High Courts and the Comptroller and Auditor General also take the same kind of oath. If the framers of the Constitution had regarded the Constitution as law , they would not have separately mentioned the Constitution in various oaths. 1968. Various provisions of the Constitution indicate that the product which comes into being by fallowing the legislative procedure prescribed in Articles 107 to 111 is called law . The heading over Articles 107 and 196 reads as Legislative Procedure . When the prescribed legislative procedure is followed, the end-product is law. But when the procedure prescribed in Article 368 is strictly followed, it results in the amendment of the Constitution. The Constitution-makers did not call it law . 1969. Ordinarily fundamental rights avail against the State organs, that is, the Legislature, the Executive and the Judiciary and other agencies of the State. While making an amendment under Article 368, Parliament acts as a constituent authority and not as a State organ. The body making a law in accordance with the procedure prescribed under Articles 107 to 111 and an amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fetter on the amending power, that is, the procedural fetter. A substantive fetter on the amending power is accordingly not contemplated by Article 368. The framers of the Constitution were aware of the fact that certain foreign Constitutions have expressly put the amending power in substantive fetters. Indeed Article 305 sought to place such a fetter on the Draft Article 304 (corresponding to Article 368). In the absence of clear textual evidence, I am unable to expand the meaning of law in Article 13(2), for an expansive construction would permanently rule out the lawful making of structural reforms in the social, economic and political frame of the country. Speaking on the First amendment to the Constitution following the decision of this Court in State of Madras v. Srimathi Champakan Dorairajan, (1951) S.C.R. 525 on May 29, 1951 Jawaharlal Nehru said : We have to give them (the weaker sections of the society) opportunities-economic opportunities, educational opprtunities and the like. Now in doing that we have been told that we come up against some provisions in the Constitution which rather lay down some principles of equality or some principles of non-discrimination etc. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 13(2) is not intended to include an amendment of the Constitution, Article 368 does not open with the non-obstante clause. 1973. No unmistaking conclusion can be drawn from the history of Article 13(2) as to the meaning of the word law . The Draft Report of the Sub-Committee on Fundamental Rights, dated April 3, 1947, contained an annexure dealing with Fundamental Rights. Shiva Rao, Framing of India s Constitution, Vol. II, p. 137. Clause 2 of the annexure relevantly provided that any law which may hereafter be made by the State inconsistent with the provisions of this Chapter/Constitution shall be void to the extent of such inconsistency. By a letter of April 16, 1947, the Chairman of the Fundamental Rights sub-Committee forwarded an annexure on Fundamental Rights to the Chairman, Advisory Committee on Fundamental Rights. Clause 2 of the annexure materially read: All existing laws or usages in force...inconsistent with the rights guaranteed under this Constitution shall stand abrogated to the extent of such inconsistency : nor shall the Union or any unit make any law taking away or abridging any such right. Ibid, p. 171. On April 23, 1947, the Advisory Committee on Funda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und in the records. It is, however, important to observe that when the words except by way of amendment of the Constitution are omitted from Sri K. Santhanam s amendment, the remaining words nor shall any such rights be taken away or abridged are quite wide to prohibit the abrogation or abridgment of fundamental rights even by a Constitutional amendment. The same effect seems to be produced by the words nothing in this Constitution in Section 9(2) of the Draft Constitution prepared by the Constitutional Adviser. But the Drafting Committee substituted Section 9(2) by Article 8(2) of the Draft Constitution. Article 8(2) of the Draft Constitution does not enmesh in plain words all the provisions of the Constitution including Article 304. This may perhaps explain the omission of the words except by way of amendment of this Constitution. from Article 8(2) of the Draft Constitution. In any case, this history of Article 13(2) does not prove that the Drafting Committee intended Up give supremacy to fundamental rights over the Constitution amending power. In this connection it is important to refer to a note from the Constitutional Adviser s office that law in Section 9(2) did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies, for according to him there is no fourth category. Articles in Part III of the Constitution should accordingly fit into one of these categories. It seems to me that having regard to his threefold classification of the Articles it is not fair to interpret his speeches as showing that the Articles in Part III are not at all amendable. The word not in the sentence if the future Parliament wishes to amend any particular article which is not mentioned in Part III or Article 304 is presumably either a slip of tongue or a printer s devil. When Jawaharlal Nehru said that the fundamental rights were intended to be permanent in the Constitution , he did not really mean that they are not amendable. His speeches, already quoted by me, would clearly show that he regarded the entire Constitution to be subject to amendment by any future Parliament. 1977. Sri Kamath had moved an amendment to Article 304 which expressly provided for amendment in the provisions of Part III, but that amendment was rejected by the Constituent Assembly. No inference of unamendability of those provisions can be drawn from the rejection of his motion, for the members of the Constituent Assembly might have tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hanged within a hundred yearschanged mightily Parliamentary Debates Vols. XII-XIII, Part II, pp. 9624-9625. 1983. Articles 15(3), 16(4) and (5), 19(2) to (6), 21, 22(3), 4(b) and 7(a) and (b), 23(2), 25(1) and (2), 26, 28(2), 31(4), (5), and (6) encumber the rights with manifold unpredictable limitations. Article 19(2) has invented a completely new restriction to free speech, namely, friendly relations with foreign states Article 33 expressly empowers Parliament to restrict or abrogate the rights in their application to the Army and forces responsible for the maintenance of public order. For a period of five years from May 14, 1954, the reasonableness of restrictions on the rights specified in Article 19 was made unjusticiable in the State of Jammu and Kashmir. Clause (7) added to Article 19 by the President provided that reasonable restrictions in Clauses (2), (3), (4) and (5) shall be construed as meaning such restrictions as the appropriate legislature in Jammu and Kashmir deems reasonable . Article 35A applied to that State by the President made inroads into the rights of employment under the State, the right to acquire property the right to settlement and the right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mending power, for he has said : The whole Constitution is open to amendment. Only two dozen articles are outside the reach of Article 368. That too because the Constitution has made them fundamental. (ibid, p. 878). 1987. Sri Palkhiwala s argument of inherent and implied limitations may be reduced to the form of a syllogism thus. All legislative powers are subject to inherent and implied limitations. 1988. The constituent power in Article 368 is a legislative power. 1989. The constituent power is subject to inherent and implied limitations. 1990. If the major and minor premises in the syllogism are valid, the conclusion also must be valid. But both premises are fallacious. Some legislative powers are not subject to any inherent and implied limitations. Take the case of the War Power. During the course of arguments I had asked Sri Palkhiwala to point out any inherent and implied limitation on the War Power, but he could point out none. When the President has issued a Proclamation of Emergency under Article 352, the cardinal principle of federalism is in eclipse. Parliament may make laws for the whole or any part of the territory of India with respect to any of the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the vague emotive generalities of the Preamble. People , Sovereign , Democratic , Republic , Justice , Liberty , Equality and Fraternity are plastic words, and different people have impressed different meanings on them. Slavery had coexisted with democracy and republic. Liberty and religious persecution have walked hand in hand. It was once believed that equality was not compromised by denying vote to the propertyless. Preamble is neither the source of powers nor of limitations on power. (In re. Barubari Union, Supra, p. 282). 1993. According to Sri Palkhiwala, an implied limitation is one which is implicit in the scheme of various provisions of the Constitution. The scheme of various provisions is to create primary organs of State and to define, demarcate and limit their powers and functions. The scheme of Article 368, on the other hand, is to re-create the primary organs of State and to re-define, re-demarcate and re-limit their powers and functions if and when it becomes imperative to do so for the good of the people. Accordingly it must plainly have been the intention of the Constitution-makers that Article 368 should control and condition rather than be contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem; for all men would have that principle to be immutable that serves their use at the time. 1996. Fundamental is a word used by the laity as the word sacred is by the clergy, to fix everything to themselves they have a mind to keep, that nobody else may touch it Gough, supra, pp. 169-170. 