Broadly speaking amendments can be made by four methods (i) by ordinary legislative process with or without restrictions, (ii) by the people through, referendum, (iii) by majority of all the units of a federal State; and (iv) by a special convention. The first method can be in four different ways, namely, (i) by the ordinary course of legislation by absolute majority or by special majority, (See Section 92 (1 )- of the British North America Act, sub-section 152 South African Apt, where under except sections 35, 137 and 152, other provisions could be amended by ordinary legislative process by absolute majority. Many constitutions provide for special majorities.); (ii) by a fixed quorum of members for the consideration of the proposed amendment and a special majority for its passage; (see the defunct Constitution of Rumania), (iii) by dissolution and general election on a particular issue; (see the Constitutions of Belgium, Holland, Denmark and Norway), and (iv) by a majority of two Houses of Parliament in joint session as in the Constitution of the South Africa. The second method demands a popular vote, referendum , or plebiscite as in Switzerland, Australia, Ireland, Italy, France and Denmark. The third method is by an agreement in some form or other of either of the majority or of all the federating units as in Switzerland, Australia and the United States of America. The fourth method is generally by creation of a special body ad hoc for the purpose of constitution revision as in Latin America. Lastly, some constitutions impose express limitation on the power to amend. (See Art. 5 of the United States Constitution and the Constitution of the Fourth French Republic). A more elaborate discussion of this topic may be found in the American political Constitution by Strong. It will, therefore, be seen that the power to amend and the procedure to amend radically-differ from State to State; it is left to the constitution-makers to prescribe the scope of the power and the method of amendment having regard to the requirements of the particular State. There is no article in any of the constitutions referred to us similar to article 13(2) of our Constitution. India adopted a different system altogether: it empowered the Parliament to amend the Constitution by the legislative process subject to fundamental rights. The Indian 1 Constitution has made the amending process comparatively flexible, but it is made subject to fundamental rights.

Now let us consider the argument that the power to amend is a sovereign power, that the said power is supreme to the legislative power, that it does not permit any implied limitations and that amendments made in exercise of that power involve political questions and that, therefore, they are outside judicial review, This wide proposition is sought to be supported on the basis of opinions of jurists and judicial decisions. Long extracts have been read to us from the book "The Amending of the Federal Constitution (1942)" by Lester Bernhardt Orfield, and particular reference was made to the following passages :

"At the point it may be well to note that when the Congress is engaged in the amending process it is not legislating. It is exercising a peculiar power bestowed upon it by Article Five. This Article for the most part ,controls the process; and other provisions of the Constitution, such as those relating to the passage of legislation, having but little bearing."

Adverting to the Bill of Rights, the learned author remarks that they may be repealed just as any other amendment and that they are no more sacred from a legal standpoint than any other part of the Constitution. Dealing with the doctrine of implied limitations, he says that it is clearly untenable. Posing the question 'Is other a law about the amending power of the Constitution ?", he answers, "there is none". He would even go to the extent of saying that the sovereignty, if it can be said to exist at all, is located in the amending body. The author is certainly a strong advocate of the supremacy of the amending power and an opponent of the doctrine of implied limitations. His opinion is based upon the terms of Art. 5 of the Constitution of the United States of America and his interpretation of the decisions of the Supreme Court of America. Even such an extreme exponent of the doctrine does not say that a particular constitution cannot expressly impore restrictions on the power to amend or that a court cannot reconcile the articles couched in unlimited phraseology. Indeed Art. 5 of the American Constitution imposes express limitations on the amending power. Some passages from the book "Political Science and Government" by James Wilford Garner are cited. Garner points out : "An unamendable constitution, said Mulford, is the &&worst tyranny of time, or rather the very tyranny of time"

But he also notices

"The provision for amendment should be neither so rigid as to make needed changes practically impossible nor so flexible as to encourage frequent and unnecessary changes and thereby lower the authority of the Constitution."

Munro in his book "The Government of the United States", 5th Edition, uses strong words when he says "....... it is impossible to conceive of an unamendable constitution as anything but a contradiction in terms."

