Re: Kesavananda Bharati vs State Of Kerala And ors

861. Our Constitution in Article 13(2) by its express declaration with reference to law and the State widely defined has no higher efficacy in rendering a law in contravention of its terms void than the opening words of Article 245 have in rendering a law void in contravention of term mentioned therein. Therefore, in treating Article 13(2) as having that effect in regard to Constitutional amendment the majority judgment in Golak Nath case was inept. In rejecting the distinction between legislative and constitutent powers the leading majority view in Golak Nath case was induced by the absence of the use of the labels but the same concepts were clearly indicated by the Privy Council by wholly describing the characteristic features of legislative and constituent powers.

862. If Article 368 had begun with a non-obstante clause it could not have been said that amendment under Article 368 would be law within the meaning of Article 13(2). The Attorney General rightly said that there is no non-obstante clause in Article 368 because of the quality of amending power and because the amending power is a constituent power and not ordinary legislative power. This is the position of the amending clause in a written Constitution. When the power under Article 368 is exercised Parliament acts as a recreation of Constituent Assembly. Therefore, such power cannot be restricted by or widened by any other provision. As soon as an amendment is made it becomes a part of the Constitution. An amendment prevails over the Article or Articles amended. The fact that Article 368 confers constitutent powers is apparent from the special conditions prescribed in the Article. Those conditions are different from ordinary law making process. Article 368 puts restraints on the ordinary law making process and thus confers constituent power. The Constituent Assembly was fully aware that if any limitation was to be put on the amending power the limitation would have to be expressly provided for. Article 305 of the Draft Constitution provided reservation of seats for certain sections of people in the legislature for 10 years. This reservation was not accepted by the Constituent Assembly. This shows that if the Drafting Committee or the Constituent Assembly wanted to exclude fundamenal rights from the operation of Article 368 corresponding to Article 304 in the Draft Constitution they could have expressly done so.

863. In Ghulam Sarwar v. Union of India (1967 2 S.C.R. 271 it was said there was a distinction between deprivation of fundamental rights by force of a Constitutional provision itself and such deprivation by an order made by President in exercise of a power conferred on him under Constitutional provision. The dissenting view in Ghulam Sarwar case was that an order of the President was not a law within the meaning of Article 13(2). In Mohd. Yakub v. State of Jammu & Kashmir (1968) 2 S.C.R. 227 the majority view of the Constitution Bench was that an order of the President under Article 359 was not law within the meaning of Article 13(2). There is no distinction between Article 358 and Article 359(1). Article 358 by its own force suspends the fundamental rights guaranteed by Article 19. Article 359(1) on the other hand does not suspend any fundamental rights of its own force but it gives force to order by the President declaring suspension of the enforcement of any fundamental right during the period of emergency. In Mohd. Yakub case it was said that it could not mean that an order under Article 359(1) suspending the enforcement of a particular fundamental right had still to be tested under the vary fundamental right which it suspended. Mohd. Yakub case establishes that the expression "law" in Article 13(2) is not all embracing in spite of the exclusive definition of law in Article 13(3)(a).

864. The word "law" appears in various Articles of our Constitution but not in Article

368. The reason is that the power under Article 368 is not a power to make ordinary laws under the Constitution but is the constituent power. There could be no law within the meaning of Article 13(2) at any stage before the amendment became a part of the Constitution under Article 368. There is no hiatus between an amendment being a law and thereafter a part of the Constitution. Immediately upon the passage of the Bill for the amendment the Constitution stands amended.

865. The historical background of Article 13(2) throws some light on the question as to whether Article 13(2) prevails over Article 368. On 17 March, 1947 the Constitutional Advisor Sir B.N. Rau had addressed a letter to the members of Central and Provincial legislatures. A questionnaire was annexed to that letter. Question No. 27 was "What provisions should be made regarding amendments to the Constitution". A note was appended to that question which will be found in Shiva Rao Framing of India's Constitution referred to as Shiva Rao Vol. II pp. 448-451. The methods of amendment of Constitution in the United Kingdom, Canada, Australia, United States of America, Switzerland and Ireland were elucidated in that note. The note also drew attention that the fact that in various Constitution express limitations were put on amending certain provisions of the Constitution. The portion of the note relating to the Constitution of Australia indicated such limitations.

866. The draft report of the sub-Committee on fundamental rights dated 3 April 1947 contained an annexure which dealt with fundamental rights. See Shiva Rao Vol. II p. 137 seq. Clause 2 of the annexure was as follows:

Any law or usage in force within the territories of the Union immediately before the commencement of this Constitution and any law which may hereafter be made by the State inconsistent with the provisions of this Chapter/Constitution shall be void to the extent of such inconsistency.

867. The Constitutional Adviser suggested that the word "Constitution" was preferable to the word "chapter" because the entire Constitution was to prevail over law.

868. On 23 April, 1947 the Advisory Committee on Fundamental Rights presented an interim report addressed to the President of the Constituent Assembly containing an annexure providing for justiciable fundamental rights. See Shiva Rao Vol. II pp. 294-296 seq. Clause 2 of the Annexure to that report was as follows:

All existing laws, notification, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this part of the Constitution shall stand abrogated to the extent of such inconsistency nor shall the Union or any unit may make any law taking away or abridging any such right.

869. Clause 2 of the annexure to the interim report was discussed in the Constituent Assembly on 29 April, 1947. Shri K. Santhanam moved an amendment to Clause 2. The amendment was as follows : In Clause 2 for the words "nor shall the Union or any unit make any law taking away or abridging any such right" the following be substituted: "Nor shall any such right be taken away or abridged except by an amendment of the Constitution". The amendment was accepted as will appear in Constituent Assembly Debates Vol. III p. 416.

870. In October, 1947 the Draft Constitution was prepared by the Constitutional Advisor. Clause 9(2) of the said Draft Constitution which later on corresponded to Article 13(2) of our Constitution was as follows:

Nothing in this Constitution shall be taken to empower the State to make any law which curtails or taking away any of the rights conferred by Chapter II of this Part except by way of amendment of this Constitution under Section 232 and any law made in contravention of this sub-section shall, to the extent of the Contravention, be void.

871. It will be seen that Clause 9(2) in the Draft Constitution included the qualification "except by way of amendment of the Constitution under Section 232". Clause 232 in the Draft Constitution prepared by the Constitutional Advisor became Article 304 in the Constitution prepared by the Drafting Committee and eventually became Article 368 of our Constitution. In Shiva Rao, Vol. III p. 325 it appears that the Drafting Committee on 30 October, 1947 at a meeting gave a note forming the minutes of that meeting that Clause 9(2) should be revised as follows:

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 sub- section shall, to the extent of the contravention, be void.

872. No reason is recorded in these minutes as to why the resolution adopted by the Constituent Assembly by passing Shri Santhanam's amendment was disregarded. No indication was given in the forwarding letter of Dr. Ambedkar in the Note appended thereto as to why the amendment of Shri Santhanam which had been accepted by the Constituent Assembly was deleted. Nor does the Draft Constitution indicate either by sidelines or in any other manner that the decision of the Constituent Assembly had been disregarded.

873. This history of the formation and framing of Article 13(2) shows that the intention of the Constitutent Assembly was that Article 13(2) does not control the Article relating to the amending of the Constitution. It must be assumed that the Drafting Committee consisting of eminent men considered that an express exclusion of the amending Article from the operation of the clause corresponding to Article 13(2) was unnecessary and the fear that that Article would cover the amending Article was groundless. It also appears that no discussion took place after the Draft Constitution had been presented to the Constituent Assembly by Dr. Ambedkar on the deletion or disregard of Shri Santhanam's amendment. The history of Article 13(2) shows that the Constituent Assembly clearly found that it did not apply to an amendment of the Constitution.

874. The distinction between constitutent and legislative power in a written Constitution is of enormous magnitude. No provision of the Constitution can be declared void because the Constitution is the touchstone of validity. There is no touchstone of validity outside the Constitution. Every provision in a controlled Constitution is essential or so thought by the framers because of the protection of being amendable only in accordance with the Constitution. Every Article has that protection. The historical background of Article 13(2) indicates that the Constitution-makers dealt separately with legislative power by providing for the same in Part XI and entrusted the constituent power to authorities mentioned in Article 368 and that authority has the same power as the Constituent Assembly because it has not put any fetter upon it. The draft Article 305 which provided for a limitation as to time for amendment of certain matters was eventually deleted. If the framers of the Constitution wanted to forbid something they would say so.

875. The vitality of the constituent power not only indicates that the Constitution is in the words of Maitland the suprema potestas but also the fact that the amending power is put in a separate Article and Part of the Constitution establishing that it deals with a topic other than legislative power and the power is meant to be exhaustive leaving nothing uncovered. The vary fact that amending power is not put in any legislative power or is not attached to a subject which is the subject matter of legislative power leaving aside the four sets of provisions, namely, Articles 4, 169, paragraph 7 Schedule 5 and paragraph 21 Schedule 6 containing specific power of amendment shows that that amending power was meant to be exhaustive and plenary. If a power of amendment without any express limitation was given it was because a legal Constitutional way of bringing a change in the Constitution was desirable or necessary. Otherwise there would be no legal way of effecting the change. It cannot be attributed to the framers of the Constitution that they intended that the Constitution or any part of it could be changed by unConstitutional or illegal methods.

876. If an amendment of the Constitution is made subject to Article 13(2) the necessary conclusion then is that no amendment of the Constitution is possible. The opening words of Article 245 which deals with legislative power indicate that any law made under Article 246(1) read with List I of the Seventh Schedule is subject to the limitations on legislative power imposed by all the Articles in the Constitution. These limitations cannot be altered or amended in exercise of legislative power, if the power of amendment is said to be located in the Residuary Entry 97 in List I. The history of residuary power in the Government of India Act, 1935 whose scheme was adopted in the Constitution shows that the topic of amendment was not only present to the mind of the Constitutent Assembly but also that the Constituent power could not reside in the residuary power.

877. The conclusions on the question as to whether Article 13(2) overrides Article 368 are these. Article 13(2) relates to laws under the Constitution. Laws under the Constitution are governed by Article 13 (2). Article 368 relates to power and procedure of amendment of the Constitution. Upon amendment of the Constitution the Constitution shall stand amended. The Constitution is self validating and self executing. Article 13(2) does not override Article 368. Article 13(2) is not a fundamental right. The Constitution is the touchstone. The constituent power is sui generis. The majority view in Golak Nath case that Article 13(2) prevails over Article 368 was on the basis that there was no distinction between constituent and legislative power and an amendment of the Constitution was law and that such law attracted the opening words of Article 245 which in its turn attracted the provisions of Article 13(2). Parliament took notice of the two conflicting views which had been taken of the unamended Article 368, took notice of the fact that the preponderating judicial opinion, namely, the decisions in Shankari Prasad case Sajjan Singh case and the minority views of five learned Judges in Golak Nath case were in favour of the view that Article 368 contained the power of amendment and that power was the constituent power belonging to Parliament Wanchoo, J. rightly said in Golak Nath case that the power under Article 368 is a constituent power to change the fundamental law, that is to say, the Constitution and is distinct from ordinary legislative power. So long as this distinction is kept in mind Parliament will have power under Article 368 to amend the Constitution and what Parliament does under Article 368 is not ordinary law making which is subject to Article 13(2) or any other Article of the Constitution. This view of Wanchoo, J. was adopted by Parliament in the Constitution 24th Amendment Act which made explicit that under Article 368 Parliament has the constituent power to amend this Constitution.

878. In order to appreciate and assess Mr. Palkhivala's other contention of implied and inherent limitations on the amending power, it is necessary to find out the necessity and importance of the amending power to arrive at the true meaning of the expression "amendment".

879. Mr. Palkhivala made these submissions. The word "amendment" means on the one hand not the power to alter or destroy the essential features and on the other there are inherent and implied limitations on the power of amendment. It is imperative to consider the consequences of the plea of limited power and also of the plea of limitless power. The test of the true width of a power is not how probable it is that it may be exercised, but what can possibly be done under it. The hope and expectation that it will never be used is not relevant. Reliance is placed on the observations in Maxwell on the Interpretation of Statutes, 12th Ed. (1969) pp. 103-106 that it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words, before adopting any proposed construction of a passage susceptible of more than one meaning. The reasonableness of the consequences which follow from a particular construction on the one hand and the unreasonable result on the other are the two alternatives in the quest for the true intention of Parliament. Crawford Construction of Statutes (1940 Ed.) pp. 286-290 was referred to for the proposition that where the statute is ambiguous or susceptible to more than one meaning, the construction which tends to make the statute unreasonable should be avoided. Uncertainty, friction or confusion on a construction is to be avoided because preference is to be given to the smooth working of the statute. The Court adopts which is just reasonable and sensible rather than that which is none of these things. It is not to be presumed that the legislature intended the legislation to produce inequitable results. Usurpation of power contrary to the Constitution is to be avoided.

880. Reliance was placed by Mr. Palkhivala on American Jurisprudence 2d. Vol. 16 Article 59 at pp. 231-232, Article 72 at p. 251, Article 287 at pp. 270-71 and Article 88 at pp. 273-74 in support of these propositions. First, questions of Constitutional construction are in the main governed by the same general principles which control in ascertaining the meaning of all written instruments particularly statutes. External aids or arbitrary rules applied to the construction of a Constitution are of uncertain value and should be used with hesitation and circumspection. Second, Constitutions are general and many of the essentials with which Constitutions treat are impliedly controlled or dealt with by them and implication plays a very important part in Constitutional construction. What is implied is as much a part of the instrument as what is expressed. Third, a Court may look to the history of the times and examine the state of things existing when the Constitution was framed and adopted. The Court should look to the nature and object of the particular powers, duties and rights in question with all the light and aids of the contemporary history. Fourth, proceedings of conventions and debates are of limited value as explaining doubtful phrases. Similarly, the opinions of the individual members are seldom considered as of material value.

881. Mr. Palkhivala said that the word "amend" may have three meanings. First, it may mean to improve or better to remove an error, the quality of improvement being considered from the stand point of the basic philosophy underlying the Constitution. Second, it may mean to make changes which may not fall within the first meaning but which do not alter or destroy any of the basic essential or any of the essential features of the Constitution. Third, it may mean to make any changes in the Constitution including changes falling outside the second meaning. The first meaning was preferred. The second was said to be a possible construction. The third was ruled out.

882. The crux of the matter is the meaning of the word "amendment" The Oxford Dictionary meaning of the word is to make professed improvements in a measure before Parliament; formally, to alter in detail, though practically it may be to alter its principle, so as to thwart it. The Oxford Dictionary meanings are also alteration of a bill before Parliament; a clause, paragraph, or words proposed to be substituted for others, or to be inserted in a bill (the result of the adoption of which may even be to defeat the measure). In Words and Phrases Permanent Edition, Volume 3 the meaning of the word "amend" and "amendment" are change or alteration. Amendment involves an alteration or change, as by addition, taking away or modification. A broad definition of the word "amendment" will include any alteration or change. The word "amendment" when used in connection with the Constitution may refer to the addition of a provision on a new independent subject, complete in itself and wholly disconnected from other provisions, or to some particular article or clause, and is then used to indicate an addition to, the striking out, or some change in that particular article or clause.

883. The contention that the word "amendment" in Article 368 should bear a limited meaning in view of the expression "amend by way of addition, variation or repeal any of the provisions of this Schedule" occurring in paragraphs 7 and 21 in Schedules 5 and 6, is unsound for the following reasons.

884. First, the power of amendment conferred by the four provisions, namely, Article 4 read with Articles 2 and 3, Article 169, paragraphs 7 and 21 in Schedules 5 and 6 is a limited power. It is limited to specific subjects. The exercise of the power of amendment under those four provisions, if treated by Articles themselves, is an uncontrolled power since the power can be exercised by an ordinary law. But as a part of the Constitution the power is a subordinate power because these Articles themselves are subject to the amending provisions of Article 368. Article 368 is the only provision of the Constitution which provides for the amendment of this Constitution which means the Constitution of India and every part hereto. It may be mentioned that in construing Article 368 the title of the part "Amendment of the Constitution" is an important aid to construction. The marginal note which speaks of the procedure of amendment is not complete by itself because the procedure when followed results in the product, namely, an amendment of the Constitution which is not only a matter of procedure.

885. Second, these four provisions which are in the same terms, namely, "no such law shall be deemed to be an amendment of this Constitution for the purpose of Article 368" show that but for these terms the amendment would have fallen within Article 368 and was being taken out of it This is an important consideration particularly in connection with Schedules 5 and 6 which provide that Parliament may, from time to time by law, amend by way of addition, variation or repeal any of the provisions of this Schedule. These provisions show that an amendment by way of addition, variation or repeal will also fall within the amendment of the Constitution provided for in Article 368 but is being taken out of Article 368. This express exclusion contains intrinsic evidence that the meaning of the word "amendment" in Article 368 includes amendment by way of addition, alteration or repeal.

886. Third, paragraphs 7 and 21 in Schedules 5 and 6 which provide that Parliament may from time to time by law, amend by way of addition, variation or repeal indicate the necessity of amendments from time to time. The expression "by way of" does not enlarge the meaning of the word "amendment" but clarifies. The expression "by way of" shows that the words addition, variation or repeal are substitutes of the word "amendment" and are forms of intention. The whole Schedule cannot be repealed either by paragraph 7 or by paragraph 21, because Article 244 provides for the administration of Scheduled Areas and tribal areas on the application of the two respective Schedules. The words "from time to time" also indicate that because of subject matter amendments may be from time to time. The history behind the two Schedules originates in Section 91 and 92 of the Government of India Act, 1935 dealing with excluded areas and partially excluded areas.

887. Fourth, reference was made to Section 9(1)(c) of the India Independence Act 1947 which empowered the Governor General to make omissions from, additions to and adaptations and modification to the Government of India Act, 1935. The Government of India Third Amendment Act 1949 amended Section 291 of the 1935 Act and empowered the Governor General to make such amendments as he considers necessary whether by way of addition, modification or repeal. It was, therefore, said that when our Constitution did not use the expression "by way of addition, modification or repeal" the word "amendment" in Article 368 will have a narrower meaning. The expression "amendment" has been used in several Articles of the Constitution. These are Articles 4(1) and (2), 108(4), 109(3), and 4, 111, 114(2), 169(2), 196(2), 198(3) and (4), 200, 201, 204(2), 207(1), (2), 240(2), 274(1), 304(b) and 349. In every case amendment is to be by way of variation, addition or repeal. Again, different expression have been used in other Articles. In Article 35(b) the words are alter, repeal. In Article 243(1) the words are repeal or amend. In Article 252(2), the expression is amend or repeal. In Article 254(2) proviso the words are add to, amending, variation or repeal. In Article 320(4) the words are such modifications whether by way of repeal or amendment. In Article 372(1) the words are altered or repealed or amended. In Article 372(2) the words are such adaptations and modifications by way of repeal or amendment. In Article 392(1) the expression is such adaptations by way of modification, addition or commission. Again, in Article 241(2) the words are modification or exceptions. In Article 364 the words used are exceptions or modifications. In Article 370(1)(d) and (3) the words are modifications and exceptions. Again, in Schedule 5 paragraph 5(1) and Schedule 6 paragraphs 12(a), (b), 19(1)(a) the word used are exceptions or modifications. Modifications in Article 370(1)(d) must be given the widest meaning in the context of a Constitution and in that sense it includes an amendment and it cannot be limited to such modifications as do not make any radical transformation.

888. The several Constitution Amendment Acts show that amendments to the Constitution are made by way of addition, substitution, repeal. The Attorney General is right in his submission that the expression "amendment of this Constitution" has a clear substantive meaning in the context of a written Constitution and it means that any part of the Constitution can be amended by changing the same either by variation, addition of repeal.

889. The words "Amendment of this Constitution may be initiated" and the words "Constitution shall stand amended in accordance with the terms of the Bill" in Article 368 indicate that the word "amendment" is used in an unambiguous and clear manner. The Attorney General said that our Constitution is not the first nor is the last one to use the word "amendment". The American Constitution in 1787 used the word "amend". Several Constitutions of other countries have used the word "amend". The word "amend" is used in a Constitution to mean any kind of change. In some Constitutions the words alteration or revision have been used in place of the word amend or along with the word amendment. Some times alteration and revision of the Constitution are also spoken of as amendment of the Constitution.

890. Constitutional provisions are presumed to have been carefully and deliberately framed. The words alterations or amendments, the words amendments or revisions, the words revision and alteration are used together to indicate that these words have the same meaning in relation to amendment and change in Constitution.

891. The meaning and scope of amending power is in the object and necessity for amendment in a written Constitution.

892. The various amendments which have already been carried out to our Constitution indicate that provisions have been added, or varied or substituted. The Attorney General gave two correct reasons for the object and necessity of the power of amendment in a written Constitution. First, the object and necessity of amendment in a written Constitution means that the necessity is for changing the Constitution in an orderly manner, for otherwise the Constitution can be changed only by an extra Constitutional method or by revolution, Second, the very object of amendment is to make changes in the fundamental law or organic law to make fundamental changes in the Constitution, to change the fundamental or the basic principles in the Constitution. Otherwise there will be no necessity to give that importance to the high amending power to avoid revolution.

893. The object of amendment is to see that the Constitution is preserved. Rebellion or revolution is an illegal channel of giving expression to change. The "consent of the governed" is that each generation has a right to establish its own law. Conditions change. Men Change, Opportunities for corresponding change in political institutions and principles of Government therefore arise. An unamendable Constitution was the French Constitution which by an amendment to the Constitution adopted in 1884 declared that the National Assembly shall never entertain a proposal for abolition of the republican form of Government. The United States Constitution provided that no amendment could be made prior to 1808 affecting the First and Fourth Clauses of Section 9 of Article 1 relative to the prohibition of the importation of slaves, and that no State without its consent shall be deprived of equal suffrage in the Senate. These are examples of limiting the sovereign power of the people to change the Constitution.

894. An unamendable Constitution is said to be the worst tyranny of time. Jefferson said in 1789 that each generation has a right to determine a law under which it lives. The earth belongs in usufruct to the living; the dead have neither powers nor rights over it. The machinery of amendment is like a safety valve. It should not be used with too great facility nor should be too difficult. That will explode and erode the Constitution.

895. Most Constitutions are rigid in the sense that they are amendable only by a different process than that by which ordinary laws may be altered. Thus they distinguish clearly between the constituent power and the legislative power, each being exerciseable by different organs according to different processes. Chief Justice Marshall said that the opponents of change want changes just as much as any one else. They want however to determine what the changes shall be.

896. Amendment is a form of growth of the Constitution inasmuch as amendment means fundamental changes. The Constitution devises special organs or special methods to amend or change the fundamental principles that create the Government. The methods of amendment may be by ordinary law making body as in Great Britain or by the ordinary law making body with special procedure or unusual majority or by special organs of government created for the purpose such as Constitutional convention or by the electorate in the form of referendum or of initiating a referendum. In case a written Constitution makes no provision for amendment it is usually held that the national law making body by ordinary procedure may amend the Constitution. If a Constitution provides the method of amendment that method alone is legal. Any other method of amendment would be a revolution. The deliberative and restrictive processes and procedure ensure a change in the Constitution in an orderly fashion in order to give the expression to social necessity and to give permanence to the Constitution.

897. The people expressed in the Preamble to our Constitution gave the Constitution including the power to amend the Constitution to the bodies mentioned in Article 368. These bodies represent the people. The method to amend any part of the Constitution as provided for in Article 368 must be followed. Any other method as for example convening Constituent Assembly or Referendum will be extra Constitutional or revolutionary. In our Constitution Article 368 restricts only the procedure or the manner and form required for amendment but not the kind or the character of the amendment that may be made. There are no implied limitations to the amending power. The Attorney General summed up pithily that the Constitution Acts not only for the people but on the people.

898. The Attorney General relied on several American decisions in support of these propositions. First, the word "amendment" does not mean improvement. The view in Livermore v. Waite 102 Cal. 118 of a single learned Judge that amendment means improvement was not accepted in Edwards v. Lesseur South Western Reporter Vol. 33, p. 1130. Second, ratification by people of States would be void when a federal amendment proposed by Congress is required to be ratified by the legislatures of the States. Ex-parte Dillon Federal Reporter No. 262 p. 563. The legislature is a mere agency for ratification of a proposed amendment. Ex-parte Dillon did not accept the view of the learned single Judges in Livermore v. Waite that amendment means only improvement. Third, the argument that the word "amendment" carries its own limitations regarding fundamental principles or power of State or control of the conduct of the individuals by devising a method of referendum by State legislatures is adding a new method of amendment. This is not permissible. Feigenspan v. Bodine 264 Federal Reporter 186. The only method of amendment is that prescribed by the Constitution. The theory of referendum by State legislatures is not valid. Fourth, the assumption that ratification by State legislatures will voice the will of the people is against the prescribed method of amendment and grant of authority by the people to Congress in the manner laid down in Article V of the American Constitution. It is not the function of Courts or legislative bodies to alter the method which the Constitution has fixed. Ratification is not an act of legislation. It derives its authority from the Constitution. Hawke v. Smith 253 U.S. 221; Dillon v. Gloss 256 U.S. 358, Leser v. Garnett 258 U.S. 130. Fifth, the power of amendment extends to every part of the Constitution. In amending the Constitution the General Assembly acts in the character and capacity of a convention expressing the supreme will or the sovereign people and is unlimited in its power save by the Constitution. Ex-parte Mrs. D.C. Kerby American Law Reports Annotated, Vol. 36, p. 1451. Sixth, the argument that amendments which touch rights of the people must be by convention is rejected by Supreme Court in American Article V of the American Constitution is clear in statement and meaning and contains no ambiguity. Where the intention is clear there is no room for construction. Rhode Island v. Palmer 253 U.S. 350; U.S. v. Sprague 282 U.S. 716. Seventh, principles of the Constitution can be changed under Article V Schneiderman v. United States of America 320 U.S. 118. Eight, the Constitution provides the method of alteration. While the procedure for amending the Constitution is restricted here is no restraint on the kind of amendment that may be made. Whitehall v. Elkins 389 U.S. 54.

899. Except for special methods of amendment in a rigid or controlled Constitution although the methods may vary in different Constitutions and except for express limitations, if any, in rigid or controlled Constitutions, the meaning and scope of the amending power is the same in both the flexible and rigid forms.

Re: Kesavananda Bharati vs State Of Kerala And ors

900. The flexible Constitution is one under which every law of every description can be legally changed with the same case and in the same manner by one and the same body. Laws in a flexible Constitution are called Constitutional because they refer to subjects supposed to affect the fundamenal institutions of the State, and not because they are legally more sacred or difficult to change than other laws.

901. A rigid Constitution is one under which certain laws generally known as Constitutional or fundamental laws cannot be changed in the same manner as ordinary laws. The rigidity of the Constitution consists in the absence of any right of the legislatures when acting in its ordinary capacity to modify or repeal definite laws termed Constitutional or fundamental. In a rigid Constitution the term "Constitution" means a particular enactment belonging to the Articles of the Constitution which cannot be legally changed with the same ease and in the same manner as ordinary laws.

902. The special machinery for Constitutional amendment is the limitation of the power of the legislature by greater law than by the law of the ordinary legislation. The Constituent Assembly knowing that it will disperse and leave the actual business of legislation to another body, attempts to bring into the Constitution that it promulgates as many guides to future action as possible. 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. There may be some elements of the Constitution which the constituent assembly wants to remain unalterable. These elements are to be distinguished from the rest. The Fifth Clause in the United States Constitution is that no State without its own consent shall be deprived of its equal suffrage in the Senate. The Attorney General rightly sard that just as there are no implied limitation in flexible Constitutions similarly there are no implied limitations in a rigid Constitution. The difference is only in the method of amendment. Amendment can be made by ordinary legislature under certain restrictions, or by people through referendum or by majority of all the units of a federal State or by a special convention.

903 In a rigid Constitution the legislatures by reason of their well matured long and deliberately formed opinion represent the will of the undoubted majority. But even such will can be thwarted in the amendment of the organic law by the will of the minority. In case where the requisite majority is not obtained by the minority thwarting an amendment, there is just as much danger to the State from revolution and violence as there is from what is said to be the caprice of the majority. The safeguards against radical changes' thus represent a better way and a natural way of securing deliberation, maturity and clear consciousness of purpose without antagonising the actual source of power in the democratic state.

904. The term "amendment" connotes a definite and formal process of Constitutional change. The force of tradition and custom and the judicial interpretation may all affect the organic structure of the State. These processes of change are the evolution of Constitution.

905. The background in which Article 368 was enacted by the Constituent Assembly has an important aspect on the meaning and scope of the power of amendment.

906. On 12 November, 1946 Sir B.N. Rau Constitutional Adviser prepared a brochure containing Constitution of the British Commonwealth Countries and the Constitutions of other countries. Different countries having different modes of amendments were referred to. In the same volume the fundamental rights under 13 heads were extracted from 13 selected countries like U.S.A., Switzerland, Germany, Russia, Ireland, Canada, Australia. Two features follow from that list. First, there is no absolute standard as to what constitutes fundamental right. There is no such thing as agreed fundamental rights of the world. Second, fundamental rights which are accepted in our Constitution are not superior to fundamental rights in other Constitutions nor can it be said that the fundamental rights are superior to Directive Principles in our Constitution.

907. On 17 March, 1947 a questionnaire was circulated under the subject as to what provisions should be made regarding the amendment of the Constitution. The draft clause of amendment to the Constitution prepared by the Constitutional Adviser at that time indicates that an amendment may be initiated in either House of the Union Parliament and when the proposed amendment is passed in each House by a majority of not less than two thirds of the total number of members of that House and is ratified by the legislatures of not less than two thirds of the units of the Union, excluding the Chief Commissioners' Provinces, it shall be presented to the President for his assent; and upon such assent being given the amendment shall come into operation. There were two explanations to that clause.

908. On 29 April, 1947 Shri Santhanam's amendment to the draft clause was accepted. The amendment was "that this clause also if necessary may be amended in the same way as any other clause in the Constitution". In June, 1947 the drafting of the amending clause started. Originally it was Numbered 232. Eventually, Articles 304 and 305 came into existence in place of draft Article 232. The first draft of the amendment clause was given by Sir B.N. Rau in March, 1947. By June, 1947 and thereafter he recommended the procedure favoured by Sir Alladi Krishnaswami Ayyar and Sir Gopalswami Ayyangar, namely, passage by two thirds majority in Parliament and ratification by like majority of Provincial legislatures. On 21 February, 1948 the draft Constitution was ready. Draft Articles 304 and 305 related to amendment Article 305 provided for reservation of seats for minorities for ten years unless continued in operation by an amendment of the Constitution.

909. The following features emerge. First, the Constituent Assembly made no distinction between essential and non-essential features. Secondly, no one in the Constituent Assembly said that fundamental rights could not be amended. The framers of the Constitution did not have any debate on that. Thirdly, even in the First Constitution Amendment debate no one doubted change or amendment of fundamental rights. At no stage it appeared that fundamental rights are absolute. While a Constitution should be made sound and basic it should be flexible and for a period it should be possible to make necessary changes with relative facility.

910. Certain amendments to Article 304 were proposed. One proposed amendment No. 118 was that amendment was to be passed in two Houses by a clear majority of the total membership of each House. Another proposed amendment No. 210 was that for a period of three years from the commencement of the Constitution, any amendment certified by the President to be not one of substance might be made by a simple majority. This also' stated that it would include any formal amendment recommended by a majority of the Judges of the Supreme Court on the ground of removing difficulties in the administration of the Constitution or for the purpose of carrying out the Constitution in public interest. The third proposed amendment No. 212 was that no amendment which is calculated to infringe or restrict or diminish the scope of any individual rights, any rights of a person or persons with respect to property or otherwise, shall be permissible and any amendment which is or is likely to have such an effect shall be void and ultra vires of any legislature. It is noteworthy that this amendment was withdrawn. See Constituent Assembly Debates Vol. IX p. 1665.

911. In the first category the framers devised amendment by Parliament by a simple majority. These are Articles 2 and 4 which deal with States. As far as creation or re- Constitution of States is concerned, it is left to Parliament to achieve that by a simple majority. Again, draft Article 148A which eventually became Article 169 dealing with Upper Chambers in the States gave Parliament power to abolish the Upper Chambers or to create new Second Chambers. Schedules 5 and 6 were left to be amended by Parliament by simple majority. The second category of amendment requires two thirds majority. It is in that connection that the statement of Dr. Ambedkar "If the future Parliament wishes to amend any particular Article which is not mentioned in Part III or Article 304 all that is necessary for them is to have the two thirds majority then they can amend it" was invoked by Mr. Palkhivala to support his submission that Part III was unamendable. That is totally misreading the speech. The speech shows that some Articles would be amendable by bare majority, others would require two thirds majority and the third category would require two thirds majority plus ratification by the States.

912. Proceedings in the Constituent Assembly show that the whole Constitution was taken in broad prospective and the amendments fell under three categories providing for simple majority, or two thirds; majority or two thirds majority and ratification by the States. These different procedures were laid down to avoid rigidity.

913. The Constitution First Amendment Act which added Article 15 (4), substituted words in Articles 19(2) and Article 19(6), inserted Article 31A indicates interesting features. The two criticisms at that time were as to what was the hurry and secondly that the Government was trying to take more power to itself. The answers are that a Constitution which is responsive to the people's will and their ideas and which can be varied here and there, will command respect and people will not fight against change. Otherwise, if people feel that it is unchangeable and cannot be touched, the only tiling to be done by those who wish to change it is to try to break it. That is a dangerous thing and a bad thing.