1997. The Constitution-makers who were familiar with the English Constitutional history could not conceivably have left undetermined the test of distinguishing the essential features from the non-essential features or their core. The test is writ large in Article 368 itself. Every provision of the Constitution which may be amended only by the procedure prescribed in Article 368 is an essential feature of the Constitution, for it is more set than legislative laws. The test is the rigid procedure. The more rigid the procedure, the more essential the provision amendable thereby. Thus the provisions specified in the proviso to Article 368 are more essential than the rights in Part III. It has already been shown earlier that the fundamental rights, even though an essential feature of the Constitution, are within the sway of the amending power in Article 368. On a parity of reasoning, judicial r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for expressing its views thereon. The Bill carved out three units out of the State of Bombay, but the Act carved out only two units. It was urged that the word State in Article 3 should be given a larger connotation so as to mean not merely the State but its people as well. This according to the argument was the democratic process incorporated in Article 3. According to this democratic process the representatives of the people of the State of Bombay assembled in the State Legislature should have been given an opportunity of expressing their views not merely on the proposal contained in the Bill but on any subsequent modification thereof. Rejecting this argument, S.K. Das, J. said: (I)t will be improper to import into the question of construction doctrines of democratic theory and practice obtaining in other countries, unrelated to the tenor, scheme and words of the provisions which we have to construe.... It does not appear to us that any special or recondite doctrine of democratic process is involved therein. 1999. In the South India Corporation (P) Ltd. v. The Secretary, Board of Revenue, Trivandrum (1964) 4 S.C.R. 280 at page 295, Subba Rao J., while construing A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be a High Court for each State. The provisions in these Chapters are mandatory. Parliament, while making a law under Articles 2, 3 and 4, cannot make radical changes in the legislative, executive and judicial administration of a State, for its law-making power is subject to Chapter II, III and V of Part VI. 2002. Sri Palkhiwala has invoked natural law as the higher law conditioning the constituent power in Article 368. Natural Law has been a sort of religion with many political and Constitutional thinkers. But it has never believed in a single Godhead. It has a perpetually growing pantheon. Look at the pantheon, and you will observe there : State of Nature , Nature of Man , Reason , God , Equality , Liberty , Property , Laissez Faire , Sovereignty , Democracy , Civilised Decency , Fundamental Conceptions of Justice and even War In justifying and extolling war as an institution Treitschke appealed to the laws of human thought and of human nature which forbid any alternative. H. Lauterpacht : International Law and Human Rights, (1950 Edn.) p. 108. 2003. The religion of Natural Law has its illustrious Priestly Heads such as Chrysippus, Cicero, Seneca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... added by way of warning that it cannot desert its own duty to determine finally the Constitutionality of an impugned statute. The Court moved away from its Gopalan attitude of humility and self-restraint to the sentinel s role, compounded of self-restraint and self-consciousness. In 1954 the Court moved away a step further. In Virendra Singh and Ors. v. State of Uttar Pradesh [1955] 1 S.C.R. 415 the Court, making the people its mouthpiece, asserted : (W)e do not found on the will of the Government, we have upon us the whole armour of the Constitution wearing the breastplate of its protecting provisions and flashing the sword of its inspirations. Perhaps this passage is a faithful drawing of a crusader. But the picture is of a crusader getting ready to set out on a new path. This is the Third attitude of the Court. It displays more of self-assertion than of self-suppression. By 1963 Gopalan attitude of humility and self-restraint had lost its appeal. With the banner of natural , sacrosanct , and transcedental rights in one hand and the flaming sword of (the Constitution s) inspiration in the other, the Court announced in Golaknath that Parliament cannot take away or abridg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Principles of State Policy. Therefore, again, it is upto this Parliament to remove that contradiction and make the fundamental rights subserve the Directive Principles of State Policy Lok Sabha Debates, 1955-Vol. II, p. 1955 . 2009. Article 31(4), (5) and (6) establish beyond doubt that the Constitution-makers intended to give ascendency to the Directive Principles of State Policy over fundamental rights. It is futile to cling to our notions of absolute sanctity of individual liberty or private property and to wishfully think that our Constitution-makers have enshrined in our Constitution the notions of individual liberty and private property that prevailed in the 16th century when Hugo Grotius flourished or in the 18th century when Blackstone wrote his Commentaries and when the Federal Constitution of the United States of America was framed. We must reconcile ourselves to the plain truth that emphasis has now unmistakbly shifted from the individual to the community. We cannot overlook that the avowed purpose of our Constitution is to set up a welfare State by subordinating the social...interest in the rights of the communitySocial interests are ever expanding and are too num ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012. Structural socio-political value choices involve a complex and complicated political process. This Court is hardly fitted for performing that function. In the absence of any explicit Constitutional norms and for want of complete evidence, the Court s structural value chokes will be largely subjective. Our personae predilections will unavoidably enter into the scale and give colour to our judgment. Subjectivism is calculated to undermine legal certainty, an essential element of the rule of law. 2013. Judicial review of Constitutional amendments will blunt the people s vigilance, articulateness and effectiveness. True democracy and true republicanism postulate the settlement of social, economic and political issues by public discussion and by the vote of the people s elected representatives, and not by judicial opinion. The Constitution is not intended to be the arena of legal quibbling for men with long purses. It is made for the common people. It should generally be so construed that they can understand and appreciate it. The more they understand it, the more they love it and the more they prize it. 2014. I do not believe that unhedged amending power would endanger the int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , except the requirement of Article 21, namely, a procedure to be established by the legislature itself and skeleton procedure prescribed in Article 22.... What is abnormal if our Constitution has trusted the legislature as the people of Great Britain have trusted their Parliament ? Right to life and personal liberty and the right to private property still exist in Great Britain in spite of the supremacy of Parliament. Why should we assume or apprehend that our Parliament...should act like mad man and deprive us of our property without any rhyme or reason? After all our executive government is responsible to the legislature and the legislature is answerable to the people. Even if the legislature indulges in occasional vagaries, we have to put up with it for the time being. That is the price we must pay for democracy. But the apprehension of such vagaries can be no justification for stretching the language of the Constitution to bring it into line with our notion of what an ideal Constitution should be. To do so is not to interpret the Constitution but to make a new Constitution by unmaking the one which the people of India have given to themselves. That, I apprehend, is not the fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sections, Sections 2 and 3, These sections have been drawn in the light of various judgments in Golaknath (supra). Section 2 adds Clause (4) to Article 13. As the majority decision in Golaknath had taken the view that Article 13(2) is a limitation on the amending power to take away or abridge the fundamental rights, Clause (4) removes that limitation. Section 3 consists of four clauses. Clause (a) substitutes the marginal note to the unamended Article 368. The substituted marginal note reads as Power of Parliament to amend the Constitution and procedure therefor . Clause (b) renumbers the unamended Article 368 as Clause (2) and adds Clause (1) to it. The new Clause (1) calls the amending power as constituent power . It empowers Parliament to amend by way of addition, variation or repeal any provision of the Constitution in accordance with the prescribed procedure. It opens with the wellknown phrase Notwithstanding anything in this Constitution . In the renumbered Clause (2) also, that is, the unamended Article 368, there is an amendment It says that the President shall give his assent to the Bill. Clause (d) adds Clause (3) no Article 368. It provides that nothing in Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r determined in accordance with the principles prescribed by law may be given in such a manner as may be specified in such law. 2025. The last part of the main part of the amended Article 31(2) also states that No such law shall be called in question in any Court on the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amount is to be given otherwise than in cash. 2026. A proviso has also been added to Article 31(2). According to the proviso, while making any law-providing for the compulsory acquisition of any property of educational institution, established and administered by a minority referred to in Clause (1) of Article 30, the State shall ensure that the amount fixed by or determined under the law is such as would not restrict or abrogate the rights guaranteed under that clause. 2027. Section 2 adds Clause (2B) to Article 31. Clause (2B) states that the provisions of Article 19(1)(f) shall not affect any law referred to in the amended Article 31(2). 2028. The birth of Section 2 is dictated by the history of Article 31(2). Article 24 of the Draft Constitution became Article 31(2). Article 24 was moved by Jawaharla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he said: (A) more reasonable interpretation is that neither the principles prescribing the just equivalent nor the just equivalent can be questioned by the Court on the ground of the inadequacy of the compensation fixed or arrived at by the working of the principles. To illustrate, a law is made to acquire a house; its value at the time of the acquisition has to be fixed; there are many modes of valuation, namely, estimate by an engineer, value reflected by comparable sales, capitalisation of rent and similar others. The application of different principles may lead to different results. The adoption of one principle may give a higher value and the adoption of another principle may give a lesser value. But none the less they are principles on which and the manner in which compensation is determined. The Court cannot obviously say that the law should have adopted one principle and not the other, for it relates only to the question of adequacy. On the other hand, if a law lays down principles which are not relevant to the property acquired or to the value of the property at or about the time it is acquired it may be said that they are not principles contemplated by Article 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o so would be to grant a charter of arbitrariness, and permit a device to defeat the Constitutional guarantiee. A challenge to a statute that the principles specified by it do not award a just equivalent will be in clear violation of the Constitutional declaration that adequacy of compensation provided is not justiciable. [1969] 3 S.C.R. pages 365-366. 