The learned author says that such a constitution would constitute "government by the graveyards." Hugh Evander Wills in his book "Constitutional Law of the United States" avers that the doctrine of amendability of the Constitution is grounded in the doctrine of the sovereignty of the people and that it has no such implied limitations as that an amendment shall not contain a new grant of power or change the dual form of government or change the protection of the Bill of Rights, or make any other change in the Constitution. Herman Finer in his book "The Theory and Practice of Modem Government" defines "constitution" as its process of amendment, for, in his view, to amend is to deconstitute and reconstitute. The learned author concludes that the amending clause is so fundamental to a constitution that he is tempted to call it the constitution itself. But the learned author recognizes that difficulty in amendment certainly products circumstances and makes impossible the surreptitious abrogation of rights guaranteed in the constitution. William S. Livingston in "Federalism and Constitutional Change" says :

"The formal procedure of amendment is of greater importance than the informal processes, because it constitutes a higher authority to which appeal lies on any question that may arise."

But there are equally eminent authors who express a different view. In "American Jurisprudence", 2nd Edition, Vol. 16, it is stated that a statute and a constitution though of unequal dignity are both laws. Another calls the constitution of a State as one of the laws of the State. Cooley in his book on "Constitutional Law" opines that changes in the fundamental laws of the State must be indicated by the people themselves. He further implies limitations to the amending power from the belief in the constitution itself, such as, the republican form of Government cannot be abolished as it would be revolutionary in ifs characters. In the same book it is further said that the power to amend the constitution by legislative action does not confer the power to break it any more than it confers the power to legislate on any other subject contrary to the prohibitions. C. F. Strong in his book "Modem Poliical Constitutions", 1963 edition, does not accept the theory of absolute sovereignty of the amending power which does not brook any limitations, for he says. 802

"In short, it 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. At the same time, there may be some elements of the constitution which the constituent assembly wants to remain unalterable by the action of any authority whatsoever. These elements are to be distinguished from the rest, and generally come under the heading of fundamental law. Thus, for example, the American Constitution, the oldest of the existing Constitutions, asserts that by no process of amendment shall any State, without its own consent, be deprived of its equal suffrage in the Senate, , while among the Constitutions more recently promulgated, those of the Republics of; France and Italy, each containing a clause stating that the republican form of government cannot be the subject of an amending proposals"

it is not necessary to multiply citations from text-books. A catena of American decisions have been cited before us in support of the contention that the unending power is a supreme power or that it involves political issues which are not justiciable. It would be futile to consider them. at length, for after going through them carefully we find that there are no considered judgments of the American Courts, which would have a persuasive effect in that regard. In the Constitution of the United States of America, prepared by Edwards S. Corwin, Legislative Reference Service, Library of Congress, (1953 edn.), the following summary under the heading "Judicial Review under Article V" is given : "Prior to 1939, the Supreme Court had taken cognizance of a number of diverse objections to the validity of specific amendments. Apart from holding that official notice of ratification by the several States was con- clusive upon the Courts, it had treated these questions as justiciable, although it had uniformly rejected them on the merits. In that year, however, the whole subject was thrown into confusion by the inconclusive decision in Coleman v. Miller. This case came up on a writ of certiorari to the Supreme Court of Kansas to review the denial of a writ of mandamus to compel the Secretary of the Kansas Senate to erase an endorsement on a resolution ratifying the child