914. In this background there is no doubt about the meaning and scope of Article 368. The Attorney General rightly said that if there be any doubt contemporaneous practical exposition of the Constitution is too strong and obstinate to be shaken or controlled. In Mopherson v. Blacker 146 U.S. 1 it is said that where plain and clear words occur there is no difficulty but where there is doubt and ambiguity contemporaneous and practical exposition is a great weight. In The Automobile Transport (Rajasthan) Ltd. v. The State of Rajasthan and Ors. (1963) 1 S.C.R. 491 this Court took notice of the feature that Constitution makers had deep knowledge of Constitutions and Constitutional problems of other countries.

915. Mr. Seervai relying on British Coal Corporation v. King (1935) A.C. 500 submitted that in interpreting a constituent or organic statute that construction most beneficial to the widest possible amplitude of powers must be adopted. A strict construction applicable to penal or taxing statute will be subversive of the real intention of Parliament if applied to an Act passed to ensure peace, order and good government. Largest meaning is given to the allocated specific power. If there are no limitations on the power it is the whole power. Grant of power of amendment cannot be cut down except by express or implied limitations. The conclusion is that the meaning of the word amendment is wide and not restricted.

916. The contention of Mr. Palkhivala on behalf of the petitioner is that under Article 368 as it stood prior to the amendment there were implied and inherent limitations on the power of amendment. It was said that the word "amendment" would preclude the power to alter or destroy the essential features and the basic elements and the fundamental principles of the Constitution. This contention was amplified as follows. The Constitution is given by the people unto themselves. The power to decide upon amendment is given to the 5 year Parliament which is a creature of the Constitution. Article 368 does not start with the non-obstante clause. Article 368 uses the word "amendment" simpliciter. Less significant amendment powers in others parts of the Constitution use the words "add, alter, repeal or vary" in addition to the word "amendment", as will appear in Articles 31B, 25(b), 252(2), 372, 372A(2), paragraph 7 Schedule 5, paragraph 21 Schedule 6. Article 368 talks of an amendment of this Constitution and does not extend the amending power to "all or any of the provisions of this Constitution". On a wide construction of the word "amendment" all fundamental rights can be taken away by the requisite majority whereas much less significant matters require the concurrence of at least half the States under the proviso to that Article.

917. The basic human freedom are all of the most fundamental importance to all the States and all the citizens. Article 32 is no less important to the citizens of States than Article 226. The Preamble is not a part or provision of the Constitution. Therefore, the Preamble cannot be amended under Article 368. The nature and the contents of the Preamble are such that it is incapable of being amended. If the Preamble is unalterable it necessarily follows that those features of the Constitution which are necessary to give effect to the Preamble are unalterable. Fundamental rights are intended to give effect to the Preamble. They cannot, therefore, be abridged or taken away. The provisions of Article 368 themselves can be amended under that very Article. If the word "amendment" is read in the widest sense Parliament will have the power to get rid of the requisite majority required by Article 368 and make any Constitutional amendments possible by bare majority, Parliament can provide that hereafter the Constitution shall be unamendable. Parliament can reduce India to a status which is neither sovereign nor democratic nor republic and where the basic human rights are conspicuous by their absence.

918. Mr. Palkhivala submits that the principle of inherent or implied limitations on power to amend the controlled Constitution stems from three basic features. First, the ultimate legal sovereignty resides in the people. Second, Parliament is only a creature of the Constitution. Third, power to amend the Constitution or destroy the essential features of the Constitution is an application of ultimate legal sovereignty.

919. Mr. Palkhivala enumerated 12 essential features. These were as follows : (1) The supremacy of the Constitution. (2) The sovereignty of India. (3) The integrity of the country. (4) The democratic way of life. (5) The republican form of Government. (6) The guarantee of basic human rights elaborated in Part III of the Constitution. (7) A secular State. (8) A free and independent judiciary. (9) The dual structure of the Union and the States. (10) The balance between the legislature, the executive and the judiciary. (11) a Parliamentary form of Government as distinct from the presidential form of Government. (12) Article 368 can be amended but cannot be amended to empower Parliament to alter or destroy any of the essential features of the Constitution, make Che Constitution literally or practically unamendable, make it generally amendable by a bare majority in Parliament, confer the power of amendment either expressly or in effect on the State Legislatures and delete the proviso and deprive the States of the power of ratification which is today available to them in certain broad areas.

Re: Kesavananda Bharati vs State Of Kerala And ors

920. The Constitution 24th Amendment Act was impeached by Mr. Palkhivala on three grounds. First, by substituting the words "amend by way of addition, variation or repeal" in place of the word "amendment" in Article 368 the power was widened. Second, the 24th Amendment made explicit that when Parliament makes a Constitutional amendment under Article 368 it acts in exercise of constituent power. Third, it had provided by amendment in Articles 13 and 368 that the power in Article 13(2) against abridging or taking away of the fundamental rights shall not apply to any amendment under Article

368. The Constitution 24th Amendment Act is, therefore, to be construed as empowering Parliament to exercise full constituent power of the people and to vest in Parliament the ultimate legal sovereignty of the people as authorising Parliament to alter or destroy all or any of the essential features, basic elements and fundamental principles of the Constitution. Likewise, Parliament is construed by the Constitution 24th Amendment Act to be authorised to damage or destroy the essence of all or any of the fundamental rights. Therefore, the amendment must be illegal and invalid.

921. In the alternative it was submitted on behalf of the petitioner that if the Constitution 24th Amendment is valid it can be only on a reading down of the amended provisions of Article 13 and 368 which reading would preserve the original inherent and implied limitations. Even after the Constitution 24th Amendment Act Parliament will have no power to alter or destroy the essential features of the Constitution and secondly, fundamental rights are among the essential features of the Constitution and, therefore, the essence of any of the fundamental rights cannot be altered or destroyed or damaged even when they are sought to be abridged.

922. The Attorney General stressed the background in which Article 368 was enacted by the Constituent Assembly to show that any limitation on the amending power was never in controversy. The only controversy was regarding the degree of flexibility of an amendment of all the provisions of the Constitution. Our Constitution has adopted three methods of amendment of the Constitution. Certain provisions of the Constitution may be amended by a simple majority in Parliament. Others may be amended by two-thirds majority. The third category relates to provisions where amendments must be ratified by one half of the States. This scheme strikes a good balance by protecting the rights of the States while leaving the remainder of the Constitution easy to amend. Of the three ways of amending the Constitution two are laid down in Article 368 itself and the third is provided for in about 24 other Articles.

923. The Constitutional Adviser incorporated in his draft Constitution prepared by him in October, 1947 a recommendation contained in the supplementary Report of the Union Constitution Committee. Following the recommendation of the Advisory Committee he included a proviso that the provisions in the Constitution relating to the reservation of seats for the Muslims, the Scheduled Castes, the Scheduled Tribes, the Indian Christians and the Sikhs, either in the Federal Parliament or in any Provincial Legislature, should not be amended before the expiry of ten years from the commencement of the Constitution.

924. The Drafting Committee in February, 1948 considered the provisions for amendment. It made three material changes in the provisions made by the Constitution Adviser. First, the Committee framed a self contained and independent Article regarding the reservation of seats in the legislatures for minorities. These provisions could not be amended for a period of ten years and would then cease to have effect unless continued in operation by an amendment of the Constitution. The second proposed change gave a limited power of initiating Constitutional amendments to the State legislatures. This power related to two matters. These were the methods of choosing Governors and the establishment or abolition of Legislative Councils in the States. The third amendment suggested was that changes in any of the legislative lists (not merely federal List) should receive ratification of at least one half of the Provincial legislatures and one third of the legislatures of Indian States.

925. The entire history of the power of amendment of the Constitution shows first that the Draft Constitution eliminates the elaborate and difficult procedures such as a decision by convention or a reterendum. The powers of amendments are left with the legislatures of the Union and the States. Secondly, it is only for amendments of specific matters that the ratification by the State legislatures is required. All other Articles are left to be amended by Parliament with only limitation of majority of not less than a two-thirds of the members of each House present and voting and the majority of the total membership of each House. Thirdly, the provisions for amendment of the Constitution Were made simple and not difficult when comparison is made with the American and the Australian Constitutions.

926. The theory of inherent and implied limitations on the amending power is based on the assumption of a narrow and restricted meaning of the word amendment to suggest that the basic features or the essential features and the democratic republican character of the Constitution cannot be damaged and destroyed. Emphasis is laid on the Preamble of the Constitution to suggest that inherent and implied limitations all spring from the Preamble. The Preamble is said not to be a part of the Constitution. The Preamble is said to be unalterable. Therefore, it is contended that other provisions which gave effect to the Preamble cannot be amended.

927. Reliance is placed on the decision of this Court in Berubari case (1960) 3 S.C.R. 250 in support of the proposition that the Preamble is not a part of the Constitution. The conclusion drawn is that no amendment of the Constitution inconsistent with the Preamble can be made. The Preamble is said to be an implied limitation on the power of amendment. This Court in Berubari case said that the Preamble has never been regarded as the source of any substantive power, because such powers are expressly granted in the body of the Constitution. This Court said "what is true about the powers is equally true about prohibitions and limitations". In Berubari case it was suggested that the Preamble to the Constitution postulated that like a democratic republican form of the Government the entire territory of India was beyond the reach of Parliament and could not be affected either by ordinary legislation or even by Constitutional amendment. The Preamble was invoked to cut down the power to cede territory either by ordinary law or by amendment of the Constitution. This Court said that the Preamble is, in the words of Story "a key to open the minds of the makers, but nevertheless the Preamble could not be said to postulate a limitation on one of the very important attributes of sovereignty". This Court rejected the theory that the Preamble can impose serious limitations on the essential attribute of sovereignty. The suggested limitation that the Preamble affirmed the inviolability of the territory of India so that the power of amendment should be implied limited to exclude the ceding territory, is negatived by this decision.

928. The petitioner's contention that the Preamble is not a part of the Constitution is nullified by the petitioner's reference to and reliance on the Preamble as the source of all inherent limitations. The Berubari case held that Article I could be amended under Article 368 and a part of the territory of India could be ceded by such amendment. The Preamble did not limit the power to cede territory by-amendment of Article I.

929. In the Berubari case there is an observation that the Preamble is not a part of the Constitution. The Preamble was taken up by the Constituent Assembly at the end as it had to be in conformity with the Constitution. The Preamble was debated and voted upon and the motion "The Preamble stand part of the Constitution" was adopted. Therefore, Mr. Seervai rightly contended that the Preamble is an integral part of the status. The Preamble can be repealed (See Craies on Statute 6th Ed. page 200 seq. and Halsbury Laws of England, 3rd Ed. Vol. 36 p. 370).

930. In Gopalan case (1950) S.C.R. 88 an argument was advanced on the Preamble that the people gave themselves guaranteeing to the citizens fundamental rights, and, therefore, the provisions of Part III must be construed as being paramount to the legislative will as otherwise the fundamental rights to life and personal liberty would have no protection against legislative action. Patanjali Sastri, J., said that the high purpose and spirit of the Preamble as well as the Constitutional significance of a declaration of Fundamental Rights should be borne in mind. The language of the provisions, it was said there, could not be stretched in disregard of the cardinal rule of interpretation of any enactment, Constitution or other, that its spirit no less than its intendment should be collected primarily from the natural meaning of the words used. The words "procedure established by law" in Article 21 must be taken to refer to a procedure which had a statutory origin. The word "law" was said not to mean the immutable and universal principle of natural justice. The reasoning given by Patanjali Sastri, J. was "no procedure is known or can be said to have been established by such vague and uncertain concepts as the immputable and universal principles of natural justice". This Court in Gopalan case refused to read due process as an implication of the Constitution.

931. In the Kerala Education Bill 1957 case (1959) S.C.R. 995 Das, C.J. referred to the Preamble and said "to implement and fortify the supreme purpose set forth in the Preamble, Part III of our Constitution has provided for us certain fundamental rights". In the same case, Das, C.J. said "so long as the Constitution stands as it is and is not altered, it is inconceiveably the duty of this Court to uphold the fundamental rights and thereby honour our sacred obligation to the minority community who are of our own". This observation shows that fundamental rights can be amended and the Preamble does not stand in the way.

932. In Basheshar Nath v. The C.I.T. Delhi (1955) Supp. 1 S.C.R. 528 Bhagwati, J. referred to the Preamble in discussing the question of waiver of fundamental right and compared our Preamble to the Preamble to the United States Constitution. The Preamble to the American Constitution is without the Bill of Rights and the Bill of Sights which became part of the United States Constitution substantially altered its character and broadly speaking, differed in no way, in principle, from our fundamental rights.

933. The Preamble is properly resorted to where doubts or ambiguities arise upon the words of the enacting part. If the enacting words are clear and unambiguous, there is little room for interpretation, except the cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the Preamble. This is the view of Story. The Preamble can never be resorted to enlarge the powers confided to the general government The Preamble can expound the nature, extent and application of the powers actually conferred by the Constitution and not substantively create them.

934. The decision of this Court in Gopalan case, the Coal Bearing Areas Act case (1962) 1 S.C.R. 44, and State of Rajasthan v. Leela Jain (1965) 1 S.C.R. 276 are that if the language of the enactment is clear the Preamble cannot nullify or cut down the enactment. The Judicial Committee in The Secretary of State for India in Council v. Maharajah of Bobbili I.L.R. 43 Mad. 529 said that the legislature may well intend that the enacting part should extend beyond the apparent ambit of the Preamble or the immediate mischief. See also Attorney General v. Prince Ernest Augustus of Haneyar 1957 A.C.

436. The American decision in Henning Jacobson v. Commonwealth of Massachusetts 197 U.S. 11 indicates that power is not conferred by the Preamble but must be found in the Constitution.

935. The Preamble may be relevant in the case of an ambiguity in an enactment in a statute. A statute does not contain an amending power for the simple reason that the statute can be amended under legislative power. The Attorney General rightly said that the Preamble in a Constitution refers to the frame of the Constitution at the time of the Preamble, and, therefore, it can possibly have no relevance to the constituent power in the future, when that Constitution itself can be changed. The position would be the same so far as the Preamble is concerned whether the constituent power is exercised by the amending body provided for by the people themselves in the Constitution or by referendum if so provided for in the Constitution. The Attorney General supported his submission by relying on the views of Canaway and Wynes on the similar interpretation of Section 128 of the Australian Constitution.

936. Canaway in the Failure of Federalism in Australia in discussing Section 128 of the Australian Constitution under the heading "Alteration of the Constitution" expresses the view that the section must be read as a substantive grant of power to alter the Constitution and that the negative form of the section in no way detracts from the amplitude of that power. Canaway further says that it is not permissible to refer to the Preamble in connection with the effect of Section 128 and if nevertheless such reference is made there is nothing adverse to the conclusion that there is full power of amendment. The Preamble recites a preliminary agreement to unite in one indissoluble Federal Commonwealth. Section 128 of the Australian Constitution forms an integral part of the Constitution. As from the time of the agreement it must have been contemplated that the Constitution should be alterable to the full extent of power conferred by that section. Therefore, the word "alter" in Section 128 of the Australian Constitution is not restricted by any reference to the Preamble.

937. Wynes in Legislative, Executive and. Judicial Powers in Australia 4th Ed. at pp. 505-506 expresses the view that apart from the rule which excludes the Preamble generally from consideration in statutory interpretation it is clear that, when all is said and done, the Preamble at the most is only a recital of a present intention. The insertion of an express reference to an amendment in the Constitution itself is said to operate as a qualification upon the mere recital of the reasons for its creation.

938. At the second reading of the Draft Constitution in the Constituent Assembly a resolution was adopted that the Preamble do form part of our Constitution. The Preamble is a part of the Constitution. On 26 November, 1949 certain Articles of the Constitution were brought into force. Article 393 did come into force on 26 November, 1949. Therefore, the Preamble did not come into force on 26 November, 1949. As regards general laws the position is that the Preamble has been treated as part of the statute.

939. Clear Constitutional provisions are imperative both on the legislatures and the Courts. Where a Constitutional provision is comprehensive in scope and leaves no room for interpretation the Court is without power to amend, add to or detract from a Constitutional provision or to create exceptions thereof by implication (See Corpus Juris Secumdum Vol. 16 p. 65). Where the people express themselves in careful and measured terms in framing the Constitution and they leave as little as possible to implications, amendments or changes in the existing order or conditions cannot be left to inserting implications by reference to the Preamble which is an expression of the intention at the time of the framing of the Constitution. Therefore, the power to amend the Constitution is not restricted and controlled by the Preamble.

940. The contention that essential features are not amendable under Article 368 as it stood before the Constitution 24th Amendment Act is not only reading negative restrictions on the express power of amendment but is also putting the clock back. One of the salutary principles of construction of a statute is to be found in R.V. Burah 3 A.C.

889. It was a case to determine whether the prescribed limitations of a colonial legislature had been exceeded. The Judicial Committee said that a duty must be performed by looking to the terms of the instrument by which affirmatively legislative powers are created, and by which, negatively, they are restricted. "If what has been done is legislation within the general scope of the affirmative words which give power, and if it violates no express condition or restriction by which that power is limited, it is not for, any court of justice to enquire further or to enlarge constructively those conditions and restrictions". The maxim Expressum facit cessare taciturn was similarly applied in Webb v. Outrim 1907 A.C. 89. The theory of implied and inherent limitations can be best described as a subtle attempt to annihilate the affirmative power of amendment. Lord Halsbury in Fielding v. Thomas 1896 A.C. 600 said that if the legislature had full power to make laws it was difficult to see how the power was taken away. The power is always sufficient for the purpose. Lord Dunedin in Whiteman v. Sadler 1910 A.C. 514 said "express enactment shuts the door to further implication".

941. It was said that the essential features could be amended by way of improvement but could not be damaged or destroyed. It was said India could not be converted into a totalitarian dictatorship. The entire approach of the petitioner to the power of amendment contained in Article 368 ignores the fact that the object of the Constitution is to provide for the organs of State like the judicature, legislature and the executive for the governance of the country. Apart from the essential functions of defence against external aggression and of maintenance of internal order a modern State is organised to secure the welfare of the people. India is a sovereign democratic republic which means that Parliament and State legislatures are elected on adult universal suffrage. The country is governed by the Cabinet system of government with ministries responsible to the House ok the People and to the Legislative Assemblies respectively. In a democracy the determination of policies to be pursued can only be determined by a majority vote cast at election and then by a majority of the elected representatives in the legislature. Holmes, J., said "In a democracy the people have the right to embody their opinion in law".

942. The argument that if unbridled power were conferred the Constitution could be subverted or destroyed is not supported by actual experience in India. Mr. Seervai emphasised that since 1951 when Shankari Prasad case recognised unlimited power of amendment till Golak Nath case in 1967 the normal democratic process of the departments of the State functioned as provided by the Constitution. Elections have been held as provided by the Constitution. If any body or organised party were bent upon subverting our free Constitution, then even if there were no power of amendment, Parliament has powers which would enable such destruction to be brought about. Great and wide powers are conferred for the governance of great sovereign countries and such powers cannot be withheld on the ground that they may be used externally or oppressively. Well settled principles of construction in interpreting Constitutions preclude limiting the language of the Constitution by political, juristic or social concepts independently of the language of the Constitution to be interpreted. This Court in Deep Chand v. State of Uttar Pradesh and Ors. (1959) Supp. 2 S.C.R. 8 relied on the test laid down in Queen v. Burah (1878) 5 I.A. 179 that the terms of the instrument by which affirmatively the powers are created, and by which they are negatively restricted are to be looked into. The Judicial Committee in Attorney General for Ontario v. Attorney General for Canada 1912 A.C. 571 tersely stated the legal principles as follows : "If the text is explicit the text is conclusive, alike in what it directs and what it forbids". This is the golden rule of construction of a written Constitution.

943. In Gopalan case 1950 S.C.R. 88 this Court was invited to read into the Constitution implications derived from the "spirit of the Constitution". Kania, C.J. said that to strike down the law on an assumed principle of construction would be "to place in the hands of the judiciary powers too great and too indefinite either for its own security or the protection of private rights". Kania, C.J. also said that a large and liberal interpretation should be given to the Constitution. That does not mean that a Court is free to stretch or pervert the language of the Constitution in the interest of any legal or Constitutional theory. This Court in Keshavan Madhavan Menon v. The State of Bombay 1951 S.C.R. 228 rejected the contention that the spirit of the Constitution should be invoked in interpreting the Constitution. In Benoari Lal Sharma case 72 I.A. 57, the Privy Council reversed the judgment of the Federal Court observing that questions of jurisprudence or policy were not relevant to the construction of power conferred in an affirmative language and not restricted in any negative terms.

944. A Constitution is essentially a frame of government laying down governmental powers exercisable by the legislature, executive and the judiciary. Even so other provisions are included in the Constitution of a country which provisions are considered by the framers of that Constitution to have such special importance that those should be included in the Constitution or organic law. Thus all provisions of the Constitution are essential and no distinction can be made between essential and non-essential features from the point of view of amendment unless the makers of the Constitution make it expressly clear in the Constitution itself. The Attorney General rightly said that if the positive power of "amendment of this Constitution" in Article 368 is restricted by raising the walls of essential features or core of essential features, the clear intention of the Constituent Assembly will be nullified and that would make a mockery of the Constitution and that would lead to destruction of the Constitution by paving the way for extra Constitutional or revolutionary changes in the Constitution. The theory of implied and inherent limitations cannot be allowed to act as a boa constrictor to the clear and unambiguous power of amendment.

945. If there is no express prohibition against amendment in Article 368 the ommission of any such restriction did not intend to impose any restriction. When certain restrictions are imposed it is not intended that other undefined restrictions should be imposed by implication. The general rule is not to import into statutes words which are not found there. Words are not to be added by implication into the language of a statute unless it is necessary to do so to give the paragraph sense and meaning in its context. If a matter is altogether omitted from statute it is not allowable to insert it by implication. Where the language of an Act is clear and explicit, effect is to be given to it whatever may be the consequences. The words of the statute speak the intention of the legislature. Where the reading of a statute produces an intelligible result there is no ground for reading any words or changing any words according to what may be supposed intention of the legislature. If a statute is passed for the purpose of enabling something to be done but omits to mention in Terms some detail which is of great importance to the proper performance of the work which the statute has in contemplation the courts are at liberty to infer that the statute by implication empowers the details to be carried out. The implication is to empower the authority to do that which is necessary in order to accomplish the ultimate object.

946. The implication sought to be raised by Mr. Palkhivala is for the purpose of reading negative words into Article 368 to destroy the positive power to amend. The provisions of out Constitution in the light of historical background and special problems of the country will show that no provision can be considered as non-essential. The Constitution- makers did not think so. The Attorney General rightly contended that no one has the power or authority to say that any single provision is more essential than another or that the amending power under Article 368 does not operate on any provision on the ground of alleged essentiality when Article 368 provides amendment of this Constitution which obviously means the whole Constitution including every provision. In a Constitution different methods of amendment may be laid down depending upon the degree of importance attached to particular parts of the Constitution. Apart from the language of Article 368 the draft Constitution as it emerged through the Constitutuent Assembly shows that no provision of the Constitution was excepted from the amending power.

947. The provisions for the purpose of amendment were divided into four categories. The first two categories are to be found in Article 368. Certain provisions require ratification by the requisite number of States as are mentioned in the proviso. Other provisions which do not fall within the proviso are amendable by a double majority provided there. The third category consists of Articles 4, 169, 240(1), paragraph 7 Schedule 5, and paragraph 21 Schedule 6. The fourth category consists of provisions which were said by the Attorney General to confer enabling power on Parliament to change the provisions by by the expression "unless Parliament otherwise provides" or similar expression. He gave the examples which are Articles 73(2), 100(3), 105(3), 118(2), 120(2), 125, 133(3), 171(2), 189(3), 194(3), 210(2), 241(2), 283(1) and (2), 285(1) and (2), 343(3), 345, 348(1).

948. The character of the provisions which are amendable under the proviso to Article 368 itself shows that petitioner's submission that essential features are unamendable is a baseless vision. Article 54 speaks of the method of election of the President. This may be changed. The manner or scale of representation of the different States in regard to the election of the President may also be changed. The executive power of the Union and the States may be changed. Chapter IV of Part V (the Union Judiciary), Chapter V of Part VI (the High Courts in the States) are also mentioned in Article 368 as liable to be changed. Article 141 may also be changed. Chapter I of Part XI and the Seventh Schedule (legislative relations between Union and the States) may be changed. The representation of the States in Parliament (Articles 80 and 81) may be changed. The number of representation may be increased or reduced. The method of election of such representatives as Parliament may by law prescribe and the number of the members of the House of the People may be increased or reduced. The method of election to the House of People may be changed. Finally the provisions of Article 368 itself, which is the most important part of the Constitution may be changed.

949. To find out essential or non-essential features is an exercise in imponderables. When the Constitution does not make any distinction between essential and non-essential features it is incomprehensible as to how such a distinction can be made. Again, the question arises as to who will make such a distinction. Both aspects expose the egregious character of inherent and implied limitations as to essential features or core of essential features of the Constitution being unamendable. Who is to judge what the essential features are ? On what touchstone are the essential features to be measured? Is there any yardstick by which it can be gauged ? How much is essential and how much is not essential? How can the essential features or the core of the essential features be determined? If there are no indications in the Constitution as to what the essential features are the task of amendment of the Constitution becomes an unpredictable and indeterminate task. There must be an objective data and standard by which it can be predicated as to what is essential and what is not essential. If Parliament cannot judge these features Parliament cannot, amend the Constitution. If, on the other hand, amendments are carried out by Parliament the petitioner contends that eventually court will find out as to whether the amendment violates or abridges essential features or the core of essential features. In the ultimate analysis it is the Court which will pronounce on the amendment as to whether it is permissible or not. This construction will have the effect of robbing Parliament of the power of amendment and reposing the final power of expressing validity of amendment in the courts.

950. Mr. Palkhivala said that though the essential features could be amended the core of essential features could not be amended. He said that there was no esoteric test to find out what is essential and what is not essential and if no precise definition could be given that was no reason to hold that the essential features and the core of essential features could be amended. It was said that the appreciation of the trained judicial mind is the only way to find out what essential features are.

Re: Kesavananda Bharati vs State Of Kerala And ors

951. Mr. Seervai rightly contended that there is no foundation for the analogy that just as Judges test reasonableness in law, similarly the judicial mind will find out the essential features on the test of, reasonableness. Reasonableness in law is treated as an objective criterion because reason inheres in man as rational being. The citizen whose rights are affected applies reason and when he assails a law he possesses a standard by which he can persuade the Court that the law is unreasonable. The legislature which makes a law has the standard of reasonableness and has the further qualification to apply the standard because of familiarity with the needs, desires and the wants of the people whom the legislature represents. As regards the Judge not only does he share the reasonableness of the reasonable man but his trained mind enables him to see certain aspects clearly. The process of judicial review of legislation as laid down by Courts is that the Court will start with the presumption that laws enacted are reasonable. The objective standard is reasonableness. That is why in the law of contract reasonable price is to be ascertained by the Courts. In the law of torts the Courts find out what reasonable care is. In the law of property reasonable conduct is found out by the Courts to avoid evil consequences. Reasonableness is to be judged with reference to the right which is restricted when Article 19 is considered.

952. The American Courts evolved a test of reasonableness by the doctrine of substantive due process which means not that the law is unreasonable but that on political, social and economic grounds the majority of Judges consider that the law ought not be permitted to be made. The crucial point is that in contradistinction to the American Constitution where rights are couched in wide general terms leaving it to the Courts to evolve necessary limitations our Constitution limited it by precise words of limitation as for example in Articles 19 and 21. In Article 21 the Constitution-makers substituted "procedure established by law" for the words "due process of law". The reason for the change was that the procedure established by law was specific. The framers of the Constitution negatived the vague undefinite reasonableness of laws on political, social and economic grounds. In Gopalan case due process was rejected, by clearly limiting the rights acquired and by eliminating the indefinite due process. The Constitution makers freed judicial review of subjective determination. Due process as a test of invalidity of law was deliberately withheld or denied. Courts are not concerned with the wisdom or policy of legislation. The Courts are equally not concerned with the wisdom and policy of amendments to the Constitution.

953. Reliance was placed by Mr. Palkhivala on Ridge v. Baldwin 1964 A.C. 40 where it is said that opinions that natural justice is so vague as to be practically meaningless, are tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. In the same case it was said that the idea of negligence is equally insusceptible or exact definition, but what a reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligence in particular circumstances are equally capable of serving as tests in law. Extracting those observations it was said by Mr. Palkhivala that though the border-line between essential features and non-essential features could not be stated or it was not possible to specify exhautively the amendment which could be invalid on that principle yet there was no reason why the principle of inherent and implied limitations to amend our Constitution should not be accepted. Inherent and implied limitations cannot originate in an oracle when the Constitution does not contain any express prohibition against amending any provision. When Article 368 speaks of changes in the provisions of the Constitution as are set out in Clauses (a) to (d) of the proviso it is manifest that the makers of the Constitution expressed their intention with unerring accuracy that features which can broadly be described as federal features, and from that point of view "Essential features" could be amended. In the face of these express provisions it is impossible to hold that the Constitution does not contemplate an amendment of the so called essential features of the Constitution. The proviso confers that power with relation to the judiciary, the executive and the legislature, none of which could be said to be inessential. Indeed it is difficult to imagine that the Constitution contained any provision which was inessential. It need be hardly said that amendment not only means alteration, addition or repeal of provision but also deletion of some part, partial repeal and addition of a new part.

954. It was said that if our Parliamentary system was changed to a Presidential system it would be amending the core of our Constitution. But such a change is permissible under Article 368. Whether the people would adopt such an amendment is a different matter and does not fall for consideration here. The core of the federal form of Government in our country is greater power in the Union Parliament than States for preserving the integrity of the country. There can be changes by having a confederation or by conferring greater power on the Centre. Those contentions about unamendability of essential features do not take into consideration that the extent and character of any change in the provisions of the Constitution is to be determined by legislatures as amending bodies under Article 368 and as representatives of the people in a democracy and it is not the function of the Courts to make any such determination.

955. Mr. Palkhivala contends that the Constitution 24th Amendment Act is unConstitutional because Parliament cannot exceed the alleged implied and inherent limitations on the amending power as it stood before the 24th Amendment. The 24th Amendment has substituted the marginal note "Power of Parliament to amend the Constitution and procedure therefor" for the original note "procedure for amendment of the Constitution". This change is due to the fact that according to the leading majority judgment in Golak Nath case the unamended Article dealt only with the procedure for amendment and that the power of amendment was in the residuary power of legislation. The 24th Amendment has declared that the power to amend the Constitution is in Article

368. That was the view of this Court in earlier decisions. That was the minority view in Golak Nath case. By amendment that view has become the Constitutional mandate.

956. The other change as a result of the 24th Amendment is that "Parliament may in the exercise of its constituent power amend" in place of words "amendment of this Constitution may be initiated". The reasons for this change are to give effect to the decisions of this Court in Shankari Prasad case which in considering the validity of the First Amendment recognised and affirmed the vital distinction between constituent power and legislative power and decided that the word "law" in Article 13(2) applied to the exercise of legislative power and did not apply to an amendment of the Constitution. In Sajjan Singh case the same distinction was upheld by the majority of this Court. In Golak Nath case the majority and the concurring judgment denied the distinction between legislative and constituent power and held that Article 13(2) applied to an amendment of the Constitution under Article 368 because there was no distinction between legislative and constituent power. As a consequence the leading majority judgment in Golak Nath case held that Parliament could not amend fundamental rights. The dissenting judgments in Golak Nath case upheld the vital distinction between legislative and constituent powers and held that the decision in Shankari Prasad case and the majority decision in Sajjan Singh case were correct and that Parliament had power to amend the fundamental rights since an amendment of the Constitution was not law within the meaning of Article 13(2). These features give the reason why the expression "Parliament may in the exercise of constituent power" was introduced by the 24th Amendment. Parliament took notice of two conflicting views and the unamended Article 368. Parliament took notice of the preponderating judicial opinion in favour of the view that Article 368 contained the power of amendment and that power was a constituent power. Wanchoo, J. held that the power under Article 368 is constituent power to change the fundamental law, that is to say the Constitution. The constituent power under the Constitution belonged to Parliament because the Constitution gave it. The Amendment made explicit what the judgment in Shankari Prasad case and the majority judgment in Sajjan Singh case and the dissenting judgment in Golak Nath case said, namely that Parliament has the constituent power to amend the Constitution.

957. The unamended Article used the words "An amendment of this Constitution". The 24th Amendment used the words "Parliament may...amend by way of addition, variation or repeal any provision of this Constitution". This has been done because the leading majority judgment in Golak Nath case expressed the view that there is considerable force in the argument that the expression "amendment" in Article 368 has a positive and negative content in exercise of which Parliament cannot destroy the structure of the Constitution but it can only modify the provisions thereof within the framework of the original instrument for its better effect. This observation in Golak Nath case raised a doubt as to the meaning of the word "amendment". The 24th Amendment has expressly clarified that doubt.

958. The leading majority judgment and the concurring judgment in Golak Nath case both held that the fundamental rights could not be amended by Parliament. The leading majority judgment with reference to the meaning of the word "amendment" and without deciding the matter observed that there was great force in the argument that certain fundamental features e.g. the concept of federalism, the institutions of the President and the Parliamentary executive could not be abolished by amendment. Shankari Prasad case, Sajjan Singh case and the dissenting minority judgment in Golak Nath case took the view that every provision of the Constitution could be amended in exercise of constituent power. As a necessary corollary, the 24th Amendment excludes the operation of Article 13 by amending Article 13 by a new Sub-article (4) that nothing in Article 13 shall apply to any amendment of this Constitution under Article 368. The amendment of Article 13 by an insertion of Sub-article (4) is also reinforced by the opening words introduced in Article 368 by the 24th Amendment, viz., notwithstanding anything contained in this Constitution, which would certainly exclude Article 13.

