Re: Kesavananda Bharati vs State Of Kerala And ors
2153. I am unable to read in this legislative history an inference that the word 'amendment' was used in Article 304 in order to curtail the scope of the amending power. It is significant 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 By Section 4 the old Section 291 was "repealed" totally and the new Section 291 was "substituted".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 narrower basis. Ramaswami J. also did not consider the meaning of the word 'amendment'. However, Wanchoo J. who delivered the leading minority judgment, Hidayatullah J. and Bachawat J. took the view that the word must be given a wide meaning. According to Hidayatullah J., "By an amendment new matter may be added, old matter removed or altered". 2156. Thus the word 'amendment' in Article 368 has a clear and definite import and it connotes a power of the widest amplitude to make additions, alterations or variations. The power contained in Article 368 to amend the Constitution is indeed so wide that it expressly confers a power by Clause (e) of the proviso to amend the amending power itself. No express restraint having been imposed on the power to amend the amending power, it is unnecessary to seek better evidence of the width of the power of amendment under our Constitution.
2157. Article 368, manifestly, does not impose any express limitations. The reason for this is obvious. The power of amendment is in substance and reality a power to clarify the original intention obscured, for example, by limitations of language and experience, so as to adjust the intention as originally expressed to meet new challenges. As a nation works out its destiny, new horizons unfold themselves, new challenges arise and therefore new answers have to be found. It is impossible to meet the new and unforeseen demands on the enervated strength of a document evolved in a context which may have largely lost its relevance. The power of amendment is a safety valve and having regard to its true nature and purpose, it must be construed as being equal to the need for amendment. The power must rise to the occasion. According to Friedrich Constitutional Government & Democracy, 4th Ed. p. 139, "The constituent power bears an intimate relation to revolution. When the amending provisions fail to work in adjusting the Constitutional document to altered needs, revolution may result." That is why, the rule of strict construction which applies to a penal or taxing statute is out of place in a Constitutional Act and a 'construction most beneficial to the widest possible amplitude" of its powers must be adopted British Coal Corporation v. Rex 1935 (A.C.) 500, 518. 2158. If, on the terms of Article 368 the power of amendment is wide and unfettered, does Article 13(2) impose any restraint on that 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 voting, it shall be presented to the Emphasis supplied) 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.
Article 13(2) clearly echoes the language of Article 245. Article 245 gives the power to 'make laws', while Article 13(2) imposes a limitation on the exercise of the power to 'make laws'. As between the two articles, Article 13(2) is the paramount law for, Article 245 is expressly subject to all the provisions of the Constitution including Article 13(2). 2160. Article 368 avoids with scrupulous care the use of the word 'law', because there is a fundamental distinction between Constitutional law and ordinary law. The term 'Constitutional law' is never used in the sense of including the laws made under the Constitution. (See Jennings-The Law and the Constitution, 5th Ed., pp. 62-65). Constitutional law is the fundamental, superior or paramount law. Its authority and sanction are higher than those of ordinary laws. (Encyclopaedia Britannica, Vol. VI, Constitution and Constitutional Law, p. 314). As stated by Dicey in his 'Introduction to the study of the Law of the Constitution' (10th Ed.,) pp. 149-151), the legislature in a federal Constitution is a subordinate law-making body whose laws are in the nature of bye-laws within the authority conferred by the Constitution.
2161. Articles 3, 4, 169, Paragraph 7 of the Fifth Schedule and Paragraph 21 of the Sixth Schedule emphasises an important aspect of the distinction between Constitutional law and ordinary law. What is authorised to be done by these provisions would normally fall within the scope of Article 368. In order however to take out such matters from the scope of that article and to place those matters Within the ordinary legislative sphere, special provisions are made in these articles that any laws passed thereunder shall not be deemed to be an amendment of the Constitution for the purposes of Article 368. 2162. Article 13(1) provides:
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 in consistent with the provisions of this Part shall, to the extent of such inconsistency, be void.
This article deals with the effect of inconsistency between the provisions 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 Indian States had a Constitution properly so-called. But even assuming that such Constitutions were at one time in force, they would cease to be in operation as Constitutional Laws on the integration of the States with the Indian Union. Article 13(1) therefore does not include any Constitutional laws.