labour amendment to the Constitution to re- effect that it had been adopted by the Kansas Senate. The attempted ratification was assailed on three grounds : (1) that the amendment had been previously rejected by the State Legislature; (2) that it was no longer open to ratification because an unreasonable period of time thirteen years, had elapsed since its submission to the States, and (3) that the lieutenant governor had no right to cast the deciding vote in the Senate in favour of ratification. Four opinions were written in the Supreme Court, no one of which commanded the support of more than four mem- bers of the Court. The majority ruled that the plain-tiffs, members of the Kansas State Senate, had a sufficient interest in the controversy to give the federal courts jurisdiction to review the case. Without agreement as to the grounds for their decision, a different majority affirmed the judgment of the Kansas court denying the relief sought. Four members who concur-red in the result had voted to dismiss the writ on the ground that the amending process "is political" in its. entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point." whether the contention that the lieutenant governor should have been permitted to cast the deciding vote in favour of ratification presented a justiciable controversy was left undecided, the court being equally divided on the point. In an opinion reported as "the opinion of the Court"' but in which it appears that only three Justices concurred, Chief Justice Hughes declared that the writ of' mandamus was properly denied because the question as to the effect of the previous rejection of the amendment and the lapse of time since it was submitted to the States were political questions which should be left to Congress. On the same day, the Court dismissed a. writ of certiorari to review a decision 'of the Kentucky Court of Appeals declaring the action of the Kentucky General Assembly purporting to ratifying the child labour amendment illegal and void. Inasmuch as the governor had forwarded the certified copy of the resolution to the Secretary of State before being served with a copy of the restraining order issued by the State Court, the Supreme Court found that there 'was no longer a controversy susceptible of judicial determination."

This passage, in our view, correctly summarises the American law on the subject. It will be clear therefrom that prior to 1939 the Supreme Court of America had treated the objections to the validity of specific amendments as justiciable and that only in 1939 it rejected them in an inconclusive judgment without discussion. In this state of affairs we cannot usefully draw much from the judicial wisdom of the Judges of the Supreme Court of America.

One need not cavil at the description of an amending power as sovereign power, for it is sovereign only within the scope of the power conferred by a particular constitution. All the authors also agree, that a particular constitution can expressly limit the power of amendment, both substantive and procedural. The only conflict lies in the fact that some authors do not pen-nit implied limitations when the power of amendment is expressed in general words. But others countenance such limitations by construction or otherwise. But none of the authors goes to the extent of saying, which is the problem before us, that when there are conflicting articles couched in widest terms, the court has no jurisdiction to construe and harmonize them. If some of the authors meant to say that-in our view, they did not-we cannot agree with them, for, in that event this Court would not be discharging its duty.

Nor can we appreciate the arguments repeated before us by learned counsel for the respondents that the amending process involves political questions which are, outside the scope of judicial review. When a matter comes before the Court, its jurisdiction does not depend upon the nature of the question raised but on die, question whether the said matter is expressly or by necesssary implication excluded from its jurisdiction. Secondly, it is not possible to define what is a political question and what is not. The character of a question depends upon the circumstances and the nature of a political society. To put if differently, the court does not decide any political question at all in the ordinary sense of the. term, but only ascertains whether Parliament is acting within the scope of the amending power. It may be that Parliament seeks to amend the Constitution for political reasons, but the Court in denying that power will not be deciding on political questions, but will only be holding that Parliament has no power to amend particular articles of the Constitution for any purpose whatsoever, be it political or otherwise. We, therefore, hold that there is nothing in the nature of the amending power which enables Parliament to override all the express or implied limi- tations imposed on that power. As we have pointed out earlier, our Constitution adopted a novel method in the sense that Parliament makes the amendment by legislative process subject to certain restrictions and,that the amendment so made being law" is.subject to Art. 13(2). The next argument is based upon the expression "amendment" in Art. 368 of the Constitution and if is contended that the said

power but of constituent Dower and, therefore, an amendment of the Constitution is not law at all as contemplated by Art. 13(2). I. am reminded of the. words of. Justice Holmes that "we ,must think- things and not words". The true principle is that if there are two provisions in the Constitution which seem to be hostile, juridical hermeneutics requires the Court to interpret them by combining them and not by destroying one with the aid of the other. No part in a Constitution is superior to another part unless the Constitution itself says so and there is no accession 'of strength to any provision by calling it a code. Portalis, the great. French Jurist .(who helped in the making of the Code Napole on) supplied the correct principle when he said that it is the context of the legal provisions which serves to illustrate the meaning. of the different parts, so that among them and between them there should be correspondence and harmony.

We have two provisions to reconcile. Article 368 which says that the Constitution may be amended by, following this and this. procedure, and Art. 13(2) which says, the State shall not make any law which takes away or abridges the rights conferred by Part III and that any law made in contravention of the clause shall, to the extent of the contravention, be void. The question, therefore, is : does- this create any limitation upon the amending process ? On the answer to this question depends the solution of all the problems in this case.