959. The Constitution 24th Amendment Act raises three aspects. First, does the word "amend" include abrogation or repeal of the whole Constitution? Does amendment mean that there is some feature of the Constitution which cannot be changed. Secondly, what light does the proviso to Article 368 throw on the nature of the amending power and on the doctrine of inherent and implied limitations on the amending power that essential features of the Constitution cannot be damaged or destroyed. Thirdly, does Clause (e) of the proviso to Article 368 enable Parliament and the requisite majority of the States to increase the power of amendment that was conferred by Article 368.

960. Article 368 in the unamended form contained power as well as self executing procedure which if followed by the prescribed authorities would result in an amendment of the Constitution. Both the Attorney General and Mr. Seervai rightly said that the words "Constitution shall stand amended" in Article 368 will exclude a simple repeal that is without substituting anything in place of the repealed Constitution. If the Constitution were totally repealed and a vacuum was created it could not be said that the Constitution stands amended. The Constitution means the mode in which a State is constituted or organised specially as to the location of sovereign power. The Constitution also means the system or body of fundamental principles according to which the nation, State and body politic is constituted and governed. In the case of a written Constitution the Constitution is more fundamental than any particular law and contains a principle with which all legislation must be in harmony. Therefore, an amendment of the Constitution is an amendment of something which provides a system according to which a State or nation is governed. An amendment of the Constitution is to make fundamental changes in the Constitution. Fundamental or basic principles can be changed. There can be radical change in the Constitution like introducing a Presidential system of government for a cabinet system or a unitary system for a federal system. But such amendment would in its wake bring all consequential changes for the smooth working of the new system.

961. However radical the change the amendment must provide for the mode in which the State is constituted or organised. The question which was often put by Mr. Palkhivala drawing a panorama of a totalitarian State in place of the existing Constitution can be simply answered by saying that the words "The Constitution shall stand amended" indicate that the Constitution of India is being referred to. The power of amendment is unlimited so long as the result is an amended Constitution, that is to say, an organic instrument which provides for the making interpretation and implementation of law.

962. The theory of unamendability of so called essential features is unmeritorious in the face of express provisions in Article 368 particularly in Clauses (a) to (d) of the proviso. Clauses (a) to (d) relate to 66 Articles dealing with some of the most important features of the Constitution. Those Articles relate to the judiciary, the legislature and the executive. The legislative relations between the Union and the States and the distribution of legislative power between them are all within the ambit of amendment.

963. The question which was raised by Mr. Palkhivala as to whether under proviso (e) to the unamended Article 368 the power of amendment could be increased is answered in the affirmative. The reasons broadly stated are three.

964. First, under Article 368 proviso (e) any limitation on the power of amendment alleged to be found in any other Article of the Constitution can be removed. The full magnitude of the power of amendment which would have existed but for the limitation could be restored and the power of amendment increase. In Golak Nath case the majority view was that Article 13(2) operated as a limitation on the power of amendment. The 24th Amendment took note of that decision and removed all doubts by amending Article 13(2) and providing a new Sub-article (4) there and also by amending Article 368 to the effect that Article 13(2) shall not apply to any amendment of the Constitution. If the express limitation which had been judicially held to constitute a bar to the amendment of fundamental rights could be removed by amending Article 368 under Clause (e) to the proviso any other alleged implied limitation can be similarly removed.

965. Secondly, judicial decisions show that by amending the Article conferring the power of amendment a greater power to amend the Constitution can be obtained than was conferred by the original Article. In Ryan case 1935 Irish Report 170 all the learned Judges excepting the Chief Justice held that by first amending Section 50 of the Irish Constitution which conferred the power of amendment subject to certain restrictions thereon so as to remove the restrictions contained in that section, the Irish Parliament effectively increased its power in the sense that an amendment could be made which those express restrictions would have prohibited. Again in Ranasinghe case 1965 A.C. 172 it was said that a legislature has no power to ignore the conditions of law making that are imposed by the instrument which regulates its power. This restriction created by the instrument exists independently of the question whether the legislature is sovereign or whether the Constitution is uncontrolled. The Judicial Committee held that "such a Constitution can indeed be altered or amended by the legislature if the regulating instrument so provides and if the terms of those provisions are complied with and the alteration or amendment may include the change or abolition of those very provision". Thus a controlled Constitution can be converted into an uncontrolled Constitution vastly increasing the power of amendment.

966. Thirdly, the power to amend the amending Article must include the power to add, alter or repeal any part of that Article and there is no reason why the addition cannot confer a power of amendment which the authorities named in Article 368 did not possess. By the exercise of the amending power provision can be made which can increase the powers of Parliament or increase the powers of the States. Again, by amendment future amendments can be made more difficult. The picture drawn by Mr. Palkhivala that a future amendment would be rendered impossible either by absolutely forbidding amendment or by prescribing an impractically large majority does not present any legal impediment to such an amendment. The safeguard against such action is external. The contingency of any such amendment being proposed and accepted is extremely remote because such an amendment might sow the seeds of revolution which would be the only way to bring about the change in the Constitution. The Solicitor General rightly said that the effect of the amendment is that "it shall stand amended in accordance with the terms of the Bill". The product is not required to be "this Constitution". It will not be identically the old Constitution. It will be a changed or amended Constitution and its resemblance will depend on the extent of the change. More rigid process like referendum or initiative or greater majority or ratification by a larger number of States might be introduced by amendment.

967. It is important to note that proviso (e) to Article 368, namely, the power to amend Article 368 is unlike perhaps some Constitutions which were before the Constituent Assembly when our Constitution was framed. Neither the American nor the Australian Constitution provided for any power to amend the amending provision itself. The Attorney General rightly contended that this forcefully expresses a clear and deliberate intention of the Constituent Assembly that apart from providing for a less rigid amending formula the Constituent Assembly took care to avoid the controversy in America as to whether express limitation on Article V of the American Constitution itself regarding equal suffrage of the States in the Senate could be amended or the controversy in Australia as to whether Section 128 of the Australian Constitution itself could be amended as there was no express limitation on such amendment. The Constituent Assembly provided in Clause (e) to Article 368 express and specific power of amendment of Article 368 itself.

968. The amplitude of the amending power in our Constitution stands in bold relief in comparison with Article V of the American Constitution, Section 128 of the Australian Constitution and Section 50 of the Irish Constitution none of which confers such a power. Dr. Wynes in his Legislative Powers in Australia 4th Ed. p. 505 expresses the view that though Section 128 is negative in form but the power of amendment extends to alteration "of this Constitution" and this power is implied by its terms. Dr. Wynes also states that by the consent of the States the last part of Section 128 could be amended. This is only to illustrate as to how other Constitutions are understood by jurists in their countries. Our Article 368 contains no express limitation on the power of amendment. The provision of Clause (e) in the proviso to Article 368 is not limited to federal features.

969. The words "amendment of this Constitution" in Section 50 of the Irish Constitution which formed the subject of decision in Ryan case 1935 Irish Report 170 were read by Kennedy, C.J. in his dissenting view to mean that if power to amend Section 50 itself was intended to be given the framers of the Constitution would have said so. Mr. Palkhivala relied on this dissenting view. Other learned Judges who formed the majority held that the words "amendment of this Constitution" conferred power to amend that Section 50 as well. If no intention to amend that section itself is expressed there is nothing which can be implied was the dissent. Therefore, it would follow even according to the dissent that no implied limitations on the power of amendment can be read in Section 50 if an express power of amendment has been conferred by the Constitution.

970. Mr. Palkhivala contended that the people reserved the power to themselves to amend the essential features of the Constitution and if any such amendment were to be made it should be referred to the people by referendum. It was said that the Constitution makers did not intend that essential features should be damaged or destroyed even by the people, and therefore, the Constitution did not provide for referendum. The other contention on behalf of the petitioner was that referendum was not provided for because it might have been difficult to have the Constitution accepted on those terms. The second view would not eliminate the introduction of referendum as a method of amendment. If a referendum were introduced by an amendment people would have complete power to deal with essential features. The other question would be as to whether the Preamble and the fundamental rights would be a limitation on the power of the people. On behalf of the petitioner it was said that it was not necessary to decide the questions. Both the Attorney General and Mr. Seervai correctly said that the submissions made on behalf of the petitioner indicated that if essential features could be amended by the people the very fact that the Constituent Assembly did not include referendum as one of the methods of amendment and that the Constitution makers excluded no part of the Constitution from amendment established that the amendment of a written Constitution can be legally done only by the method prescribed by the Constitution. If the method of referendum be adopted for purpose of amendment as suggested by Mr. Palkhivala that would be extra Constitutional or revolutionary. The amending body to amend the Constitution represents the will of the people.

971. Therefore, as long as Article 368 may be amended under proviso (e) any amendment of the Constitution by recourse to referendum would be revolutionary. Mr. Palkhivala on behalf of the petitioner did not rely on the majority decision in Golak Nath case that the fundamental rights could be abridged or taken away only by convening a Constituent Assembly, but based his argument on a theory of legal sovereignty of the people. The Constitution is binding on all the organs of government as well as on the people. The Attorney General rightly submitted that the concept of popular sovereignty is well settled in parliamentary democracy and it means that the people express their will through their representatives elected by them at the general election as the amending body prescribed by the Constitution.

972. Are fundamental rights unamendable? Mr. Palkhivala contended that apart from Article 13(2) fundamental rights are based on Universal Declaration of Human Rights and are natural rights, and, therefore, they are outside the scope of amendment. In Golak Nath case the majority view declined to pronounce any opinion on alleged essential features other than fundamental rights. The concurring view was that fundamental rights were unamendable because they were fundamental. Wanchoo, J. for himself and two other learned Judges and Ramaswami, J. rightly rejected the theory of implied limitations. The three reasons given by Wanchoo, J. are these. First, the doctrine of essential and non-essential features would introduce uncertainty. Secondly, constituent power of amendment does not admit of any impediment of implied restrictions. Thirdly, because there is no express limitation there can be no implied limitation.

973. Mr. Seervai correctly contended that there is intrinsic evidence in the provisions of Part III itself that our Constitution does not adopt the theory that fundamental rights are natural rights or moral rights which every human being is at all times to have simply because of the fact that as opposed to other things he is rational and moral. The language of Article 13(2) shows that these rights are conferred by the people of India under the Constitution and they are such rights as the people thought fit to be in the organised society or State which they were creating. These rights did not belong to the people of India before 26 January 1950 and would not have been claimed by them. Article 19 embodies valuable rights. Rights under Article 19 are limited only to citizens. Foreigners are human beings but they are not given fundamental rights because these rights are conferred only on citizens as citizens.

974. Article 33 enacts that Parliament may by law modify rights conferred by Part III in their application to Armed Forces. Parliament may restrict or abrogate any of the rights conferred by Part III so as to ensure the proper discharge of the duties of the Armed Forces and the maintenance of discipline among them. Therefore, Article 33 shows that citizens can be denied some of these rights. If these are natural rights these cannot be abrogated. Article 34 shows that Parliament may by law indemnify any person in respect of any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area. Article 34 again shows restriction on rights conferred by Part III while martial law is in force in any area. The dominant concept is social good. Where there is no restraint the society fails.

975. Articles 352 and 358 also illustrate as to how while the proclamation of emergency is in operation provisions of Article 19 are suspended during emergency. The framers of the Constitution emphasised the social content of those rights. The basic concept of fundamental right is therefore a social one and it has a social function. These rights are conferred by the Constitution. The nature of restriction on fundamental rights shows that there is nothing natural about those rights. The restrictions contemplated under Article 19(2) with regard to freedom of speech are essential partis of a well organised developed society. One must not look at location of power but one should see how it acts. The restrictions contemplated in Article 19 are basically social and political. Friendly relations with foreign states illustrate the political aspect of restrictions. There are similar restrictions on right to move freely. The protection of Scheduled Tribes is also reasonable in the interest of society. This Court in Basheshar Nath v. C.I.T. Delhi (1959) Supp. 1. S.C.R. 528 said that there are no natural rights under our Constitution and natural rights played no part in the formulation of the provisions therein.

976. Articles 25 and 26 by their opening words show that the right to the freedom of religion is subject to the paramount interest of society and there is no part of the right however important to devotee which cannot and in many cases have not been denied in civilised society.

977. Subba Rao, C.J. in Golak Nath case equated fundamental rights with natural rights or promodial rights. The concurring majority view in Golak Nath case, however, said that there is no natural right in property and natural rights embrace the activity outside the status of citizen. Fundamental rights as both the Attorney General and Mr. Seervai rightly contended are given by the Constitution, and, therefore, they can be abridged or taken away by the people themselves acting as an organised society in a State by the representatives of the people by means of the amending process laid down in the Constitution itself. There are many Articles in Part III of our Constitution which cannot in any event be equated with any fundamental right in the sense of natural right. To illustrate Article 17 deals with abolition of untouchability. Article 18 speaks of abolition of titles. Article 20 deals with protection in respect of conviction for offences. Article 23 refers to prohibition of traffic in human beings and forced labour. Article 24 deals with prohibition of employment of children in factories, etc. Article 27 speaks of freedom as to liability for taxes levied for promotion of any particular religion. Article 28 contemplates freedom as to attendance at religious instruction or religious worship in certain educational institutions. Article 29 deals with protection of interests of minorities. Article 31(2) prior to the Constitution 25th Amendment Act spoke of payment of just equivalent for acquisition or requisition of property. Article 31(4) deals with legislation pending at the commencement of the Constitution. Articles 31(5) and (6) save certain types of laws. Article 31A saves laws providing for acquisition of estates etc. Article 32 confers right to move the Supreme Court.

978. The Constitution is the higher law and it attains a form which makes possible the attribution to it of an entirely new set of validity, the validity of a statute emanating from the sovereign people. Invested with statutory form and implemented by judicial review higher law becomes juristically the most fruitful for people. There is no higher law above the Constitution.

979. Mr. Palkhivala relied on an Article by Conrad on Limitation of Amendment Procedure and the Constitutional Power. The writer refers to the West German Provincial Constitution which has expressly excluded basic rights from amendment. If that is so the question of basic rights being unamendable on the basis of higher law or natural law does not arise. The conclusion of the writer is that whereas the American courts did not consider declaring a Constitutional norm void because of a conflict with higher law the German Jurisprudence broadened the concept of judicial review by recourse to natural law. The post-war Constitution of West Germany distinguished between superior and inferior Constitutional norms in so far as certain norms are not subject to amendment whereas others are.

980. The Attorney General relied on Friedmann Legal Theory 5th Ed. on pp. 350 seq. to show that there was a revival of natural law theory in contemporary German Legal Philosophy. This theory of natural law springs from the reaction against the excess of the Nazi regime. The view of Friedmann is that natural law may disguise to pose itself the conflict between the values which is a problem of constant and painful adjustment between competing interests, purposes and policies. This conflict is resolved by ethical or political evolution which finds place in legislative policies and also on the impact of changing ideas on the growth of law.

981. Fundamental rights are social rights conferred by the Constitution. There is no law above the Constitution. The Constitution does not recognise any type of law as natural law. Natural rights are summed up under the formula which became common during the Puritan Revolution namely life, liberty and property.

982. The theory of evolution of positive norms by supra-positive law as distinguished from superior positive law had important consequences in the post-war revival of natural law in some countries particularly Germany. Most of the German Constitutions from the early 19th Century to the Nazi Regime did not provide for judicial review. Under the Weimar regime, the legislature reigned supreme and legal positivism was brought to an extreme. The re-action after World War II was characterised by decreases of legislative power matched by an increase of judicial power. It is in this context that Conrad's writing on which Mr. Palkhivala relied is to be understood. The entire suggestion is that norms could not only be judged by a superior law namely Constitutional law but by natural law to broaden the scope of judicial review. The acceptance of the doctrine of judicial review has been considered as a progress in Constitutional theory made between Declaration of Independence and the Federal Convention at Philadelphia.

983. On the one hand there is a school of extreme natural law philosophers who claim that a natural order establishes that private capitalism is good and socialism is bad. On the other hand, the more extreme versions of totalitarian legal philosophy deny the basic value of the human personality as such. Outside these extremes, there is a far greater degree of common aspirations. The basic autonomy and dignity of human personality is the moral foundation of the teaching of modern natural law philosophers, like Maritain. It is in this context that our fundamental rights and Directive Principles are to be read as having in the ultimate analysis a common good. The Directive Principles do not constitute a set of subsidiary principles to fundamental rights of individuals. The Directive Principles embody the set of social principles to shape fundamental rights to grant a freer scope to the large scale welfare activities of the State. Therefore, it will be wrong to equate fundamental rights as natural, inalienable, primodial rights which are beyond the reach of the amendment of the Constitution. It is in this context that this Court in Basheshar Nath v. C.I.T. Delhi (1959) Supp. 1 S.C.R. 528 said that the doctrine of natural rights is nothing but a foundation of shifting sand.

984. Mr. Seervai rightly said that if the power of amendment of the Constitution is co- extensive with the power of the judiciary to invalidate laws, the democratic process and the co-ordinate nature of the great departments of the State are maintained. The democratic process is maintained because the will of the people to secure the necessary power to enact laws by amendment of the Constitution is not defeated. The democratic process is also respected because when the judiciary strikes down a law on the ground of lack of power, or on the ground of violating a limitation on power, it is the duty of the legislature to accept that position, but if it is desired to pass the same law by acquiring the necessary power, an amendment validly enacted enables the legislatures to do so and the democratic will to prevail. This process harmonises with the theory of our Constitution that the three great departments of the State, the legislature, the judiciary and the executive are co-ordinate and that none is superior to the other. The normal interaction of enactment of law by the legislation, of interpretation by the courts, and of the amendment of the Constitution by the legislature, go on as they were intended to go on.

985. If the power of amendment does not contain any limitation and if this power is denied by reading into the Constitution inherent limitations to extinguish the validity of all amendments on the principles of essential features of the Constitution which are undefined and untermed, the courts will have to lay down a new Constitution.

986. It is said that the frame of the Government cannot be changed or abrogated by amendment of the Constitution. There is before us no aspect of abrogation of the form of Government of the changes apprehended by the petitioners like the abrogation of the judiciary or extending the life of Parliament.

987. The problems of the times and the solutions of those problems are considered at the time of framing the Constitution. But those who frame the Constitution also know that new and unforseen problems may emerge, that problems once considered important may lose their importance, because priorities have changed; that solutions to problems once considered right and inevitable are shown to be wrong or to require considerable modification; that judicial interpretation may rob certain provisions of their intended effect; that public opinion may shift from one philosophy of government to another. Changes in the Constitution are thus actuated by a sense of duty to the people to help them get what they want out of life. There is no destiny of man in whose service some men can rightfully control others; there are only the desires and performances and ambitions that men actually have. The duty to maximise happiness means that it is easier to give people what they want than to make them want what you can easily give. The framers of the Constitution did not put any limitation on the amending power because the end of a Constitution is the safety, the greatness and well being of the people. Changes in the Constitution serve these great ends and carry out the real purposes of the Constitution.

988. The way in which the doctrine of inherent and implied limitations was invoked by Mr. Palkhivala in interpreting the Constitution was that the test of power under the Constitution must be to ascertain the worst that can be done in exercise of such power. Mr. Palkhivala submitted that if unbridled power of amendment were allowed the basic features of our Constitution, namely, the republican and/or democratic form of government and fundamental Tights could be destroyed and India could be converted into a totalitarian dictatorship. The Court was invited to take into account the consequences of the kind described. Mr. Palkhivala suggested that a wide power of amendment would lead to borrow his words to the liquidation of our Constitution.

989. The Attorney General rightly said that the unambiguous meaning of amendment could not be destroyed to nurse the theory of implied limitations. He also said that the live distinction between power and exercise of power is subject to popular will and popular control. The theory of implied and inherent limitation was a repudiation of democratic process. The Attorney General and Mr. Seervai also rightly said that the approach of the petitioner to the power of amendment contained in Article 368 of the Constitution ignores the fact that the object of the Constitution is to provide for departments of States like the judiciary, the legislature and the executive for the governance of a country. Apart from the essential functions of defence against external aggression and of maintenance of internal order a modern State is organised to secure the welfare of the people. Parliament and State legislatures are elected on adult universal suffrage. The country is governed by the Cabinet system of Government with ministries responsible to the Houses of Parliament and to the Legislative Assemblies.

990. In a democracy the determination of the right policies to be pursued can only be determined by a majority vote cast at election and then by a majority of the elected representatives in the legislature. Democracy proceeds on the faith in the capacity to elect their representatives, and faith in the representatives to represent the people. The argument that the Constitution of India could be subverted or destroyed might have hortative appeal but it is not supportable by the actual experience in our country or in any country. The two basic postulates in democracy are faith in human reason and faith in Human nature. There is no higher faith than faith in democratic process. Democracy on adult suffrage is a great experiment in our country. The roots of our democracy are in the country and faith in the common man. That is how Mr. Seervai said that between 1951 when this Court recognised in Sankari Prasad case unlimited power of amendment till Golak Nath decision in 1967 the normal democratic process in our country functioned as provided by the Constitution.

991. The principle underlying the theory of taking consequences into account is best expressed in Vacher & Sons v. London Society of Compositors 1913 A.C. 107, where it was said that if any particular construction in construing the words of a statute was susceptible to more than one meaning, it was legitimate to consider the consequences which would result from any particular construction. The reason is that there are many things which the legislation is presumed not to have intended to bring about and therefore a construction which would not lead to any of these things should be preferred to one which would lead to one or more of them.

992. The doctrine of consequences has no application in construing a grant of power conferred by a Constitution. In considering a grant of power the largest meaning should be given to the words at the power in order to effectuate it fully. The two exceptions to this rule are these. First, in order to reconcile powers exclusively conferred on different legislatures, a narrower meaning can be given to one of the powers in order that both may operate as fully as is possible. (See C.P. & Berar case 1938 F.C.R. 18 and Province of Madras v. Governor General 72 I.A. 93). Second, technical terms must be given their technical meaning even though it is narrower than the ordinary or popular meaning. The State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. 1959 S.C.R. 379. In our Constitution powers are divided between federation and the States. An attempt must be made to find the power in some entry or other because it must be assumed that no power was intended to be left out.

993. The theory of consequences is misconstrued if it is taken to mean that considerations of policy, wisdom and social or economic policies are included in the theory of consequences. In Vacher case it was said that the judicial tribunal, has nothing to do with the policy of any Act and the only duty of the Court is to expound the language of the Act in accordance with the settled rules of construction. In Attorney General for Ontario v. Attorney General for Dominions 1912 A.C. 571 the Privy Council refused to read an implication in the Constitution of Canada that there was no power to refer a matter for the advisory opinion of the highest Court because advisory opinions were prejudicial to the correct administration of justice and were embarrassing to Judges themselves who pronounced them, for humanly speaking it would be difficult for them to hear a case on merits if they have already expressed an opinion. The Privy Council rejected this argument and said that so far as it was a matter of wisdom and policy it was for the determination of Parliament. In Bank of Toronto v. Lambe (1887) 12 A.C. 575 the Privy Council was invited to hold that the legislature of a province could not levy a tax on capital stock of the Bank, for that power might be exercised to destroy the Bank altogether. The Privy Council observed that if on a true construction of Section 92 of the British North America Act the power fell within the section, it would be wrong to deny its existence because by some possibility it might be abused.

994. The absurdity of the test of the worst that can be done in exercise of power is demonstrated by the judgment of Chief Justice Taft in Gross-man 69 L.Ed. 527 where it was said that if those who were in separate control of each of the three branches of Government were bent upon defeating the action of the other, normal operations of Government would come to a halt and could be paralysed. Normal operations of the Government assume that all three branches must co-operate if Government is to go on. Where the meaning is plain the Court must give effect to it even if it considers that such a meaning would produce unreasonable result. In the Bihar Land Reforms case 1952 S.C.R. 889 Mahajan, J. said that agrarian laws enacted by the legislature and protected by Articles 31(3) and (4) provided compensation which might appear to the Court unjust and inequitable. But the Court gave effect to Articles 31(3) and (4) because the results were intended and the remedy for the injustice lay with the legislature and not with the Court. The construction to avoid absurdity must be used with great caution.

995. In Grundt case 1948 Ch. 145 it was said in choosing between two possible meanings of ambiguouos words, the absurdity or the nonabsurdity of one conclusion as compared with another might be of assistance and in any event was not to be applied as to result in twisting the language into a meaning which it could not bear.

996. The Attorney General rightly submitted that if power is conferred which is in clear and unambiguous language and does not admit of more than one construction there can be no scope for narrowing the clear meaning and width of the power by considering the consequences of the exercise of the power and by so reading down the power. The question is not what may be supposed to be intended but what has been said. See Ross v. Illison 1930 A.C. 1. The Supreme Court in Damselle Howard v. Illinois Central Rail Road Co. 207 U.S. 463 said that you cannot destroy in order to save or save in order to destroy. The real import is that a new law cannot be made by construction. The question is one of intention. A meaning cannot be different which it cannot reasonably bear or will be inconsistent with the intention. The very basis of Parliamentary democracy is that the exercise of power is always subject to the popular will and popular control. The petitioner's theory of implied and inherent limitations is a repudiation of this democratic process. The underlying theory of democratic government is "the right of a majority to embody their opinion in law subject to the limitations imposed by the Constitution", per Holmes, J. in Lochner v. New York 198 U.S. 45. In our Constitution Article 368 contains no express limitation on the amendment of any provision of the Constitution.

997. Mr. Palkhivala relied on the amending provisions in the Constitution of America, Canada, Australia, Ireland and Ceylon and also decisions on the power of amendment in those countries in support of his submissions that a restricted meaning should be attributed to the word "amendment" and implied and inherent limitations should be read into the meaning and power of amendment.

998. Mr. Palkhivala also relied on the opinion of Cooley in a Treatise on the Constitutional Limitations at pages 36-37 that "a written Constitution is in every instance a limitation upon the powers of government in the hands of agents; for there never was a written republican Constitution which delegated to functionaries all the latent powers which lie dormant in every nation, and are boundless in extern, and incapable of definition". This view of Cooley is not relevant to the amending power in Article V of the American Constitution. This view relates to the legislative power that a written Constitution is a limitation upon the powers of the Government, namely, the legislature, the executive and the judiciary.

999. The other views of Cooley in Constitutional Limitations at pages 341-343, 345-348, 351-354 are these. First except where the Constitution has imposed limitations upon the legislative power it must be considered as practically absolute, whether it operates according to natural justice or not in any particular case. Second, in the absence of Constitutional restraint the legislative department of a State Government has exclusive and ample power and its utterance is the public policy of the State upon that subject, and the Courts are without power to read into the Constitution a restraint of the legislature with respect thereto. Third, if the Courts are not at liberty to declare statutes void because of their apparent injustice of impolicy, neither can they do so because they appear to the minds of the Judges to violate fundamental principles of republican Government, unless it shall be found that those principles are placed beyond legislative encroachment by the Constitution. The principles of republican government are not a set of inflexible rules, vital and active in the Constitution, though unexpressed, but they are subject to variation and modification from motives of policy and public necessity. Fourth, the Courts are not at liberty to declare an act void, because in their opinion it is opposed to a spirit supposed to pervade the Constitution, but not expressed in words.

1000. Mr. Palkhivala relied on the views of George Skinner published in 18 Michigan Law Review (1919-1920) pages 21-225 to build the theory of implied and inherent limitations. The views extracted are these. The power given by the Constitution cannot be construed to authorise a destruction of other powers in the same instrument. The essential form and character of the Government, being determined by the location and distribution of power, cannot be changed, only the exercise of governmental functions can be regulated. A somewhat different view of Skinner in the same Law Review is that it is not likely that the Supreme Court would put any limitations upon the power of Congress to propose amendments and in construing the Fifth Article it would be unwilling to say Congress had proposed an amendment which it did not deem necessary. The discretion is left entirely with Congress.

Re: Kesavananda Bharati vs State Of Kerala And ors

1001. The other view on which Mr. Palkhivala relied is of William L. Marbury published in 33 Harvard Law Review (1919-1920) at pp. 223-235. The views which Mr. Palkhivala extracted are that it may be safely premised that the power to amend the Constitution was not intended to include the power to destroy it. Marbury relies on Livermore v. Waite 102 Cal. 118 where it is stated that the term "amendment" implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.

1002. There are other views of Marbury on which the Attorney General relied and which were not extracted by Mr. Palkhivala. Those views are that after excluding from the scope of its amending power in Article V of the American Constitution such amendments as take away legislative powers of the State there is still left a very broad field for its operation. All sorts of amendments might be adopted which would change the framework of the federal Government, the thing which the Constitution was created to establish, which would change the distribution of power among the various departments of the Government, place additional limitations upon them, or abolish old guarantees of civil liberty and establish new ones.

1003. The Attorney General also relied on the view of Frierson published in 33 Harvard Law Review pp. 659-666 as a reply to Marbury. Frierson's view is that the security for the States was provided for by the provision for the necessity of ratification by three- fourths of the States. The Constitution committed to Congress and not to the Courts the duty of determining what amendments were necessary. The rights of the States would certainly be safer in the hands of three-fourths of the States themselves. This is considered by the framers of the Constitution to ensure integrity of States. 1004. The Attorney General also relied on the view of McGovney published in Vol. 20 Columbia Law Review. McGovney points out a distinction between a political society or State on the one hand and governmental organs on the other to appreciate that Constitutional limitations are against governmental organs. The writer's view is that an individual has no legal rights against a sovereign organised political society except what the society gives. The doctrine of national sovereignty means that people who made the existing distribution of powers between the federal and the State Governments may alter it. Amendment is left to legislatures because as a matter of convenience the legislatures generally express the will of the people. In the Constitution the people prescribe the manner in which they shall amend the Constitution. McGovney states that an amendment of a particular statute means usually it is a change germane to the subject matter of that statute. Any change in the Government of the nation is germane to the Constitution. Any change altering the dispositions of power would therefore be germane to the purposes of the instrument. McGovney's view is that it is clear that no limitation on the amending power can be found in this notion of necessity for germaneness. 1005. The Attorney General also relied on an Article "On the views of W.F. Dodd published in 30 Yale Law Journal p. 321 seq. and of H.W. Taft, published in 16 Virginia Law Review p. 647 seq. The view of Dodd is this. There are no implied limitations on the amending power. The Supreme Court in the National Prohibition cases rejected the arguments presented in favour of implied limitations. To narrow down the meaning of amendment or to adopt implied limitations would not only narrow down the use of the amending power but would also leave the question of amending power in each case to judicial decision without the guidance of any legal principle. Taft's view is that by reason of the Tenth Amendment which provided that the powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people, the amending power in Article V of the American Constitution was not limited by the Tenth Amendment

1006. The question which has arisen on the Fifth Article of the American Constitution is whether there are implied limitations upon the power to amend. The two express limitations were these. First, no amendment which may be made prior to 1808 shall in any manner effect the First and the Fourth clauses in the Ninth Section of the First Article. That Limitation became exhausted by passage of time. The second express limitation is that no State without its consent shall be deprived of its equal suffrage in the Senate. The express limitation is to safeguard the equal representation of the smaller States in the Senate. The limitation can only be changed by unanimous consent of the States.

1007. The 18th Amendment was vigorously attacked in the National Prohibition Cases on the ground that it overstepped alleged implied limitations on the Constitution amending power. The arguments advanced were these. First, the 18th Amendment which introduced prohibition was not in fact an amendment for an amendment is an alteration or improvement of that which is already contained in the Constitution and the term is not intended to include any addition of entirely new grants of power. Secondly, the amendment was not an amendment within the meaning of the Constitution because it is in its nature legislation and that an amendment of the Constitution can only affect the powers of government and cannot act directly upon the rights of individuals. Third, that the Constitution in all its parts looks to an indestructible nation composed of indestructible States. The power of amendment was given for the purpose of making alterations and improvements and any attempt to change the fundamental basis of the Union is beyond the power delegated by the Fifth Article. The decision in the National Prohibition Cases is that there is no limit on the power to amend the Constitution except that State may not without its consent be deprived of its equal suffrage in the Senate. 1008. In Rhode Island v. Palmer 253 U.S. 350 the 18th Amendment was challenged to be not within the purview of Article V. The judgment in Rhode Island case was that the amendment was valid. In Rhode Island case the grounds of attack were that the amendment was legislative in character and an invasion of natural rights and an encroachment on the fundamental principles of dual sovereignty but the contentions were overruled.

1009. In Hawke v. Smith 253 U.S. 221 a question arose as to whether the action of the General Assembly of Ohio ratifying the 18th Amendment known as National Prohibition could be referred to the electors of the State under the provisions of the State Constitution. It was held that these provisions of he State were inconsistent with the Constitution of the United States. The decision of the Court was unanimous. The two methods of ratification prescribed by Article V of the Constitution are by action of the legislatures of the three-fourths of the States or conventions in the like number of States. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution. That power is conferred upon Congress. Article V was held to be plain and to admit of no doubt in its interpretation. The choice of means of ratification was wisely withheld from conflicting action in the several States. 1010. Again, in Lesser v. Garnett 258 U.S. 130 there was a suit to strike out the names of women from the register of voters on the ground that the State Constitution limited suffrage to men and that the 19th Amendment to the Federal Constitution was not validity adopted. The 19th Amendment stated that right of citizens to vote shall not be denied on account of sex. It was contended that the amending power did not extend to that situation. The Supreme Court there rejected that contention. The Supreme Court said that the function of a State legislature in ratifying the proposed amendment to the federal Constitution like the function of Congress in proposing the amendment is a federal function derived from the federal Constitution; and it transcends any limitations sought to be imposed by the people of a State.