2164. Article 13(3)(a) contains an inclusive definition of 'law' as including any Ordinance, order bye-law, rule regulation, notification, custom or usage having in the territory of India the force of law. It is surprising that the necessity to include amendments of the Constitution within the inclusive definition of 'law' should have been overlooked if indeed Article 13(2) was intended to take in Constitutional amendments. There is high and consistent authority for the view that Constitution is the fundamental or basic law, and that it is a law of superior obligation to which the ordinary law must conform. (Corpus Juris Secundum, Vol. 16, pp. 22-25; Weaver-Constitutional Law and its Administration (1946) p. 3; Burgess-Political Science and Constitutional Law, Vol. 1, pp. 145-146). Unless, therefore, Constitutional law was expressly included in Article 13(3)(a), it would fall outside the purview of Article 13(2).
2165. In America, there is a large volume of authority that the legislatures of the various States, in initiating Constitutional amendments do not exercise ordinary legislative power. This distinction is brought out clearly by saying that in relation to the federal Constitution of America, a State Constitutional provision or amendment is 'law' within the meaning of the federal Constitution. Again, when under Article V of the Constitution the Congress makes a proposal for amendment and the States ratify it, neither the Congress nor the States are legislating. (Corpus Juris Secundum, Vol. 16, pp. 48, 49; Charles R. Burdick-The Law of the American Constitution, pp. 40-42). 2166. The fundamental distinction between Constitutional law and ordinary law lies in the criterion of validity. In the case of Constitutional law, its validity is inherent whereas in the case of an ordinary law its validity has to be decided on the touchstone of the Constitution, With great respect, the majority view in Golak Nath case, did not on the construction of Article 13(2), accord due importance to this essential distinction between legislative power and the constituent power. 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 an ordinary legislative process for, the ratification is required to be made by "resolutions" to that effect. Ordinary bills are not passed by resolutions. 2168. The distinction between constituent power and ordinary legislative power can best be appreciated in the context of the nature of the Constitution which the court has to interpret in regard to the amending power. In McCawley v. The King  A.C. 691, Lord Birkenhead used the words 'controlled' and 'uncontrolled' for bringing about the same distinction which was made between 'rigid' and 'flexible' Constitution first by Bryce and then by Dicey. In a 'controlled' or 'rigid' Constitution, a different procedure is prescribed for amendming the Constitution than the procedure prescribed for making ordinary laws.
2169. In an 'uncontrolled' or 'flexible' Constitution the procedure for amending the Constitution is same as that for making ordinary laws. In such a Constitution, the distinction between Constitutional laws and ordinary laws tends to become blurred because any law repugnant to the Constitution repeals the Constitution pro tanto [McCawley v. The King  A.C. 691].
2170. Thus, the true ground of division, by virtue of the nature of the Constitution, is whether it is flexible or rigid. That depends upon whether the process of Constitutional law-making is or is not identi cal with the process of ordinary law-making. A typical instance of a flexible Constitution is that of the United Kingdom. The Constitution of the former Kingdom of Italy was also flexible, so flexible indeed, that Mussolini was able profundly to violate the spirit of the Constitution without having to denounce it. The Constitution of the United States is rigid, as it cannot be amended without the special machinery being set in motion for that purpose. "In short, then, we may say that the Constitution which cannot be bent without being broken is a rigid Constitution." (See Modern Political Constitutions : an Introduction to the Comparative Study of Their History and Existing Form by C.F. Strong, 1970 Reprint). The Indian Constitution, considered as a whole is a 'controlled' or 'rigid' Constitution, because, broadly, none of the articles of that Constitution can be amended otherwise than by the special procedure prescribed by Article 368. Certain provisions thereof like Article 4 read with Articles 2 and 3, Article 169, para 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 on the anvil of the Constitution are the only laws which fall within the terms of Article 13(2).
2173. The importance of this discussion consists in the injunction contained in Article 13(2) that the State shall not make any 'law' which takes away or abridges the rights conferred by Part III. An Amendment of Constitution within the terms of Article 368 not being law within the meaning of Article 13(2), it cannot become void on the ground that it takes away or abridges the rights conferred by Part III.
2174. Fundamental Rights undoubtedly occupy a unique place in civilized societies, whether you call them "transcendental", "inalienable", or as Lieber called them, "Primordial". There is no magic in these words for, the strength and importance of these rights is implicit in their very description in the Constitution as "fundamental". But the special place of importance which they occupy in the scheme of the Constitution, cannot by itself justify the conclusion that they are beyond the reach of the amending power. Article 13(2) clearly does not take in the amending power and Article 368 does not except the Fundamental Rights from its scope.