It is an error to view our Constitution as if it were a mere organisational document by which the people established the atructure and the mechanism of their Government. Our Constitution is intended to be much more because it aims at being a social document In which the relationship of society to the indiVidual and of Government to both and the rights of the minorities and the backward classes are clearly laid down. This social document is headed by a Preamble* which epitomizes the principles on which the Government is intended to function and these principles are later expanded into Fundamental Rights in Part III and the Directive Principles of Policy in Part TV. The former 'are protected but the latter are not. The former represent the "PREAMBLE WE THE PEOPLE OF INDIA having solemnly Resolved to .constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure all Its citizens:

JUSTICE, social, economic and political;

EQUALITY of status and of opportunity; and to promote among them.all

FRATERNITY assuring the, dignity of the individual and.the unity of

Nation:

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November,1949,do HEREBY ADOPT,ENACT AND GIVE TO OURSELVES THIS CONSTffUTION."

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limits of State action and the latter are the obligations and the duties of the Government as a good and social Government.

Why was it necessary to have the Fundamental Rights at all and make them justiciable ? As we seem to be forgetting our own history so soon let me say that the answer lies there the Nationalist Movement and the birth of the Indian National Congm in 1885 were the direct result of the discriminatory treatment of the Indians in their own country. The demand for the guarantee of Fundamental Rights had unfortunately to be made. then to a foreign ruler and it appeared in the Constitution of India Bill framed by the Indian National Congress ten years later. All that is valuable to an Individual in civilized society, including free speech, imprisonment only by a competent authority, free law education, etc. were claimed therein. Resolutions of the Congress since then reiterated this demand and the securing of Fundamental Rights in any future Constitution became one of the articles of faith. To cut the narration short, the main steps may only be mentioned. Mrs. Besant's Commonwealth of India Bill 1925 with its seven fundamental rights (the precursor of Art. 19), the Madras Congress Resolution of 1927--"a constitution on the basis of declaration of rights"-- the Nehru Report--it is obviour, that our first care should be to have the Fundamental Rights guaranteed in a manner which will not permit their withdrawal in any circumstancees--, the draft article in the Nehru Constitution "No person shall be deprived of his liberty, nor shall his dwelling or property be entered, requisitioned or confiscated save in accordance with law"-, the Independence Resolution of 26th January, 1930--We believe that it is the inalienable right of the Indian people, as of any other people, to have freedom and to enjoy the fruits of their toil and have the necessities of life, so that they may have full opportunities of growth" the Karachi Resolution on Fundamental Rights, Economic and Social Change (1931), the Sapru Report (1945) which for the first time distinguished between justiciable and non- ,justiciable rights, the Suggestion of the Cabinet Mission for the constitution of an Advisory Committee on Fundamental and Minority Rights, and, lastly the Committee on Fundamental Rights of the Constituent Assembly, are just a few of the steps to be remembered. The Fundamental Rights and the Directive Principles were the result. Fundamental laws are needed to make a Government of laws and not of men and the Directive Principles are needed to lay down the objectives of a good Government. Our Constitution was not the cause but the result of political and personal freedom". Since Dicey had said that "the proclamation . in a Constitution or Charter of the right to personal freedom, or indeed of any other right, gives of itself but slight security that the right has more than a

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nominal existence",(1) provision had to be made for guaranteeing them andto make them justiciable and enforceable. This result is reachedby means of Arts. 12, 13, 32, 136, 141, 144 and 226. The The High Courts and finally this Court have been made the Judges of whether any legislative or executive action on the part oft the State considered as comprehensively as is possible, offends the Fundamental Rights and Art. 13(2) declares that legislation which so offends is to be deemed to be void. It is thus that Parliament cannot today abridge or take away a single Fundamental Right even by a 'unanimous vote in both the Chambers. But on the argument of the State it has only 'to change the title of the same Act to an Amendment of the Constitution Act and then a majority of the total strength and a 2/3rds majority of the members present and voting in each House may remove not only any of the Fundamental Rights, but the whole Chapter giving them. And this is said to be possible because of Art. 368 and its general language which, it is claimed, makes no exception in its text and, therefore, no exception can be implied. It is obvious that if an Act amending the Constitution is- treated as a law it must also be subject to the provisions of Art. 13(2). Since the definition of the word 'law', makes no exception a strenuous eeffort is made on the basis of argument and authority to establish that a constituent power does not result in a law in the ordinary sense. Distinction is thus made between laws made ordinarily that is to say, from day to day by ordinary majority and laws made occasionally for the amendment of the Constitution by a slightly enhanced majority. In our Constitution this distinction is not valid in the eye of Art. 13(2).