1011. In United States v. Sprague 282 U.S. 716 a contention was advanced that the 10th Amendment recognised a distinction between powers reserved to the States and powers reserved to the people and that State legislatures were competent to delegate only the former to the National Government; delegation of the latter required action of the people through conventions in the several states. The 18th Amendment being of the latter character, the ratification by State legislatures was contended to be invalid. The Supreme Court rejected the argument. It found the language of Article V too clear to admit of reading any exceptions into it by implication.

1012. The decisions in Rhode Island v. Palmer 253 U.S. 350, Hawke v. Smith 253 U.S. 221, Leser v. Garnett 258 U.S. 130 and United States v. Sprague 282 U.S. 716 are all authorities for the proposition that there is no implied limitation on the power to amend. The 18th Amendment was challenged on the ground that ordinary legislation could not be embodied in a Constitutional amendment and that Congress cannot Constitutionally propose any amendment which involves the exercise or relinquishment of the sovereign powers of a State. The 19th Amendment was attacked on the narrower ground that a State which had not ratified the amendment would be deprived of its equal suffrage in the Senate because its representatives in that body would be persons not of its choosing. The Supreme Court brushed aside these arguments as wholly unworthy of serious attention and held both the amendments valid.

1013. Mr. Palkhivala contended the word "amendment" in Article 368 would take its colour from the words "change in the provisions" occurring in the proviso. The American decisions illustrate how the Supreme Court consistently rejected the attempts to limit the meanings of the word "amend" in Article V of their Constitution because of the reference to ratification by legislatures or conventions. Where words are read in their context there is no question of implication for context means parts that precede or follow any particular passage or text and fix its meaning.

1014. The rule of nosciitur a sociis means that where two or more words which are susceptible of analogous meaning are coupled together, they are understood to be used in their cognate sense. They take their colour from each other, the meaning of the more general being restricted to a sense analogous to that of the less general. 1015. This rule has been found to have no application to Article V of the American Constitution because conventions and legislatures are both deliberative bodies and if an amendment can be submitted either to the legislatures of States or to conventions at the absolute discretion of the Congress, it is difficult to say that the character of the amendment is in any way affected by the machinery by which the amendment is to be ratified. In Rhode Island case the contention that an amendment of the Constitution should be ratified by conventions and not by legislatures was rejected. In Sprague case the contention that matters affecting the liberty of citizens could only be ratified by conventions was not accepted and the Supreme Court refused to read any implication into Article V of the American Constitution. The Supreme Court said that in spite of the clear phraseology of Article V, the Court was asked to insert into it a limitation on the discretion conferred on it by the Congress. The Supreme Court did not accept any implied limitation. Where the intention is clear there is no room for construction and no excuse for interpolation or addition. In Feigenspan v. Bodine 264 F. 186 it has been said when the people delegated the power of amendment to their representatives the power of amendment cannot be excluded in any way other than prescribed nor by any instrumentality other than there designated.

1016. Mr. Palkhivala relied on some Canadian decisions the Initiative and Referendum case 1919 A.C. 935, Switzmen v. Elbling 1957 Canada Law Reports 285, Rex v. Hess (1949) 4 Dominion Law Report 199; and Saumur v. City of Quebec and Attorney General of Quebec (1953) 4 D.L.R. 641 and Chabot v. School Commissioners of Lamorandiere and Attorney General for Quebec (1958) 12 D.L.R. 796, in support of three propositions. First, unlimited legislative jurisdiction of the Dominion Parliament in Canada is under inherent limitation by reason of the preamble to the British North America Act which states that the Constitution is similar in principle to the United Kingdom. Second, the Dominion legislature cannot detract from the basic rights of freedom of speech and political association which are available in the United Kingdom. Third, rights which find their source in natural law cannot be taken away by positive law. 1017. In the Initiative and Referendum case the Judicial Committee said that Section 92 of the British North America Act entrusted legislative power in a province to its legislature and to that legislature only. A power of legislation enjoyed by a provincial legislature in Canada can while preserving its own capacity intact seek the assistance of subordinate agencies as in Hodge v. Queen 9 App. Cas. 117 the legislature of Ontario was held to be entitled to entrust to the Board of Commissioners authority to enact regulations. It does not follow that such a legislature can create and endow with its own capacity a legislative power. The Initiative and Referandum case decided that in the absence of clear and unmistakable language the power which the Crown possessed through a person directly representing the Crown could not be abrogated. The Lieutenant Governor under the British North America Act referred to as the B.N.A. Act was an integral part of the legislature. The Initiative and Referendum Act was found to be one which wholly excluded the Lieutenant Governor from legislative authority. The only powers of veto and disallowance preserved by the Initiative and Referendum Act were related to acts of legislative Assembly as distinguished from Bills. Therefore the powers of veto and disallowance referred to could only be those of the Governor General under Section 90 of the B.N.A. Act and not the powers of the Lieutenant Governor which are at an end when a Bill has become an Act. Section 11 of the Act provided that when a proposal for repeal of some law has been approved by majority of the electors voting that law is automatically to be deemed repealed, at the end of 30 days after the publication in the Gazette. Thus the Lieutenant Governor appears to be wholly excluded from the legislative authority. The Initiative and Referendum decision related to an Act of the legislature and secondly to the Act being ultra vires the provisions of the B.N.A. Act. This is not at all, relevant to the amending power of a Constitution. The Act was found to be invalid because the machinery which it provided for making the Laws was contrary to the machinery set up by the B.N.A. Act. The impugned Act rendered the Lieutenant Governor powerless to prevent a law which had been submitted to voters from becoming an actual law if approved by the voters. The impugned Act set up a legislature different from that constituted by the B.N.A. Act and this the legislature had no power to do. 1018. The other Canadian decisions are based on three views. The first view is based on the preamble to the B.N.A. Act that the Provinces expressed their desire to be federally united into one Dominion, with a Constitution similar to that of the United Kingdom. The corollary extracted from the preamble is that neither Parliament nor Provincial legislatures may infringe on the traditional liberties because of the Preamble to the B.N.A. Act and a reference to British Constitutional History. The second view expressed in the decisions is that the basic liberties are guaranteed by implication in certain sections of the B.N.A. Act. Section 17 establishes a Parliament for Canada. Section 50 provides that no House of Commons shall continue longer than five years. These sections are read by the Canadian decisions to mean that freedom of speech and freedom of political association should continue. The third view is that some rights find their source in natural law which cannot be taken away by positive law.

1019. The first view found expression in Switzman case. There was an Act respecting communistic propaganda. The majority Judges found that the subject matter was not within the powers assigned to the Province by Section 92 of the B.N.A. Act. They further held that the Act constituted unjustifiable interference with freedom of speech and expression essential under the democratic form of government established in Canada. The Canada Elections Act, the B.N.A. Act provided for election of Parliament every five years, meeting of Parliament once a year. It was contended that it was implicit in all legislations the right of candidates to criticise, debate and discuss political, economic and social principles.

1020. Hess case raised a question of jurisdiction of the Court to grant bail. Under Section 1025A of the Criminal Code a person was detained in custody. Section 1025A provided that an accused might be detained in custody without bail pending an appeal to the Attorney General.

1021. The Saumur case related to a municipal bye-law requiring permission for distribution of books and tracts in the city streets. The Saumur case relied on the observations of Duff, C.J. in Re Albert Legislation 1938 S.C.R. 100 that the right of free public discussion on public affairs is the breath of life for parliamentaly institutions. 1022. In Chabot case public schools in the Province of Quebec were operated by School Commissioners elected by tax payers of whom the religious majority were Catholics. A dissident tax payer raised the question as to whether dissidents might establish their own schools or they might send them to a school of a neighbouring municipality and thereupon become exempt from paying tax. The majority held that certain regulations passed by the Catholic Committee were intra vires because they must be construed as confined to Catholic children.

1023. The Canadian decision show first that certain Judges relying on the Preamble to the B.N.A. Act that the Canadian Constitution is to be similar in principle to that of the United Kingdom raised the vires of some of the legislations affecting freedom of speech. Secondly, the Canadian Constitution was given by the British Parliament and if the Judges who used such dicta referred to that part of the Preamble they were emphasising that the rights of the Canadian people were similar to those in England. Thirdly, it has to be remembered that the Canadian Constitution has been developed through usage and conventions.

1024. None of these decisions relates to amendment of the Constitution. None of these decisions indicates that there is any inherent limitation on the amendment of the Constitution. The Preamble to the B.N.A. Act shows that the Canadian Constitution enjoined observance of fundamental principles in British Constitutional practice. The growth of the Canadian Constitution was through such usage and convention. Our Constitution is of a sovereign independent republican country. Our Constitution does not draw sustenance from any other Constitution. Our Constitution does not breathe through conventions and principles of foreign countries.

1025. There are no explicit guaranteed liberties in the British North America Act. In Canada the Constitutional issue in civil liberties legislation is simply whether the particular supersession or enlargement is competent to the Dominion or the Province as the case may be. Apart from the phrase "civil rights in the Province" in Section 92(13) there is no language in Sections 91 and 92 which even remotely expresses civil liberties values.

1026. The Canadian Bill of Rights assented to in 1960 in Section 2 states that every law of Canada shall unless it is expressly declared by an Act of Parliament of Canada that it shall operate notwithstanding the Canadian Bill, of Rights be so construed and applied as not to abrogate, or infringe or authorise abrogation abridgement or infringement of any of the rights of freedom recognised and declared. The view of Laskin in Canadian Constitutional Law (3rd Edition) (1969) is that in terms of legislative power the political liberties represent independent Constitutional values which are exclusively in federal keeping. Since the enactment of the Canadian Bill of Rights the question has hardly any substantive effect because the Canadian Parliament can make a declaration in terms of Section 2 of the Bill of Rights that a law abrogating a freedom in the Bill of Rights is operative.

1027. Mr. Palkhivala relied on the Australian decisions in Taylor v. Attorney General of Queensland 23 C.L.R. 457 and Victoria v. Commonwealth 45 Australian Law Journal 251 in support of the proposition that there is inherent and implied limitation on the power of amendment.

1028. In Taylor case the Parliamentary Bills Referendum Act of 1908 was challenged. The Parliament Bills Referendum Act provided that when a Bill passed by the Legislative Assembly in two successive sessions has in the same two sessions been rejected by the Legislative Council, it may be submitted by referendum to the electors, and, if affirmed by them, shall be presented to the Governor for His Majesty's assent, and upon receiving such assent the Bill shall become an Act of Parliament in the same manner as if passed by both Houses of Parliament, and notwithstanding any law to the contrary. The Australian States Constitution Act, 1907 provided that it shall not be necessary to reserve, for the signification of His Majesty's pleasure thereon, any Bill passed by the legislatures of any of the States if the Governor has previously received instructions from His Majesty to assent and does assent accordingly to the Bill.

1029. In 1915 the Legislative Assembly of Queensland passed a Bill to amend the Constitution of Queensland by abolishing the Legislative Council. The Bill was passed by the Legislative Assembly. The Legislative Council rejected the Bill. The Legislative Assembly again passed the Bill The Legislative Council again rejected the Bill. The Governor in accordance with the Parliamentary Bills Referendum Act 1908 issued regulations providing for the taking of the Referendum polls. It was argued that the Constitution ought to have been first amended.

1030. The questions for the opinion of the Court were : (1) Is the Constitution Act, Amendment Act of 1908 a valid and effective Act of Parliament? (2) Is the Parliamentary Bills Referendum Act of 1908 a valid and effective Act of Parliament ? (3) Is there power to abolish the Legislative Council of Queensland by an Act passed in accordance with the provisions of the Parliamentary Bills Referendum Act of 1908 ? (4) Was the Referendum valid ?

1031. The Colonial Laws Validity Act 1865 in Section 5 conferred full power on every representative legislature to make laws respecting the Constitution, powers and procedures of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council, or colonial laws for the time being in force in the said colony. The Parliamentary Bills Referendum Act was held to be an Act respecting the powers of the legislature. Section 5 of the Colonial Laws Validity Act provided the authority for the legislation.

1032. Mr. Palkhivala extracted three propositions from the Taylor case. First, probably the power to make laws respecting the Constitution, power and procedure of such legislature does not extend to authorise the elimination of the representative character of the legislature within the meaning of the Act p. 468 per Barton, J. Second, probably the representative character of the legislature is a basic condition of the power relied on, and is preserved by the word "such" in the collocation of words in the Constitution "of such legislature" p. 474 per Issacs, J. Third, when power is given to a Colonial legislature to alter the Constitution of the legislature that must be read subject to the fundamental conception that consistently with the very nature of the Constitution as an Empire, the Crown is not included in the ambit of such power p. 474 per Issacs, J. 1033. The decision in Taylor case was to the effect that the Acts did not alter the representative character of the legislature as defined in Section 1 of the Colonial Laws Validity Act, 1865, nor did they affect the position of the Crown. The first two propositions on which Mr. Palkhivala relied, namely, the observations of Barton and Issacs, JJ. p. 468 and p. 474 were both prefaced by the word "probably" which amply shows that the observations are obiter. The question whether the representative character of the legislature could be changed or whether the Crown could be eliminated did not call for decision. The other learned Judges Gavan Duffy and Rich, JJ. said "It may perhaps be that the legislature must always remain a representative legislature as defined by the statute, but it is unnecessary in the present case to determine whether that is so or not". 1034. Issacs, J. held in that case that the word "legislature" did not include the Crown because Section 7 of the Colonial Laws Validity Act used the expression "legislature" followed by the words "or by persons or bodies of persons for the time being acting as such legislature" to show that the legislature was exclusive of the Crown. The assent of the Queen or the Governor was thus regarded as an additional factor. Therefore, Issacs, J. said that when a power is given to the Colonial legislature to alter the Constitution that must be read subject to the fundamental conception, that the Crown is not included in the ambit of such power. Those observations are made in the context of the provisions of the Colonial Laws Validity Act where a "colony" as defined to include all of Her Majesty's possessions abroad". The observations therefore mean that when power to alter the Constitution was conferred upon a colony which is a part of Her Majesty's possessions abroad it is reasonable to assume that such power did not include power to eliminate the Queen as a part of a colonial legislature.

1035. The representative character of the legislature does not involve any theory of implied limitation on the power of amendment. Such legislature as was emphasised by Issacs, J. shows that the limitation on the power of amendment flowed from express language of Section 5 of the Colonial Laws Validity Act and was not dependent upon any implication.

1036. In the State of Victoria case the validity of the Pay-Roll Tax Act, 1941 was impugned on the ground that it was beyond the legislative competence of the Commonwealth. The Pay Roll Tax Assessment Act 1941-69 made the Crown liable to pay tax on the wages payable to named categories of employees of the State of Victoria. The Commonwealth Parliament, in the exercise of its power under Section 51(ii) of the Constitution to make laws with respect to taxation, but so as not to discriminate between States or parts of State was held competent to include the Crown in right of a State in the operation of a law imposing tax or providing for the assessment of a tax. The inclusion of the Crown in right of a State in the definition of "employed" in Section 3(1) of the Pay- Roll Tax Assessment Act 1941-1969 thus making the Crown in right of a State liable to pay the tax in respect of wages paid to employees including employees of departments engaged in strictly governmental functions was also held to be a valid exercise of the power of the Commonwealth under Section 51 of the Constitution. Section 114 of the Constitution enacts ban on the imposition by the Commonwealth of a tax on property of a State. This ban was not offended. A law which in substances takes a State or its powers or functions of government as its subject matter is invalid because it cannot be supported upon any grant of legislative power, but there is no implied limitation on Commonwealth legislative power under the Constitution arising from the federal nature of the Constitution. There was no necessary implication restraining the Commonwealth from making a law according to the view of three learned Judges. Four other learned Judges held that there is an implied limitation as lack of Commonwealth legislative power but the Act did not offend such limitation.

1037. The limitation which was suggested to be accepted was that a Commonwealth law was bad if it discriminated against States in the sense that it imposed some special burden or disability upon them so that it might be described as a law aimed at their restriction or control.

1038. In the Australian case Barwick, C.J. stated that the basic principles of construction of the Australian Constitution were definitely enunciated in the Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 C.L.R. 129 which unequivocally rejected the doctrine that there was an implied prohibition in the Constitution against the exercise in relation to a State of a legislative power of the Commonwealth in accordance with the ordinary rules of Constitution.

1039. Mr. Palkhivala relied on some Irish cases in support of theory of implied and inherent limitations.

1040. In Rayan case 1935 Irish Report 170 the validity of amendment of Article 50 of the Irish Constitution which came into existence in 1922 fell for consideration. Article 50 provided that within 8 years from the commencement of the Constitution amendments to the Constitution were to be made by ordinary legislation. After the expiry of 8 years amendments were to be made by referendum. The other provision in Article 50 was that amendment "shall be subject to the provisions of Article 47" of the Constitution. Article 47 made provisions for the suspension in certain events of any Bill for a period of 90 days and for the submission of any bill so suspended to referendum if demand should be made. By an Amendment Act in 1928 reference to the provisions of Article 47 was repealed. In 1929 before the expiry of 8 years there was an amendment of the Constitution whereby the period of 8 years was changed to 16 years. Both the amendments were upheld. Amendment were challenged on two grounds : First, that many Articles of the Constitution are so fundamental as to be-incapable of alteration. Second, Article 50 does not authorise any change in these fundamental Articles. 1041. The decision of the Judicial Committee in Moore and Ors. v. Attorney General for the Irish Free State and Ors. 1935 A.C. 484 throws a flood of light on the question of amendment of the amending power in a written Constitution. The Treaty and the Constituent Act scheduled to the Irish Free Constitution Act, 1922 being parts of an Imperial Act formed parts of the statute law of the United Kingdom. The first clause of the Treaty provided that Ireland shall have the same Constitutional status in the community of nations known as the British Empire as the Dominion of Canada, Commonwealth of Australia, the Dominion of New Zealand, and the Union of South Africa with a Parliament having force to make laws for the peace, order and good government of Ireland and an Executive responsible to that Parliament and shall be styled and known as the Irish Free State. The second clause of the Treaty provided that the law practice and Constitutional usage governing the relationship of the Crown or the representative of the Crown and of the Imperial Parliament to the Dominion of Canada shall govern their relationship to the Irish Free State. Of the Articles of the Constitution, Article 12 created a legislature known as the Oireachtas and the sole and exclusive power of making laws for the peace, order and good government of the Irish Free State was vested in the Oireachtas.

1042. Article 50 provided that amendments of the Constitution within the terms of the Scheduled Treaty might be made by the Oireachtas. Article 66 provided that the Supreme Court of the Irish Free State would have appellate jurisdiction from all decisions of the High Court and the decision of the Supreme Court would be final and conclusive. The proviso to that Article stated that nothing in the Constitution shall impair the right of any person to petition His Majesty for special leave to appeal from the Supreme Court to His Majesty in Council. The proviso to Article 66 was inserted to give effect to Article 2 of the Treaty and hence under Article 50 of the Constitution it was argued that the proviso to Article 66 could not be amended in the way it was sought to amend it by abolishing the right of appeal. Article 50 contained another limitation that amendments within the terms of the Treaty might be made. Clause 2 of the Treaty provided that relations with the Imperial Parliament should be the same as the Canadian. By Amendment Act No. 6 of 1933 the words "within the terms of the Treaty" were deleted from Article 50. Thereafter Amendment Act No. 22 of 1933 was passed abrogating right of appeal to the Privy Council.

1043. The Judicial Committee in Moore case noticed that "Mr. Wilfrid Greene for the petitioners rightly conceded that Amendment Act No. 16 of 1929 which substituted for the 8 years specified in Article 50 as the period during which amendment might be made without a referendum a period of 16 years was regular and that the validity of the subsequent amendments could not be attacked on the ground that they had not been submitted to the people by referendum.

1044. It was argued by Mr. Greene in that case that the Constituent Assembly having accomplished its work went out of existence leaving no successor and no body in authority capable of amending the Constituent Act. The argument was in effect that the Constitution was a semi rigid Constitution that is one capable of being amended in detail in the different Articles according to their terms, but not susceptible of any alteration so far as concerns the Constituent Act, unless perhaps by the calling together of a new Constitution assembly by the people of Ireland. The decision of the Supreme Court of Ireland in Ryan case was referred to by the Judical Committee. The Judicial Committee held that the Oireachtas had power to repeal or amend the Constitution Act and in repealing or amending of parts of an imperial Statute, namely, the Irish Free State Constitution Act, 1922 what the Oireachtas did must be deemed to have been done in the Way in which alone it could legally be done, that is by virtue of the powers given by the statute. The abolition of appeals to Privy Council was a valid amendment. 1045. The decision in Liyanage v. Queen (1967) 1 A.C. 259 was also relied on by Mr. Palkhivala for the theory of implied and inherent limitations. The Criminal Law Amendment Act passed by the Parliament of Ceylon in 1962 contained substantial modifications of the Criminal Procedure Code. There was ex post facto legislation of detention for 60 days of any person suspected of having committed an offence against the State by widening the class of offences for which trial without jury by three judges nominated by the Minister of Justice would be ordered. An arrest without warrant for waging war against the Queen became permissible and new minimum penalties for that offence were prescribed and for conspiring to wage war against the Queen and overawe the government by criminal force, and by widening the scope of that offence. The Act also provided for the admission in evidence of certain confessions and statements to the police inadmissible under the Evidence Code. The Act was expressed to be retrospective to cover an abortive coup d'etat on 27 January, 1962 in which Liyanage and others took part, and was to cease to be operative after the conclusion of all legal proceedings connected with or incidental to any offence against the State committed on or about the date of the commencement of the Act, whichever was later. The second Criminal Law Amendment Act of 1962 (No. 31 of 1962) substituted the Chief Justice for the Minister of Justice as the person to nominate the three Judges but left unaffected other provisions for the former Act.

1046. The Supreme Court of Ceylon convicted the appellants and sentenced them to 10 years rigorous imprisonment the minimum prescribed by the Criminal Law Act 1 of 1962.

1047. The Privy Council, held the legislation to be ultra vires on two grounds. The Acts could not be challenged on the ground that they were contrary to fundamental principles of Justice. The Colonial Laws Validity Act 1865 which provided that colonial laws should be void to the extent of repugnancy to an Act of the United Kingdom, and should not be void on the ground of repugnancy to the law of England did not leave in existence a fetter or repugnancy to some vague and unspecified law of natural justice. The Ceylon Independence Act 1947 conferred on the Ceylon Parliament full legislative powers of a sovereign independent State. The Acts were declared to be bad because they involved a usurpation and infringement, by the legislature of judicial powers inconsistent with the written Constitution of Ceylon. The silence of the Constitution as to the vesting of judicial power was inconsistent with any intention that it should pass to or be shared by the executive or the legislature. The ratio of the decision is that the legislature could not usurp judicial power. There is an observation at page 289 of the report that Section 29(1) of the Ceylon Constitution confers power on Parliament to pass legislation which does not enable a law to usurp the judicial power of the judicature. The Judicial Committee answered the question which was posed as to what the position would be if Parliament sought to procure such a result by first amending the Constitution by a two-thirds majority by stating that such a situation did not arise there and if any Act was passed without recourse to Section 29(4) of the Ceylon Constitution it would be ultra vires. The Judicial Committee found that under Section 29(4) of the Ceylon Constitution there could be an amendment only by complying with the proviso, which would be the manner and form and would not be a limitation on the width of the power. The Ceylon case is not an authority for the proposition of implied and inherent limitation on the amending power. 1048. In Liyanage case the Privy Council rejected the contention that powers of the Ceylon Legislation should be cut down by reference to the vague and uncertain expression "fundamental principles of British Law". In deciding whether the Constitution of Ceylon provided for a separation between the legislature and the judiciary the Privy Council did not refer to consequences at all, but referred to the fact that the provisions relating to the legislature and the judicature were found in two separate parts of the Constitution. The provisions for appointment of the subordinate judiciary by a Commission consisting exclusively of Judges with a prohibition against any legislator being a member thereof and the further provision that any attempt to influence the decision was a criminal offence were held by the Judicial Committee to show that the judiciary was intended to be kept separate from the legislature and the executive. This conclusion was based on a pure construction of the provisions of the Act. The reference to consequences was in a different context. The Privy Council recognised that the impugned law dealt with a grave exceptional situation and were prepared to assume that the legislature believed that it had power to enact it.

Re: Kesavananda Bharati vs State Of Kerala And ors

1049. Again in Kariappar case 1968 A.C. 717 the Judicial Committee considered a Ceylon Act which was inconsistent with the Ceylon Constitution. The Act imposed civic disabilities for 7 years on person to whom the Act applied and provided for the vacation of the scat as a Member of Parliament. The words amend or repeal in Section 29(4) of the Ceylon Constitution were read by the Judicial Committee to cover an amendment or repeal by inconsistent act. The plain words amend or repeal did not admit ambiguity. 1050. To introduce into our Constitution the doctrine of implied and inherent limitations on the meaning of the word "amendment" by upholding the power to amend the essential features but not the core on the theory that only people can change by referendum is to rewrite the Constitution. The decisions in Ranasinghe case 1965 A.C. 172 and Kariappar case 1968 A.C. 717 are authorities for two propositions. First, that in the exercise of the pouter of amendment a controlled Constitution can be converted into an uncontrolled one. Second, the word "amendment" means alteration. In Ibralebbe case 1964 A.C. 900 the Judicial Committee said that if the Ceylon legislature abrogated the appeal to the Privy Council it would be an amendment of its judicial structure. 1051. The decision in Mangal Singh v. Union of India (1967) 2 S.C.R. 109 has been relied on by Mr. Palkhivala in support of the proposition that the power of amendment is subject to implied limitation. Article 4 of the Constitution which was interpreted in Mangal Singh case has to be read with Articles 2 and 3. Article 4 contains a limited power of amendment, limited to amend Schedules 1 and 4 as may be necessary to give effect to a law mentioned in Articles 2 and 3 and of making supplemental, incidental and consequential provisions. Shah, J. in Mangal Singh case said that power with which Parliament is invested by Articles 2 and 3 is a power to admit, establish or form new States or to admit, establish or admit new States which conform to the democratic pattern envisaged by the Constitution and is not a power to override the Constitutional scheme. It is manifest that when a new State is created in accordance with Articles 2 and 3 the amendment under Article 4 will be followed up as necessary to give effect to the same. Such an amendment does not override the Constitutional scheme. It is an amending power of a limited nature and is supplemental, incidental or consequential to the admission, establishment or formation of a State as contemplated by the Constitution. This decision does not say that there are implied limitations to the amending power. 1052. The petitioner challenges the legality and the validity of the Constitution (25th) Amendment Act.

1053. The Constitution (25th) Amendment Act has first amended Article 31(2), second added Article 31 (2B) and third introduced Article 31C. Article 31(2) is amended in two respects. First, it substituted the word "amount" for the word "compensation" for property acquired or requisitioned. Second, it is provided that the acquisition or requisition law shall not be called in question on the ground that whole or any part of the amount is to be given otherwise than in cash. Article 31 (2B) has been inserted to the effect that nothing in Sub-clause (f) of Clause (1) of Article 19 shall effect any such law as is referred to in Clause (2).

1054. Article 31C states that notwithstanding anything contained in Article 13 no law giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14 or Article 19 or Article 31 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. It is provided that where such law is made by the legislature of a State the provisions of this Article shall not apply thereto unless such law having been reserved for the consideration of the President has received his assent. 1055. The basic controversy is really regarding the right to property and the acquisition of property by the State. The Constitution of India was intended to achieve political liberty on the one hand and economic and social, liberty on the other for all citizens of India. The Directive Principles in the Constitution are also fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. That is Article 37. It can be achieved by making changes in the economic and social structure of the society.

1056. The resolutions of the Congress in 1929, 1931, 1945 and the objective resolution of 22 January, 1947 and the resolution of All-India Congress Working Committee in 1947 are not only a remembrance of things past. In 1929 the Congress resolution was that it was essential to make revolutionary changes in the economic and social structure of the society and to remove the gross inequalities. It was also resolved that political freedom must include the economic freedom of the starving millions. In such economic and social programme the State is to own or control the key industries and services, mineral resources, railways, waterways, shipping and other means of public transport. In 1945 the Working Committee said that the concentration of wealth and power in the hands of individuals and groups was to be prevented. Social control of the mineral resources and of the principal methods of production and distribution in land, industry and in other departments of national activity would be necessary to develop the country into cooperative commonwealth. In the case of industries which in their nature must be run on a large scale and on centralised basis, it was felt that they should belong to the community and they should be so organised that the workers become not only co-sharers in the profits but also increasingly associated with the management and administration of the industry. Land and all other means of production as well as distribution and exchange must belong to and be regulated by the community in its own interest. The framers of the Constitution wanted a social structure which would avoid the acquisitive economy of private capitalism and the regimentation of a totalitarian State. 1057. In this background the Constitution was created with the object of effecting social revolution. The core of the commitment to the social revolution lies in Part III and Part IV of the Constitution. They are described to be "conscience of the Constitution". The object of Part III was to "liberate the power of man equally for distribution to the common good". The State would have to bear the responsibility for the welfare of citizens. The Directive Principles are a declaration of economic independence so that our country men would have economic as well as political control of the country. 1058. The centre of the fundamental rights is said by Mr. Palkhivala to be Articles 14, 19 and 31. It is right to property. But the Directive Principles are also fundamental. They can be effective if they are to prevail over fundamental rights of a few in order to subserve the common good and not to allow economic system to result to the common detriment. It is the duty of the State to promote common good. If the motives for co-operating with others consist in the mere desire to promote their private good they would be treating their fellowmen as means only and not also an end. The notion of common good was needed to explain away the difference between the principles of reasonable self love and benevolence. The distribution of material resources is to subserve the common good. The ownership and control of the material resources is to subserve common good. The economic system is to work in such a manner that there is no concentration of wealth to the common detriment. Again, the economic system is to work in such a manner that the means of production are not used to the common detriment.

1059. The declaration of human rights on which Mr. Palkhivala relied for the unamendability of fundamental rights is rightly said by the Attorney General to be no impediment to the power of amendment nor to support the petitioner's contention regarding the inviolability of the right to property. For the purpose of promoting the general welfare in a democratic State the Directive Principles were said by the Attorney General to be fundamental in achieving rights of men and economic and social rights for human dignity. Every citizen asserts enjoyment for fundamental rights under the Constitution. It becomes the corresponding duty of every citizen to give effect to fundamental rights of all citizens, dignity of all citizens, by allowing the State to achieve the Directive Principles. The duty of the State is not limited to the protection of individual interest but extends to acts for the achievement of the general welfare in all cases where it can safely act and the only limitations on the governmental actions are dictated by the experience of the needs of time. A fundamental right may be regarded as fundamental by one generation. It may be considered to be inconvenient limitation upon legislative power by another generation. Popular sovereignty means that the interest which prevails must be the interest of the mass of men. If rights are built upon property those who have no property will have no rights. That is why the State has to balance interest of the individual with the interest of the society. Industrial democracy is the necessary complement to polticial democracy. The State has to serve its members by organising an avenue of consumption. This can be done by socialisation of those elements in the common welfare which are integral to the well being of the community. 1060. The petitioner's challenge to the amendment on Article 31(2) is as follows. The right to property is one of the essential features of the Constitution. It is the hand maid to various other fundamental rights. The right to freedom of the Press under Article 19(1)(a) is meaningless if the publisher could be deprived of his printing plant and the building in which it is housed without compensation. The fundamental right under Article 19(1)(c) to form trade unions will be denuded of its true content if the property of a trade union could be acquired by the State without compensation. The right to practise any profession or carry on any occupation, trade or business under Article 19(1)(g) will be the right to do forced labour for the State if the net savings from the fruits of a citizen's personal exertion are liable to be acquired by the State without compensation. The freedom of religion in Article 26 will lose a great deal of its efficacy if the institutions maintained by a community for its religious and charitable purposes could be acquired without compensation. The implication of the proviso to Article 31(2) is that the State may fix such an amount for acquisition of the property as may abridge or abrogate any of the other fundamental rights. Exercise of fundamental rights would be affected by the deprivation of property without compensation in the legal sense and the only exception to this power of the State is the case of educational institution dealt with in the proviso. Article 31(2) as a result of the Constitution (25th) Amendment Act will empower the State to fix an amount on a basis which need not be disclosed even to the members of the legislature and which may have no relation to the property sought to be acquired. The amount is not to satisfy any of the principles of compensation. It need not be paid in cash and it will yet not be considered to be a ground of challenge to the validity of law. Article 31(2) has nothing to do with estate, zamindaries, land reforms or agrarian reforms which are specifically dealt with by Article 31A.

1061. The right to acquire, hold and dispose of property under Article 19(1)(f) is subject under Article 19(5) to reasonable restrictions in the interests of the general public If Article 19(5) permits such reasonable restrictions it is said by the petitioner that the only object of making Article 19(1)(f) inapplicable by Article 31(2B) is to enable acquisition and requisition laws to contain restrictions or provisions which are unreasonable and not in the public interest. Reliance was placed by Mr. Palkhivala on the Bank Nationalisation case (1970) 3 S.C.R. 530 and the observations at p. 577 that if Article 19(1)(f) applied to acquisition or requisition, law which permitted a property to be taken without the owner being heard where the rules of natural justice would require the owner to be heard, would be void as offending Article 19(1)(f). Extracting that observation it is said that the amount fixed without giving him a hearing or amending the Land Acquisition Act to provide that any man's land or house can be acquired without notice to the owner to show cause or to prove what amount should be fairly paid to him for the property acquired will damage the essence or core of fundamental right to property.

