TMI Blog1964 (10) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the 9th Schedule by the impugned Act, have intervened at the hearing of these writ petit ions, and they have joined the petitioners in contending that the impugned Act is invalid. The points raised in the present proceedings have been elaborately argued before us by Mr. Setalvad and Mr. Pathak for the interveners and Mr. Mani for the petitioners. We have also heard the Attorney General in reply. The impugned Act consists of three sections. The first section gives its short title. Section 2(i) adds a proviso to cl. (1) of Art. 31A after the existing proviso. This proviso reads thus Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assent . It would, thus, appear that the broad scheme of Art. 368 is that if Parliament proposes to amend any provision of the Constitution not enshrined in the proviso, the procedure prescribed by the main part of the Article has to be followed. The Bill introduced for the purpose of making the amendment in question, has 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. This requirement postulates that a bill seeking to amend the relevant provisions of the Constitution should receive substantial support from members of both the Houses. That is why a two-fold requirement has been prescribed in that behalf. After the bill is passed as aforesaid, it has to be presented to the President for his assent and when he gives his assent, the Constitution shall stand amended in accordance with the terms of the bill. That is the position in regard to the amendment of the provisions of the Constitution to which the proviso does not apply. If Parliament intends to amend any of the provisions of the Constitution which are covered by clauses (a) to (e) of the proviso, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of them should not be allowed to be unduly reduced or enlarged. It is urged that any amendment of the fundamental rights contained in Part III would inevitably affect the powers of the High Court, prescribed by Art. 226, and as such, the bill proposing the said amendment cannot fall under the proviso; otherwise the very object of not including Part III under the proviso would be defeated. When the Constitution-makers did not include Part III under the proviso, it would be reasonable to assume that they took the view that the amendment of the provisions contained in Part III was a matter which should be dealt with by Parliament under the substantive provisions of Art. 368 and not under the proviso. It has no doubt been suggested that the Constitution-makers perhaps did not anticipate that there would be many occasions to amend the fundamental rights guaranteed by Part M. However that may be, as a matter of construction, there is no escape from the conclusion that Art. 368 provides for the amendment of the provisions contained in Part III without imposing on Parliament an obligation to adopt the procedure prescribed by the proviso. It is true that as a result of the amendment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 96.); its 'pith and substance' : Union Colliery Co. v. Bryden([1899] A.C. 580.); and it is the result of this investigation, not the form alone, which the statute may have assumed under the hand of the draughtsman, that will determine within which of the categories of subject matters mentioned in ss. 91 and 92 the legislation falls; and for this purpose the legislation must be 'scrutinised in its entirety' Great West Saddlery Co. v. The King ([1921] 2 A.C. 91, 117.). It is not necessary to multiply authorities in support of the proposition that in considering the constitutional validity of the impugned Act, it would be relevant to inquire what the pith and substance of the impugned Act is. This legal position can be taken to be established by the decisions of this Court which have consistently adopted the view expressed by Justice Duff, to which we have just referred. What then is the pith and substance of the impugned Act ? For answering this question, it would be necessary to recall very briefly the history of Articles 31A and 31B. Articles 31A and 3 1 B were added to the Constitution with retrospective effect by S. 4 of the Constitution (First Amendment) Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Regulations specified in the 9th Schedule, nor any of the provisions thereof, shall be deemed to be void or ever to have become void on the ground that they were inconsistent with or took away or abridged any of the rights conferred by Part III, and it added that notwithstanding any judgment, decree or order of any Court or tribunal to the contrary, each of the said Acts and Regulations shall subject to the power of any competent legislature to repeal or amend, continue in force. At this time, 19 Acts were listed in Schedule 9, and they were thus effectively validated. One more Act was added to this list by the Amendment Act of 1955, so that as a result of the second amendment, the Schedule contained 20 Acts which were validated. It appears that notwithstanding these amendments, certain other legislative measures adopted by different States for the purpose of giving effect to the agrarian policy of the party in power, were effectively challenged. For instance, in Karimbil