2034. Shantilal Mangaldas transfused blood in the 4th Amendment made anaemic by Vajravelu and Metal Corporation. But soon thereafter came the majority decision in R.C. Cooper v. Union of India [1970] 3 S.C.R. 530. Cooper in substance overruled Shantilal Mangaldas and restored the old position. More, it also added the test of Article 19(1)(f) to valid acquisition of property. These decisions of the Court constrained Parliament to enact Section 2 of the 25th Amendment. 2035. Having regard to this history, it will not be proper to import the concept of compensation in Article 31(2), Section 2 has substituted the word compensation by the word amount at every relevant place in Article 31(2). The Court should not minimize or neutralize its operation by introducing notions taken from or inspired by the old Article 31(2) which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hoice is conclusive. It would accordingly follow that the amount determined by the principles specified in the law is equally unquestionable in courts. 2038. The newly added proviso to Article 31(2) appears to me to fortify this construction. According to the proviso, the law providing for compulsory acquisition of any property of an educational institution which would receive the protection of Clause (1) of Article 30, should ensure that the amount fixed by or determined under it for the acquired property would not restrict or abrogate the right guaranteed under that clause. Now, the object of a proviso is to take out something which is included in the main part of a provision. So the amount payable under the main part of the amended Article 31(2) may be such as would abrogate the right of property of all and sundry. Accordingly it is not permissible to import in the amended Article 31(2) the notions of arbitrary amount or illusory amount or fraudulent amount . As some amount must be paid, the law may be virtually confiscatory, but not literally confiscatory. The position now is akin to the legal position in Section 25 of the Contract Act. Under that provision the adeq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to my construction of it, will abrogate the right of property, it is Constitutional as it falls within the scope of the 24th Amendment which I have held to be Constitutional. Section 3 of the 75th Amendment 2040. Section 3 adds Article 31C to Part III of the Constitution. It reads : Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in Clause (b) and (c) of Article 39, shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. 2041. Provided that where such law is made by the Legislatures of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. 2042. Section 3, like Section 2, is made under Article 368 as amended by the 24th Amendment. The provisions of Article 31C fall within the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standing anything in the Constitution the validity of any law relating to the delimitation of constituencies or allotment of seats to such constituencies made or purporting to be made under Article 327 or Article 328 shall not be called in question in any court. Like these articles, the second part of Section 3 excludes judicial review to a limited extent. 2046. The main part of Article 31C consists of two parts; The first part provides that no law giving effect to the policy of the State towards securing the principles specified in Article 39(b) and (c) shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Articles 14, 19 and 31. The fast part may be split up into two : (a) giving effect to the policy of the State towards securing (b) the principles specified in Article 39(b) and (c). Under the first part the Court has to see two things before a particular law can receive protection of Article 31C. Firstly, the law must have relevancy to the principles specified in Article 39(b) and (c); secondly, the law should give effect to those principles. Article 39(b) provides that the State shall strive to secure t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer to any extraneous authority. It is not necessary to decide this question. Assuming that Parliament may not delegate the constituent power, the question still remains whether Article 31C authorise the State Legislatures and Parliament as a legislative body to amend any part of the Constitution. 2050. The power of the Parliament and State Legislatures to make a law with respect to the principles specified in Articles 39(b) and (c) is derived from Article 246 read with Lists I, II and III of the Seventh Schedule. Their legislative power is however not absolute. It is restricted by various fundamental rights including those in Articles 14, 19 and 31, for Article 13(2) expressly prohibits the legislatures from making a law which will be violative of those rights. 2051. What does Article 31C seek to do? One, the non-obstante clause in Article 31C removes the bar of Article 13(2) against law making with respect to the principles specified in Article 39(b) and (c). The bar, however, is not removed in respect of all the fundamental rights. It is removed in respect of the rights in Articles 14, 19 and 31 only. Second, Articles 14, 19 and 31 remain operative as a bar against law-mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to by-pass them where they are inconsistent with the provisions of the Essential Supplies (Temporary Powers) Act, 1946 or the orders made thereunder. In other words, the orders made under Section 3 would be operative in regard to the essential commodity covered by the Textile Control Order wherever there is repugnancy in this Order with the existing laws and to that extent the existing laws with regard to those commodities will not operate. By passing a certain law does hot necessarily amount to repeal or abrogation of that law. That law remains unrepealed but during the continuance of the order made under Section 3 it does not operate in that field for the time being. The ambit of its operation is just limited without there being any repeal of any one of its provisions. Conceding, however, for the sake of argument that to the extent of a repugnancy between an order made under Section 3, and the provisions of an existing law the existing law stands repealed by implication, it seems to us that the repeal is not by any Act of the Parliament itself. By enacting Section 6 Parliament itself has declared that an order made under Section 3 shall have effect notwithstanding any inconsisten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vely and shall be exploited and developed on behalf of the community by the State as represented by the Central or Provincial Governments or local governing authority or statutory corporation as may be provided for in each case by Act of Parliament C.A.D. Vol. VII, p. 506. 2057. Replying to Prof. K.T. Shah, Dr. B.R. Ambedkar said : with regard to his other amendment, viz, substitution of his own clause for Sub-clause (ii) of Article 31, all I want to say is this that I would have been quite prepared to consider the amendment of Prof. Shah if he had shown that what he intended to do by substitution of his own clause was not possible to be done under the language as it stands. So far as I am able to see, I think the language that has been used in the Draft is much more extensive language which includes the propositions which have been moved by Prof. Shah, and I therefore do not see the necessity C.A.D. Vol. VII, p. 518. 2058. In Dr. Ambedkar s view the nationalisation of property is included in the word distributed in Article 39(b). 29th Amendment 2059. This amendment has added to the Ninth Schedule the Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and every provision in the Constitution including Part III. (3) There are no inherent and implied limitations on the amending power in Article 368. (4) The 24th, 25th and 29th Amendments are valid in their entirety. (5) According to Article 31(2) the amount fixed by law or determined in accordance with the principles prescribed by such law for the acquired or requisitioned property cannot be questioned in any court. (6) The last part of Article 31C does not oust the jurisdiction of courts to examine whether the impugned law has relevancy to the distribution of the ownership and control of the material resources of the community or to the operation of the economic system and the concentration of wealth and means of production. 2064. The Constitution Bench will now decide the case according to law. Y.V. Chandrachud, J. 2065. I wanted to avoid writing a separate judgment of my own but such a choice seems no longer open. We sat in full strength of 13 to hear the case and I hoped that after a free and frank exchange of thoughts, I will be able to share the views of someone or the other of my esteemed Brothers. But, we were overtaken by adventitious circumstances. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before us is truly sui generis. The largest Bench sat for the longest time to decide issues described as being of grave moment not merely to the future of this country but to the future of democracy itself. For a proper understanding of the meaning and scope of the amending provisions contained in Article 368 of our Constitution. We were invited to consider parallel clauses in the Constitutions of 71 countries of the world spread far and wide, with conflicting social and political philosophies. We travelled thus to new lands like Bolivia, Costa Rica, El Salvador, Gautemala, Honduros, Liberia, Nicarague, Paraguay, Uruguay and Venezuela. Constitutional sojourns to Australia, Canada, Ceylon, France, Germany, Ireland, Switzerland, U.S.S.R. and U.S.A. were of course of frequent occurrence. These excursions were interesting but not proportioned to their utility, for I believe there is no international yardstick with which to measure the width of an amending power. 