1062. After the substitution of the neutral expression "amount" for "compensation" in Article 31(2) by the Constitution (25th) Amendment Act the Article still binds the legislature to provide for the giving to the owner a sum of money either in cash or otherwise. The legislature may either lay down principles for the determination of the amount or may itself fix the amount. Before the amendment the interpretation of Article 31(2) was that the law was bound to provide for the payment of compensation in the sense of equivalent in value of the property acquired. This was the interpretation given in the Bank Nationalisation case even after the Constitution 24th Amendment Act, which said that the adequacy of compensation could not be challenged. The Constitution 25th Amendment Act states that the law no longer need provide for the giving of equivalent in value of the acquired property. The quantum of the amount if directly fixed by the law and the principles for its quantification are matters for legislative judgment. Specification of principles means laying down general guiding rules applicable to all persons or transactions covered thereby. In fixing the amount the legislature will act on the general nature of the legislative power. The principle may be specified. The principle which may be acted upon by the legislature in fixing the amount may include considerations of social justice as against the equivalent in value of the property acquired. Considerations of social justice will include the relevant Directive Principles particularly in Article 39(b) and (c). These principles are to subserve the common good and to prevent common detriment. The question of adequacy has been excluded from Article 31(2) by the Constitution Fourth Amendment Act. It cannot be said that the legislature would be under the necessity of providing a standard to measure an adequacy with reference to fixing the amount. The Constitution does not allow judicial review of a law on the ground of adequacy of the amount and the manner as to how such amount is to be given otherwise than in cash.

1063. If the word "compensation" as it stood prior to the amendment of Article 31(2) must mean equivalent value in cash it is said by the Solicitor General that the concentration of wealth will remain unchanged and justice social, economic, and political amplified in Articles 39, 41, 42, 43, 45, 46 and 47 will be thwarted. The fulfilment of the Directive Principles is in a sense more fundamental than the mere right to property. Re- adjustment in the social order may not be practicable in a smooth manner unless the Directive Principles are effectively implemented. The emergence of a new social order is a challenge to present day civilisation. If nations wanted independence and supremacy in the latter half of the 19th century and the first half of the 20th century individual dignity, individual freedom, individual status in a well organised and well planned society are opening the frontiers since the mid-century. In this background the 25th Amendment protects the law in one respect, namely, that amount payable to the owner is no longer to be measured by the standard of equivalent in value of the acquired property. The quantum cannot be a matter for judicial review. Ever since the Fourth Amendment the adequacy of compensation is excluded by the Constitution. The reason is that the Constitution declares in clear terms that adequacy is not justiciable and therefore, it cannot be made justiciable in an indirect manner by holding that the same subject matter which is expressly barred is contained implicitly in some other provision and is, therefore, open to examination.

1064. Just as principles which were irrelevant to compensation were invalid prior to the Constitution 25th Amendment it was said that if any principles are adopted which are irrelevant to the concept of amount as a legal concept or as having a norm the law would be invalid because the amount would be purely at the will or at the discretion of the State. Therefore, it was said that when the law fixes the amount it might indicate the principles on which the amount had been arrived at or the Court might enquire into on which the amount had been fixed. Any contrary view according to the petitioner would mean that under Article 31(2) state would have authority to specify principles which could be arbitrary or specify the amount which could be arbitrary.

1065. It was also said that as a result of the proviso to Article 31(2) after the 25th Amendment the law providing for compulsory acquisition of property of an educational institution established by a minority referred to in Article 31(1) the State was to ensure that the amount fixed or determined was such as would not restrict or abrogate the right guaranteed under that clause. The amount would have to be higher than the amount which would be sufficient not to damage the essence of that right. But under Article 31(2) after the 25th Amendment where the proviso did not apply it was said that the core or essence of the fundamental rights would be damaged or destroyed. 1066. The word "amount" in Article 31(2) after the 25th Amendment is to be read in the entire collocation of words. No law shall be called in question in any Court on the ground that the amount so fixed or determined is inadequate or the whole or part of it or any part of such amount is given in cash. In Article 31(2) the use of the word "amount" in conjunction with payment in cash shows that a sum of money is being spoken of. Amount is a sum meaning a quantity or amount of money, or, in other words, amount means a sum of money.

1067. Article 31(2) prior to as well as after the 25th Amendment indicates two alternatives to the legislatures either to specify the principles for determination of the amount or to fix the amount or "compensation" prior to the amendment. In fixing the amount or compensation the legislature is not required to set out in the law the principles on which compensation had been fixed in the unamended clause or the amount is fixed in the amended clause.

1068. Article 19(1)(f) provides that all citizens shall have the right to hold, acquire or dispose of property whereas Article 31(2) deals with law by which the property is acquired. Such law acquiring property directly extinguishes the right to hold or dispose of property acquired. Article 19(1)(f) is excluded from Article 31(2) in order to make Article 31(2) self contained. The right to hold property cannot coexist with the right of the State to acquire property. That is why Article 31(2) is to be read with Article 31A, 31B and 31C, all the Articles being under the heading "Right to Property". 1069. It has been held by this Court in F.N. Rana case (1964) 5 S.C.R. 294 that Land Acquisition Act does not give the right of quasi-judicial procedure or the requirements of natural justice as Section 5A of that Act has been held to be administrative. It has also been held by this Court that a Requisition Act which did not give a right of representation before an order for requisition was made did not violate Article 19(1)(f). (See S.N. Nandi v. State of West Bengal A.I.R. 1971 SC 961).

1070. The other part of the 25th Amendment which is challenged by the petitioner is Article 31C. Article 31C is said by Mr. Palkhivala to destroy several essential features of the Constitution for these reasons. First, there is a distinction between cases where the fundamental rights are amended and laws which would have been void before the 25th Amendment are permitted to be validly passed and cases where the fundamental rights remain unamended but the laws which are void as offending those rights are validated by a legal fiction that they shall not be deemed to be void. The law is in the first case Constitutional in reality whereas in the second case the law is unConstitutional in reality but is deemed by a fiction of law not to be void with the result that laws which violate the Constitution are validated and there is a repudiation of the Constitution. If Article 31C is valid it would be permissible to Parliament to amend the Constitution so as to declare all laws to be valid which are passed by Parliament or State legislatures in excess of legislative competence or which violate basic human rights enshrined in Part III or the freedom of inter-State Trade in Article 301. Article 31C gives a blank charter to Parliament and the State legislatures to defy the Constitution or damage or destroy the supremacy of the Constitution. Secondly, Article 31C subordinates fundamental rights to Directive Principles. The right to enforce fundamental rights is guaranteed under Article

32. The Directive Principles are not enforceable by reason of Article 37. Yet it is said that while giving effect to Directive Principles fundamental rights are abrogated. Thirdly, whereas an amendment of a single fundamental right would require a majority of at least two-thirds of the members of Parliament present and voting, a law within Article 31C which overrides and violates several fundamental rights can be passed by a simple majority. Fourthly, every fundamental right is an essential feature of the Constitution and Article 31C purports to take away a large number of those fundamental rights. Fifthly, the Court is precluded from considering whether law under Article 31C is such that it can possibly secure Directive Principles in question. Sixthly, no State legislature can amend the fundamental rights or any other part of the Constitution but Article 31C empowers the State legislaure to pass laws which virtually involve repeal of the fundamental rights. Power of amending the Constitution is delegated to State legislatures. 1071. Finally, it is said that the fundamental rights under Article 14, 19 and 31 which are sought to be superseded by Article 31C are necessary to make meaningful specific rights of the minorities which are guaranteed by Articles 25 to 30. The proviso to Article 31(2) shows that in the case of acquisition of property of an educational institution established by a minority an amount fixed should be such as not to restrict or abrogate the right of the minorities under Article 31. It is, therefore, said that the implication is that if property is acquired in cases other than those of minorities an amount can be fixed which restricts or abrogates any of the fundamental rights. Again, it is said that if a law violates the right of the minority under Articles 25 to 30 such a law would be no law. Therefore, deprivation of property under such law would violate Article 31(1). But the 25th Amendment by Article 31C abrogates Article 31(1) and minorities can be deprived of their properties held privately or upon public, charitable or religious trusts by law which violates Articles 25 to 30.

1072. The pre-eminent feature of Article 31C is that it protects only law. Therefore, any question of violation of Article 31(1) does not arise. Law referred to in Article 31C must be made either by Parliament or by the State legislature, according to the legislative procedure for enacting a law. There are several Articles in the Constitution where the expression "law" with reference to the authority to make law has been used. These are Articles 17, 19(2) to (6), 21, 22, 23(1), 26, 31, 33, 34 and 35. These Articles indicate that the expression "law" there means law made by the legislature in accordance with its ordinary legislative procedure. The expression "law" does not include within itself ordinance, order, bye-law; rule, regulation, notification, custom or usage having the force of law nor an amendment of the Constitution in accordance with the procedure prescribed in Article 368. In Article 13 the term "law" has been used in a wide sense. For this a definition was given in Article 13(3) to include certain other categories. The definition in Article 13(3) is expressly limited for Article 13. Law in Article 31C must have the same meaning as it has in other Articles generally, namely, a statute passed by the legislature. 1073. It is true that such law may need details to be filled up by other agencies but the essential elements of Article 31C must be supplied directly by that enactment. A question arose with reference to Article 254 as to whether a clause of the Sugar Control Order 1955 made under the Essential Commodities Act had the effect of repealing the corresponding Uttar Pradesh State Law. This Court held that the power of repeal was vested in Parliament and Parliament alone could exercise it by enacting an appropriate provision in that regard. Parliament could not delegate the power of repeal to any executive authority. (See Ch. Tika Ramji and Ors. Etc. v. The State of Uttar Pradesh and Ors. 1956 S.C.R. 393).

1074. Article 31C is inextricably bound up with Article 39(b) and (c) because the purpose and the phraseology in both the Articles are essentially identifical. The legislative efforts to implement Directive Principles in Article 39 (b) and (c) were set in motion in some States to achieve reforms in land law. Articles 31A and 31B were introduced by the Constitution First Amendment Act 1951. The main reason for introducing Articles 31A and 31B was to exclude the operation of Part III as a whole from those provisions. The true relationship between Directive Principles in Part IV and the fundamental rights in Part III became clear. It was realised that though the liberty of individual was valuable it should not operate as an insurmountable barrier against the achievement of Directive Principles. In Sajjan Singh case (1965) 1 S.C.R. 933 it was said that "the rights of society are made paramount and they are placed above those of the individual". In the Bihar Land Reforms case 1952 S.C.R. 889 it was said that "a fresh outlook which placed the general `interest of the community above the interest of the individuals, pervades over Constitution".

1075. Law contemplated in Article 31C will operate on the ownership and control of the material resources of the community to be distributed as best to subserve the common good. The operation of the economic system should not result in concentration of wealth. Means of production should not be used to the common detriment. The ownership and control of the material resources of the community can be achieved by nationalisation and planned economy. The operation of the economic system will mean imposition of control on the production, supply and distributions of products of key industries and essential commodities. There can be laws within Schedule 7 List III Entries No. 42, 43; List I Entry No. 52 to 54 and List II Entries No. 23, 24, 26 and 27. 1076. The provisions in Article 31C that no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy was questioned by the petitioner to exclude judicial review and, therefore, to be illegal. Article 31C was in the second place said to enable the State legislatures to make discriminatory laws destructive of the integrity of India. Thirdly, Article 31C was said to delegate the amending power to State legislatures or Parliament in its ordinary legislative capacity.

1077. The declaration mentioned in Article 31C is for giving effect to the policy of the State towards securing the principles in Article 39 (b) or (c). Such a declaration in a law shall not be called in question on the ground that it does not give effect to such policy. The laws which receive protection under Article 31C are laws for securing the Directive Principles of Articles 39(b) and (c). The nexus or connection between the law and the objectives set out in Article 39(b) and (c) is a condition precedent for the applicability of Article 31C. On behalf of the Union and the State it was not contended that whether there was such nexus or not was not justiciable. The real reason for making the declaration free from question in a Court of law on the ground that it does not give effect to such policy is to leave legislative policy and wisdom to the legislature. The legislative measure might not according to some views give effect to Directive Principles. Therefore, legislatures are left in charge of formulating their policy and giving effect to it through legislation. It is the assessment and judgment of such measures which is sought to be excluded from judicial review by the declaration.

1078. In order to decide whether a statute is within Article 31C the court may examine the nature and the character of legislation and the matter dealt with as to whether there is any nexus or the law to the principles mentioned in Article 39(b) and (c). If it appears that there no nexus between the legislation and the objectives and principles mentioned in Article 39(b) and (c) the legislation will not be within the protective umbrella. The Court can tear the veil to decide the real nature of the statute if the facts and circumstances warrant such a course.

1079. The reason for excepting Articles 14, 19 and 31 from Article 31C is the same as in Article 31A. The Solicitor General rightly said that the fear of discrimination is allayed by three safeguards. The first and the foremost safeguard is the good sense of the legislature and the innate good sense of the community. The second safeguard is the President's assent. The third safeguard is that in appropriate cases it can be found as to whether there is any nexus between law and Directive Principles sought to be achieved. There is no better safeguard than the character of the citizen, the character of the legislature, the faith of the people in the representatives and the responsibility of the representatives to the nation. No sense of irresponsibility can be ascribed or attributed to the representatives of the people. The exclusion of Article 14 is to evolve new principles of equality in the light of Directive Principles. The exclusion of Article 19 is on the footing that laws which are to give effect to Directive Principles will constitute reasonable restrictions on the individual's liberty. The exclusion of Article 31(2) is to introduce the consideration of social justice in the matter of acquisition. Directive Principles are not limited to agrarian reforms. Directive Principles are necessary for the uplift and growth of industry in the country.

1080. Article 31(4) and 31(6) speak of certain class of laws not being called in question on the ground of contravention of Article 31(2). Article 31A relates to law of the class mentioned therein not to be void on the ground that it is inconsistent with or takes away or abridges any of the fundamental rights conferred by Articles 14, 19 and 31. Article 15(4) states that nothing in Article 15 or in Article 29(2) shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Article 31(5)(b)(ii) states that nothing in Article 31(2) shall affect the provisions of any law which the State may make for the promotion of public health. Article 33 speaks of law with regard to members of the Armed Forces charged with the maintenance of public order, so as to ensure the proper discharge of their duties and the maintenance of discipline among them and for that purpose the operation of some fundamental right in Part III is modified.

1081. The Solicitor General rightly said that similarly Article 31C creates a legislative field with reference to the object of legislation. It is similar to laws contemplated in Article 15(4), Article 31(5)(b)(ii) and Article 33. Each of these Articles carves out an exception to some Article or Articles conferring fundamental rights. The field carved out by the various Articles are of different dimensions. The entire process of exception of the legislative field from the operation of some of the Articles relating to fundamental rights is the mandate of the Constitution. It is wrong to say that the Constitution delegates power of amendment to Parliament or the States. As a result of the 25th Amendment the existing legislative field is freed from the fetters of some provisions of Part III of our Constitution on the legislative power.

1082. Article 31C substantially operates in the same manner in the industrial sphere as Article 31A operates in the agrarian sphere. The problems are similar in nature though of different magnitude. The Constitutional method adopted to solve the problem is similar. The Solicitor General is correct in summing up Article 31C as an application of the principles underlying Articles 31(4) and 31(6) and Article 31A to the sphere of industry. 1083. A class of legislation can be identified and the legislative field can be carved out from the operation of fundamental rights or some of those can be excluded by a provision of the Constitution. Articles 31(4) and 31(6) identify the laws with reference to the period during which they were made. Article 31(4) relates to a bill pending at the commencement of the Constitution in the legislature of a State to have been passed by such legislature and to have received the assent of the President to be not called in question on the ground that it contravenes Article 31(2). Article 31(6) relates to law of the State enacted not more than 18 months from the commencement of the Constitution to he submitted to the President for his certification and upon certification by the President not to be called in question on the ground of contravention of Article 31(2). Articles 31(2) and 31A identify the legislative field with reference to the subject matter of law. Articles 15(4) and 33 and Article 31(5)(b)(ii) identify laws with reference to the objective of the legislature. The exceptions to some part or some Articles of Part III of the Constitution is created by the Constitution and any law which is made pursuant to such power conferred by the Constitution does not amend the operation or application of these Articles in Part III of the Constitution. The crux of the matter is that modification or exception regarding the application of some of the Articles in Part III is achieved by the mandate of the Constitution and not by the law which is to be made by Parliament or State under Article 31C. Therefore, there is no delegation of amending powers. There is no amendment of any Constitutional provision by such law.

1084. The Constitution First Amendment Act 1951 introduced Articles 31A and 31B and Schedule 9 which are to be read together. Article 31A excluded a challenge under the whole of Part III for the laws of the kind mentioned in that Article. Article 31B restrospectively validated laws mentioned in Schedule 9 from challenge under Part III and also on the ground that they violated Section 299 of the Government of India Act, 1935. It may be stated here that Parliament which passed the Constitution First Amendment Act 1951 was the Constituent Assembly functioning as a legislature, till elections were held and a Parliament as provided for under the Constitution could be formed. Articles 31A and 31B carried out the intention of the framers of the Constitution as stated in Articles 31(4) and 31(6) that land legislation or agrarian reform was to be enforced and fundamental rights were not to be allowed to stand in the way of implementing the Directive Principles of State Policy contained in Article 39. The fundamental right conferred under Article 31(2) was subordinated to Article 39(b) and (c) in order to protect laws referred to in Article 31(4) and 31(6). When that object failed and the law was struck down under Article 14, Parliament gave effect to the policy underlying Articles 31(4) and 31(6) by excluding a challenge under every Article in Part III. In the Bihar Land Reforms case this Court said that the purpose behind the Bihar Land Reform Act was to bring about a reform of the land distribution system in Bihar for the general benefit of the community and the legislature was the best judge of what was good for the community and it was not possible for this Court to say that there was no public purpose behind the acquisition contemplated in the statute. 1085. This Court in State of West Bengal v. Bela Banerjee 1954 S.C.R. 558 held that the word "compensation" means just equivalent or full indemnity for the property expropriated. In Dwarkadas Srinivas v. Sholapur Spg & Wvg. Co. Ltd. 1954 S.C.R. 674 this Court struck down the law for taking over the management of Sholapur Mills on the ground that it amounted to acquisition and since no compensation was provided for, the law was held to be void. The Constitution Fourth Amendment Act 1955 came to remedy the implementation of essential welfare legislation. One of the measures in the Fourth Amendment Act was the amendment of Article 31 by making adequacy of compensation non-justiciable and the other was to amend Article 31A. The formula which had been used in Articles 31(4) and 31(6) to exclude the contravention of Article 31(2) was adopted with regard to adequacy of compensation. As a result of the amendment of Article 31A new categories were added to the Article and new Acts were added to the Ninth Schedule. The 17th Amendment Act made changes in Article 31A(1) and the proviso and amended Schedule 9 by inserting new Acts therein.

1086. The successive amendments of the Constitution merely carried out the principle embodied in Article 31 Clauses (4) and (6) that legislation designed to secure the public good and to implement the Directives under Article 39(b) and (c) should have priority over individual rights and that therefore fundamental rights were to fee subordinate to Directive or State Policy.

1087. Article 31(2) as it originally stood spoke of compensation for acquisition or requisition of property. The meaning given to compensation by the Court was full market value. There was no scope for giving effect to the word "compensation". There was no flexibility of social interest in Article 31(2). Every concept of social interest became irrelevant by the scope of Article 13(2). It is this mischief which was sought to be remedied by the 25th Amendment. If Directive Principles are to inter-play with Part III legislation will have to give expression to such law. Parts III and IV of the Constitution touch each other and modify. They are not parallel to each other. Different legislation will bring in different social principles. These will not be permissible without social content operating in a flexible manner. That is why in the 25th Amendment Article 31(2) is amended to eliminate the concept of market value for property which is acquired or requisitioned.

Re: Kesavananda Bharati vs State Of Kerala And ors

1088. If compensation means an amount determined on principles of social justice there will be general harmony between Part III and Part IV. Secondly, if compensation means market price then the concept of property right in Part III is an absolute right to own and possess property or to receive full price, while the concept of property right in Part IV is conditioned by social interest and social justice. There would be an inherent conflict in working out the Directive Principles of Part IV with the guarantee in Part III. That is why Clauses (4) and (6) of Article 31 illustrate the vital principle that to make effective a legislative effort to bring about changes in accordance with Directive Principles particularly those contained in Article 39(b) and (c) Article 31(2) may have to be abridged. The social interest and justice may vary from time to time and territory to territory and individual rights may have to be limited.

1089. Just as the amount can be fixed on principles of social justice the principles for determining the amount can be specified on the same consideration of social justice. Amount is fixed or the principles are specified by the norm of social justice in accordance with Directive Principles.

1090. In amending Article 31(2) under the 25th Amendment by substituting the word "amount" for "compensation" the amount fixed is made non-justiciable and the jurisdiction of the Court is excluded because no reasons for fixing such amount would or need appear in the legislation. If any person aggrieved by the amount fixed challenges the Court can neither go into the question of adequacy nor as to how the amount is fixed. If adequacy cannot be questioned any attempt to find out as to why the particular amount is fixed or how that amount has been fixed by law will be examining the adequacy which is forbidden as the Constitutional mandate. If one alleges that the amount is illusory one will meet the insurmountable Constitutional prohibition that the adequacy or the alleged arbitrariness of the amount fixed is not within the area of challenge in courts. 1091. The amount fixed is not justiciable. The adequacy cannot be questioned. The correctness of the amount cannot be challenged. The principles specified are not justiciable.

1092. If on the other hand, the legislature does not fix the amount but specifies the principles for determining the amount, the contention that principles for determining the amount must not be irrelevant loses all force because the result determining the amount by applying the specified principles cannot be challenged on the ground of inadequacy. If principles are specified for determining the amount and as a result of the application of the principles the result is less than the market value it will result in the same question of challenging adequacy.

1093. The relevancy of the principles cannot be impugned. Nor can the reasonableness of the principles be impeached.

1094. Article 14 has the flexibility of classification. Article 19 has the flexibility of reasonable restrictions. Social justice will determine the nature of the individual right and also the restriction on such right. Social justice will require modification or restriction of rights under Part III. The scheme of the Constitution generally discloses that the principles of social justice are placed above individual rights and whenever or wherever it is considered necessary individual rights have been subordinated or cat down to give effect to the principles of social justice. Social justice means various concepts which are evolved in the Directive Principles of the State.

1095. The 25th Amendment has amended Article 31(2) and also introduced Article 31(2B) in order to achieve two objects. The first is to eliminate the concept of market value in the amount fixed for acquisition or requisition of the property. The second is to exclude in Clause (2B) of Article 31 the applicability of Article 19(1)(f). Articles 31A and 31B applied to acquisition and requisition of property. The purpose of Article 31C is to confer by Constitutional mandate power on Parliament and State to make laws for giving effect to Directive Principles. The significance of the total exclusion of Part III from Articles 31A and 31B is that it brings about in unmistakable manner the true relationship between the provisions of Part IV and Part III of the Constitution. 1096. With reference to land legislation subordination of fundamental rights of individual to the common good was clear in Clauses (4) and (6) of Article 31. It was made clearer by the Constitution First Amendment Act which introduced Articles 31A, 31B and Schedule 9. Articles 31A, 31B, Schedule 9 and Article 31C merely removed the restrictions which Part III of the Constitution imposes on legislative power. Article 31A after the Fourth Amendment removed the restrictions on legislative power imposed by Articles 14, 19 and 31. In enacting Clauses (b), (c) and (d) in Article 31A Parliament was giving effect to social control which though less urgent than land reform became in course of time no less vital. Article 31B by the First Amendment retrospectively validated the laws specified in Schedule 9 by retrospectively removing all invalidity from the law because of the transgression of rights in Part III. Again, the seven new Acts added in the Ninth Schedule by the Fourth Amendment Act had nothing to do with agrarian reform, but dealt with subjects of great national importance. The Constitution Fourth Amendment Act was intended to remove the barriers of Articles 14, 19 and 31(2) in respect of land legislation considered essential for public good. 1097. State legislatures cannot remove the fetter. They have no power to amend the Constitution. Parliament cannot remove the fetter by ordinary law. By amendment of the Constitution Parliament can remove the fetter by either deleting one or more fundamental right or rights or by excluding certain laws or certain kinds of laws from the fetter. 1098. The pattern of Articles 31A, 31B, the Ninth Schedule and Article 31C is best understood by the observations of Patanjali Sastri, C.J. in Shankari Prasad case and of Wanchoo, J. in Golak Nath case. Patanjali Sastri, C.J. said in Shankari Prasad case "Articles 31A and 31B really seek to save a certain class of laws and certain specified laws already passed from the combined operation of Article 13 read with other relevant Articles of Part III. The new Articles being thus essentially amendments of the Constitution have the power of enacting them. It was said that Parliament could not validate the law which it has no power to enact. The proposition holds good whether the validity of the impugned provision turns on whether the subject matter, falls within or without the jurisdiction of the legislature which passed it. But to make law, which contravenes the Constitution, Constitutionally valid is a matter of Constitutional amendment and as such it falls within the exclusive power of Parliament". Wanchoo, J. said of Article 31B "The laws had already been passed by the State legislature and it was their Constitutional infirmity, if any, which was being cured by the device adopted in Article 31B read with the Ninth Schedule.... Parliament alone could do it under Article 368 and there was no need for any ratification under the proviso for amendment of Part III is not entrenched in the proviso".

1099. The conclusiveness of declaration introduced by the 25th Amendment in a law under Article 31C is to be appreciated in the entire context of Article 31C. In removing restrictions of Part III in respect of a law under Article 31C there is no delegation of power to any legislature. There is only removal of restriction on legislative power imposed by Articles 14, 19 and 31. Article 31C does not confer any power to amend the Constitution. The exclusion of Article 31 is a necessary corollary to protecting the impugned law from challenge under Articles 14, 19 and 31 because Article 13(2) would but for its exclusion in Article 31C render such laws void. The declaration clause is comparable to Section 6(3) of the Land Acquisition Act "1894 which contains a conclusive evidence clause that declaration shall be conclusive evidence that the land is needed for a public purpose and for a company as the case may be. A conclusive declaration would not be permissible so as to defeat a fundamental right. In Article 31(5) it is provided that nothing in Clause (2) shall effect (a) the provisions of any existing law other than a law to which the provisions of Clause (6) apply and since the Land Acquisition Act 1894 is an existing law the conclusive declaration clause prevails and is not justiciable. See Babu Barkya Thakur v. The State of Bombay and Ors. (1961) 1 S.C.R. 128. The same view was reiterated by this Court in Smt. Somavanti and Ors. v. The State of Punjab and Ors. (1963) 2 S.C.R. 774 that a declaration under the Land Requisition Act was not only conclusive about the need but was also conclusive for the need was for a public purpose.

1100. Conclusive proof is defined in the Indian Evidence Act. It is, therefore, seen that the legislative power carries with it the power to provide for conclusive proof so as to oust the jurisdiction of a Court. The declaration is for the purpose of excluding the process of evaluation of legislation on a consideration of the virtues and defects with a view to seeing if the laws has led to the result intended. If a question arises as to whether a piece of legislation with such declaration has a nexus with the Directive Principles in Article 39(b) and (c) the Court can go into the question for the purpose of process of identification of the legislative measure on a consideration of the scope and object and pith and substance of the legislation. Therefore, the 25th Amendment is valid. 1101. A contention was advanced on behalf of the petitioner that Article 31B applies to agrarian reforms or in the alternative Article 31B is linked to Article 31A and is to be read as applying to laws in respect of five subject matters mentioned in Article 31A. The 13 Acts mentioned in the Ninth Schedule as enacted by the First Amendment Act, 1951 dealt with estates and agrarian reforms. There is nothing in Article 31B to indicate that it is linked with the same subject matter as Article 31A. In the Bihar Land Reforms case Patanjali Sastri, C.J. said at pp. 914-915 of the report (1952 S.C.R. 889) that the opening words of Article 31B are only intended to make clear that Article 31A should not be restricted in 'its application by reason of anything contained in Article 31B and are not in any way calculated to restrict the application of the latter Article or of the enactments referred to therein to acquisition of estates.

1102. In Vishweshwar Rao v. State of Madhya Pradesh 1952 S.C.R. 1020 it was urged that Article 31B was merely illustrative of Article 31A and as the latter was limited in is application to estates as defined therein Article 31B was also similarly limited. That contention was rejected and it was said that Article 31B specifically validates certain Acts mentioned in the Schedule despite the provisions of Article 31A and is not illustrative of Article 31A but stands independent of it.

1103. Again, in Jeejibhoy v. Assistant Collector (1965) 1 S.C.R. 616 it was contended that Articles 31A and 31B should be read together and if so read Article 31B would only illustrate the cases that would otherwise fall under. Article 31B, and, therefore, the same construction as put upon Article 31B should apply to Article 31A. This Court did not accept the argument It was said that the words "without prejudice to the generality of the provisions contained in Article 31A" indicate that the Acts and Regulations specified in the Ninth Schedule would have the same immunity even if did not attract Article 31A of the Constitution. If every Act in the Ninth Schedule would be covered by Article 31A, Article 31B would be redundant Some of the Acts mentioned in the Ninth Schedule, namely, items 14 to 20 and many other Acts added to the Ninth Schedule, do not appear to relate to estates as defined in Article 31A(2) of the Constitution. It was, therefore, held in Jeejibhoy case that Article 31B was a Constitutional device to place the specific statute beyond any attack on the ground that they infringe Part III of the Constitution. 1104. The words "without prejudice to the generality of the provisions contained in Article 31A" occurring in Article 31B indicate that Article 31B stands independent of Article 31A. Article 31B and the Schedule are placed beyond any attack on the ground that they infringe Part III of the Constitution. Article 31B need not relate to any particular type of legislation. Article 31B gives a mandate and complete protection from the challenge of fundamental rights to the Scheduled Acts and the Regulations. Article 31A protects laws in respect of five subject matters from the challenge of Articles 14, 19 and 31, but not retrospectively. Article 31B protects Scheduled Acts and the Regulations and none of the Scheduled Acts are deemed to be void or even to have become void on the ground of contravention of any fundamental right.

1105. The validity of the Constitution 29th Amendment Act lies within a narrow compass. Article 31B has been held by this Court to be a valid amendment. Article 31B has also been held by this Court to be an independent provision. Article 31B has no connection with Article 31A. The Bihar Land Reforms case and Jeejibhoy case are well settled authorities for that proposition. It, therefore, follows that Mr. Palkhivala's contention cannot be accepted that before the Acts can be included in the Ninth Schedule requirements of Article 31A are to be complied with.

1106. For the foregoing reasons these are the conclusions.

1107. First, the power to amend the Constitution is located in Article 368. Second, neither the Constitution nor an amendment of the Constitution can be or is law within the meaning of Article 13. Law in Article 13 means laws enacted by the legislature subject to the provision of the Constitution. Law in Article 13(2) does not mean the Constitution. The Constitution is the supreme law. Third, an amendment of the Constitution is an exercise of the constituent power. The majority view in Golak Nath case is with respect wrong. Fourth, there are no express limitations to the power of amendment. Fifth, there are no implied and inherent limitations on the power of amendment. Neither the Preamble nor Article 13(2) is at all a limitation on the power of amendment. Sixth, the power to amend is wide and unlimited. The power to amend means the power to add, alter or repeal any provision of the Constitution. There can be or is no distinction between essential and in-essential features of the Constitution to raise any impediment to amendment of alleged essential features. Parliament in exercise of constituent power can amend any provision of this Constitution. Under Article 368 the power to amend can also be increased. The 24th Amendment is valid. The contention of Mr. Palkhivala that unlimited power of amendment would confer power to abrogate the Constitution is rightly answered by the Attorney General and Mr. Seervai that amendment does not mean mere abrogation or wholesale repeal of the Constitution. The Attorney General and Mr. Seervai emphasised that an amendment would leave an organic mechanism providing the Constitution organisation and system for the State. If the Constitution cannot have a vital growth it needs must wither. That is why it was stressed on behalf of the respondents that orderly and peaceful changes in a Constitutional manner would absorb all amendments to all provisions of the Constitution which in the end would be "an amendment of this Constitution".

1108. The 25th Amendment is valid. The adequacy of amount fixed or the principles specified cannot be the subject matter of judicial review. The amendment of Article 31(2B) is valid. Article 31(2) is self contained and Articles 31(2) and 19(1)(f) are mutually exclusive. Amendment of fundamental right prior to the amendment was and is now after the 24th Amendment valid. Article 31C does not delegate or confer any power on the State legislature to amend the Constitution. Article 31C merely removes the restrictions of Part III from any legislation giving effect to Directive Principles under Article 39(b) and (c). The power of Parliament and of State legislatures to legislate on the class of legislation covered by Article 31C is rendered immune from Articles 14, 19 and

31.

1109. The inclusion of the Kerala Act 35 of 1969 and the Kerala Act 25 of 1971 by the 29th Amendment in the Ninth Schedule is valid. Article 31B is independent of Article 31A.

1110. In the result the contentions of Mr. Palkhivala fail. Each party will pay and bear its own costs. The petitions will be placed before the Constitution Bench for disposal in accordance with law.