Kunhikoman v. State of Kerala([1962] Supp. 1 S.C.R. 829.), the validity of the Kerala Agrarian Relations Act (IV, of 1961) was challenged by writ petitions filed under Art. 32, and as a result of the majority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der. The impugned Act does not purport to change the provisions of Art. 226 and it cannot be said even to have that effect directly or in any appreciable measure. That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained. It is an Act the object of which is to amend the relevant Articles in Part III which confer fundamental rights on citizens and as such it falls under the substantive part of Art. 368 and does not attract the provisions of cl. (b) of the proviso. If the effect of the amendment made in the fundamental rights on Art. 226 is direct and not incidental and is of a very significant order, different considerations may perhaps arise. But in the present case, there is no occasion to entertain or weigh the said considerations. Therefore the main contention raised by the petitioners and the interveners against the validity of the impugned Act must be rejected. Then, it is urged that the true purpose and object of the impugned Act is to legislate,in respect of land, and legislation in respect of land falls within the jurisdiction of the State Legislatures under Entry 18 of List II. The argument is that since the State Legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake into account the operative words in the proviso. The proviso takes in cases where the amendment sought to be made by the relevant bill seeks to make any change in any of the Articles specified in clauses (a) to (e) of the proviso, and it is urged that on a fair reading of clauses (b) and (c), it would follow that the impugned Act purports to do nothing else but to seek to amend the provisions contained in Art. 226. It is not easy to appreciate the strength or validity of this argument. This argument is really based on the assumption that the legislative mechanism adopted by the Parliament in passing the impugned Act introduces this infirmity. The argument obviously assumes that it would have been open to Parliament to make appropriate changes in the different Articles of Part III, such as Articles 14 and 19, and if such a course had been adopted, the impugned Act would have been constitutionally valid. But inasmuch as the impugned Act purports to amend only Arts. 31A and 31B and seeks to add several Acts to the Ninth Schedule, it does not amend any of the provisions in Part III, but is making an independent provision, and that, it is said, must take the case within the scope of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the word amend . The question about the validity of the Constitution (First Amendment) Act has been considered by this Court in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar([1952] S.C.R. 89.). In that case, the validity of the said Amendment Act was challenged on several grounds. One of the grounds was that the newly inserted Articles 31A and 31B sought to make changes in Articles 132 and 136 in Chapter IV of Part V and Art. 226 in Chapter V of Part VI 'and so, they required ratification under cl. (b) of the proviso to Art. 368. This contention was rejected by this Court. Patanjali Sastri J., as he then was, who spoke for the unanimous Court, observed that the said Articles did not either in terms or in effect seek to make any change in Art. 226 or in Articles 132 and 136 , and he added that it was not correct to say that the powers of the High Courts under Art. 226 to issue writs for the enforcement of any of the rights conferred by Part HI or of this Court under Articles 132 and 136 to entertain appeals from orders, issuing or refusing to issue such writs were in any way affected. In the opinion of the Court, the_ said powers remained just the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision or in departing from it. The problem of construing constitutional provisions cannot be reasonably solved merely by adopting a literal construction of the words used in the relevant provisions. The Constitution is an organic document and it is intended to serve as a guide to the solution of changing problems which the Court may have to face from time to time. Naturally, in a progressive and dynamic society the shape and appearance of these problems are bound to change with the inevitable consequence that the relevant words used in the Constitution may also chance their meaning and significance. That is what makes the task of dealing with constitutional problems dynamic rather than static. Even so, the Court should be reluctant to accede to the suggestion that its earlier ,decisions should be lightheartedly reviewed and departed from.' In such a case the test should be : is it absolutely necessary and essential that the question already decided should be re- opened ? The answer to this question would depend on the nature of the infirmity alleged in the earlier decision, its impact on public good, and the validity and compelling character of the considerations urged in supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that though It may be open to Parliament to amend the provisions in respect of the fundamental rights