2068. We were then taken through the writings of scores of scholars, some of whom have expressed their beliefs with a domatism not open to a Judge. There was a faith controversy regarding the credentials of some of them, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one. Someone has said in a lighter vein that Law comes from the west and Light from the east, but brushing aside such considerations, the conflicting views of these writers, distinguished though they be, cannot conclude the controversy before us, which must be decided on the terms of our Constitution and the genius of our Nation. The learning of these scholars has lighted my path and their views must be given due weight and consideration. But the danger of relying implicitly on everyone of the standpoints of everyone of these authors is apparent from what Andre Tune said in answer to a question put to him at the end of his lecture on Government under Law : A Civilian View . He confessed that the picture drawn by him at one time, of the French Law was too rosy and, on a misconception, it was too gloomy of American law and American life; and that, Frenchmen had by and large rectified to some extent their first impression that it could be extremely dangerous to have a Government of Judges , according to the famous slogan. That reminds me of what Sir Ivor Jennings has said in his book Some Characteristics of the Indian Constitution that It is a useful principle that one should ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and political philosophies of Grotius (1583-1645), Hobbes (1588-1679), Locke (1632-1704), Wolff (1679-1784), Rousseau (1712-1778), Blackstone (1723-1780), Kant (1724-1804), Bentham (1748- 1832) and Hegel (1770-1831). These acknowledged giants of the past-their opinions have a high persuasive value-have expounded with care and deliberation the controversial theory of Natural Law and Natural Rights . Each has his own individualistic approach to the question but arising out of their writings is a far-reaching argument that there are rights which inhere in every man as a rational and moral being; that these rights are inalienable and inviolable; and that the core of such of these rights as are guaranteed by the Constitution cannot be damaged or destroyed. The answer to this contention would consist in the inquiry, firstly as regards the validity of the core and hence the consequences of natural law thinking; and secondly, on whether our organic document supports the inference that natural rights were either recognised by it-explicitly or implicitly-and if so, whether any of such rights were permitted to be reserved by the people without any qualification, so that an individual wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adually approaching its death. A Constitution to be living must be growing; must be adaptable; must be flexible; must be changeable. And if there is one thing which the history of political developments has pointed out, I say with great force, it is this that the great strength of the British Nation and the British people has laid in their flexible Constitution. They have known how to adapt themselves to changes, to the biggest changes, Constitutionally. Sometimes they went through the process of fire and revolution . But he also said when the Constitution (First Amendment) Bill, 1951, was on the anvil that -so far as this House is concerned, it can proceed in the manner provided by the Constitution to amend it, if this House so choose. 2074. Now there is no doubt that this House has that authority. There is no doubt about that, and here, I am talking not of the legal or Constitutional authority, but of moral authority, because it is, roughly speaking, this House that made the Constitution. Our task is not to pass on the moral authority of the Parliament to amend the Constition but to determine whether it has legal or Constitutional authority to do so. Applying the same t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce there can be no freedom to end freedom even if the people desire to enslave themselvs, the Suprme Court must act undemocratically in order to preserve democracy . Nor indeed shall I walk down the garden-path laid by Dale. Gibson ( Constitution Amendment and the implied Bill of Rights , McGill Law Journal, Volume 12), that where an issue as vital as the protection of civil liberties is concerned, and where the legislators have demonstrated their inability to provide adequate safeguards, the courts are entirely justified (perhaps even morally obliged) in employing all the ingenuity and imagination at their command to preserve individual rights . Such exhortations have a spartan air which lends colourfulness to arid texts but they overlook the fundamental premise that judges, unlike Manu, are not lawgivers. Besides, it cannot ever be too strongly stressed that the power of substantive due process of law available under the Fourteenth Amendment to the American Constitution was considered and rejected by our Constituent Assembly which contained a galaxy of legal talent. In America, under the due process clause, there was a time when the Supreme Court used to invalidate laws becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed by law in place of the vague and uncertain expression due process of law . 2076. We were taken through an array of cases decided by the Privy Council, the Supreme Court of the United States of America, the Supreme Courts of American States, the High Court of Australia, the Supreme Court of Ireland, the High Court of Ireland, the Supreme Court of South Africa and of course our own Supreme Court, the Federal Court and the High Courts. Why, consistently with American practice, we were even referred to briefs which counsel had filed before the Supreme Court in the Rhode Island case. We also spent a little time on the judgment of the District Court of New Jersey in the Sprague case, a judgment which though reversed in appeal by the Supreme Court, was thought to have a certain relevance. 2077. We began, speaking chronologically, with the decision rendered in 1803 by the American Supreme Court in William Marbury v. James Madison 2 L. ed. 69 in which the opinion of the Court was delivered by Chief Justice John Marshall in words whose significance custom has still not staled: Certainly all those who have framed written Constitutions contemplate them as forming the fundamenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70). 2079. Most of the decisions of the Privy Council noticed above have an important bearing on the issues arising before us and some of these decisions present a near parallel to our Constitutional provisions which require interpretation. They will help a clearer perception of the distinction between controlled and uncontrolled Constitutions, which in turn has an important bearing on the patent distinction between laws made in the exercise of constituent power and those made in the exercise of ordinary legislative power conferred by the Constitution. In this distinction would seem to lie an answer to some of the basic contentions of the petitioner in regard to the interpretation of Articles 13 and 368 of the Constitution. 2080. The decisions of American courts may bear examination, but in their application to the problems arising under our Constitution it would be necessary to keep in constant sight some of the crucial differences between the circumstances attendant on the birth of the two Constitutions, the purposed vagueness of theirs and the finical content of ours and the significant disparity in the structure of their Article 5 and our Article 368. In America, an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quirements of form and manner prescribed by the instrument which regulates its power to make law, for a legislature has no power to ignore the conditions of law-making. 2083. The Canadian cases really bear on the legislative competence of provincial legislatures in regard to individual freedoms or in regard to criminal matters. In Canada, as many as six different views have been propounded on civil liberties and it would appear that though different judges have voiced their opinion in favour of one or the other of such views, none has pronounced finally in favour of any particular view. 2084. A special word must be said of Ryan s case which was decided by the Irish Supreme Court. It was read out in extenso to us and I am free to confess that it evoked in me a quick response. In that case, the three Judges of the Irish High Court and two of the 3 Judges of their Supreme Court rejected contentions similar to those of the petitioner herein but Chief Justice Kennedy, though he did not deal directly with the meaning of the word amendment , read limitations on the meaning of that word as a result of various implications derived from the Irish Constitution. Petitioner relies on the lone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll resound through the corridor of Times. But these landmarks in the development of law cannot be permitted to be transformed into weapons for defeating the hopes and aspirations of our teeming millions,-half-clad, half-starved, half-educated. These hopes and aspirations representing the will of the people can only become articulate through the voice of their elected representatives. If they fail the people, the nation must face death and destruction. Then, neither Court nor Constitution will save the country. In those moments of peril and disaster, rights and wrongs are decided not before the blind eyes of justice, not under the watchful eyes of the Speaker with a Marshal standing by but, alas, on streets and in by-lanes, Let us, therefore, give to the Parliament the freedom, within the framework of the Constitution, to ensure that the blessings of liberty will be shared by all. It is necessary, towards that end, that the Constitution should not be construed in a narrow and pedantic sense Per Lord Wright in James v. Commonwealth of Australia, (1936) A.C. 578, 614 Rules of interpretation which govern other statutes also govern a Constitutional enactment but those very principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to-day, let us strive to make it so by using law as a flexible instrument of social order. Law is not, in the phrase of Justice Holmes, a brooding omnipotence in the sky. 2086. All through the hearing of the case, there was hardly a point on which Dictionaries and Law Lexicons were not cited. Sec this long list: The Shorter Oxford English Dictionary on historical Principles, 3rd Ed.; Shorter Oxford English Dictionary; Webster s Third New International Dictionary of the English Language; Webster s English Dictionary, 1952; The Random House Dictionary of the English Language; The Reader s Digest Great Encyclopaedic Dictionary; The Dictionary of English Law, Earl Jowitt; The Cyclopaedic Law Dictionary by Frank D. Moore; Prem s Judicial Dictionary- Words Phrases judicially defined in India England, U.S.A. Australia; Bouvier s Law Dictionary; Universal English Dictionary; Chamber s 20th Century Dictionary; Imperial Dictionary by Ogilvie; Standard Dictionary by Funk Wagnalls; Stroud s Judicial Dictionary; Judicial and Statutory Definitions of Words and Phrases, Second Series; Words and Phrases legally defined, John B. Saunders; Wharton s Law Lexicon; Venkataramaiya s Law Lexi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ltitude of cases, I must find a specific answer to the questions raised before us and state it as briefly as I may. 2088. The main argument was made in Writ Petition No. 135 of 1970. The Kerala Land Reforms Amendment Act (35 of 1969) came into force in the State of Kerala on January 1, 1970. The Kerala Land Reforms Amendment Act (25 of 1971) came into force on August 7, 1971. The High Court of Kerala struck down some of the provisions of the Act of 1969 and that judgment was upheld by this Court on April 26, 1972 in Kunjukutty Sahib, etc. v. The State of Kerala and Anr. [1972] 2 S.C.C. 364. 