P. Jaganmohan Reddy, J.

1111. The detailed contentions addressed before us for 66 days have been set out in the judgment of My Lord the Chief Justice just pronounced, and I would only refer to such of those as are necessary for dealing with the relevant issues. Though I agree with some of the conclusions arrived at by him, but since the approach in arriving at a conclusion is as important as the conclusion itself, and particularly in matters involving vital Constitutional issues having a far-reaching impact on fundamental freedoms of the people of this country and on the social objectives which the State is enjoined to achieve under the Directive Principles of State Policy, I consider it my duty to express my views in my own way for arriving at those conclusions.

1112. In this case the validity of the Constitution (Twenty-fourth) and (Twenty-fifth) Amendment Acts of 1971 and the Constitution (Twenty-ninth) Amendment Act of 1972 has been challenged as being outside the scope of the power of amendment conferred on Parliament by Article 368 of the Constitution and consequently void. 1113. The validity of the Twenty-fourth Amendment would depend upon the interpretation of two crucial articles, Article 13 and Article 368, and two words, one in each article, namely, `law' in the former, and 'amendment' in the latter. For the purposes of ascertaining the true intent and scope of these articles in I.C. Golaknath and Ors. v. State of Punjab, (1967) 2 S.C.R. 762 the basic question which the Court first considered was, where was power to amend the Constitution of India to be found? Subba Rao, C.J., with whom Shah and Sikri, JJ., as they then were, and Shelat and Vaidialingam, JJ., concurred, (hereinafter referred to as the leading majority judgment), held that the power was contained in Articles 245, 246 and 248 read with Entry 97 of List I of Schedule VII, and not in Article 368 which only provided for the procedure to amend the Constitution. Hidayatullah, J., as he then was, in his concurring judgment held that the procedure of amendment, if it can be called a power at all, is a legislative power, but it is sui generis and outside the three Lists of the Constitution, and that Article 368 outlines a process which, if followed strictly, results in the amendment of the Constitution. He was, therefore, of the view that the Article gives power to no particular person or persons. All the named authorities have to act according to the letter of the Article to achieve the result.

1114. Wanchoo, J. as he then was, for himself and two other Judges, Bachawat and Ramaswami, JJ., found the power in Article 368 itself and not in Articles 245, 246 and 248 read with Entry 97 of List I.

1115. It is, therefore, contended by the learned Advocate-General of Maharashtra, firstly, that the finding in the leading majority judgment that the fundamental rights cannot be amended is based on the decision that the amending power is to be found in the residuary Article 248 read with Entry 97 of List I of Schedule VII. This finding is deprived of its foundation, since six Judges held that the amending power is not to be found in the residuary Article and Entry 97 of List I. Secondly, the conclusion that the fundamental rights cannot be amended was reached by the leading majority judgment on the basis that Article 13(2) was attracted by the opening words of Article 245 and, therefore, a law amending the Constitution under entry 97 of List I was a law referred to in Article 245, and as it was in conflict with Article 13(2) the law was void.

1116. It is again contended that this conclusion loses its validity once its basis is destroyed by five Judges holding that the amending power is not to be found in entry 97 of List I, but in Article 368. In view of the conclusion of Hidayatullah, J., that the power of amendment as well as procedure therefor was contained in Article 368 itself, he submits that there is no ratio binding on this Court unless it be that the power of amendment is not in the residuary article but in Article 368. This argument is of little validity, because the ratio of the decision, where a question is directly raised before the Court for decision, is that which it decides, and in that case wherever the power may have been found, whether in Article 368 or in the residuary entry 97 of List I of Schedule VII, the controversy was whether an amendment made under Article 368 is a 'law' within the meaning of Article 13(2), and if it is so, a State cannot make a law taking away or abridging fundamental rights conferred by Part III of the Constitution. That question being answered in the affirmative by the majority, the ratio of Golaknath's decision is that an amendment under Article 368 is a 'law' within the meaning of Article 13(2). What the leading majority judgment in that case did not decide, however, is whether Article 368 itself could be amended under the proviso of that article conferring a power to amend the whole Constitution. At p. 805, Subba Rao, C.J., observed, "In the view we have taken on the scope of Article 368 vis-a-vis the fundamental rights, it is also unnecessary to express our opinion on the question whether the amendment of the fundamental rights is covered by the proviso to Article 368." While five Judges who were in minority held that each and every article of the Constitution could be amended in exercise of the power under, and by following the procedure in, Article 368, Hidayatullah, J., held that by amending. Article 368, Parliament could not do indirectly what it could not do directly, namely, amend Article 13(2) or override the provisions thereunder, because as he said, "The whole Constitution is open to amendment. Only two dozen articles are outside the reach of Article 368. That too because the Constitution has made them fundamental." (See p. 878). There is, therefore, warrant for the submission that Golaknath's case is not determinative of the question now raised before this Court as to whether the power to amend Article 368 could be exercised to amend the fundamental rights in Part III. At any rate, five of the six Judges who expressed an opinion on this aspect support the proposition that this can be done.

1117. It was also submitted that no question in fact arose for decision in Golaknath's case that in future Parliament could not amend the fundamental rights, because what that case was concerned with was the past exercise of the power to amend the fundamental rights, and, therefore, the observations in the majority judgments of Subba Rao, C.J., and Hidayatullah, J., as he then was, about the future exercise of that power are clearly obiter. It may be pointed out that the majority judgment as well as the minority judgment concurred in dismissing the petition, the former on the ground that the First, Fourth and Seventeenth Amendments were not affected either on the basis of the doctrine of prospective overruling or on the basis of acquiescence or on the ground that they were made by virtue of a valid exercise of the amending power under Article 368. On this basis it is submitted that no ratio can be found in that case for the majority declaring that Parliament in future cannot amend fundamental rights which is binding on this Court nor can it amend the amending article to take away or abridge fundamental rights. 1118. Whether the First, Fourth and Seventeenth Amendments have been rightly held to be valid or not, the ratio of the decision as was observed earlier is that under Article 368 as it was before its amendment, Parliament could not amend the Constitution to take away or abridge any of the fundamental rights conferred by Part III of the Constitution, and that question will only assume importance if this Court comes to the conclusion, following Hidayatullah, J.'s, decision, that Parliament cannot amend Article 368 under proviso (e) thereof to take away or abridge any of the fundamental rights or to amend Article 13(2) making it subject to an amendment under Article 368. If such a power exists, the question whether an amendment in Article 368 is a 'law' 'within the meaning of Article 13(2) may not prima facie be of significance. There are, however, two aspects to this problem, firstly, whether 'law' in Article 13(2) includes an amendment of the Constitution under Article 368: and secondly, if this Court holds that 'law' in Article 13(2) does not include an amendment under Article 368, then the question would be, has the Constitution (Twenty-fourth) Amendment purported to exercise a power in effecting that amendment which was not granted under that Article ? In other words, are there any limitations to the amending power under Article 368 ? If, as was held by Hidayatullah, J., that the power of amendment conferred on Parliament under Article 368 is not a constituent power, and any amendment made thereunder is a legislative power, which is 'law' within the meaning of Article 13(2), then Parliament cannot do indirectly what it cannot do directly.

1119. The first question which would arise for decision is what does 'law' in Article 13(2) signify, and is there any internal evidence which would indicate that that word has been used to include an amendment under Article 368, and if it does, whether it is subject to any limitations, and if so, what ? It is contended that the word 'law' in Article 13(2) not only includes ordinary legislative law, but also Constitutional law. 1120. It may not, in my view, be necessary to examine the submission, that an amendment under Article 368 is not made in exercise of the constituent power but has been made by a constituent body, if on examination of the provisions of Part III, there is intrinsic evidence therein which points to the irresistible conclusion that Article 13(2) was meant only to place an embargo on a law made by a Legislature so-called in contradistinction to an amendment of the Constitution under Article 368 which no doubt is also a law in its generic sense, as indeed was the view taken in Sankari Prasad Singh Deo v. Union of India and State of Bihar [1952] S.C.R. 89, Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R. 933 and Golaknath's case by some of the learned Judges. The framers of the Constitution have defined "law" in Sub-clause (a) of Clause (3) of Article 13 and that this definition would on the first impression appear to apply to only Clause (2) of that Article. But it would also, having regard to the words "unless the context otherwise requires", apply to Clause (1) thereof. While the expression "laws in force" has been defined in Sub-clause (b) of Clause (3) for the purposes of Clause (1) as including laws passed or made by Legislatures or other competent authorities before the commencement of the Constitution, an Ordinance, a bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law saved by Article 372 would, by virtue of Sub-clause (a) of Clause (3), equally apply to Clause (1) of Article 13.

1121. Again, though Sub-clause (a) of Clause (3) contains an inclusive definition of the word 'law' and does not specifically refer to a law made by Parliament or the Legislatures of States, it cannot be, nor has it been denied, that laws made by them are laws within the meaning of Article 13(2). What is contended, however, is that it also includes an amendment of the Constitution or Constitutional laws. No elaborate reasoning is necessary in support of the proposition that the word "law" in Article 13(2) includes a law made by Parliament or a Legislature of the State. When an Ordinance made either by the President under Article 123 or by a Governor under Article 213, in exercise of his legislative power which under the respective Sub-clause (2) has the same force and effect as an act of Parliament or the Legislature of a State assented to by the President or the Governor, as the case may be, is included in Article 13(3)(a), a law passed by Parliament or a Legislature of a State under Article 245 which specifically empowers Parliament for making laws for the whole or any part of India or any part of a State and the Legislature of a State for the whole or any part of a State, would be equally included within the definition of "law". Article 246 to 255 deal with the distribution of legislative powers between Parliament and the State Legislatures to make laws under the respective Lists in the Seventh Schedule, and further provides under Article 248(1) and (2) that Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List including the power of imposing tax not mentioned in either of those Lists.

Re: Kesavananda Bharati vs State Of Kerala And ors

1122. Whereas Article 13(3)(a) has sepcifically included within the definition of 'law', custom or usage having in the territory of India the force of law, and even though it has not specifically mentioned an amendment made under Article 368 or a law made by Parliament or a Legislature it would certainly include a law made by the latter organs by reason of the legislative provisions of the Constitution referred to above. Having regard to the importance of the amending power, whether it is considered as a constituent power or as a constituted power, the omission to include it specifically would, it is contended, indicate that it was not in the contemplation of the framers of the Constitution to extend the embargo in Article 13(2) to an amendment under Article 368. To my mind what is difficult to envisage is that while the framers included minor legislative acts of the State within the definition of 'law' in Article 13(3), they did not think of including an amendment of the Constitution therein, even though attempts were made towards that end till the final stages of its passage through the Constituent Assembly. It is contended that the answer to this could be that the framers did not include specifically a law made by the Legislature in that definition, and as such all laws whether legislative or amendments of the Constitution would come within its purview. This argument loses its significance in view of the fact that the enumeration of laws like rule, bye-law, regulation and notification which have their source and existence in the legislative law clearly indicate the inclusion of a law made by Parliament or a Legislature of a State. It is not that the framers did not consider meticulously any objections to or defects in the definitions as I will show when dealing with the various stages of the consideration of the draft article. 1123. It may be necessary first to examine whether in the context of the inclusive definition of 'law', and not forgetting that an amendment under Article 368 could also be termed 'law', the prohibition that the State cannot take away or abridge the rights conferred under any of the provisions of Part III is confined to those categories of law to which I have specifically referred, namely, to the law made by Parliament or a Legislature of the State and to those indicated in Article 13(3)(a). The law referred to in Article 14, Clauses (3) and (5) of Article 16, Article 17, Clauses (2) to (6) of Article 19, Article 20, Article 21, Clauses (4) and (7) of Article 22, Clause (1) of Article 23, Clause (2) of Article 25, Article 31, Clause (3) of Article 32, Articles 33, 34 and Clause (a) of Article 35, is, in my view, a law which the Parliament or a Legislature of the State or both, as the case may be, is required to make for giving force to the rights or is permitted to make to restrict the rights conferred by Part III. In other words, the permissible limits are indicated therein. Further under Article 15 the words 'special provision' and in Clause (4) of Article 16 the making of any provision by the State, and Clause (2) of Article 23 imposing of a compulsory service by the State for public purposes, or preventing the State from doing or permitting it to take certain actions under Article 28, Clause (2) of Article 29 and Clause (2) of Article 30 can either be by an ordinary legislative law or by an order or notification issued by the Government which may or may not be under any law but may be in the exercise of a purely executive power of the Government of India or the Government of a State having the force of law.

1124. Even where reasonable restrictions are permitted as in Clauses (2) to (6) of Article 19 or where restrictions or abrogation of the totality of fundamental rights contained in Part III have been permitted in respect of members of the armed forces or the forces charged with the maintenance of public order under Article 33, or where it is sought to indemnify persons in the service of the Union or a State or any other person, it is the Parliament that has been empowered to make a law in that re-regard. Article 35, it may be noticed, begins with a non obstante clause, "Notwithstanding anything in this Constitution - (a) Parliament shall have, and the Legislature of a State shall not have, power to make laws...." This non obstante clause has the effect of conferring the power of legislation in respect of matters mentioned therein to Parliament exclusively which it would not have otherwise had, because some of the powers were exercisable by the State Legislatures. Hidyatullah, J., however, thought that the opening words in Article 35 were more than the non obstante clause and excluded Article 368 - a conclusion based on comparison of that Article with Article 105-A of the Australian Constitution in respect of which New South Wales v. The Commonwealth 36 C.L.R. 155 had held that it was an exception to Section 128 (See Golaknath's case at p. 902). Wynes, however, did not agree with this view of the High Court of Australia: See Legislative, Executive and Judicial powers in Australia, pp. 695-698. With this view, Hidayatullah, J., did not agree. In my view it is unsafe to rely on cases which arise under other Constitutions. Apart from this, Article 35 is not in pari materia with Article 105-A of the Australian Constitution which deals with the binding nature of the financial agreement made thereunder. The analogy is, therefore, inapplicable, nor is there anything in the subject-matter of Article 35 to safeguard it from being amended under Article 368. On the other hand, this article empowers Parliament to give effect to fundamental rights and gives no indication to delimit the power of amendment under Article 368.

1125. It is true that the Constitution itself has provided the limitations that can be imposed on the fundamental rights guaranteed in Part III, but those limitations can only be effected by ordinary law as opposed to Constitutional law and nor imposing those limitations an amendment of the Constitution is not needed. Once a right is conferred on the citizen, to what extent the right can be restricted, or where a State is prohibited from acting in any particular manner to what extent it is permitted, is to be regulated only by an ordinary law. If so, the bar against exceeding the permissible limits must prima facie be against the State making such a law. In the circumstances, could it be said that the framers of the Constitution contemplated the inhibition in Article 13(2) to operate on any thing other than ordinary law ? To limit the extent and ambit of the power under Article 368 in which there is no reference to a law, by including within the ambit of the definition of 'law' in Article 13(3)(a) for purposes of Article 13(2), an amendment effected under Article 368, is to restrict the power of amendment by a strained construction or to impute to the framers of the Constitution a lack of respect to the amending power by making the bar of Article 13(2) applicable to it by mere implication, when in respect of minor instruments they were careful enough to include them in the definition of 'law'.

1126. While this is so, a consideration of the conspectus of various rights in Part III when read with Article 13(2) would, in my view, prohibit the taking away or abridging of those rights by a law made by the Legislature namely the Parliament, Legislature of a State, or by executive action. This conclusion of mine will be substantiated if Article 13(2) is read along with each of the Articles in Part III, in so far as any of them contain the word 'law' which indeed it can be so read. The object of incorporating Article 13(2) was to avoid its repetition in each of the Articles conferring fundamental rights. Only one instance of this may be given in support of my conclusion. Clauses (2) to (6) of Article 19 which are limitations on the freedoms in Article 19(1)(a) to (g) respectively are couched in similar terms, and if I were to take one of these clauses for illustrating the point, it would amply demonstrate that the framers used the word 'law' in both Article 13(2) and Clauses (2) to (6) of Article 19 only in the sense of an ordinary law. Sub-clause (a) of Clause (1) of Article 19 and Clause (2) of that Article, if so read with Article 13(2) of the Constitution as it stood on January 26, 1950, may be redrafted as under:

19(1). All citizens shall have the right-

(a) to freedom of speech and expression;

...

(2) The State shall not make any law which takes away or abridges the rights conferred by this article and any law made in contravention of this clause shall, to the extent of the contravention, be void:

Provided that nothing in Sub-clause (a) of Clause (1) shall

affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to

libel, slander, defamation, contempt of court or any matter

which offends against decency or morality or which

undermines the security of, tends to overthrow, the State.

Clause (2) in the above draft incorporates the entire Clause (2) of Article 79 except that instead of Part III the word 'article' has been used, and Clause (2) of Article 19 has been incorporated as a proviso.

1127. In the alternative, if Clauses (2) to (6) of Article 19 are read as a proviso to Article 13(2), they would appear as follows:

The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void:

Provided nothing in Sub-clause (a) of Clause (1) of Article 19 shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against the decency or morality or which undermines the security of, tends to overthrow, the State.

In each of the Clauses (3) to (6) of Article 19 the expression 'any existing law in so far as it imposes or prevents the State from making any law imposing' has been uniformly used, and if these clauses are read as provisos just in the same way as Clause (2) of Article 19 has been read in either of the manner indicated above, the word 'law' in all these clauses as well as in Clause (2) of Article 13 would be the same and must have the same meaning. Similarly, Article 16(3) and (5) and Article 22(3) may also be so read. In reading the above articles or any other article in Part III with Article 13(2) it appears to me that the words `law', 'in accordance with law', or 'authority of law' clearly indicate that 'law' in Article 13(2) is that which may be made by the ordinary legislative organs. I shall also show, when I examine the various stages through which the corresponding draft article which became Article 13(2), passed through the Drafting Committee and the Constituent Assembly, that the proviso to Article 8 would lead to a similar conclusion. 1128. Though the word 'State' has a wider meaning and may include Parliament or Parliament and the State Legislature acting together when to effect an amendment under Article 368, in the context of the restrictions or limitations that may be imposed by law on certain specified grounds mentioned in any of the provisions of Part III, particularly those referred to above, could only be a law made by the Legislature otherwise than by amendment of the Constitution, or to impose any restriction or limitation within the permissible limits on the fundamental rights under any of the provisions of Part III, an amendment of the Constitution is not necessary and hence could not have been so intended. It is also submitted that the definition of the word 'State' in Article 12 read with Article 13(2) would prohibit the agencies of the State jointly and separately from effecting an amendment, the same being a law, from abridging or taking away any of the rights conferred by Part III or in amending Article 13(2) itself. In this connection Hidayatullah, J., in Golaknath's case at p. 865 - read the definition of the word 'State' in Article 12 as connoting, "the sum total of all the agencies which are also individually mentioned in Article 12", and hence, "by the definition all the parts severally are also included in the prohibition". In other words, he has taken the definition to mean and connote that all the agencies acting together, namely, the Parliament and the Legislatures, and if the two Houses of Parliament under Article 368(1) or the two Houses of Parliament and the Legislatures acting together under the proviso, can effect an amendment that amendment would be a law made by the State within the meaning of Article 13(2). At p. 866 this is what he said: "If the State wields more power than the functionaries there must be a difference between the State and its agencies such as Government, Parliament, the Legislatures of the States and the local and other authorities. Obviously, the State means more than any of these or all of them put together. By making the State subject to Fundamental Rights it is clearly stated in Article 13(2) that any of the agencies acting alone or all the agencies acting together are not above the Fundamental Rights. Therefore, when the House of the people or the Council of States introduces a Bill for the abridgement of the Fundamental rights, it ignores the injunction against it and even if the two Houses pass the Bill the injunction is next operative against the President since the expression "Government of India" in the General Clauses Act means the President of India. This is equally true of ordinary laws and laws seeking to amend the Constitution". He drew support from Article 325 of the Constitution of Nicargua in which specifically it was stated that, "That agencies of the Government, jointly or separately, are forbidden to suspend the Constitution or to restrict the rights granted by it, "except in the cases provided therein". In our Constitution he observed, "the agencies of the State are controlled jointly and separately and the prohibition is against the whole force of the State acting either in its executive or legislative capacity". With great respect this argument is based on an assumption which is not warranted by the definition of the word 'State' in Article 12. Nor is it in my view permissible to draw support from a provision of another Constitution which is differently worded. The assumption that 'State' would mean all the agencies of the Government jointly or separately when the agencies of the State have been separately enumerated, is not justified. The prohibition in Article 13(2) would be against each of them acting separately. There is no question of Parliament or the State Legislatures or Parliament or either local authorities or other authorities acting together or any one of these acting in combination. Nor under the Constitution can such combination of authorities acting together make a law. The State as Hidayatullah, J., envisages, because of the inclusive definition, means "more than any of them or all of them put together" which in my view is a State in the political sense and not in a legal sense. Under Article 51 of the Directive Principles, it is enjoined that the State shall endeavour to promote international peace and security; or maintain just and honourable relations between nations, etc., which in the context, can only mean Government or Parliament of India. Item 10 of List I of the Seventh Schedule read with Article 246 vests the power of legislation in respect of "foreign affairs, all matters which bring the Union into relation with the foreign countries" in those agencies. The words 'unless the context otherwise requires', in my view, refer to those agencies acting separately. If drawing an inference from other Constitutions is permissible in interpreting a definition, and I have said that it is not, a reference to Article 9 in the Burmese Constitution would show that the definition, of the State is not an inclusive definition, but it defines the State as meaning the several organs referred therein. I do not, therefore, think that reasoning would indicate that Article 13(2) puts an embargo on an amendment made under Article 368, nor does it warrant the making of a distinction between the State and the Government in order to hold that these organs cannot acting together make an amendment affecting rights in Part III.

1129. Another reason for arriving at this conclusion is that if amendment to the Constitution is a 'law', the Constitution as such would also be a law. But the framers of the Constitution distinguished the 'Constitution' from 'law' or 'laws', by making evident their intention by using the word 'law' in contradistinction to the 'Constitution' indicating thereby that the word 'law' wherever referred to, means only an ordinary legislative law, while the 'Constitution' as something distinct from it. In Article 60 the President, and in Article 159 the Governor, is required to take oath when assuming office, to preserve, protect and defend the Constitution and the law. Under Article 61 the President can only be impeached for the violation of the Constitution. While specifying the extent of the executive power in Sub-clauses (a) and (b) of Clause (1) of Article 73 it is provided by the proviso that the power referred to in Sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. Here the words 'law' and 'laws' are definitely referable to the law made by Parliament and the Legislature of the State. The oath that a Minister of the Union is to take under Article 75(1) is set out in Schedule III, that he will do right to all manner of people in accordance with the Constitution and the law. Judges of the Supreme Court and the High Court are required to uphold the Constitution and the laws : see Articles 124(6) and 219 each read with Schedule III. It is provided in Article 76(2) that the Attorney-General is required to discharge the function conferred on him by or under this Constitution or any other law for the time being in force. Again in Article 148(5) dealing with the conditions of service of persons serving in the Indian Audit and Accounts Department, etc., they are made subject to the provisions of this Constitution and of any law made by Parliament. Even though the framers referred to the Constitution as by law established in some of the provisions, they have, when dealing distinctly with the Constitution and the law or laws, specified them as referable to the legislative law. The Constitution, however, was not so described except where it is intended to be emphasised that it had the force of law as envisaged by the words 'as by law established'.

1130. If this view is correct, and I venture to suggest that it is, a question would arise as to whether Article 13(2) is really redundant, and should the Court so construe it as to impute to the framers an intention to incorporate something which has no purpose. The Court, it is well established, should not ordinarily construe any provision as redundant and, therefore, must give effect to every provision of a Statute or law. In support of this line of reasoning it is contended that in so far as Article 13(1) is concerned, 'a law in force' has been defined in Article 13(3)(b), but by virtue of Article 372(1) and Explanation I therein the same result would be achieved and any pre-Constitution Constitutional law which acquires the force of law by virtue of that Article is "subject to the other provisions" of the Constitution and consequently to the provisions in Part III. Similarly any law made after the Constitution came into force would be void to the extent of its repugnancy with any of the provisions of the Constitution including those in Part III because of the doctrine of ultra vires. If so, it is argued, there was no purpose in enacting Article 13(2). On the other hand, the petitioner's learned advocate submits that Article 13(2) has a purpose, in that among the laws in force there would be saved some laws of a Constitutional nature which were in force in the erstwhile princely States or even under the Government of India Act, 1935 where the Governor-General had made orders of that nature. As it was pointed out to the Constituent Assembly by Sardar Vallabhbhai Patel on the 29th April, 1947 that such may be the position, Article 13(1), it is said, has been incorporated in Part III, and for the same reason in order to protect fundamental rights which were basic human freedoms from being taken away or abridged even by an amendment of the Constitution, that Article has been incorporated. A reference to the latter would show that what Sardar Vallabhbhai Patel said was that they had not sufficient time to examine in detail the effect of Clause (2) of the draft article on the mass of existing legislation and that clause was, therefore, subject to examination of its effect on the existing laws which will be done before the Constitution is finally drafted and the clause finally adopted. There is nothing in the proceedings or debates to indicate that certain Constitutional laws were intended to be saved or that that law was to include an amendment of the Constitution, nor is the contention that Article 13(1) was specially designed to save pre-existing Constitutional laws notwithstanding that the Government of India Act and the Indian Independence Act were repealed by Article 395. If there be in force any Constitutional laws other than those repealed these are by Article 372(1) given the same force as any of the ordinary legislative law subject to the other provisions of the Constitution and such laws continue to be in force only until altered, repealed or amended by a competent legislature or other competent authority. There is no indication whatever that these laws were accorded a status similar to any of the provisions of the Constitution, nor could they co-exist with them in the sense that they can only be dealt with by an amendment under Article 368. Kania, C.J. in A.K. Gopalan's case had no doubt pointed out that, the inclusion of Article 13(1) & (2) appear to be. "a matter of abundant caution", and that, "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". Hidayatullah, J., as he then was, in Sajjan Singh's case at p. 961 - commenting on the above passage of Kania, C.J., pointed out that, The observation is not clear in its meaning. There was undoubtedly a great purpose which this article achieves. It is probable that far from belittling the importance of Article 13 the learned Chief Justice meant rather to emphasise the importance and the commanding position of Fundamental Rights in that even without Article 13 they would have the same effect on other laws. To hold that Article 13 framed merely by way of abundant caution, and serves no additional or intrinsic function of its own, might, by analogy persuade us to say the same of Article 32(1) because this Court would do its duty under Article 32(2) even in the absence of the guarantee. No one can deny that Article 13(2) has a purpose and that purpose, as Hidayatullah, J., pointed out, was meant rather to emphasise the importance and the commanding position of Fundamental Rights, because having regard to the history of the agitation for a Bill of Rights being inscribed in a Constitution, to which I have adverted earlier, and the great hope that was inspired in the people of this country that there are some fundamental basic rights which are guaranteed to them and which cannot be subject to the vagaries of the legislatures, the State was enjoined not to take away or abridge those rights. Rights in Part III were intended to be made self- contained with the right of redress guaranteed to them by Article 32 - unlike in the United States where the judiciary had to invoke and evolve the doctrine of judicial review over the years. Mere general declarations of rights were without enforceability. As experience showed such general rights were found ineffective to check the growing power of the modern State, our framers examined judicial review of fundamental rights in various Constitutions and provided in our Constitution an effective remedy against encroachment of these rights. Article 32(2) provided for a direct approach to the Supreme Court in cases where fundamental rights are infringed, which without that provision would only come before it by way of an appeal under Article 133 or by special leave under Article 136 from a decision of the High Court rendered under Article 226. It is this purpose that Article 13(2) read with Article 12 emphasises. The framers of our Constitution conscious of the pitfalls and difficulties that were confronted by the varying exercise of judicial review in America wanted to ensure that the doctrine of void and relatively void-a typically American concept - should find no place in our Constitution. If as stated in Golaknath's case by the leading majority judgment and by Hidayatullah, J., that fundamental rights were not to be subject to an amending process, it is inconceivable that our framers who gave such meticulous care in inscribing those rights in the Constitution, as is evident from the proceedings in the Constituent Assembly, should not have specifically entrenched them against chat process. I am aware of the contrary argument that if they wanted that the amending process in Article 368 should not be fettered by Article 13(2) they would have expressly provided for it either in Article 368 or in Article 13(2) as indeed attempts were made to that effect by moving suitable amendments which, later, at the concluding stages of the final Draft Constitution, as we shall presently see, were either withdrawn, not pressed or negatived. But this is neither here nor there, as indeed if the framers took the view that the embargo in Article 13(2) is only against legislative law, they may have felt that there was no need for any words of limitation which will make it inapplicable to Article 368.

1131. Before I refer to the proceedings of the Constiuent Assembly, I must first consider the question whether the Constituent Assembly Debates can be looked into by the Court for construing those provisions. The Advocate-General of Maharashtra says until the decision of this Court in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Ors. v. Union of India (1971) 3 S.C.R. 9-commonly known as Privy Purses case- debates and proceedings were held not to be admissible. Nonetheless counsel on either side made copious reference to them. In dealing with the interpretation of ordinary legislation, the widely held view is that while it is not permissible to refer to the debates as an aid to construction, the various stages through which the draft passed, the amendments proposed to it either to add or or delete any part of it, the purpose for which the attempt was made and the reason for its rejection may throw light on the intention of the framers or draftsmen. The speeches in the legislatures are said to afford no guide because members who speak in favour or against a particular provision or amendment only indicate their understanding of the provision which would not be admissible as an aid for construing the provision. The members speak and express views which differ from one another, and there is no way of ascertaining what views are held by those who do not speak. It is, therefore, difficult to get a resultant of the views in a debate except for the ultimate result that a particular provision or its amendment has been adopted or rejected, and in any case none of these can be looked into as an aid to construction except that the legislative history of the provision can be referred to for finding out the mischief sought to be remedied or the purpose for which it is enacted, if they are relevant. But in Travancore Cochin and Ors. v. Bombay Co. (1952) S.C.R. 113, the Golaknath's case, the Privy Purses case and Union of India v. H.S. Dhillon (1972) 3 S.C.R. 33 there are dicta it is drafted by people who wanted it to be a national instrument to against referring to the speeches in the Constituent Assembly and in the last mentioned case they were referred to as supporting the conclusion already arrived at. In Golaknath's case as well as Privy Purses case the speeches were referred to though it was said not for interpreting a provision but for either examining the transcendental character of Fundamental rights or for the circumstances which necessitated the giving of guarantees to the rulers. For whatever purpose speeches in the Constituent Assembly were looked at though it was always claimed that these are not admissible except when the meaning was ambiguous or where the meaning was clear for further support of the conclusion arrived at. In either case they were looked into. Speaking for myself, why should we not look into them boldly for ascertaining what was the intention of our framers and how they translated that intention ? What is the rationale for treating them as forbidden or forbidding material. The Court in a Constitutional matter, where the intent of the framers of the Constitution as embodied in the written document is to be ascertained, should look into the proceedings, the relevant data including any speech which may throw light on ascertaining it. It can reject them as unhelpful, if they throw no light or throw only dim light in which nothing can be discerned. Unlike a statute, a Constitution is a working instrument of Government, it is drafted by people who wanted it to be a national instrument to subserve successive generations. The Assembly constituted Committees of able men of high calibre, learning and wide experience, and it had an able adviser, Shri B.N. Rau to assist it. A memorandum was prepared by Shri B.N. Rau which was circulated to the public of every shade of opinion, to professonal bodies, to legislators, to public bodies and a host of others and was given the widest publicity. When criticism, comments and suggestions were received, a draft was prepared in the light of these which was submitted to the Constituent Assembly, and introduced with a speech by the sponsor Dr. Ambedkar. The Assembly thereupon constituted three Committees: (1) Union Powers Committee; (2) Provincial Powers Committee; and (3) Committee on the Fundamental Rights and Minorities Committee. The deliberations and the recommendations of these Committees, the proceedings of the Drafting Committee, and the speech of Dr. Ambedkar introducing the draft so prepared along with the report of these Committees are all valuable material. The objectives of the Assembly, the manner on which they met any criticism, the resultant decisions taken thereon, amendments proposed, speeches in favour or against them and their ultimate adoption or rejection will be helpful in throwing light on the particular matter in issue. In proceedings of a legislature on an ordinary draft bill, as I said earlier, there may be a partisan and heated debate, which often times may not throw any light on the issues which come before the Court but the proceedings in a Constituent Assembly have no such partisan nuances and their only concern is to give the nation a working instrument with its basic structure and human values sufficiently balanced and stable enough to allow an interplay of fortes which will subserve the needs of future generations. The highest Court created under it and charged with the duty of understanding and expounding it, should not, if it has to catch the objectives of the framers, deny itself the benefit of the guidance derivable from the records of the proceedings and the deliberations of the Assembly. Be that as it may, all I intend to do for the present is to examine the stages through which the draft passed and whether and that attempts were made to introduce words or expressions or delete any that were already there and for what purpose. If these proceedings are examined from this point of view, do they throw any light on or support the view taken by me ?

1132. The various stages of the Constituent Assembly proceedings, while considering the draft Articles 8 and 304 corresponding to Articles 13 and 368 respectively, would show that attempts were made to introduce amendments to both these articles to clarify that the embargo in Article 13(2) does not apply to an amendment made under Article 368. First, Shri K. Santhanam, one of the members of the Constituent Assembly moved an amendment on April 29, 1947 to Clause (2) of the draft submitted to the Constituent Assembly along with the Interim Report on Fundamental Rights. This amendment was that for the words "nor shall the Union or any unit make any law taking away or abridging any such right", the following be substituted:

Nor shall any such right be taken away or abridged except by an amendment of the Constitution.

