TMI Blog1989 (8) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... nal affairs of the country. 2. The writ, petitioner's case, in short is that the Constitution (Sixty-Fourth Amendment) Bill, 1989 (hereinafter referred to as the Bill ) is not an ordinary amendment of the Constitution bu,t in fact is a manoeuvring for eroding into the foundation of the Constitution of Indiar by legislating about the Panchayats which form an integral part of local government and include village administration being Entry No. 5 of List-II of the Seventh Schedule of the Constitution. The petitioner's case that the power of Parliament to amend the Constitution and procedure therefor is conferred by Article 368 in Part XX of the Constitution. The said amending power of Parliament in exercise of its constituent power has come up for judicial review-before the Hon'ble Supreme Court on several occasions. This Constitution Amendment as contained in the Bill seeks to interfere with the basic structure as well as the basic features of the Constitution and is against the letter and spirit of Article 40 being the Directive Principles of State Policy as contained in Part IV of the Constitution. The said Directive does riot confer any competence on Parlia-ment eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st in the Seventh Schedule and this goes to demonstrate the intention of the Constitution-makers. The writ petition also referred to the Preamble of the.Constitution containing the basic structure of the Constitution which cannot be amended in; 'exercise of power conferred under Article 368 of the Constitution. It is further contended that List-I U nion List, List-U State List and List-111 Concurrent List in the Seventh Schedule with reference to the distribution of legislative power as envisaged under Article 246 specify the different items which cannot otherwise be interfered with. It is also contended that the Bill and its numerous provisions are ultra views the amending power of the Parliament under Article 368 as thet Bill intends to completely wreck the established. Constitution as envisaged by the Constitution-makers. The Bill not only interferes with an integral part of the Union and State Relationship but also seeks to destroy the Rule of Law thereby interfering with the political justice secured to the citizens of India in the Preamble to the Constitution. The writ petitioner prays for a Rule commanding the respondents not to proceed with the Constitution (Sixty-Fourt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause of action, is pervasive all throughout the country. The impugned measure is not a bona fide attempt to amend the Constitution in furtherance of any of the objects contained in the Preamble or any of the Directive Princ-ples of State Policy. The reference to Article 41 in the Statement of Objects and Reasons is a mere eye-wash. Mr. Chakraborty contended that the expression State in Article 41 should be held to mean the States and not the Union so far as the question of any legislation in relation to Panchayats is concerned, in view of the express delegation of exclusive legislative power to the State Legislatures in respect of local government under Entry No. 5 of the Seventh Schedule read with Articles 245 and 246 of the Constitution. To superimpose the supremacy of the Central Government and Central Agencies over the establishment, organisation and functioning of Panchayats in the country would amount to undo the established Constitution of the land. According to him the attempt in achieving the object by pretended recourse to the constituent and or amending power under Article 368 of the Constitution is a fraud upon such constituent and or amending power. 5. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Conn and consequently the existence of junsdiction of this Court to entertain and try this writ petition. In any event the writ petition has disclosed a prima facie case as well as a came of action. The issue involved is of paramount national importance requiring complete adjudication. The issues purported to he raised as to non-maintainability and or lack of jurisdiction and or cause of action are in any event triable issues, which can be decided on the basis of materials that may be placed through affidavits. 7. Mr. Chakraborty concluded his argument by emphasising that Political Justice is inherent in the Preamble of the Constitution and includes the Rule of Law and the basic structure theory of the Constitution as enunciated in Wamon Rao's case (supra). Apart from the aforementioned cases he cited a number of decisions those on territorial jurisdiction and maintainability and cause of action and some of them are noted hereunder:- (1) Kuvaluppara Kottarathil Kochunni alias Moopil Nayar State of Madras ; (2) The Statesman Limited v. The had finding Commit tee ; (3) Sirajuddin Co. v. The State of Orissa : (4) Uma-shankar Chatterjee v. Union of India reported in (1982) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sovereign Socialist Secular Democratic Republic arc deliberating over it and at this stage the Bill cannot be made a subject matter of adjudication in the Court of Law and in this connection the learned Attorney-General pointed out Arti-cles 194 and 211 of the Constitution by way of elucidation. The learned Attorney-General submitted that the Courts in India and England unanimously agree that at the Bill stage no intervention should be done as the same will be premature and to overjudge the act of Parliament. 8. On the point of cause of action the learned Attorney-General submitted that the respondents Nos. 1 to 6 are not within the jurisdiction of this Court and unless the Bill becomes an Act it does not affect in any way anybody's right and hence cannot be challenged. He described the writ petition as incompetent and premature at the Bill stage and as such the Court should not interfere with it. He dealt with Article 368 relating to amendment of the Constitution with particular reference to clause (2)(c) which stipulates that any amendment in respect of any of the Lists in the Seventh Schedule shall require to be ratified by the Legislatures of not less than one-half of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is nothing in the Constitution which prohibits the amendment of the Lists in the Seventh Schedule. The only procedure prescribed as said hereinbefore is Article 368(2) Proviso (c). Only after the Bill is passed it can be said whether it has amended any of the Lists by-passing the procedures laid down in the Constitution. He emphasised that the privilege of Parliament which is sovereign cannot be abrogated by the High Court and the discussion of the Bill in the Parliament cannot be interfered with. He stressed that in spite of any writ Parliament can still proceed with the passage of the Bill and the court cannot haul up the Parliament for contempt as the Court cannot interfere with the privilege of Parliament. 