2089. Writ Petition No. 135 of 1970 was filed in this Court under Article 32 of the Constitution on March 21, 1970. During the pendency of this Petition, the Constitution, 24th 25th, 26th and 29th Amendment Acts were passed by the Amending body, that is, the Parliament. The 24th Amendment Act received the President s assent on November 5, 1971. In a House of 518 members of the Lok Sabha, 384 members voted in favour of the 24th Amendment and 23 against it. In a House of 243 members of the Rajya Sabha 177 members voted in favour and 8 against it. As regards 25th Amendment, 355 voted in favou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31(2) makes an exception in regard to properties of educational institutions of minorities. If such properties are compulsorily acquired, the State has to ensure that the amount fixed for acquisition is such as would not restrict or abrogate the right guaranteed under Article 30(1) of the Constitution. Section 2(b) of the Amendment Act, 1971 adds a new Clause 2(b) to Article 31 which provides that nothing in Article 19(1)(f) shall affect any such law as is referred to in Article 31(2) as substituted. Section 3 of the Amendment Act, 1971, introduces a new Article 31C, which provides that notwithstanding anything contained in Article 79, no law giving effect to the policy of the State towards securing the principles mentioned in Article 39(b) or (c) shall be deemed to be void on the ground that it takes away or abridges the rights conferred by Articles 14, 19 and 31. No law containing a declaration that it is for giving effect to such policy can be called in questi on in any court on the ground that it does not give effect to such policy. If such a law is made by the Legislature of a State, the provisions of Article 31C can apply only if the law received the assent of the President. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these grounds rejected. 2097. The Constitution (Fourth Amendment) Act, 1955 abridging the Fundamental Rights guaranteed by Aritcle 31 was passed on April 27, 1955. Section 2 of this Act introduced a radical change by providing that no law to which Article 31(2) was applicable shall be called in question in any court on the ground that the compensation provided by that law was not adequate. By Section 3 of the Amending Act a new and extensive Clause (1) was substituted for the old Clause (1) of Article 31A, with retrospective effect. The newly added provision opens with a non-obstante clause: Notwithstanding anything contained in Article 13 and privides that no law providing for matters mentioned in new Clauses (a) to (s) Article 31A(1), shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31. No challenge was ever made to these amendments. 2098. The Constitution (Seventeenth Amendment) Act, 1964 came into force on June 20, 1964. This Act, by Section 2(ii) inserted a new definition of estate in Article 31A(2)(a) with retrospective effect and added as many as 44 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned Acts in the Ninth Schedule was valid, the Acts would not be open to challenge on any ground. 2101. Chief Justice Subba Rao delivered the leading majority judgment for himself and for Justices Shah, Sikri, Shelat and Vaidilingam. Hidayatullah J. concurred with their conclusion but delivered a separate judgment. Wanchoo J. delivered the leading minority judgment on behalf of himself and Justices Bhargava and Mitter. Justice Bachawat and Justice Ramswami concurred by their separate judgments with the view expressed in the leading minority judgment. 2102. The leading majority judgment recorded the following conclusions: 1. That Fundamental Rights are the primordial rights necessary for the development of human personality and as such they are rights of the people preserved by the Constitution. 2103. The Constitution has given by its scheme a place of permanence to the fundamental freedoms. In giving to themselves the Constitution the people have reserved the fundamental freedoms to themselves. The incapacity of the Parliament, therefore, in exercise of its amending power to modify, restrict or impair fundamental freedoms in Part III arises from the scheme of the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive power but it is sui generis and outside the three Lists of Schedule Seven of the Constitution. 2115. There is no distinction in our Constitution between laws made ordinarily and laws made occasionally for the amendment of the Constitution. Therefore, Constitutional amendments must fall within the scope of Article 13(2). 2116. The whole Constitution is open to amendment, only two dozen articles being outside the reach of Article 368; that too, because the Constitution has made them fundamental. 2117. Fundamental Rights cannot be abridged or taken away by the ordinary amending process. Parliament must amend Article 368 to convoke another Constituent Assembly, pass a law under Item 7 of List I to call a Constituent Assembly and then that Assembly may be able to abridge or take away the Fundamental Rights. The Parliament was constituted with powers of legislation which included amendments of the Constitution but only so far as Article 13(2) allowed. 2118. Parliament had no power to amend Article 368 so as to confer on itself constituent powers over the Fundamental Rights. This would be wrong and against Article 13(2). 2119. The conclusion recorded by the leading majo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he scope of Article 368 it is reasonable to assume that they would have made an express provision to that effect. 2131. The Preamble to the Constitution which declared India as a sovereign democratic republic was not beyond the scope of the amending power; similarly certain other basic features of the Constitution like those relating to distribution of legislative power, the parliamentary power of Government and the establishment of the Supreme Court and the High Courts were also not beyond the power of amendment. 2132. Every one of the articles of the Constitution is amendable under Article 368 and there was no room for any implication in the construction of that article. 2133. It is thus clear that the majority of Judges in the Golak Nath case consisting of Justices Wanchoo, Hidayatullah, Bhargava, Mitter, Bachawat and Ramaswami rejected the argument that Article 368 merely prescribes the procedure to be followed in amending the Constitution. They held that Article 368 also conferred the power to amend the Constitution. They rejected the argument that the power to amend could be found in Entry 97 of List I. The majority of Judges consisting of Subba Rao, C.J. and his 4 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 135. It shall have been seen that the petitioners in the Golak Nath case won but a Pyrrhic victory. They came to the Court, not for the decision of an academic issue, but to obtain a declaration that laws which affected their fundamental rights were unConstitutional. Those laws were upheld by the court but I suppose that the petitioners left the court with the consolation that posterity will enjoy the fruits of the walnut tree planted by them. But it looks as if a storm is brewing threatening the very existence of the tree. 2136. As stated above, 6 out of the 11 learned Judges held in the Golak Nath case that Article 368 prescribed not merely the procedure for amendment but conferred the power to amend the Constitution and that the amending power cannot be traced to the Residuary Entry 97 of List I, Schedule VII read with Articles 245, 246 and 248 of the Constitution. I respectfully adopt this view taken by the majority of Judges. 2137. Part XX of the Constitution is entitled Amendment of the Constitution , not Procedure for Amendment of the Constitution . Article 368, which is the only article in Part XX must therefore be held to deal both with the procedure and the produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and scope of that power. Is the power unfettered and absolute or are there any limitations-express, implied or inherent on its exercise? 2139. Counsel for the petitioner urges : (1) That the word amendment is not a term of art and has no precise and definite, or primary and fundamental, meaning; (2) That Article 368 carries vital implications by its very terms and there is inherent evidence in that Article to show chat in the context thereof the word amendment cannot cover alterations in, damage to, or destruction of any of the essential features of the Constitution; (3) That Article 13(2) by taking in Constitutional amendments constitutes an express limitations on the power of amendment; (4) That there are implied and inherent limitations on the amending power which disentitle Parliament to damage or destroy any of the essential features, basic elements or fundamental principles of the Constitution; and (5) That in construing the ambit of the amending power, the consequences on the power being held to be absolute and unfettered must be taken into account. Counsel says that Article 368 should not be read as expressing the death-wish of the Constitution or as being a provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis go to our own organic document for determining whether the word amendment in Article 368 is of an ambiguous and uncertain import. 2144. The various shades of meaning of the word amendment may apply differently in different contexts, but it seems to me that in the context in which that word occurs in Article 368, it is neither ambiguous nor amorphous, but has a definite import. 