It is not essential,, of course, that a difference must always exist in the procedure for the exercise of constituent and ordinary, legislative power. One has not to go far to find the example of a country in which constitutional law as such may be made by the same agency which makes ordinary laws. The most outstanding, example is that of England about which de Tocqueville observed. "the Parliament has an acknowledged right to modify the Constitution; as, therefore, the Constitution may undergo perpetual changes, it does not in reality exist; the Parliament is at once a legislative and a constituent assembly:"(2)

of course, the dictum of de Tocqueville that the English Constitution "elle n'existe point" (it does not exist) is far from accu-

(1)Dicey: "Law of the Constitution" 10th Edn. p. 207. (2)Introduction to the Study of the Law of the Constitution A.V. Dicey Tenth Edn p. 88 quoting from OEuvres completes (14th ed.,1864) (Democratie en Amerique), pp. 166, 167. 861

rate. There is a vast body of constitutional laws in England which is written and statutory but it is not all found in one place and arranged as a written Constitution usually is. The Act of Settlement (1701), the Act of Union with Scotland (1707), the Act of Union with Ireland (1800) the Parliament Act (1911) the Representation of the Peoples Acts of 1832, 1867, 1884, 1918, 1928 and 1948, the Ballot Act (1872), the Judicature Acts 1873, 1875 and 1925, the Incitement to Disaffection Act (1934), His Majesty's Declaration of Abdication Act (1936), the Regency Act (1937) and the various Acts setting up different ministries are examples of what will pass for constitutional law under our system(1). The Bill of Rights (1689) lays down the fundamental rule in England that taxation may not be levied without the consent of Parliament which in our Constitution has its counterpart in Art. 265. In our Constitution also the laws relating to delimitation of constituencies or allotment of seats to such constituencies made or purporting to be made under Art. 327 or Art. 328, by reason of the exclusion of the powers of the courts to question them, are rendered constitutional instruments. Other examples of constitutions which, in addition to constitution proper, contain certain ordinary legislation, having constitutional qualities, also exist. (2)

What then is the real distinction between ordinary law and the law made in the exercise of constituent power? I would say under the scheme of our Constitution none at all. This distinction has been attempted to be worked out by several authors. It is not necessary to quote them. Taking the results obtained by Willoughby(3) it may be said that the fact that a Constitution is written as a Constitution is no distinction because in Britain constitutional law is of both kinds and both parts coexist. The test that the Constitution requires a different kind of procedure for amendment, also fails because in Britain Parliament by a simple majority makes laws and also amends constitutional statutes. In our Constitution too, in spite of the claim that Art. 368 is a code (whatever is meant by the word ,code, here), Arts. 4, 11 and 169 show that the amendment of the Constitution can be by the ordinary law making procedure. By this method one of the legislative limbs in a State can be removed or created. 'This destroys at one stroke the claim that Art. 368 is a code arid also that any special method of amendment of the Constitution is fundamentally necessary.

(1) The list is raken from K. C. Wheare's: "The Statute of Westminster and Dominion Status" (4th Edn) p. 8. Dicey and others give different list.

(2) See Constitutions of Austria, Honduras, Nicaragua Peru, Spain and Sweden among others. The Constitution of Spain, in particular is in several Instruments. The Constitution of Austria (A-t. 149) makes special mention of these constitutional instruments.

(3) Tagore Law Lectures (1924) p. 83.