contained in Part III, the amendment, if made In that behalf, would have to be tested in the light of the provisions contained in Art. 13(2) of the Constitution. The argument was that the law to which Art. 13(2) applies, would include a law passed by Parliament by virtue of its constituent power to amend' the Constitution, and so, its validity will have to be tested by Art. 13(2) itself. It will be recalled that Art. 13(2) prohibits the State from making any law which, takes away or abridges the rights conferred by Part III, and provides that any law made in contravention of clause (2) shall, to the extent of the contravention, be void. In other words, it was urged before this Court in Sankari Prasad's(1) case that in considering the question as to the validity of the relevant provisions of the Constitution (First Amendment) Act, it would be open to the party challenging the validity of the said Act to urge that in so far as the Amendment Act abridges or takes away the fundamental rights of the citizens, it is void. This argument was, however, rejected by this Court on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e initiated in the manner there indicated. In our opinion, the expression amendment of the Constitution plainly and unambiguously means amendment of all the provisions of the Constitution. It would, we think, be unreasonable to suggest that what Art. 368 provides is only the mechanics of the procedure to be followed in amending the Constitution without indicating which provisions of the Constitution can be amended and which cannot. Such a restrictive construction of the substantive part of Art. 368 would be clearly untenable. Besides, the words used in the proviso unambiguously indicate that the substantive part of the article applies to all the provisions of the Constitution. It is on that basic assump- tion that the proviso prescribes a specific procedure in respect of the amendment of the articles mentioned in clauses (a) to (e) thereof. Therefore, we feel no hesitation in holding that when Art. 368 confers on Parliament the right to amend the Constitution the power in question can be exercised over all the provisions of the Constitution. How the power should be exercised, has to be determined by reference to the question as to whether the proposed amendment falls under the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violate in the sense that they can never be abridged or amended? It is true that in the case of A. K. Gopalan v. Patanjali Sastri[1951] S.C.R. 747, at pp. 883-84., as he then was, expressed the view that 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 the irrespective 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 (p. 198). This hypothesis may, prima facie, tend to show that the right to amend these fundamental rights vested not in Parliament, but in the people of India themselves. But it is significant that when the same learned Judge had occasion to consider this question more elaborately in In re The Delhi Laws Act, 1912, (1) etc. he has emphatically expressed the view that it is esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Similarly, Art. 169(3) provides that any law in respect of the amendment of the existing legislative apparatus by the abolition or creation of Legislative Councils in State-,; shall not be deemed to be an amendment of the Constitution for the purposes of Art. 368. In other words, laws falling within the purview of Articles 4(2) and 169(3) need not be passed subject to the restrictions imposed by 'Art. 368, even though. in effect they may amount to the amendment of the relevant provisions of the Constitution. If the Constitution-makers took the precaution of making this specific provision to exclude the applicability of Art. 368 to certain amendments, it would be reasonable to assume that they would have made a specific provision if they had intended that the fundamental rights guaranteed by Part HI should be completely outside the scope of Art. 368. Apart from the fact that the words used in Art. 368 are clear and unambiguous in support of the view that we are taking, on principle also it appears unreasonable to suggest that the Constitution-makers wanted to provide that fundamental rights guaranteed by the Constitution should never be touched by way of amendment. It m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l rights are beyond the reach of Art. 368 were valid, an these amendments would be constitutionally impermissible. That, we think is not the true purport and effect of Art. 368. We are, therefore, satisfied that this Court was right in rejecting the said argument in the case of Sankari Prasad(1). This question can be considered from another point of view. The argument that the fundamental rights guaranteed by Part in are eternal, inviolate, and beyond the reach of Art. 368, is based on two assumptions. The first assumption is that on a fair and reasonable construction of Art. 368, the power to amend the fundamental rights cannot be held to be included within the constituent powers conferred on Parliament by the said Article. We have already held that a fair and reasonable construction of Art. 368 does not justify this assumption. The other assumption which this argument makes, and must of