2145. The proviso to Article 368 furnishes intrinsic evidence to show that the word amendment is used in that article not in a narrow and insular sense but is intended to have the widest amplitude. Article 368 provides that An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament , and after the Bill is passed by the prescribed majority, the Constitution shall stand amended in accordance with the terms of the Bill . The proviso says that the amendment shall also require to be ratified by the State legislatures of not less than onehalf of the States if such amendment seeks to make any change in the matters mentioned in Clauses (a) to (e) of the proviso. Such amendment obviously means amendment referred to in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of the original Constitution, different expressions were used to indicate conferment of the amending power. Article 35(b) called it altered, repealed, amended ; Article 243(1) described it as repeal or amend . The proviso to Article 254(2) described it as adding to, amending, varying Or repealing ; and Article 392(1) used the expression such adaptations, whether by way of modification, addition or omission . The English language has a rich vocabulary and there are such nice and subtle differences in the shades of meaning of different words that it is said that there are, in that language, no synonyms. But I find it impossible to believe that the various expressions enumerated above have behind them any calculated purpose or design. Their use may easily, though with a little generosity, be attributed to a common failing to attain elegance of language. Reading more than meets the eye tends to visit the writing with the fate reserved for the poems of Sir Robert Browning. When he wrote them, two persons knew what they meant - he and the God. After hearing the critics, God alone knew what the poet intended: 2150. Constitutions of several countries of the world show the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the Government of India (Third Amendment) Act, 1939 was described in its title as an Act to further amend the G.I. Act 1935 and the Preamble stated that it was expedient to amend the Government of India Act, 1935. By Section 4 the old Section 291 was repealed totally and the new Section 291 was substituted . By Section 3 a new sub-section was inserted . By Section 5 a new item was substituted and totally new itmes Nos. 31B and 31C were inserted . The Act of 1949 therefore leaves no room for doubt that the word amend included the power of addition, alteration and repeal. Apart from this it is well recognized that the use of different words does not necessarily produce a change in the meaning. (See Maxwell Interpretation of Statutes 12th Ed., pp. 286 to 289; State of Bombay v. Heman Alreja A.I.R. 1952 Bom. 16, 20 per Chagla C.J. and Gajendragadkar J.). 2154. Finally, it is important that 5 out of the 11 Judges in the Golak Nath case took the view that the word amendment must be given a wide meaning. The leading majority judgment did not consider that question on the ground that so far as Fundamental Rights were concerned, the question could be answered on a n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power? Hereby hangs a tale. A majority of Judges held in the Golak Nath case that the power of amendment was to be traced to Article 368. But a majority, differently composed, held that amendment of the Constitution was law within the meaning of Article 13(2) and, therefore, the Parliament had no power to take away or abridge the rights conferred by Part III of the Constitution. This finding contained in the judgment of the leading majority and of Hidayatullah J. is the nerve of the decision in the Golak Nath case. It is therefore necessary to consider that question closely. 2159. I will set out in juxtaposition Articles 13(2), 245 and 368 in order to highlight their inter-relation: Article 13(2) Article 245 Article 368 The State shall Subject to the Amendment of this not make any Provisions of Constitution may be law which takes this Constitution initiated only by the away or abridges Parliament may make introduction of a Bill the rights conferred laws for the whole for the purpose in by this part. or any part of the either House of parliament, territory of India. and when the Bill, is passed each House by a majority of not less than two thirds of that House present and voti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of Part III and the pre-Constitution laws and provides that to the extent of such inconsistency the pre- Constitution laws shall be void Article 13(2) pursues the same strain of thought by making void postConstitution laws to the extent of their inconsistency with the provisions of Part III. The pre-Constitution and the post-Constitution laws dealt with by the two clauses of Article 13 are in nature and character identical. They are ordinary laws as distinguished from Constitutional laws. 2163. Counsel for the petitioner urged that Article 395 of the Constitution repealed only the Indian Independence Act, 1947 and the Government of India Act of 1935 and under Article 372, notwithstanding the repeal of these two enactments, all the laws in force in the territory of India immediately before the commencement of the Constitution continued in force until altered, repealed or amended. It is urged that several Constitutional laws of the then Indian States were in force on the 26th January, 1950 and the object of Article 13(1) was partly to save those laws also. There is no substance in this contention. It is in the first place a proposition of doubtful authority that the India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer. In a controlled Constitution like ours, ordinary powers of legislatures do not include the power to amend the Constitution because the Body which enacts and amends the Constitution functions in its capacity as the Constituent Assembly. The Parliament performing its functions under Article 368 discharges those functions not as a Parliament but in a constituent capacity. 2167. There is a fundamental distinction between the procedure for passing ordinary laws and the procedure prescribed by Article 368 for affecting amendments to the Constitution. Under Article 368, a bill has to be initiated for the express purpose of amending the Constitution, it has to be passed by each House by not less than two-thirds members present and voting and in cases falling under the proviso, the amendment has to be ratified by the legislatures of not less than half the States. A bill initiating an ordinary law can be passed by a simple majority of the members present and voting at the sitting of each House or at a joint sitting of the two Houses. Article 368 does not provide for a joint sitting of the two Houses. The process of ratification by the States under the Proviso cannot possibly be called a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara 7 of the Fifth Schedule and para 21 of the Sixth Schedule confer power to amend the provisions of the Constitution by the ordinary law-making process but these amendments are expressly excepted by the respective provisions from the purview of Article 368. Schedules V and VI of the Constitution are in fact a Constitution within a Constitution. 2171. The distinction between flexible and rigid Constitutions brings into sharp focus the true distinction between legislative and constituent power. This is the distinction which, with respect, was not given its due importance by the majority in the Golak Nath case. In a rigid Constitution, the power to make laws is the genus, of which the legislative and constituent powers are species, the differentia being the procedure for amendment. If the procedure is ordinary, the power is legislative; if it is special, the power is constituent. 2172. This discussion will show that in a rigid or uncontrolled Constitution-like ours-a law amending the Constitution is made in exercise of a constituent power and partakes fully of the character of Constitutional law. Laws passed under the Constitution, of which the validity is to be tested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, I am inclined to reject the argument. It is urged by the learned Counsel that it is immaterial whether the amending power can be found in Article 368 or in Entry 97 of List I, because wherever that power lies, its exercise is subject to inherent and implied limitations. 2177. The argument takes this form : Constitutions must of necessity be general rather than detailed and prolix, and implication must therefore play an important part in Constitutional construction. Implied limitations are those which are implicit in the scheme of the Constitution while inherent limitations are those which inhere in an authority from its very nature, character and composition. Implied limitations arise from the circumstances and historical events which led to the enactment of our Constitution, which represents the solemn balance of rights between citizens from various States of India and between various sections of the people. Most of the essential features of the Constitution are basic Human Rights, sometimes described as Natural Rights , which correspond to the rights enumerated in the Universal Declaration of Human Rights , to which India is a signatory. The ultimate sovereignty resides i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amending power. 2180. Before dealing with these rival contentions, I may indicate how the argument of inherent limitations was dealt with in the Golak Nath case. Subba Rao C.J. who delivered the leading majority judgment said that there was considerable force in the argument but it was unnecessary to decide it (p. 805). According to Hidayatullah J. the whole Constitution is open to amendment. Only two dozen articles are outside the reach of Article 368. That too because the Constitution has made them fundamental. (p. 878). Wanchoo J. who delivered the leading minority judgment rejected the argument by observing : The power to amend being a constituent power cannot in our opinion...be held subject to any implied limitations thereon on the ground that certain basic features of the Constitution cannot be amended. (p. 836). Bachawat J. observed that it was unnecessary to decide the question, as it was sufficient for the disposal of the case to say that Fundamental Rights were within the reach of the amending power (p. 906). Ramaswami J. considered and rejected the argument by observing that there was no room for an implication in the construction of Article 368 and it was unlike ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and large repudiated today. The notion that societies and governments find their sanction on a supposed contract between independent individuals and that such a contract is the sole source of political obligation is now regarded as untenable. Calhoun and his followers have discarded this doctrine, while theorists like Story have modified it extensively. The belief is now widely held that natural rights have no other than political value. According to Burgess, there never was, and there never can be any liberty upon this earth among human beings, outside of State organisation. According to Willoughby, natural rights do not even have a moral value in the supposed state of nature ; they would really be equivalent to force and hence have no political significance. Thus, Natural Right thinkers had once discovered the lost titledeeds of the human race but it would appear that the deeds are lost once over again, perhaps never to be resurrected. 