2175. But they cannot be tinkered with and the Constitution has taken care to ensure that they do not become a mere 'plaything' of a special majority. Members of the Lok Sabha are elected on adult universal suffrage by people of the States. Whereas, ordinary laws can be passed by a bare majority of those present, Constitutional amendments are required to be passed under Article 368 by a majority of the total membership of each House and by a majority of not less than two-thirds of the members of each House separately present and voting. In matters falling within the proviso, amendments are also required to be ratified by the Legislatures of not less than half of the States. Rajya Sabha, unlike the Lok Sabha, is a perpetual body, which changes one-third of its membership every two years. Members of the Rajya Sabha are elected by Legislative Assemblies of the States, that is, by those who are directly elected by the people themselves. The mode of election to Rajya Sabha constitutes to some extent an insurance against gusts and waves of public opinion.
2176. I will now proceed to consider an important branch of the petitioner's argument which, frankly, seemed to me at first sight plausible. On closer scrutiny, however, 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 in the people and the power to alter or destory the essential features of a Constitution is an attribute of that sovereignty. In Article 368, the people are not associated at all with the amending process. The Constitution gives the power of amendment to the Parliament which is only a creature of the Constitution. If the Parliament has the power to destroy the essential features it would cease to be a creature of the Constitution, the Constitution would cease to be supreme and the Parliament would become supreme over the Constitution. The power given by the Constitution cannot be construed as authorising the destruction of other powers conferred by the same instrument. If there are no inherent limitations on the amending power of the Parliament, that power could be used to destroy the judicial power, the executive power and even the ordinary legislative power of the Parliament and the State legislatures. The Preamble to our Constitution which is most meaningful and evocative, is beyond the reach of the amending power and therefore no amendments can be introduced into the Constitution which are inconsistent with the Preamble. The Preamble walks before the Constitution and is its identity card. 2178. Counsel has made an alternative submission that assuming for purposes of argument that the power of amendment is wide enough to reach the Fundamental Rights, it cannot be exercised so as to damage the core of those rights or so as to damage or destory the essential features and the fundamental principles of the Constitution. Counsel finally urges that the history of implied and inherent limitations has been accepted by the highest courts of countries like U.S.A., Canada, Australia and Ireland. The theory is also said to have been recognised by this Court, the Federal Court and the Privy Council. 2179. In answer to these contentions, it was urged on behalf of the respondents that there is no scope for reading implied or inherent limitations on the amending power, that great uncertainty would arise in regard to the validity of Constitutional amendment if such limitations were read on the amending power, that the Preamble is a part of the Constitution and can be amended by Parliament, that there is in our Constitution no recognition of basic human or natural rights and that the consensus of world opinion is against the recognition of inherent limitations on the 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 unlikely that if certain basic features were intended to be unamendable, the Constitution makers would not have expressly said so in Article 368 .
2181. It is difficult to accept the argument that inherent limitations should be read into the amending power on the ground that Fundamental Rights are natural rights which inhere in every man. There is instrinsic evidence in Part III of the Constitution to show that the theory of natural rights was not recognised by our Constitution-makers. Article 13(2) speaks of rights "conferred" by Part III and enjoins the States not to make laws inconsistent therewith. Article 32 of the Constitution says that the right to move the Supreme Court for the enforcement of rights 'conferred' by Part III is guaranteed. Before the Fundamental Rights were thus conferred by the Constitution, there is no tangible evidence that these rights belonged to the Indian people. Article 19 of the Constitution restricts the grant of the seven freedoms to the citizens of India. Non-citizens were denied those rights because the conferment of some of the rights on the Indian citizens was not in recognition of the pre-existing natural rights. Article 33 confers upon the Parliament the power to determine to what extent the rights conferred by Part III should be restricted or abrogated in their application to the members of the Armed Forces. Article 359(1) empowers the President to suspend the rights "conferred" by Part III during the proclamation of an emergency. Articles 25 and 26 by their opening words show that the right to freedom of religion is not a natural right but is subject to the paramount interest of society and that there is no part of that right, however important, which cannot and in many cases has not been regulated in civilised societies. Denial to a section of the community, the right of entry to a place of worship, may be a part of religion but such denials, it is well-known, have been abrogated by the Constitution. (1958 S.C.R. 895 at 919, per Venkatarama Aiyar J.; Sri Venkataramana Devaru and Ors. v. The State of Mysore and Ors. see also Bourne v. Keane 1919 A.C. 815 at 861 per Lord Birken-head L.C.). Thus, in India, citizens and non-citizens possess and are entitled to exercise certain rights of high significance for the sole reason that they are conferred upon them by the Constitution.