necessity make, is that if the power to amend the fundamental rights is not included in Art. 368 as it stands, it cannot ever be included within its purview; because unless it is assumed that the relevant power can never be included in Art. 368, it would be unrealistic to propound the theory that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 1 nor Art. 3 is included in the list of entrenched provisions of the Constitution enumerated in the proviso; and it was observed that it was not for this Court to enquire or consider whether it would not be appropriate to include the said two articles under the proviso, and that it was a matter for Parliament to consider and decide. Similarly, it seems somewhat anomalous that any amendment of the provisions contained in Art. 226 should fall under the proviso but, not an amendment of Art. 32. Article 226 confers on High Courts the power to issue certain writs, while Art. 32, which itself is a guaranteed fundamental right, enables a citizen to move this Court for similar writs. Parliament may consider whether the anomaly which is apparent in the different modes prescribed by Art. 368 for amending Articles 226 and 32 respectively, should not be remedied by including Part HI itself in the proviso. If that is done, difficult questions as to whether the amendment made in the provisions of Part III substantially, directly and materially affects the jurisdiction and powers of the High Courts under Art. 226 may be easily avoided. In the result, we hold that the impugned Act is constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Two reasons alone appear to have weighed with this Court. The first is that as constitutional law is distinguishable from other municipal laws and as there is no clear indication to be found that the Fundamental Rights are immune from constitutional amendment , only the invasion of the Fundamental Rights by laws other than constitutional laws must be the subject of the prohibition in Art. 13 (2). Art. 13 may to be quoted at this stage : 13. Laws inconsistent with or in derogation of the fundamental rights. (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 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. (3) In this article, unless the context otherwise requires,- (a) law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) It is true that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , refer to the provision for the suspension of Fundamental Rights as showing that unless suspended in an emergency, Part III must stand unchanged and he referred to Art. 32(4). For the disposal of these cases I indicate my view that on, the arguments before us I must hold that as decided in Sankari Prasad's([1952] S.C.R. 89.) case Art. 226 is not sought to be changed by the 17th Amendment. But I make it clear that I must not be understood' to have subscribed to the view that the word law in Art. 13(2) does not control constitutional amendments. I reserve my opinion on that case for I apprehend that it depends on how wide is the word law in that Article. The prohibition in that article may have to be read in the light of declarations in the various articles in Part III to find out the proper meaning. Though I do not express a final opinion I give a few examples. Take for instance Art. 32. It reads : 32. Remedies for enforcement of rights. (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs in the natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Part III. Can it be said that Art. 13 may be repealed retrospectively and all those statutes brought back to life ? Because of successive amendments we have seen many faces of Art. 31-A. It is for consideration whether Art. 13 was not intended to streamline all existing and future laws to the basic requirements of Part 111. Or is the door left open for reversing the policy of our Constitution from time to time by legislating with a bigger majority at any given time not directly but by constitutional amendments ? It is possible to justify such amendments with the aid of the provisos in Art. 19 which permit the making of laws restricting the freedoms but not by ignoring Art. 13 and relying solely on Art. 368. I am aware that in A. K. Gopalan v. State of Madras([1950] S.CR. 88 at p. 100.) Kania C.J. said the inclusion of article 13(1) and (2) in the Constitution appears to be a matter of abun- dant 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. The observation is not clear in its meaning. There was un- doubtedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 69 and the former Art. 240) and in some others by implication (See Art. 1 1). What Art. 368 does is to lay down the manner of amendment and the necessary conditions for the effectiveness of the amendment. The contrast between the opening part and the proviso does not show that what is outside the proviso is necessarily within the powers of amendment. The proviso merely puts outside the exclusive Power of Parliament to amend those provisions 'on which our federal structure rests. It makes it incumbent that a majority of the States should also agree. The proviso also preserves the structure of the higher judiciary so vital to a written Constitution and to a Democracy such as ours' But the article no where says that the preamble and every single article of the Constitution can be amended by two-thirds majority despite any permanency in the language and despite any historical fact or sentiment. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reconsider it. Since my Lord the Chief Justice in his judgment has dealt with the first contention also and expressed the view that the previous decision is right I think it necessary to say, partly for the reasonsstated by my learned brother Hidayatullah J. and partly for some other reasons, that I would reserve my opinion on this question and that I do not regard what this Court has held in that case as the last word. It seems to me that in taking the view that the word law occurring in Art. 13 (2) of the Constitution does not include an amendment to the Constitution this Court has not borne in mind some important considerations which would be relevant for the purpose. The language of Art. 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 amendments which do not attract the proviso to Art. 368). The result of a legislative action of a legislature cannot be other than 'law' an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w ? No reference was made by him in. Sankari Prasad's case (2) to his observations though they needed to be explained. In the Delhi Laws Act case(1) he has undoubtedly said that Parliament enjoys plenary powers of legislation. That Parliament has plenary powers of legislation within the circumscribed limits of its legislative power and cannot be regarded as a delegate of the people c while exercising its legislative powers is a well accepted position. The fact, however, remains that unlike the British Parliament our Parliament, like every other organ of the State, can function only within the limits of the powers which the Constitution has conferred upon it. This would also be so when, in the exercise of its legislative power, it makes an amendment to the Constitution or to any of its provisions. It would, therefore, appear that the earlier observation of Patanjali Sastri J., cannot be regarded as inconsistent with what he has said in the Delhi Laws Act case([1951] S.C.R. 747.). At any rate, this is an aspect of the matter which requires further consideration, particularly because the same learned Judge has not adverted to those observations in Sankari Prasad's case ([1952] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This is also an aspect of the matter which requires consideration. 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 executives 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. Can it not be said that these are indicate of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution ? It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erformed in respect of the Order here in question it is a responsibility which cannot be avoided. (p.506) (1) 1963 P.L.D. 486. The observations and the passage from Cooley, quoted here for convenience support what I have said earlier regarding the power of the Courts to pronounce upon the validity of amendments to the Constitution. The Constitution indicates three modes of amendments and assuming that the provisions of Art. 368 confer power on Parliament to amend the Constitution, it will still have to be considered whether as long as the preamble stands unmended, that power can be exercised with respect to any of the basic features of the Constitution. To illustrate my point, as long as the words 'sovereign democratic republic' are there, could the Constitution be amended so as to depart from the democratic form of Government or its republic character ? If that cannot be done, then, as long as the words Justice, social economic and political etc., are there could any of the rights enumerated in Arts. 14, to 19, 21, 25, 31 and 32 be taken away ? If they cannot, it will be for consideration whether they can be modified. It has been said, no doubt, that the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] S.C.R. 89.) nor was such an argument advanced before us in this case. I am only mentioning this to make It clear that even in so far as the second contention is concerned I base my decision on the narrow ground that upon the arguments advanced before us no case has been made out for striking down the Seventeenth Amendment. As indicated in the judgment of my Lord the Chief Justice an amendment made by resort to the first part of Art. 368 could be struck down upon a ground such as taking away the jurisdiction of the High Courts under Art. 226 or of this Court under Art. 13 6 without complying with the requirements of the proviso. To this I would like to add that if the effect of an amendment is to curtail substantially, though indirectly, the jurisdiction of High Courts under AA. 226 or of this Court under Art. 136 and recourse has not been had to the proviso to Art. 368 the question whether the amendment was a colorable exercise of power by Parliament will be relevant for consideration. Before I part with this case I wish to make it clear that what I have said in this judgment is not an expression of my final opinion but only an expression of certain doubts which have assailed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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