2183. The argument in regard to the Preamble is that it may be a part of the Constitution but is not a provision of the Constitution and therefore, you cannot amend the Constitution so as to destroy the Preamble. The Preamble records like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgument of spirit is always attractive and quite some eloquence can be infused into it. But one should remember what S.R. Das J. said in Keshav Madhav Menon s case 1951 S.C.R. 228, 231 that one must gather the spirit from the words or the language used in the Constitution. I have held that the language of Article 368 is clear and explicit. In that view, it must be given its full effect even if mischievous consequences are likely to ensue; for, judges are not concerned with the policy of lawmaking and you cannot pass a covert censure against the legislature. (Vacher Sons, Limited v. London Society of Compositors) 1913 (A.C.) 107 at 112, 117, 121. The importance of the circumstance that the language of Article 368 admits of no doubt or ambiguity is that such a language leaves no scope for implications, unless in the context of the entire instrument in which it occurs, such implications become compulsive. I am tempted to say that context does not merely mean the position of a word to be construed, in the collocation of words in which it appears, but it also means the context of the times in which a fundamental instrument falls to be construed. 2187. An important rule of int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. In Bank of Toronto v. Lambe [1887] A.C. 575, 586 Lord Hobhous observed: People who are trusted with the great power of making laws for property and civil rights may well be trusted to levy taxes. Trust in the elected representatives is the corner stone of a democracy. When that trust fails, everything fails. As observed by Justice Learned Hand in the spirit of liberty : I often wonder, whether we do not rest our hopes too much upon Constitution, upon laws and upon courts. These are false hopes, believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no Constitution, no law, no court can save it; no Constitution, no law, no court can even do much to help it. While it lies there it needs no Constitution, no law, no court to save. 2188. Established text books on Interpretation also take the view that where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature Craies on Statute Law , 6th Ed., p. 66. 2189. It is thus clear that part from Constitutional limitations, no law can be struck down on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lving an objective standard to determine what would constitute the core and what the peripheral layer of the essential principles of the Constitution. I consider the two to be inseparable. 2191. Counsel painted a lurid picture of the consequences which will ensue if a wide and untrammelled power is conceded to the Parliament to amend the Constitution. These consequences do not scare me. It is true that our confidence in the men of our choice cannot completely silence our fears for the safety of our rights. But in a democratic policy, people have the right to decide what they want and they can only express their will through their elected representatives in the hope and belief that the trust will not be abused. Trustees are not unknown to have committed breaches of trust but no one for that reason has abolished the institution of Trusts. Can we adopt a presidential system of government in place of the parliamentary system? Can we become a monarchial or theocratic State ? Shall we permit the Parliament to first destroy the essential features of the Constitution and then amend the amending power itself so to as provide that in future no amendment shall be made except by a 99 per ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the thought and habit of the nation and as such it must grow and develop as the life of the nation changes. 2193. In support of his argument on implied limitations, learned Counsel for the petitioner drew our attention to certain decisions on the theory of immunity of instrumentalities : The means and instrumentalities of the State Governments should be left free and unimpaired. Our Court rejected this theory in State of West Bengal v. Union of India [1964] 1 S.C.R. 394, 407. Sinha C.J. observed that the argument presented before the Court was : a resucitation of the new exploded doctrine of the immunity of instrumentalities which originating from the observations of Marshall C.J. in Mc. Culloch v. Maryland has been decisively rejected by the Privy Council...and has been practically given up even in the United States. The doctrine originally arose out of supposed existence of an implied prohibition that the Federal and State Governments being sovereign and independent must each be free from the control of the other. Dr. Wynes observes in his book : Legislative, Executive and Judicial Powers in Australia (4th Edition) that the doctrine has undergone considerable change in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower view was in fact not argued. 2195. From out of the decisions of the American Supreme Court, it would be sufficient to notice three : Rhode Island v. Palmer 64 L. ed. 946; U.S. v. Sprague 75 L. ed. 640 and Schneiderman v. U.S.A. 87 L. ed. 1796. 2196. In the Rhode Island case, the leading majority judgment gave no reasons but only a summary statement of its conclusions. The learned Advocate-General of Maharashtra has, however, supplied to us the full briefs filed by the various counsel therein. The briefs show that the 18th amendment regarding Prohibition of Intoxicating Liquors (which was repealed subsequently by the 21st Amendment) was challenged on the ground, inter alia, that there were implied and inherent limitations on the power of amendment under Article V of the American Constitution. These arguments were not accepted by the Supreme Court, as is implicit in its decision. The court upheld the Amendment. 2197. We were supplied with a copy of the judgment of the District Court of New Jersey in Sprague s case. The District Court declared the 18th Amendment void on the ground that there were inherent limitations on the amending power in that, the power had to conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled National Prohibition Cases (which include the Rhode Island case). The decision, according to Cooley, totally negatived the contention that : An amendment must be confined in its scope to an alteration or improvement of that which is already contained in the Constitution and cannot change its basic structure, include new grants of power to the Federal Government, nor relinquish to the State those which already have been granted to it The General Principles of Constitutional Law in the U.S.A. by Thomas M. Cooley, 4th Edn., pp. 46-47. According to Henry Rottschaefer, it was contended on several occasions that the power of amending the Federal Constitution was subject to express or implied limitations, but the Supreme Court has thus far rejected every such claim Handbook of American Constitutional Law by Henry Rottschaefer, pp. 8-10 . 2201. In regard to the Canadian cases, it would, I think, be enough to say that none of the cases cited by the petitioner concerns the exercise of the power to amend the Constitution. They are cases on the legislative competence of the provincial legislatures in regard to individual freedoms or in regard to criminal matters. The issue in most of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber of decisions of other foreign courts cited before us. As it is often said, a Constitution is a living organism and there can be no doubt that a Constitution is evolved to suit the history and genius of the nation. Therefore, I will only make a brief reference to a few important decisions. 2205. Ryan s [1935] Irish Reports 170 case created a near sensation and was thought to cover the important points arising before us. The High Court of Ireland upheld the amendment made by the Oireachtas, by deleting Article 47 of the Constitution which contained the provision for referendum, and which also incorporated an amendment in Article 50. This latter article conferred power on the Oireachtas to make amendments to the Constitution within the terms of the Scheduled Treaty. An amendment made after the expiration of a period of 8 years from the promulgation of the Constitution was required to be submitted to a referendum of the people. The period of 8 years was enlarged by the amendment into 16 years. The High Court of Ireland upheld the amendment and so did the Supreme Court, by a majority of 2 to 1. Kennedy C.J. delivered a dissenting judgment striking down the amendment on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2208. It must follow from what precedes that The Constitution (Twenty-fourth Amendment) Act, 1971 is valid. I have taken the view that Constitutional amendments made under Article 368 fell outside the purview of Article 13(2). Section 2 of the 24th Amendment Act reiterates this position by adding a new Clause (4) in Article 13 : (4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368. I have also taken the view that the old Article 368 not only prescribed the procedure for amendment of the Constitution but conferred the power of amendment. That position is made clear by Section 3 of the 24th Amendment which substitutes by Clause (a) a fully expressive marginal heading to Article 368. I have held that the power of amendment conferred by Article 368 was wide and untrammelled. Further, that Constitutional amendments are made in the exercise of constituent power and not in the exercise of ordinary law-making power. That position is reiterated by Clause (b) of Section 3. Clause (c) of Section 3 makes it obligatory for the President to give his assent to the bill for a Constitutional amendment. Rightly no arguments have been addressed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valent. The new clause added by the Fourth Amendment, excluding the jurisdiction of the Court to consider the adequacy of compensation, was interpreted to mean that neither the principles prescribing the just equivalent nor the just equivalent could be questioned by the court on the ground of the inadequacy of the compensation fixed or arrived at by the working of the principles. By applying this test, the Court upheld the principles of compensation fixed under the Madras Act as not contravening Article 31(2). The Act, however, was struck down under Article 14 on the ground that full compensation had still to be paid under a parallel Law : The Land Acquisition Act. 2211. In Union v. Metal Corporation, [1967] 1 S.C.R. 255 a Bench of two Judges consisting of Subba Rao C.J. and Shelat J. held that the law of acquisition in order to justify itself had to provide for the payment of a just equivalent or lay down principles which will lead to that result. It is only if the principles laid down are relevant to the fixation of compensation and are not arbitrary that the adequacy of the resultant product could not be questioned in a court of law. It is evident that this decision mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oblems than they solved and that they placed serious obstacles in giving effect to the Directive Principles of State Policy incorporated in Article 39. Subba Rao J. had also observed in Vajravelu s [1965] 1 S.C.R. 614, 626 case that if the intention of the Parliament was to enable the legislature to make a law without providing for compensation it would have used other expressions like, price , consideration , etc. This is what the Parliament has now done partially by substituting the word amount for the word compensation in the new Article 31(2). 