1133. The sponsor explained "that if the clause stands as it is even by an amendment of the Constitution we shall not be able to change any of these rights if found unsatisfactory. In some Constitutions they have provided that some Parts of the Constitution may be changed by future Constitutional amendments and other Parts may not be changed. In order to avoid any such doubts, I have moved this amendment and I hope it will be accepted." This amendment was accepted by Sardar Vallabhbhai Patel and adopted by the Constituent Assembly. Clause (2), after it was so amended, was as follows: All existing laws, notifications, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this Part of the Constitution shall stand abrogated to the extent of such inconsistency. Nor shall any such right be taken away or abridged except by an amendment of the Constitution.

Even as the clause stood originally in the draft, it was only the 'Union' or any 'unit' that was prohibited from making a law taking away or abridging any such right. At that stage there was nothing to show that a provision for amendment of the Constitution was either drafted or was before the Constituent Assembly for consideration. But otherwise also, it was not a case of the 'Union' or 'Union' and `the unit' being prevented from making a law. In order to justify the submission that all the organs of the State including the 'Union' or the `Union' and the 'Unit' were prevented from effecting an amendment of the Constitution, the only indication is that the law which was prohibited from taking away or abridging fundamental rights was the law of the 'Union' or any 'unit'. The amendment of Shri Santhanam was incorporated by the draftsmen in the Supplementary Report on Fundamental Rights which was presented to the Constituent Assembly on August 25, 1947, but subsequently this amendment of Shri K. Santhanam incorporated in the draft Article was deleted by the Drafting Committee. After the Draft Constitution was submitted to the President of the Constituent Assembly on February 21, 1948, and was given wide circulation, there appears to have been some criticism with respect to what had then become draft Article 8(2), which was in the following terms: The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void:

Provided that nothing in this clause shall prevent the State

from making any law for the removal of any inequality,

disparity, disadvantage or discrimination arising out of any

existing law.

The note relating to the addition of the proviso is stated thus: The proviso has been added in order to enable the State to make laws removing any existing discrimination. Such laws will necessarily be discriminatory in a sense, because they will operate only against those who hitherto enjoyed an undue advantage. It is obvious that laws of this character should not be prohibited.

The Constitutional Adviser's note to the Drafting Committee showed that a critic had pointed out that "Clause (2) of Article 8 may be held as a bar to the amendment of the provisions of the Constitution relating to the fundamental rights by a law passed under draft Article 304, and it should, therefore, be made clear that there is no restriction on the power of Parliament to amend such provisions under Article 304." The comment of the Constitutional Adviser to this objection was that "Clause (2) of Article 8 does not "override the provisions of Article 304 of the Constitution. The expression "law" used in the said clause is intended to mean "ordinary legislation". However, to remove any possible doubt, the following amendment may be made in Article 8: 'In the proviso to Clause (2) of Article 8, after the words "nothing in this clause shall" the words "affect the provisions of Article 304 of this Constitution or" be inserted'."

The Drafting Committee does not appear to have accepted this suggestion, because the proviso remained as previously drafted, until it was deleted as a result of Amendment No. 252 which was standing in the name of Mehboob Ali Beg. On November 25, 1948, Pandit Lakshmi Kanta Maitra in moving this Amendment said - "The purpose of this amendment is self-evident, and as I have been strictly enjoined not to make any speech I simply move this amendment." This amendment was adopted on November 29, 1948, and the proviso was deleted. (See C.A.D. Vol. VII, pp. 611 & 645). 1133. How meticulously this article was considered, can be seen from the proceedings on the objection of Naziruddin Ahmed that the words "custom or usage" in the definition of 'law' in Article 8(3)(a) (corresponding to Article 13(3)(a) would apply to Article 8(2), but the State does not make a 'usage or custom'. Dr. Ambedkar pointed out that that will apply to Article 8(1) which deals with 'laws in force', but Naziruddin Ahmed insisted that it does not, and that he was no wiser after the explanation given by Dr. Ambedkar that the definition of law is distributive. Dr. Ambedkar then said that the amendment of Naziruddin Ahmed creates some difficulty which it is necessary to clear up and ultimately to avoid any difficulty he moved an amendment to Clause (3) of Article 8 to read "unless the context otherwise requires" which governed Clauses (a) and (b). This was adopted. (See C.A.D. Vol. VII, p. 644). It was after this that the proviso was deleted. 1134. It would appear from the proviso before it was deleted, if read with Clause (2) of draft Article 8, as also the note showing the pupose for which it was incorporated, that the law referred to therein was a legislative law. It could not by any stretch of the language be construed as including an amendment under draft Article 304, because the proviso was making the restriction in Clause (2) of Article 8 inapplicable to the State from making any law for the removal of any inequality, disparity, disadvantage or discrimination arising out of any existing law. If the 'State' and the 'law' have to be given a particular meaning in the proviso the same meaning has to be given to them in Clause (2) and since the proviso clearly envisages a legislative law it furnishes the key to the interpretation of the word 'law' in Clause (2) of draft Article 8 that it is also a legislative law that is therein referred.

1135. To Article 304 also amendments were moved-one of them, Amendment No. 157 was in the name of Shri K. Santhanam, but he said he was not moving it. (See C.A.D. Vol. IX, p. 1643). Both the Attorney-General as well as the Advocate-General of Maharashtra said that they were not able to find out what these amendments were. But even assuming that this Amendment was designed to make the embargo under Article 13(2) applicable to Article 368, no inference can be derived therefrom. On the other hand an attempt was made by Dr. Deshmukh to entrench Fundamental Rights. He moved Amendment No. 212 to insert the following Article 304-A after 304: 304-A. Notwithstanding anything contained in this Constitution to the contrary, no amendment which is calculated to infringe or restrict or diminish the scope of any individual right, any rights of a person or persons with respect to property or otherwise shall be permissible under this Constitution and any amendment which is or is likely to have such an effect shall be void and ultra vires of any Legislature.

This amendment after Dr. Ambedkar's speech regarding the scope of the amendment under Article 304 was, by leave, withdrawn. (See C.A.D. Vol. IX p. 1665). 1136. Earlier when the Drafting Committee was considering the objectives, there was a proposal by Shri K. Santhanam, Mr. Ananthasayanam Ayyangar, Mr. T.T. Krishnamachari and Shrimati G. Durgabai that parts III, IV, IX and XVI be added in the proviso to Article 304, but it was pointed out by the Constitutional Adviser that that amendment involved a question of policy. The Drafting Committee did not adopt this amendment. If this amendment had been accepted, the amendment of the fundamental rights could be effected by the procedure prescribed for amendment which would be by two-thirds majority of each of the Houses of Parliament as well as by ratification by resolutions of not less than half the State Legislatures. Even this attempt does not give any indication that fundamental rights in Part III could not be amended under Article 368 or that 'law' in Article 13(2) is not the ordinary legislative law, but would include an amendment under Article 368. An attempt was made to show that on September 17, 1949, Dr. Ambedkar while speaking on draft Article 304 had said that Part III was not amendable. While adverting to the fact that they had divided the articles into three categories, he pointed out that the first) category was amendable by a bare majority, and as to the second category he had said: "If future Parliament wishes to amend any particular article which is not mentioned in Part III or Article 304, all that was necessary for them is to have two-thirds majority." The third category for the purposes of amendment he explained required two-thirds majority plus ratification. It is submitted on behalf of the first respondent that what was stated about Part III being excepted from the second category was a mistake and that he must be thinking that, alonfi with Article 304, Part III was also included in the third category. The Advocate-General of Nagaland said Part III was a mistake for third category. Instead of third category, he either said or is reported to have said, Part III. Whether it is a correct reading of his speech or not, it is not relevant, for in interpreting a provision the words used, the context in which it was used, the purpose which it intended to subserve in the scheme of the Constitution, will alone have to be considered. For the same reasoning the fact that none of the members who were also members of the Provisional Parliament ever entertained a doubt as to the non- amendability of Part III when the Constitution (First Amendment) Bill was debated and later enacted as an Act is not relevant.

1137. In the view I take on the construction of Article 13 read with the other provisions of Part III, Article 13(2) does not place an embargo on Article 368 for amending any of the right in Part III, and it is, therefore, not necessary to go into the question whether the leading majority judgment is right in finding the power of amendment in the residuary entry 97 of List I of Schedule VII, nor is it called for, having regard to the majority decision that the power of amendment is to be found in Article 368 itself. Whether the power is implied, what is the width and whether Parliament can enlarge that power may have to be considered, but that Article 368 contains the power and the procedure of amendment can admit of little doubt, as was held by the majority in Golaknath's case by five judges and Hidayatullah, J., it may, also be noticed that the leading majority judgment did not express any view as to whether under the proviso to Article 368, by amending that article itself, fundamental nights could be amended. (See Subba Rao, C.J., at p. 805).

1138. The question then arises, whether the Twenty-Fourth Amendment is valid, and if it is valid, whether Article 368 as amended is subject to any limitation, and if so, what ? The objects and reasons of the Twenty-Fourth Amendment Bill set out the purpose for which it was enacted and the mischief it sought to remedy. It is stated in Para 2 thereof thus:

The Bill seeks to amend Article 368 suitably for the purpose and makes it clear that Article 368 provides for amendment of the Constitution as well as procedure therefor. The Bill further provides that when a Constitution Amendment Bill passed by both Houses of Parliament is presented to the President for his assent, he should give his assent thereto. The Bill also seeks to amend Article 13 of the Constitution to make it inapplicable to any amendment of the Constitution under Article 368.

1139. What in fact the amendment effected will become clear, if the relevant provisions of Article 368, both before and after the amendment was made, are read in juxtaposition along with a new Sub-clause (4) added to Article 13.

Before the Amendment After the Amendment Procedure 368. An amendment of this Power of 368.(1) Notwithstanding for amendment Constitution may be initiated only Parliament anything in this of the by the

introduction of a Bill to amend Constitution Parliament Constitution. for the purpose in either House the may in exercise of its of

Parliament, and when Constitution constituent power amend the Bill is passed in each House and procedure by way of addition, by a majority of the total therefor. variation or repeal any membership of the House provision of this and by a majority of not less Constitution in accordance than two-thirds of the members with the procedure laid of that House present and voting down in this article. it shall be presented to the President for his assent and upon such assent being given to (2) An Amendment of the bill, the Constitution shall this Constitution may be stand amended in accordance initiated only by the with the terms of the Bill. introduction of a Bill for the purpose in Provided that if such amendment either House of Parliament, seeks to make any change in- and when the Bill is passed in each House by a ... majority of the total membership of that House and the amendment shall also require by a majority of not less to be ratified by the

Legislatures than two-thirds of the of not less than one-half members of that House of the States by resolutions to present and voting, it that effect passed by those shall be presented to Legislatures before the Bill the President who shall making provision for such give his assent to the amendment is presented to Bill and thereupon the the President for assent. Constitution shall stand amended in accordance with the terms of the Bill : Provided that if such amendment seeks to make any change in- ... the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by

resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. (3) Nothing in Article 13 shall apply to any amendment made under this article. 13(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.

Re: Kesavananda Bharati vs State Of Kerala And ors

1140. The above amendment seeks to provide-(i) that the source of power to amend is in Article 368; (ii) that when Parliament seeks to make a Constitutional amendment it does so "in exercise of its constituent power"; (iii) that the power to amend was by way of addition, variation or repeal; (iv) that the bar in Article 13 against abridging or taking away any of the fundamental rights does not apply to any amendment made under Article 368; (v) that nothing in Article will apply to an amendment of the Constitution under Article 368; (vi) that the words "any provision of the Constitution" were added so that "any" were to mean "every provision"; and (vii) that it is obligatory on the President to give his assent to any Bill duly passed under that Article.

1141. In so far as the contention that Article 13(2) is a bar to Constitutional amendments is concerned, I have already given my reasons why I consider that argument as not available to the petitioner inasmuch as the inhibition contained therein is only against ordinary legislative actions. The question, however, is whether Article 13(2) which bars the taking away or abridging the fundamental rights by Parliament, or Legislatures of the States and other enactments, specified in Article 13(3)(a) is or is not an essential feature. If it is not, it can be amended under Article 368. Recognising this position the petitioner submits that if the effect of amending Article 368 and Article 13 is to permit the removal of the fetter of Article 13 on the ordinary legislative laws which can thereafter be empowered and left free to abrogate or take away fundamental rights, it would be an essential feature.

1142. The question whether there are any implied limitations on the power to amend under Article 368 or whether an amendment under that Article can damage or destroy the basic features of the Constitution would depend, as I said earlier, on the meaning of the word "amendment" before the Twenty-Fourth Amendment. If that word has a limited meaning, which is the case of the petitioner, it is contended that that power of amendment could not be enlarged by the use of the words "amend by way of addition, variation and repeal".

1143. It may be mentioned that arguments similar to those which were addressed before us were advanced in Golaknath's case, namely, (i) that the expression 'amendment' in Article 368 has a positive and negative content and that in exercise of that power Parliament cannot destroy the structure of the Constitution, but it can only modify the provisions thereof within the framework of the original instrument for its better effectuation; (ii) that if the fundamentals would be amendable to the ordinary process of amendment with a special majority the institution of the President can be abolished, the Parliamentary executive can be abrogated, the concept of federation can be obliterated and in short, the sovereign democratic republic can be converted into a totalitarian system of Government The leading majority judgment, though it found that there was considerable force in the argument, said that they were relieved of the necessity to express an opinion on this all important question, but so far as the fundamental rights are concerned, the question raised can be answered on a narrow basis. Subba Rao, C.J., observed at p. 805: "This question may arise for consideration only if Parliament seeks to destroy the structure of the Constitution embodied in the provisions other than in Part III of the Constitution. We do not, therefore, propose to express our opinion in that regard". 1144. Hidayatullah, J., on the other hand, dealing with implied limitations by reference to Article V of the United States Constitution, and the decisions rendered thereunder pointed out that although there is no clear pronouncement of the United States Supreme Court a great controversy exists as to whether questions of substance can ever come before the Court and whether there are any implied limitations upon the amendatory power. After considering the view of text-book writers, particularly that of Orfield, and the position under the English and the French Constitutions (see pp. 870-877), he observed at p. 878 : "It is urged that such approach makes society static and robs the State of its sovereignty. It is submitted that it leaves revolution as the only alternative if change is necessary. 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. What is being suggested by the counsel for the State is itself a revolution because as things are that method of amendment is illegal".

1145. Wanchoo, J., rejected the doctrine of implied limitations though he was doubtful if the Constitution can be abrogated or another new Constitution can be substituted, (see p. 838). At p. 836 he said, "We have given careful consideration to the argument that certain basic features of our Constitution cannot be amended under Article 368 and have come to the conclusion that no limitations can be and should be implied upon the power of amendment under Article 368.... We fail to see why if there was any intention to make any part of the Constitution unamendable, the Constituent Assembly failed to include it expressly in Article 368...on the clear words of Article 368 which provides for amendment of the Constitution which means any provision thereof, we cannot infer any implied limitations on the power of amendment of any provision of the Constitution, be it basic or otherwise." It was further observed at p. 831: "that the President can refuse to give his assent when a Bill for amendment of the Constitution is presented to him, the result being that the Bill altogether, falls, for there is no specific provision for anything further to be done about the Bill in Article 368 as there is in Article 111". 1146. Bachawat, J., noticed the argument on the basic features but did not express any opinion because he said "it is sufficient to say that the fundamental rights are within the reach of the amending power". Ramaswami, J., on the other hand rejected the thesis of implied limitations, because Article 368 does not expressly say so. He said at p. 933: "If the Constitution-makers considered that there were certain basic features of the Constitution which were permanent it is most unlikely that they should not have expressly said in Article 368 that these basic features were not amendable". 1147. During the course of the lengthy arguments on behalf of the petitioners and the respondents, we have been taken on a global survey of the Constitutions of the various countries. In support of the rival contentions, there were cited before us innumerable decisions of the Supreme Court and the State Courts of the United States of America, and of the Courts in Canada, Ireland, Australia and of the Privy Council. A large number of treatise on Constitutional law, views of academic lawyers, the applicability of natural law or higher law principles, extracts from Laski's Grammar of Politics, history of the demand for fundamental rights, and the speeches in the Constituent Assembly and the Provisional Parliament during the deliberations on the Constitution (First Amendment) Bill, were also referred to. The able arguments addressed to us during these long hearings, with great industry and erudition and the alacrity with which the doubts expressed by each of us have been sought to be cleared by the learned Advocates for the petitioner, the learned Attorney-General, the learned Solicitor-General and by the learned Advocates-General of the States and the learned Advocates who intervened in those proceedings, have completely eviscerated the contents of the vital and far reaching issues involved in this case, though sometimes some aspects tended to hover over the terra ferma and sometimes skirted round it, particularly when the views of academic writers who had the utmost freedom to express on hypothetical problems unrelated to concrete issues falling for a decision in any case, were pressed on us. The a priori postulates of some of the scholars are not often easy of meeting the practical needs and limitations of the tenacious aspects of the case precedents which makes our law servicable. There have again been arguments for taking consequences into consideration which really highlighted what would be the dire consequences if the result of the decision being one way or the other but this court ought not to be concerned with these aspects, if otherwise our decision is in accordance with the view of the law it takes. We should free ourselves of any considerations which tend to create pressures on the mind. In our view, it is not the gloom that should influence us, as Milton said, "we cannot leave the real world for a Utopia but instead ordain wisely", and, if I may add, according to the well-accepted rules of construction and on a true interpretation of the Constitutional provisions. 1148. Lengthy arguments on the rules of construction were addressed, by referring particularly to a Urge number of American cases to show what our approach should be in determining Constitutional matters, having regard to the paramount need to give effect to the will of the people which the Legislatures and the Governments represent and for exercising judicial restraint. I must confess that some of these arguments show that the tendency has been to depend more on the views of Judges from other lands, however eminent when have in this, the Highest Court of the land during the last over two decades, forged an approach of our own and set out the rules applicable to the interpretation of our Constitution. There is no Constitutional matter which is not in some way or the other involved with political, social or economic questions, and if the Constitution-makers have vested in this Court a power of Judicial review, and while so vesting, have given it a prominent place describing it as the heart and soul of the Constitution, we will not be deterred from discharging that duty, merely because the validity or otherwise of the legislation will affect the political or social policy underlying it. The basic approach of this Court has been, and must always be, that the Legislature has the exclusive power to determine the policy and to translate it into law, the Constitutionality of which is to be presumed, unless there are strong and cogent reasons for holding that it conflicts with the Constitutional mandate. In this regard both the Legislature, the executive, as well as the judiciary are bound by the paramount instrument, and, therefore, no court and no Judge will exercise the judicial power de hors that instrument, nor will it function as a supreme legislature above the Constitution. The bona fides of all the three of them has been the basic assumption, and though all of them may be liable to error, it can be corrected in the manner and by the method prescribed under the Constitution and subject to such limitations as may be inherent in the instrument.

1149. This Court is not concerned with any political philosophy, nor has it its own philosophy, nor are Judges entitled to write into their judgments the prejudices or prevalent moral attitudes of the times, except to judge the legislation in the light of the felt needs of the society for which it was enacted and in accordance with the Constitution. No doubt, political or social policy may dominate the legal system. It is only when as I said, the Legislatures in giving effect to them translate it into law, and the Courts, when such a measure is challenged, are invited to examine those policies to ascertain its validity, it then becomes a legal topic which may tend to dominate sometimes to its detriment.

1150. The citizen whose rights are affected, no doubt, invokes the aid of the judicial power to vindicate them, but in discharging its duty, the Courts have nothing to do with the wisdom or the policy of the Legislature. When the Courts declare a law, they do not mortgage the future with intent to bind the interest of the unborn generations to come. There is no everlasting effect in those judgments, nor do they have force till eternity as it were. The concept, on the other hand, is that the law declared in the past was in accord with the settled judgment of the society, the social and economic conditions then existing, and that if those judgments are not likely to subserve the subsequent generations or the requirements and needs of the society as it may be then conditioned, they will have to be changed by the process known to law, either by legislative action or judicial re-review where that is possible. The Courts, therefore, have a duty, and have indeed the power, to re-examine and re-state the law within the limits of its interpretative function in the fulness of the experience during which it was in force so that it conforms with the socio- economic changes and the jurisprudential outlook of that generation. The words of the law may be like coats of Biblical Joseph, of diverse colours and in the context in which they are used they will have to be interpreted and wherever possible they are made to subserve the felt-needs of the society. This purpose can hardly be achieved without an amount of resilience and play in the interpretative process.

1151. On the desirability of drawing heavily or relying on the provisions of the Constitutions of other countries or on the decisions rendered therein, a word of caution will be necessary. It cannot be denied that the provisions of the Constitutions of other countries are designed for the political, social and economic outlook of the people of those countries for whom they have been framed. The seed of the Constitution is sown in a particular soil and it is the nature and the quality of the soil and the climatic conditions prevalent there which will, ensure its growth and determine the benefits which it confers on its people. We cannot plant the same seed in a different climate and in a different soil and expect the same growth and the same benefit therefrom. Law varies according to the requirements of time and place. Justice thus becomes a relative concept varying from society to society according to the social milieu and economic conditions prevailing therein. The difficulty, to my mind, which foreign cases or even cases decided within the Commonwealth where the Common Law forms the basis of the legal structure of that unit, just as it is to a large extent the basis in this country, is that they are more often than not concerned with expounding and interpreting provisions of law which are not in pari materia with those we are called upon to consider. The problems which confront those Courts in the background of the State of the society, the social and economic set-up, the requirements of a people with a totally different ethics, philosophy, temperament and outlook differentiate them from the problems and outlook which confront the courts in this country. It is not a case of shutting out light where that could profitably enlighten and benefit us. The concern is rather to safeguard against the possibility of being blinded by it. At the very inception of a Constitutional democracy with a Federal structure innovated under the Government of India Act, 1935, a note of caution was struck by the Chief Justice of India against following even cases decided on the Constitutions of the Commonwealth units, which observations apply with equal force, if not greater, to cases decided under the American Constitution. Gwyer, C.J., in In Re : The Central Provinces and Berar Act No. XIV of 1938, (1939) F.C.R. 18 which was the very first case under the 1935 Act, observed at p. 38: "But there are few subjects on which the decisions of other Courts require to be treated with greater caution than of federal and provincial powers, for in the last analysis the decision must depend upon the words of the Constitution which the Court is interpreting; and since no two Constitutions are in identical terms, it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another." This observation was approved and adopted by Gajendragadkar, C.J., (speaking for 7 Judges) in Special Reference 1 of 1964. (1965) 1 S.C.R. 413 at 487. 1152. The American decisions which have been copiously cited before us, were rendered in the context of the history of the struggle against colonialism of the American people, the sovereignty of several States which came together to form a Confederation, the strains and pressures which induced them to frame a Constitution for a Federal Government and the underlying concepts of law and judicial approach over a period of nearly 200 years, cannot be used to persuade this Court to apply their approach in determining the cases arising under our Constitution. For one thing, the decisions of the Supreme Court of the United States though were for the benefit of the people and yet for decades those inconvenient decisions were accepted as law by the Government until the approach of the Court changed. The restraint of the people, the Government and the Court, and the patience with which the inconveniences, if any, have been borne, have all contributed to the growth of the law and during this long period the Constitution of the United States has been only amended 24 times. The amending power under the American Constitution is a difficult process in that it is vitally linked with its ratification by the people through their representatives in the State Legislatures or in the Conventions. These decisions, therefore, are of little practical utility in interpreting our Constitution which has devised altogether different methods of amendments. No doubt, the rules of construction which our Courts apply have been drawn from the English decisions and the decisions of the Privy Council, the latter of which declared the law for the country until its jurisdiction was abolished; and even today the decisions of the Courts in England, the Commonwealth countries, and the United States of America on matters which are pari materia are considered as persuasive.

1153. For the proposition that for ascertaining the meaning of the word 'amendment', the object of and the necessity for amendment in a written Constitution must be considered, namely,-

(a) it is necessary for changing the Constitution in an orderly manner, as otherwise the Constitution can be wrecked by extra Constitutional method or by a revolution;

(b) as the very object is to make changes in the fundamental or organic law, namely, to change the fundamental or basic principles of the Constitution, the power of amendment cannot be said to be confined to only changing non-essential features.

1154. The Attorney-General has cited from the writings of several authors of whom I may refer to a few passages from the following:

1155. Woodrow Wilson in his book on 'Constitutional Government' in the United States, said:

A Constitutional government, being an instrumentality for the

maintenance of liberty, is an instrumentality for the maintenance of a right adjustment, and must have a machinery of constant adaptation" (page 4-6). It is, therefore, peculiarly true of Constitutional government that its atmosphere is opinion, the air from which it takes its breath and vigor. The underlying understandings of a Constitutional system are modified from age to age by changes of life and circumstances and corresponding alterations of opinion. It does not remain fixed in any unchanging form, but grows with the growth and is altered with the change of the nation's needs and purposes" (page 22).

1156. Roger Sherman Hoar in his book on "Constitutional Conventions-Their Nature, Powers and Limitations", speaking of the American Constitution as the one based upon popular sovereignty, says:

The Federal Constitution was ordained and established by the people of the United States" (U.S. Constitution, Preamble) and guarantees to each of the several states "a republican form of government" (U.S. Constitution, Article IV). This means, in other words, a representative form. It is founded upon the theory that the people are fit to rule, but that it would be cumbersome for them to govern themselves directly. Accordingly, for the facilitation of business, but for no other purposes the people choose from their own number representatives to represent their point of view and to put into effect the collective will (page 11).

Quoting from Jameson's "Works of Daniel Webster", it is again stated at p. 12: These principles were recognised by our forefathers in framing the various Bills of Rights, which declare in substance that, as all power resides originally in the people, and is derived from them, the several magistrates and officers of government are their substitutes and agents and are at all times accountable to them.

The various agents of the people possess only such power as is expressly or impliedly delegated to them by the Constitution or laws under which they hold office; and do not possess even this, if it happen to be beyond the power of such Constitution or laws to grant.

A question that naturally arises is, are the above postulates basic to our Constitution ? 1157. After referring to these passages, the learned Attorney-General submitted that the people of India have, as expressed in the Preamble, given the power to amend the Constitution to the bodies mentioned in Article 368. These bodies represent the people, and the method to amend any part of the Constitution as provided for in Article 368 must alone be followed. In his submission any other method, for example, Constituent Assembly or Referendum would be extra-Constitutional or revolutionary. Article 368 restricts only the procedure or the manner or form required for amendment, but not the kind or character of the amendment that may be made. There are no implied limitations on the amending power under Article 368. It is the people who have inscribed Article 368 in the Constitution. In the numerous American cases cited before us, there is a constant reference to the people taking part in the amending process through the Conventions or ratification by the Legislatures which the judiciary has been treating as ratification by the people. In that context the word 'amendment' has been construed widely because when the sovereign will of the people is expressed in amending the Constitution, it is as if it were they who were expressing the original sovereign will represented in the convention which drafted the Constitution. There has been even a divergence of opinion among the writers in the U.S. as to whether the entrenched provisions for the representation of the States in the Senate which could not be amended without the consent of the State affected can be amended even where all the States except the State concerned have ratified the taking away or abridging that right. With this or the several aspects of the American Constitution we are not called upon to expound nor have we any concern with it except with the claim of the petitioner that the fundamental; rights have been reserved by the people to themselves and the counter-claim by the learned Attorney-General that it is the people who have inscribed Article 368 by investing that Article with the totality of the sovereignty of the people which when exercised in the form and manner prescribed in that Article would amend any provision of the Constitution without any limitations as to the nature or kind of the amendment. The people, the learned Attorney-General submitted, have been eliminated from the amending process because being illiterate and untutored they would not be able to take part in that process with proper understanding or intelligence. This to my mind, appears somewhat incongruous. When they can be trusted to vote in much more complicated issues set out in election manifestos involving economic and political objectives and social benefits which accrue by following them, surely they could be trusted with deciding on direct issues like amending the Constitution. But the whole scheme of the Constitution shows it is insulated against the direct impact from the people's vote, as can be seen, firstly, by the electoral system under which it may often happen that a minority of voters can elect an overwhelming majority in Parliament and the Legislatures of the States, while the majority vote is represented by a minority of representatives, as is evident from the affidavit filed in respect of the recent elections by the Union of India on March 12, 1973, and secondly, where a President is elected by proportional representation of the members of the Legislatures. This situation could not have been unknown to the framers can be gathered from the speech of Dr. Ambedkar who said: "Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic". (C.A.D., Vol. VII, p. 38). In any case this aspect need not concern this Court as it deals with what has already been done, but since so much has been said about the people and the amending power in Article 368 as representing the sovereign will of the people, I have ventured to refer to this topic.

1158. There is no doubt some warrant in support of the proposition that people have reserved to themselves the fundamental rights, as observed by Patanjali Sastri, J., in A.K. Gopalan v. State Madras (1950) S.C.R. 88 at 100, to which a reference has been made earlier, and, therefore, it is submitted that these rights cannot be taken away or abridged even by an amendment of the Constitution. Neither of these submissions accord with the facts of history though the Preamble which was adopted as a part of the Constitution on October 17, 1949 says so. (See with respect to the adoption of the Preamble as a part of the Constitution, C.A.D., Vol. X, p. 456). To digress somewhat, it appears that the observations in In Re : Berubari Union & Exchange of Enclaves (1960) 3 S.C.R. 250, that the Preamble was not part of the Constitution does not seem to have taken note of the fact that the Constituent Assembly had debated it and adopted the resolution. "That the Preamble stand part of the Constitution". It appears to me that a comparison with Article V of the U.S. Constitution providing for an amendment of that Constitution, with Article 368 of our Constitution, would show that there is no resemblance between the amending procedure provided in either of them. Such a comparison would, in my view, be misleading, if we were to apply the concepts and dicta of the eminent Judges of the Supreme Court of the U.S. in interpreting our Constitution. If we were to accept the contention of the learned Attorney-General that the sovereignty is vested in Article 368, then one is led to the conclusion on an examination of the history of the Constitution- making that the people of India had never really taken part in the drafting of the Constitution or its adoption, nor have they been given any part in its amendment at any stage except indirectly through representatives elected periodically for conducting the business of the Government of the Union and the States. It cannot be denied that the members of the Constituent Assembly were not elected on adult franchise, nor were the people of the entire territory of India represented therein even on the very limited franchise provided for under the Cabinet Mission Plan of May 16, 1946 which was restricted by the property, the educational and other qualification to approximately 15% of the country's population comprising of about 40 million electOrs. The people of the erstwhile princely States were not elected to the assembly though the representatives of those States may have been nominated by the rulers. A day before the transfer of power on August 15, 1947, the Indian States were only subject to the paramountcy of the British Crown. On August 15, 1947, all of them, except Hyderabad, Junagadh and Jammu & Kashmir, had voluntarily acceded to the Dominion of India.

1159. The objectives Resolution which claims power from the people to draft the Constitution was introduced in the Constituent Assembly on December 13, 1946, when the Constituent Assembly met for the first time and at a time when the Muslim League bycotted the session (See C.A.D., Vol. I, p. 59). The 4th clause of that Resolution provided that all power and authority of the Sovereign Independent India, its constituent parts and organs of government are derived from the people. The Resolution also said that in proclaiming India as an Independent Sovereign Republic and in drawing up for her future governance a Constitution there shall be guarantee and secured to all the people of India, justice, social, economic and political; equality of status, of opportunity and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes. This Resolution was adopted on January 22, 1947 with utmost solemnity by all members standing. (See C.A.D., Vol. II. p. 324).

1160. While the claim was so made and at the time when the Resolution was adopted, the legal sovereignty over India remained vested in the British Crown and British Parliament, and when that power was transferred, it was transferred to the Constituent Assembly by the Indian Independence, Act, 1947, Sections 6 and 8 of which conferred on the Constituent Assembly the power to enact a Constitution, as well as the full powers to make laws which were not to be void or inoperative on the ground that they are repugnant to the laws of England, or to the provisions of the Indian Independence Act or any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Legislature of the Dominion of India shall include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the Dominion (See Sub-section (2) of Section (6). These powers of the Legislature of the Dominion, under Sub-section (1) of Section 8, for the purposes of making a Constitution, were conferred on the Constituent Assembly and reference in the Act to the Legislature of the Dominion was to be construed accordingly. 1161. It was only in November 1949 after the work of the framing of the Constitution was completed that the ruling Princes accepted it on behalf of themselves and the people over whom they ruled. The Constitution was not ratified by the people but it came into force, by virtue of Article 394, on January 26, 1950. Article 395 repealed the Indian Independence Act, 1947 and the Government of India Act, 1935.

1162. Reference may also be made to the fact that during the debates in the Constituent Assembly it was pointed out by many speakers that that Assembly did not represent the people as such, because it was not elected on the basis of adult franchise, that some of them even moved resolutions suggesting that the Constitution should be ratified by the people. Both the claim and the demand were rejected. Dr. Ambedkar explained that, "the Constituent Assembly in making a Constitution has no partisan motive. Beyond securing a good and workable Constitution it has no axe to grind. In considering the articles of the Constitution it has no eye on getting through a particular measure. The future Parliament if it met as a Constituent Assembly, its members will be acting as partisans seeking to carry amendments to the Constitution to facilitate to the passing of party measures which they have failed to get through Parliament by reason of some Article of the Constitution which the Constituent Assembly has none. That is the difference between the Constituent Assembly and the future Parliament. That explains why the Constituent Assembly though elected on limited franchise, can be trusted to pass the Constitution by simple majority and why the Parliament though elected on adult suffrage cannot be trusted with the same power to amend it". (C.A.D., Vol. VII, pp. 43-44).