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The next test that the courts must apply the Constitution in preference to the ordinary law may also be rejected on the ansalogy of the British practice. There, every statute has equal standing. Therefore, the only difference can be said to arise from the fact that.constitutional laws are generally amendable under a process which in varying degrees, is more difficult or elaborate. This may give a distinct character to the law of the Constitution but it does not serve to distinguish it from the other laws of the land for purposes of Art. 13(2). Another difference is that in the written constitutions the form and power of Government alone are to be found and not rules of private law as is the case with ordinary laws. But this is also not an invariable rule. The Ame Constitution and our Constitution itself are outstanding examples There are certain other differences of degree, such as that nary _legislation may be tentative or temporary, more detailed or secondary, while the Constitution is intended to be permanent, general and primary. Because it creates limitations on the ordinary legislative power, constitutional law in a sense is fundamental law, but if the legislative and constituent processes can become one, Ls there any reason why the result should be regarded as law in the one case and not in the other ? On the whole, therefore, as observed in the American Jurisprudence

"It should be noticed however that a statute and a constitution, though of unequal dignity are both laws and each rests on the will of the people........"

A Constitution is law which is intended to be, for all time and is difficult to change so that it may not be subject to "impulses ofmajority" "temporary excitement and popular caprice or passion"(2).

I agree with the authors cited before us that the power of amendment must be possessed by the State. I do not take a narrow view of the word "amendment" as including only minor changes within the general framework. By an amendment new matter may be added, old matter removed or altered. I alm concede that the reason for the amendment of the Constitution is a political matter although I do not go as far as some Justice of the Supreme court of the United States did in Coleman v. Miller(3) that the whole process is "political in its entirely from submission until an Amendment becomes part of the Constitution and is not subject to judicial guidance, control or interference at any point." There are fundamental differences between our Con- (1) American Jurispruence Vol. II Section 3. (2) Amendment is expressly called a legislative process in the Constitutions of Colombia:, Costa Rica, Hungary, Panama and Peru.. In Portugal the ordinary legislatures enjoy constituent powers every 10 years.

(3) 3)7 U.S. 443 (83 L. Ed. 1385).

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stitution and the Constitution of the United States of America.. Indeed this: dictum of the four Justices based upon, the case of Luther v. Borden(1) has lost some of its force after Baker v. Carr(2)

A Republic must, as says Story, (8) possess the means for altering and improving the fabric of the Government so as, to promote the happiness and safety of the people. The power is also needed to disarm opposition and prevent factions over the Constitution. The power, however, is not intended to be used for experiments or as an escape from restrictions against undue state action enacted in the Constitution itself. Nor %'LS the power of amendment available for the purpose of removing express or fmplied restrictions against the State.

Here I make a difference between Government and State which I shall explain presently. As Willoughby(4) points out constitutional law ordinarily limits Government but not the State because a constitutional law is the creation of the State for its own purpose. But there is nothing to prevent the State from limiting itself. The rights and duties of the individual and the manner in which such rights are to be exercised and enforced ;ire ordinarily to be found in the laws though some of the Constitutions also fix them. It is now customary to have such rights guaranteed in the Constitution. Peaslee,(5) writing in 1956 says that about 88% of the national Constitutions contain clauses respecting individual liberty and fair legal process; 83% respecting freedom of speech and the press; 82% respecting property right; 80% respecting rights of assembly and association; 80% respecting rights of conscience and religion; 79% res- pecting secrecy of correspondence and inviolability of domi- cile; 78% respecting education; 73% respecting equality 64% respecting right to petition; 56% respecting labour; 51% respecting social security; 47% respecting rights of movement within, and to and from the nation; 47% respecting health and motherhood; and 35% respecting the non- retroactivity of laws. In some of the Constitutions there is an attempt to put a restriction against the State seeking to whittle down the rights conferred on the individual. Our Constitution is the most outstanding example of this restriction which is to be found in Art. 13(2). 'The State is no doubt legally supreme but in the supremacy of its powers it may create, impediments on its own sovereignty. Government is always bound by the restrictions created in favour of fundamental Rights but the State may or may not be. Amendment may be open to the State according to the procedure laid