2215. The provision in the newly added Clause 2B of Article 31 that nothing in Article 19(1)(f) shall affect any law referred to in Article 31(2) has been obviously incorporated because the Bank Nationalisation case overruled a long line of authorities which had consistently taken the view that Article 19(1)(f) and Article 31(2) were mutually exclusive so far as acquisition and requisition were concerned [See for example Gopalan s case, 1950 S.C.R. 88; Chiranjit Lal Choudhury s case, 1950 S.C.R. 869 at 919; Sitabati Devi s case, (1967) 2 S.C.R. 949; Shantilal Mangaldas s case, 1969 S.C.R. 341; and H.N. Rao s case, 1969(2) S.C.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to these arguments, I have come to the conclusion that though Article 31C is pregnant with possible mischief, it cannot, by the application of any of the well-recognised judicial tests be declared unConstitutional. 2218. For a proper understanding of the provisions of Article 31C, one must in the first place appreciate the full meaning and significance of Article 39(b) and (c) of the Constitution. Article 39 appears in Part IV of the Constitution, which lays down the Directive Principles of State Policy. The idea of Directive Principles was taken from Eire, which in turn had borrowed it from the Constitution of Republican Spain. These preceding examples, as said by Sir Ivor Jennings Some Characteristics of the Indian Constitution, 1953, 30-32, are significant because they came from countries whose peoples are predominantly Roman Catholic, and the Roman Catholics are provided by their Church not only with a faith but also with a philosophy . On matters of faith and philosophy-social or political-there always is a wide divergence of views and in fact Republican Spain witnessed a war on the heels of the enactment of its Constitution and in Eire, de Valera was openly accused of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... freedoms guaranteed by Part III is bound to subserve the common good but voluntary submission to restraints is a philosopher s dream. Therefore, Article 37 enjoins the State to apply the Directive Principles in making laws. The freedom of a few have then to be abridged in order to ensure the freedom of all. It is in this sense that Parts III and IV, as said by Granwille Austin The Indian Constitution-Cornerstone of a Nation, Edn. 1966, together constitute the conscience of the Constitution . The Nation stands today at the cross-roads of history and exchanging the time-honoured place of the phrase, may I say that the Directive Principles of State Policy should not be permitted to become a mere rope of sand . If the State fails to create conditions in which the Fundamental freedoms could be enjoyed by all, the freedom of the few will be at the mercy of the many and then all freedoms will vanish. In order, therefore, to preserve their freedom, the privileged few must part with a portion of it. 2220. Turning first to the new Article 31(2), the substitution of the neutral expression amount for compensation still binds the Legislature to give to the owner a sum of money in cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. Thus the question whether the amount or the principles are within the permissible Constitutional limits must be determined without regard to the consideration whether they bear, a reasonable relationship with the market value of the property. They may not bear a reasonable relationship and yet they may be valid. But to say that an amount does not bear reasonable relationship with the market value is a different thing from saying that it bears no such relationship at all, none whatsoever. In the latter case the payment becomes illusory and may come within the ambit of permissible challenge. 2223. It is unnecessary to pursue this matter further because we are really concerned with the Constitutionality of the Amendment and not with the validity of a law passed under Article 31(2). If and when such a law comes before this Court it may become necessary to consider the matter closely. As at present advised, I am inclined to the view which as I have said is unnecessary to discuss fully, that though it is not open to the court to question a law under Article 31(2) on the ground that the amount fixed or determined is not adequate, courts would have the power to question such a law i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. 2226. A misconception regarding the ambit of this article may first be removed. The article protects only law and not an executive action. The term law is used in Article 13(3) in a wider sense, so as to include an Ordinance, order, bye-law, etc., but that definition is limited to the purposes of Article 13. Article 31C cannot therefore be said to violate the provisions of Article 31(1) under which no person can be deprived of his property save by authority of law. It is, however, not to be denied that the word law in Article 31C may include all incidents and aspects of law-making. 2227. In order properly to understand the scope of Article 31C, it would be necessary to refer to the history of the allied provisions of the Constitution. Prior to the 4th Constitutional Amendment which came into force on April 27, 1915, Articles 31A and 31B which were introduced by the First Amendment Act, 1951 excluded wholly the provisions of Part III in regard to laws providing for the acquisition of any estate or of any rights ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the subject-matter of the law. Articles 15(4) and 33 identified laws with reference to the objective of the legislation. In this process no delegation of amending power is involved. Thus, these various provisions, like Article 31C, create a field exempt from the operation of some of the Fundamental Rights. The field of legislation is not created by Article 31C. The power to legislate exists apart from and indepedently of it. What the article achieves is to create an immunity against the operation of the specified Fundamental Rights in a pre-existing field of legislation. In principle, I see no distinction between Article 31C on the one hand and Articles 15(4), 31(4), 31(5)(b)(ii), and 31(6) on the other. I may also call attention to Article 31A introduced by the First Amendment Act, 1951 under which Notwithstanding anything contained in Article 13 , no law providing for matters mentioned in Clauses (a) to (e) shall be deemed to be void on the ground that it is inconsistent or takes away or abridges any of the rights conferred by Articles 14, 19 or 31. The fact that the five clauses of Article 31A referred to the subject-matter of the legislation whereas Article 31C refers to l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) in the Ninth Schedule by the Twenty-Ninth Amendment, it is urged by the petitioner s counsel that if the provisions of the two Acts do not fall within the terms of 31A(1)(a), the Acts will not get the protection of Article 31B. 2235. The validity of Article 31B has been accepted in a series of decisions of this Court and I suppose it is too late in the day to re-open that question; nor indeed did the learned Counsel for the petitioner challenge the validity of that article. In State of Bihar v. Kameshwar Singh [1952] S.C.R. 889, a similar contention was considered and rejected by Patanjali Sastri C.J., who spoke for the Court. The same view was reiterated in Visweshwar Rao v. The State of Madhya Pradesh [1952] S.C.R. 1020 by Mahajan J. The argument fell to be considered once again in N.B. Jeejeebhoy v. Assistant Collector, Thana, Prant, Thana [1965] 1 S.C.R. 636, but Subba Rao J. confirmed the view taken in the earlier cases. These cases have consistently held that the opening words of Article 31B: without prejudice to the generality of the provisions contained in Article 31A only indicate that the Acts and Regulations specified in the Ninth Schedule would obtain immunity e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purpose of interpreting the legal provisions. Shah J., in the Privy Purse case, referred to the speech of Sardar Vallabhbhai Patel in order to show the circumstances in which certain guarantees were given to the former Rulers. The Advocate-General is right that Mitter J. made use of a speech for construing Article 363, but that was done without discussing the question as regards the admissibility of the speech. In Dillon s case, it is clear from the judgment of the learned Chief Justice, that no use was made of the speeches in the Constituent Assembly for construing any legal provision. In fact, the learned Chief Justice observed that he was glad to find from the debates that the interpretation which he and two his colleagues had put on the legal provision accorded with what was intended. 2239. It is hazardous to rely upon parliamentary debates as aids to statutory construction. Different speakers have different motives and the system of Party Whip leaves no warrant for assuming that those who voted but did not speak were of identical persuasion. That assumption may be difficult to make even in regard to those who speak. The safest course is to gather the intention of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sense that the Amending Body lacks the power to make amendments so as to damage or destroy the essential features or the fundamental principles of the Constitution. 2248. The 24th Amendment only declares the true legal position as it obtained before that Amendment and is valid. 2249. Section 2(a) and Section 2(b) of the 25th Amendment are valid. Though courts have no power to question a law described in Article 31(2) substituted by Section 2(a) of the Amendment Act, OP the ground that the amount fixed or determined for compulsory acquisition or requisition is not adequate or that the whole or any part of such amount is to be given otherwise than in cash, courts have the power to question such a law if (i) the amount fixed is illusory; or (ii) if the principles, if any are stated, for determining the amount are wholly irrelevant for fixation of the amount; or (iii) if the power of compulsory acquisition or requisition is exercised for a collateral purpose; or (iv) if the law of compulsory acquisition or requisition offends the principles of Constitution other than the one which is expressly excepted under Article 31(2B) introduced by Section 2(b) of the 25th Amendment Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