11. In support of his contention the learned Attorney-General cited a number of decisions of High Courts und Supreme Court and some of them are noted hereunder:-- (1) Chotey Lal v. The State of Uttar Pradesh , (2) Bhaira-bendra Narayan Bhup v. The State of Assam reported in AIR 1953 Assam 162 (3) Ms. Doypack Systems Pvt. Ltd, v. Union of India , (4) C. Shri-kishan v. The State of Hyderabad reported in AIR 1956 Hyd 186, (5) K. P. Kochanujan Thirumulpad v. The St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amendment of the Constitution. 14. The learned Counsel submitted that the/constituent process itself is subject to judicial review, although the legislative process may not be so. The pre-enactment review is justified as under : first, because the Constitution is the supreme and organic law of the land; second, because its basic structure and basic features are unamendable and indestructible; third, because it is the funda-mental duty of every citizen to abide by the Constitution and respect its ideals and insti-tution and to uphold and protect the sovereignty, unity and integrity of India as enshrined in Article 51A of the Constitution; fourth, because of the limitation imposed by the Supreme Court on the amending power of Parliament in exercise of its constituent power under Article 368; fifth, because the amendment-brought about may cause irreparable damage and injury to the Constitution unless the power of judicial review is exercised at the threshold itself; sixth, because it is the duty of the Courts vested with the power of judicial review to exercise vigilance over the sanctity of the Constitution with a view to protect and uphold the same; and seventh, beeause' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution and by-passing the judicial pronouncement in Keshavananda Bharati's case which is binding upon the respondents and give ample authority and jurisdiction to the High Court to interfere and stop the trampling of the Constitution. The learned Advocate-General contended that only the respondents Nos. 1 and 2 have made submissions before this Court but the Speaker and the Chairman of Parliament are not before the Court and their submissions on behalf of the Parliament are essential. He submitted that unless a Rule is issued on the respondents Nos. 3 and 4 this question cannot be decided. He contended by pointing out that the threat is grave in the light of the Bill on the local self-government which is in the offing and such acts of mischief to undermine the provisions of the Constitution must be nipped in the bud before damage is done and the federal structure is destroyed. He stressed that prima facie this is a fit case where High Court should interfere. 17. I have given my considerate thought to the facts of the writ application and the submissions made by the learned counsel on behalf of the parties. At the very outset 1 must state that Mr. Chakraborty, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e truth at the laudable objects of the Bill when iti becomes an act of Parliament and is enforced. 18. The main attack on the Bill is that it affects the federal character of the Constitution and takes away the powers of the States guaranteed by the Constitution thereby tampering with the basic structure and features of the federal Constitution by over-stepping the limitation imposed on the amending power under Article 368 of the Constitution. Article 368 relates to the constituent power given to Parliament to amend by addition, variation or repeal of any provision of the Constitution in accordance with the procedure laid down in this Article. In three historic judgments the Hon'ble Supreme Court dealt with Article 368 of the Constitution and those decisions relate to the cases of Keshavananda Bharati (supra). Minerva Mills Ltd. . (supra) and Wamon Rao (supra). Of the three, the decision of the Special Bench of 13 Judges in Keshavananda Bharati's case is the pioneering decision on the subject. In all the three cases it has been expressly held that the Parliament while passing a Constitution Amendment Act exercising its 'constituent power'under Article 368 must n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as parties to the petition when the Presiding Officers of both the Houses of Parliament are made respondents and in a public interest litigation of this nature such technicalities must be overlooked for the greater good of the country. There is a clear and blatant violation of Article 368 and limitations imposed by the Supreme Court on the 'constituent power' of Parliament which is totally different from ordinary legislative power and when flouted this gives ample authority to the High Court to interfere and adjudicate the matter even at the Bill stage. But the learned Attorney-General by citing a number of decisions argued that Parliament with its two Houses presently deliberating upon the Constitution (Sixty-Fourth Amendment) Bill, 1989 is not before the Court and the Court cannot pass any order interfering with the proceedings of the Parliament. The Court cannot go into the constitutionality or otherwise of a Bill and prevent the Parliament from discussing it or striking-trie same down until and unless the Bill becomes an Act and the Act is enforced. He convincingly argued that even if the High Court commands Parliament by way of a writ not to proceed with the passage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M. Sikri, C.J. (supra) where their Lordships in words categorical held that the Court should not ordinarily go into the question of the validity of an Act or a provision of an Act unless it has been brought into force. If this is the position then how this Court can go into the question of the validity of a Bill or the provisions of a Bill which has yet to be converted into an Act of Parliament. Further, in the same case the Supreme Court held that the Supreme Court alone in exercise of its advisory jurisdiction can deal with such question. Then again the same Chief Justice S. M. Sikri presiding over a Bench in the case of Balmadies Plantations Ltd. v. State of Tamil Nadu held that the question of validity of issuing notice under an Act, when the Act itself has not come into force, is purely of academic nature and the writ would become futile and such a situation should not be dealt with in writ jurisdiction. Blackstone in his Commentaries on the Laws of England . Vol. I, suggests : The fairest and most rational method to interpret the will of the Legislator is by exploring his intention at the time when the law was made, by signs, most natural and probable. And these signs are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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