1163. At the final stages of the debate on the amending article, Dr. Ambedkar replying to the objection that the Constituent Assembly was not a representative assembly as it has not been elected on an adult franchise, that a large mass of the people are not represented, and consequently in framing the Constitution the Assembly has no right to say that this Constitution should have the finality which Article 304 proposes to give it, said - "Sir, it may be true that this Assembly is not a representative assembly in the sense that Members of this Assembly have not been elected on the basis of adult suffrage. I am prepared to accept that argument, but the further inference which is being drawn that if the Assembly had been elected on the basis of adult suffrage, it was then bound to possess greater wisdom and greater political knowledge is an inference which I utterly repudiate". (C.A.D., Vol. IX, p. 1663).

1164. The fact that the preamble professed in unambiguous terms that it is the people of India who have adopted, enacted and "given to themselves this Constitution"; that the Constitution is being acted upon unquestioned for the last over twenty-three years and every power and authority is purported to be exercised under the Constitution; and that the vast majority of the people have, acting under the Constitution, elected their representatives to Parliament and the State Legislatures in five general elections, makes the proposition indisputable that the source and the binding force of the Constitution is the sovereign will of the people of India.

1165. On this assumption no state need have unlimited power and indeed in Federal Polities no such doctrine is sustainable. One has only to take the examples of U.S.A., Australia or Canada, and our own where the Central and the State Legislatures are supreme within the respective fields allotted to them. Any conflict between these is determined by the Supreme Court, whose duty is to declare the law. Those brought up in the unitary State find it difficult to recognise such of those limitations as are found in Federal Constitutions. Constitutions have been variously described as rigid or flexible, controlled or uncontrolled, but without going into these concepts it is clear that' if the State is considered as a society, "to which certain indefinite but not unlimited powers are attributed then there is no difficulty in holding that the exercise of State power can be limited" (A.L. Goodhart, "English Law and the Moral Law", p. 54). Even in a unitary State like the United Kingdom where it is believed that the Queen in Parliament is supreme, Professor A.L. Goodhart in the book referred to above points out that this is as misleading as the statement that the Queen's consent is necessary. After referring to Dicey, Coke and Blackstone, that parliamentary government is a type of absolute despotism, he says, "Such a conclusion must be in conflict not only with our sense of what is fitting, but also with our recognition of what happens in fact. The answer is, I believe, that the people as a whole, and Parliament itself, recognise that under the unwritten Constitution there are certain established principles which limit the scope of Parliament. It is true that the Courts cannot enforce these principles as they can under the Federal system in the United States, but this does not mean that these principles are any the less binding and effective. For that matter some of them receive greater protection today in England than they do in the United States. These basic principles are, I believe, four in number". (A.L. Goodhart, p. 55). Then he narrates what these four principles are : First, that no man is above the law, the second, that those who govern Great Britain do so in a representative capacity and are subject to change but "an immortal government tends to be an immoral government"; the third, freedom of speech or thought and assembly are essential part of any Constitution which provides that people govern themselves because without them self-government becomes impossible; and the fourth, which is a basic part of the English Constitution is the independence of the judiciary and it is inconceivable that Parliament should regard itself as free to abolish the principle which has been accepted as a cornerstone of freedom ever since the Act of Settlement in 1701. Professor Goodhart then concludes:

It is therefore, I believe, true to say that it is as wrong in theory as it is in fact to suggest that the British Constitution is a form of enlightened despotism. Those who exercise power in the name of the State are bound by the law, and there are certain definite principles which limit the exercise of the power.

1166. Before considering the detailed contentions it is necessary to see what was intended to be achieved by the Twenty-fourth Amendment. I have already set out the changes made in Article 368. These are-

(a) In the marginal note, instead of the expression "Procedure for amendment of the Constitution", it was substituted by "Power of Parliament to amend the Constitution and Procedure therefor". This was to meet any possible doubt that the marginal note only indicated a procedure and not the power of amendment, though the majority in Golaknath's case had held that Article 368 contains both power and procedure;

(b) By the addition of Clause (1), three changes were effected namely, (i) a non obstante clause "Notwithstanding anything in this Constitution", (ii) "Parliament may in exercise of its constituent power"; and (iii) "amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down in this article".

It has already been seen that both in Sankari Prasad's and Sajjan Singh's cases, the two Houses of Parliament have been construed as Parliament and not a different body. In Golaknath's case also all the Judges held that it is only Parliament which makes the amendment. The question Whether the power in Article 368 is a constituent power or a legislative power has of course been debated. The law in its generic terms includes a constituent law, namely, the Constitution itself made by a Constituent Assembly-as indicated by the wards "The Constitution as by law established", or an amendment made in accordance with the provision contained in the Constitution, as well as an ordinary legislative law made by the legislative organs created by the organic instrument. The quality and the nature of the law has been differently described, but broadly speaking the Constitution or the amendments thereof are termed as law which is made in exercise of its constituent power, though the reach of each may differ. If it is true, as is contended, that both these in the plenitude of power are co-extensive, on any view of the matter, no difficulty is encountered in describing the amending power as the constituent power. Even otherwise without resort to any great subtlety or distinction between the exercise of power by a constituent body and a constituted body inasmuch as both are concerned in the making of the Constitution or in amending it, they can be considered as a constituent power. The amending power is a facet of the constituent power, but not the whole of it. The power under Article 368 after the amendment is still described as amending power. The Twenty-fourth Amendment makes this explicit because it did not want a doubt to linger that because the same body, namely, Parliament makes both the ordinary law in terms of the grant in Articles 245 to 248 and an amendment in terms of Article 368, it should not be considered that both these are legislative laws within the meaning of Article 13(2) which was what the majority in Golaknath's case had held. In the view I have taken that Article 13(2) was confined only to the ordinary legislative laws and not one made under Article 368, the addition of Clause (1) to Article 368 in so far as it declares that when Parliament exercises the power under that provision if exercises its constituent power and makes explicit what was implicit. In my view, the amendment, therefore, makes no change in the position which prevailed before the amendment. 1167. It has also been seen that the amendment added Clause (3) to Article 368 that "Nothing in Article 13 shall apply to any amendment made under this article", and has added Clause (4) to Article 13 that "Nothing in this article shall apply to any amendment of this Constitution made under Article 368". These additions, having regard to the view I have taken that Article 13(2) does not impose any express limitation on Article 368, unless of course, there is a limitation in Article 368 itself on the width of the power which the word 'amendment' in the context of that article and the other provisions of the Constitution might indicate, again make explicit what was implicit therein. 1168. The outstanding question then is, what is the meaning of the word 'amendment'- whether it has wide or a restricted meaning, whether the word 'amendment' includes repeal or revision, and whether having regard to the other provisions of the Constitution or the context of the word 'amendment' in Article 368 itself it has a restricted meaning, and consequently does not confer a power to damage or destroy the essential features of the Constitution.

1169. The existence or non-existence of any implied limitations on the amending power in a written Constitution, which does not contain any express limitations on that power has been hotly debated before us for days. I have earlier set out some of these contentions. If the word 'amendment' has the restricted meaning, has that power been enlarged by the use of the words "amend by way of addition, variation or repeal" or do they mean the same as amendment? If they are wider than amendment, could Parliament in exercise of its amending power in Article 368 enlarge that power? This aspect has been seriously contested and cannot on a superficial view be brushed aside as not worthy of merit. There can be two ways of looking at it. One approach can be, and it would be the simplest solution to the problem that confronts us, to assume that the amending power is omni-sovereign and thereafter the task will be easy because so much has been written by academic writers that it will not be difficult to find expression of views which support that conclusion. Long years ago, Oliver Wendall Holmes had written, "you can give any conclusion a logical form" and one can only say how true it is. This course, however, should be eschewed, firstly, because of the a priori assumption and the speculation inherent in drawing upon such writings, and secondly, because the interpretation placed by these learned writers on Constitutions which are different will, if drawn upon, in effect allow them to interpret our Constitution, which though derivative it may be, has to be interpreted on the strength of its provisions and the ethos it postulates. It is, therefore, necessary to ascertain from the background of our national aspirations, the objectives adopted by the Constituent Assembly as translated into a working organic instrument which established a sovereign democratic Republic with a Parliamentary system of Government whereunder individual rights of citizens, the duties towards the community which the State was enjoined to discharge; the diffusion of legislative power between Parliament and State Legislatures and the provision for its amendment, etc., are provided for. All these aspects were sought to be well balanced as in a ship built for fair weather as well as for foul. This then will be the proper approach.

1170. The learned Attorney-General contends that the word 'amendment has a clear, precise, definite and unambiguous legal meaning and has been so used in all the written Constitutions of other countries also ever since written Constitutions have been innovated. The word "amendment" according to him has received a well accepted construction which gives it the widest amplitude unrestricted by any limitations thereon. While making this submission, however, he has pointed out that though our Constitution has used different expressions at several places, it does not follow that they do not necessarily mean the same thing. The Advocate for the petitioner on the other hand says that this word has no precise and definite or primary and fundamental meaning and hence the cases on construction cited by the respondents that the Court is not concerned with the policy of the Legislature are not applicable. On the contrary, he points out, that since the word is ambiguous, the width of the power has to be ascertained by courts from the general scheme and context of the Constitution in which it appears and other relevant indications and principles. He relies on the observations of Lord Wright in James v. Commonwealth of Australia, [1936] A.C. 578 at p. 627 (P.C.) cited on behalf of the first respondent that, "A Good draftsman would realise that the mere generality of the word must compel limitation in its interpretation. 'Free' in itself is vague and indeterminate. It must be its colour from the context".

Re: Kesavananda Bharati vs State Of Kerala And ors

1171. The learned Attorney-General further submits, relying again on the decisions of the American Courts that revision and amendment have been held as synonymous terms and that if you give the power to amend the amending power, the amending power will become very wide. It is also his contention, relying on Strong on "Modern Political Constitutions" that the amending provisions re-create the Constituent Assembly, provide some elements to be 'unaltered, and since our Constitution-makers who were aware of this position in the United States have used the same words, they must be intended to use that word as giving the widest power, and since there are no express limitations, no restriction on that power can be read into it by implication. A reference to the provision relating to amendment either in the United States or in the States' Constitutions where people have a vital part in the amending process in my view inapt and inapplicable to the interpretation of our Constitution where the people have been designedly excluded. I say this, because we have been referred to the attempts made in the Constituent Assembly to involve people of this country in the amendment of the Constitution, but such attempts did not succeed. Brajeshwar Prasad had actually proposed an amendment to make the amending provision similar to the one in Australia Constitution and had said, "What is possible in Australia is possible here. If the people in Australia are competent and advanced to adopt this method of amendment, certainly we, who are as competent as the Australians, if not more, are entitled to adopt the same. I do not want to associate the State Legislatures in the process of amending the Consitution." He also said that, "If you want to abolish landlordism, you cannot afford to look for the consent of the landlords, and similarly, if you want to abolish capitalism, you cannot afford to look for the consent of the capitalists". (C.A.D., Vol. IX, p. 1646). This amendment, however, was negatived. (C.A.D., Vol. IX, p. 1665).

1172. A reference was also made in this connection to draft Article 305 as indicating that the word 'amendment' would mean repeal or whittling down. Even assuming that that Article had been incorporated in the Constitution, what does the word `amendment' in that context imply ? First, draft Article 305 starts with the non-obstante clause, "Notwithstanding anything contained in Article 304" (present Article 368), and, secondly, the provisions relating to the reservation of seats for the minorities "shall not be amended during a period of ten years from the commencement of this Constitution and shall cease to have effect on the expiration of that period unless continued in operation by an amendment of the Constitution". This clause instead of throwing any light on the width of the power of amendment shows that it is completely restricted in that nothing can be done to affect that provision for ten years which limitation with the non-obstante clause excludes Article 304 altogether during that period. If after that period it is to be extended that Article can be amended but this does not mean that it can be repealed, for it is only concerned with either extension of the period or change in the terms or conditions under which the reservation would continue to apply.

1173. It was contended that the word 'amendment' in Article 368 must be construed as meaning change for the better, improvement, etc. In Golaknath's case a similar contention was rejected by some of the learned Judges. Subba Rao, C.J., (speaking for 5 Judges) did not express any view though he said that the argument that Parliament cannot destroy the structure of the Constitution but it can modify the provisions thereof within the framework of the original instrument for its better effectuation, has considerable force, but they were relieved of the necessity to express their opinion as the question raised can be answered on a narrower basis. He observed that : "This question may arise for consideration only if Parliament seeks to destroy the structure of the Constitution embodied in the provisions other than in Part III of the Constitution. We do not, therefore, propose to express our opinion in that regard" (pp. 804-805). 1174. Hidayatullah, J., at p. 862 said:

I do not take the 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.

Wanchoo, J., (speaking for himself and two other Judges), observed at p. 834: To say that 'amendment' in law only means a change which results in improvement would make amendments impossible, for what is

improvement of an existing law is a matter of opinion and what, for example, the legislature may consider an improvement may not be so considered by others. It is, therefore, in our opinion impossible to introduce in the concept of amendment as used in Article 368 any idea of improvement as to details of the Constitution. The word 'amendment' used in Article 368 must, therefore, be given its full meaning as used in law and that means that by amendment an existing Constitution or law can be changed, and this change can take the form either of addition to the existing provisions, or alteration of existing provisions and their substitution by others or deletion of certain provisions altogether. 1175. After noting that the word "amend" in the VI Schedule, paragraph 21, where it was preceded by words "by way of addition, variance or repeal" and more or less similar expressions in other Articles of the Constitution, he observed, "it is very difficult to say why this was done. But the fact that no such words appear in Article 368 does not in our mind make any difference, for the meaning of the word 'amendment' in a law is clearly as indicated above by us and the presence or absence of explanatory words of the nature indicated above do not in our opinion, make any difference". Bachawat J., at pp. 915-916, says:

Article 368 indicates that the term 'amend' means 'change'. The proviso is expressed to apply to amendments which seek to make any 'change' in certain articles. The main part of Article 368 thus gives the power to amend or to make changes in the Constitution. A change is not necessarily an improvement Normally the change is made with the object of making an improvement, but the experiment may fail to achieve the purpose. Even the plain dictionary meaning of the word 'amend' does not support the contention that an amendment must take an improvement, see Oxford English Dictionary, where the word 'amend' is defined thus : "4. To make professed improvements (in a measure before Parliament) formally to alter in detail though practically it may be to alter its principle so as to thwart it". The 1st, 4th, 16th and 17th Amendment Acts made changes in Part III of the Constitution. All the changes are authorised by Article 368". Ramaswami, J., has not specifically dealt with the meaning of the word 'amendment'. 1176. It is obvious from these observations that the attempt to restrict the meaning of the word 'amendment' to 'improvement' has been rejected by five of the learned Judges in Golaknath's case.

1177. The learned Attorney-General, however, in the written summary of his arguments, said "The majority of the learned Judges in Golaknath's case rejected the arguments that the expression amendment of of a Constitution has a narrow meaning. Thus the petitioner seeks to have the majority judgment overruled on this point". (Page 30, Para 9). This statement does not seem to be accurate, unless he has linked the rejection of the argument regarding the existence of implied limitations as recognising that the word amendment has a wide meaning. That implied limitations and the width of the meaning of word amendment were two different concepts admits of no doubt, because the former flows from the implications of the provisions of the Constitution whether general or specific, while the latter deals with scope and the ambit of the word amendment itself. If the power is wide, even implied limitations can also be abrogated, but it has nothing to do with the existence of the implied limitations. On the other hand, Hidayatullah, J. though he dealt with the narrowness or otherwise of the meaning of the word 'amendment' did not deal with the existence or non-existence of implied limitations under our Constitution. Bachawat, J., at pp. 915 and 916 also did not think it necessary to pronounce on implied limitations and like Wanchoo, J., has separately considered these two concepts (see pages 833-834, 835-836). These instances illustrate what I have said above. Even on this basis there would not be a majority of Judges who have held that there are no implied limitations.

1178. The learned Advocate-General for Maharashtra submits that when a person proposes an amendment and he is asked whether it is intended to be an improvement, the answer will always be 'Yes'; because he cannot very well say that it was not intended to be an improvement; that the meaning of the word 'amendment' in several Dictionaries which relate the word 'amendment' with 'improvement' is euphemistic. This is the reason why the word 'amendment' according to him is used in the earlier sense in common parlance, in public speeches, textbooks or articles by learned writers, which is far from saying that an amendment must be only a change for effecting an improvement. 1179. Bachawat, J., earlier at p. 915 in Golaknath's case referred to the decision Livermore v. E.C. Waite, (102) Cal. 113-25 L.R.A. 312 in support of the submission that an amendment must be an improvement of the Constitution. The following abservations in Livermore's case were cited by him:

On the other hand, the significance of the term 'amendment' implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.

With respect to this passage, Bachawat, J., observed:

Now an attack on the eighteenth amendment of the U.S. Constitiution based on this passage was brushed aside by the U.S. Supreme Court in the decision in the National Prohibition case (Rhode Island v. Palmer, 253 US 350; 64 L. ed. 947, 960, 978). The decision totally negatived the contention that an amendment must be confined in its scope to an alteration or improvement of that which is already contained in the Constitution and cannot change its basic structure, include new grants of power to the Federal Government nor relinquish in the State those which already have been granted to it. (See Cooley on Constitutional Law, Chapter III, Article V, pp. 46 & 47).

1180. I find from the reference to the National Prohibition case and the pages of that report given by Bachawat, J., namely, 64 L. ed. 947, 960 and 978, that no observations to that effect have been made at page 978 by Mr. Justice Van Devanter. In that case the Supreme Court was considering an appeal from a District Court which had rejected the contention that 18th Amendment was not valid on the ground that, "The definition of the word 'amendment' include additions as well as corrections of matters already treated and there is nothing in its immediate context (Article V) which suggests that it was used in a restricted sense". The decree of the Court below was affirmed in the National Prohibition case. (Rhode Island v. Palmer). 64 L. ed. 946 At p. 960 the briefs filed by the Attorney- General of Rhode Island and others did, however, refer to the passage cited by Bachawat, JJ., in Livermore v. Waite. But none of the Judges in the National Prohibition case either referred to the passage in Livermore's case nor did they deal with the scope of the power of amendment and, therefore, it cannot either be said that the submission was brushed aside, nor can it be said that the National Prohibition case totally negatived that contention. It may be the opinion of Cooley in his Book on "Constitutional Law" that the passage in Livermore's case cited by Bachawat, J., did not support the proposition therein stated. But all arguments in that case against the amendment could not be taken to be negatived, if they were not necessary for the decision. What arguments were brushed aside, no one can say with any amount of definiteness. If the judgment of the Supreme Court in National Prohibition case is read with the judgment of the District Court whose decree was affirmed, it may be taken to have laid down that the word amendment would include addition of a provision to the Constitution and beyond this nothing more can be inferred from this judgment.

1181. The argument of the learned Advocate-General is that the words "amendment of this Constitution" in sub-para (2) of para 7 and sub-para (2) of para (21) of the respective Schedules refers to the words used in sub-para (1) of sub-para 7 and 21 of the Schedules, and, therefore, the words "amendment of this Constitution" must be read to mean that it is an amendment by way of addition, variation or repeal. It was noticed that in Golaknath's case while Wanchoo, J., could not fathom the reason why the expression 'by way of addition, variation or repeal' was used in Schedule V para 7 and Schedule VI, Para 21, he none the less thought the presence or absence of the explanatory words made no difference to the meaning of the word 'amendment'. In other words, according to the learned Advocate-General, the word 'amendment' in Article 368 is synonymous with the expression 'amend by way of addition, variation or repeal' so that the Twenty-Fourth Amendment according to this view, and probably to conform with it, used the clarificatory words and means even after this amendment the same meaning as the word 'amendment' had before Article 368 was amended. What an amendment can do has also been stated, by Wanchoo J., namely, that the existing Constitution can be changed and this change can take the form either of addition to the existing provisions or alteration of the existing provisions and their substitution by others or deletion of certain provisions altogether. Though all this can be done, he said, it may be open to doubt whether the power of amendment contained in Article 368 goes to the extent of completely abrogating the present Constitution and substituting it by an entirely new one . 1182. It is also not disputed by the learned Attorney-General, the learned Solicitor- General and the learned Advocate-General for Maharashtra that an amendment of the Constitution dose not extend to abrogation of the Constitution, and on the contention of the learned Advocate-General, abrogation means repeal, both words being synonymous, and that the Constitution cannot be substituted by a new Constitution. 1183. In further explaining his submission the learned Attorney-General said that the amending power in Article 368 as it stood before the Twenty-fourth Amendment and as it stands now has always been, and continues to be, a constituent power, that is to say, the power to deconstitute or re-constitute the Constitution or any part of it. Such power extends to the addition to or variation of any part of the Constitution. But the amending power does not mean that the Constitution at any point of time would be so amended by way of addition, variation or repeal as to leave a vacuum in the governance of the country. According to him that is the whole object and necessity of the amending power in a Constitution so that the Constitution continues, and a constituent power, unless it is expressly limited in the Constitution itself, can by its very nature have no limits, because if any such limit is assumed although not expressed in the Constitution, the whole object and purpose of the amending power will be nullified.

1184. If amendment does not mean abrogation or repeal as submitted in the note of the Advocate-General, dated February 23, 1973 in which he said, "that repeal and abrogation mean the same thing since "repeal" has 'abrogation' as one of its meaning and 'abrogation' has 'repeal' as one of its meanings", a question arises, where, is the line to be drawn ? 1185. The learned Attorney-General said that Article 368, Clause (e) of the proviso by giving a power to amend the amending power, has conferred a wider power of amendment but that does not imply that the power of amendment had a limited meaning in the unamended article; that the word 'amendment' has only one meaning and it is a wide power and in Article 368 there is a recreation of the Constituent Assembly. If this submission is correct, how can it not extend to abrogation of the Constitution or substituting it by another?

1186. To this question the answer of the Attorney-General was that Clause (e) of the proviso was added by way of abundant caution to meet a similar criticism which was directed against Article V of the U.S. Constitution. According to Advocate-General for Maharashtra, Clause (e) of the proviso was inserted to meet the assumption of Chief Justice in the Irish case of The State (Ryan and Ors.) v. Lennon and Ors. (1935) Irish Reports 170 that if amending provision could have been amended, then no limitation can be read. Hon'ble the Chief Justice has dealt with this aspect in full and I do not, therefore, propose to refer to it except to say that the analogy is inapplicable to the interpretation of Article 368.

1187. Apart from the power of amendment not extending to the abrogation of the Constitution, it will appear on the submission of respondents, the Union of India and the State of Kerala, that the office of the President cannot be abolished without the concurrence of at least half the States even though Articles 52 and 53 are not included in the proviso to Article 368. The very fact that Article 54 and Article 55 are included in the proviso, it would, according to the learned Solicitor-General imply that the office of the President cannot be abolished without the concurrence of the States. Wanchoo, J., in Golaknath's case dealt with a similar contention at p. 844. Though he thought that the supposition was impossible, and I entirely agree with him that it is not likely, yet in such a case, "it would be right to hold that Article 52 could not be altered by Parliament to abolish the office of President...it will require ratification". Nor do I think having regard to the basic structure of the Constitution is it possible to abolish the office of the President by resort to Article 368 and as assent is necessary, no President true to his oath to protect and defend the Constitution, will efface himself. It would, therefore, appear from this specific instance that an implied limitation is read into Article 368 by reason of the proviso entrenching Article 54. The learned Advocate-General says even Article 53 which vests the executive power of the Union in the President by Sub-clause (2), vests the Supreme Command of the Defence Forces of the Union in the President, would also necessitate an amendment similar to Article 52 by ratification by the states. Yet another instance is, that art implied power to amend is found in Article 368. When the form and manner is complied with, the Constitution stands amended, from which provision as well as the fact that Article 368 is in a separate Part entitled 'amendment of the Constitution', the above conclusion was reached. The petitioner's counsel naturally asks that if The Queen v. Burah (1877-78) J.C. 179 is read as an authority as contended on behalf of Kerala State against the existence of powers which are not conferred by affirmative words and against the existence of limitations, this proposition clearly negatives the respondents' other submission that the source of the amending power must be impliedly found in Article 368 although such a power is not to be found affirmatively conferred. 1188. Though there are naturally some limitations to be found in every organic instrument, as there are bound to be limitations in any institution or any other set up brought into existence by human agencies, and though my Lord the Chief Justice has gone into this aspect fully, it is in my view not necessary to consider in this case the question of the existence or non-existence of implied or inherent limitations, because if the amending power is wide and plenary, those limitations can be overriden as indeed the non-obstante clause in the amended Clause (1) of Article 368 was intended to subserve that end. What has to be considered is whether the word 'amendment' is wide enough to confer a plenitude of power including the power to repeal or abrogate. 1189. The learned Advocate-General has further submitted that there is intrinsic evidence in the Constitution itself that the word 'amendment' in Article 368 means 'amend by way of addition, variation or repeal', because if that were not so, sub-para (2) of para 7 of Schedule V would not have taken out the law made under sub-para (1) empowering Parliament to "amend by way of addition, variation or repeal" any of the provisions of the Schedule from the operation of Article 368. The same meaning should also be given to para 21 of Schedule VI. The learned Attorney-General has referred to several articles in which the word 'amendment' has been used, as also to several others in which that word or its variation has been used in continuation with other words. But these expressions do not show that the word 'amendment' is narrow or limited. In every case where an amendment has been made in the Constitution, he says, something has been added, something substituted, something repealed and re-enacted and certain parts omitted. The Constitution (First Amendment) Act is given as an instance of this, nor according to him does anything turn on the fact that Section 291 of the Government of India Act, 1935, was amended just about a few weeks before Article 368 was finalised, and in which the word 'amendment' was substituted for the words 'amend by way of addition, variation or repeal'. According to him what this Court must consider is that since Article 368 arranges to recreate the Constituent Assembly and exercise the same power as the Constituent Assembly, it should be read in a wide sense.

1190. If the power of amendment is limitless and Parliament can do all that the petitioners contend it can do under Article 368, the respondents say it should not be assumed that power will be abused, but on the other hand the presumption is that it will be exercised wisely and reasonably, and the only assurance against any abuse is the restraint exercised by the people on the legislative organs. But the recognition of the truism that power corrupts and absolute power corrupts absolutely has been the wisdom that made practical men of experience in not only drawing up a written Constitution limiting powers of the legislative organs but in securing to all citizens certain basic rights against the State. If the faith in the rulers is so great and the faith in the people to curb excessive exercise of power or abuse of it is so potent, then one needs no elaborate Constitution, because all that is required is to make Parliament omni-potent and omni- sovereign. But this the framers did not do and hence the question will be whether by an amendment under Article 368, can Parliament effect a metamorphosis of power by making itself the supreme sovereign. I do not suppose that the framers were unaware of the examples which must be fresh in their minds that once power is wrested which does not legitimately belong to a limited legislature, the efforts to dislodge it must only be by a painful process of struggle, bloodshed and attrition-what in common parlance would be a revolution. No one suggests this will be done, but no one should be complacent, that this will not be possible, for if there is power it can achieve even a destructive end. It is against abuse of power that a Constitutional structure of power relationship with checks and balances is devised and safeguards provided for whether expressly or by necessary implication. And the question is whether there are any such in our Constitution, and if so, whether they can be damaged or destroyed by an amending power?

1191. The petitioner's counsel, learned Advocate-General and the learned Attorney- General have furnished us with the extracts from various Dictionaries, and the learned Attorney-General has further referred us to a large number of Constitutions in which the word 'amendment' or words used for amending the Constitution have been employed, to show that there is no difference or distinction between these words and the word 'amendment'. In all these Constitutions, subject to which I said of the inappropriateness of comparing other world Constitutions made for different people with their differing social, political and economic outlook, the words used are either 'amendment' or a combination of that word with others or a totally different word. In some of the Constitutions given in the compilations made available to us where the word 'amendment' alone is used, the exercise of the power of amendment was inextricably linked with the ratification by the people in whom the sovereignty rests, either by referendum or by convention or by the Legislatures. The Constitutions of other countries which have been referred to specifically by the learned Attorney-General are of Liberia, Trinidad & Tobago, Somalia, Jordan, Kuwait, Lebanon, Vietnam Democratic Republic, Belgium, Costa Rica, Cuba and Nicaragua. I have examined the relevant provisions of these Constitutions regarding the amendatory process. These Constitutions have used different words than the words used in our Constitution. When the word 'amendment' or 'amend' is used, it has been invariably used with the words 'alter', or 'repeal', or 'revise', or 'variation, addition or repeal', or 'modification', or 'suspension', or 'addition', or 'deleting', or 'partially amend', or 'general amendment', or 'specific, partial or complete', or 'wholly or partially amend', or by a combinetion of one or more of these expressions. In one of the Constitutions, namely, Trinidad & Tabago, the word 'alteration.' was defined to include 'amendment, modification or modification or that provision, the suspension or repeal of that provision and the making of a different provision in lieu of the provision'. 1192. In some of the other Constitutions not referred to by the learned Attorney-General where the amending process is not referable to the voters by referendum or to be ratified in a convention with the word 'amend', the words 'alter', 'add', 'supplement', 'repeal' or similar words have been used to indicate the plenitude of power of amendment. Section 29(4) of the Ceylon Constitutional Order, 1946, which Was the subject-matter of decisions in Liyanage v. The Queen (1967) 1 A.C. 259 and The Bribery Commissioner v. Rana Singh (1964) 2 W.L.R. 1301 cases, and had been debated in this Court by counsel on either side, provides that in the exercise of its powers under the section "Parliament may amend or repeal any of the provisions of this Order, or of any other Order". But this sub-section entrenches by Sub-section (2) certain matters from being amended because as the Privy Council observed that "They represented a solemn "balance of rights between the citizens of Ceylon". In the Constitution of Finland the words used are adoption,, amendment, or abrogation of a fundamental law. The Irish Constitution, 1937, provided by Article 46(1) that any provision of the Constitution may be amended, whether by way of variation, addition, or repeal in the manner provided by the Article, and the Constitution of Malaya has defined the word in Clause (6) of Article 159 that 'amendment' includes addition and repeal. Even the Constitution of the Islamic Republic of Pakistan has used the words amended or repealed. The Constitution of the Union of South Africa has used the words repeal or alter and the Constitution of the United States of Brazil has an entrenched provision in Clause (6) of Article 217 that the Bills tending to abolish the Federation and the Republic shall not be admitted to consideration. 1193. These references not only do not show that the word 'amendment' has been used by itself to denote the plenitude of power but on the other hand show that these prescribe a procedure in which the people have been associated or a Constituent Assembly has to be called or fresh elections are required to be held to consider the amendments. In some of these Constitutions there was also difference made between total and partial amendments and where the word 'alteration' has been used, it has been defined as to what is included therein. No assistance can, therefore, be derived from the Constitutions either referred to by the Attorney-General or by the ones to which I have referred, and if at all, they only show that the word 'amendment' has not, as contended, unambiguous, precise or wide connotation.

1194. It is said that the words "amend by way of addition, variation or repeal" by reference to Clause (2) of Para 7 and Para 21 of the Fifth and Sixth Schedule respectively, mean the same as amendment, and consequently Article 368 empowers the repeal of any provision of the Constitution. If the word "repeal" means abrogation, then an amendment under Article 368 can even abrogate any provision of the Constitution, short of abrogating the entire Constitution and substituting a new one. In my view, the phrase "by way of" call it a padding, call it explanatory, is idiomatic and difficult to render into exact pharseology. An idiom is an accepted phrase, construction or expression contrary to the usual pattern of the language or having a meaning different from the literal. As the Words & Phrases-Permanent Edition, Vol. 5, p. 1111, would show that "by way of" may be taken to mean "as for the purpose of", "in character of", "as being" and was so intended to be construed in an Act providing that certain companies should pay an annual tax for the use of the State, "by way of" a licence for their corporate franchise. The illustration given should show that in fact the payment of a licence fee is not a tax, but it is so considered to be by way of tax. In my view, therefore, the substitution of the word "amendment" by the expression "amend by way of addition, variation or repeal" makes no difference as it bears the same meaning as the word "amendment". 1195. In its ordinary meaning the word "amend" as given in Shorter Oxford Dictionary is to make alterations. In some of the Dictionaries it is given as meaning "to alter, modify, rephrase, or add to or subtract from". Judicial and Statutory Definitions of Words and Phrases, Second Series, Vol. I-the word "amend" has been treated as synonymous with correct, reform and rectify. It is also stated that "amendment" of a statute implies its survival and not destruction. The word "amend" in legal phraseology, does not generally mean the same thing as "repeal", because there is a distinction between a "repeal" but it does not follow that "amendments of statute may not often be accomplished by repeals of some of its parts" and though "amendment may not directly amount to repeal, it may have such a consequential effect". Crawford in his book on "The Construction of Statutes" 1940, pp. 170-171 which is quite often referred to and used in this Court, states that "a law is amended when it is in whole or in part permitted to remain and something is added to, or taken from it, or it is in some way changed or altered in order to make it more complete, or perfect or effective. It should be noticed, however, that an amendment is not the same as a repeal, although it may operate as a repeal to a certain degree. A repeal is the abrogation or destruction of a law by a legislative act. Hence we may see that it is the effect of the Legislative act which determines its character". The first part of this definition may be compared with the meaning indicated by Wanchoo, J. in Golaknath's case at p. 833 to which a reference has already been made.

1196. Both the learned Advocate for the petitioner and the learned Attorney-General have referred to the decisions of the State Courts of the United States for the meaning of the word 'amend' in support of their respective contentions, but these decisions which are rendered in the context of the Constitutions of the respective States in America where ratification by the people is a condition for amending the Constitution do not carry the matter any further. Even in these cases the word 'Amendment' has been used in the contradistinction with the word 'revision'. Words and Phrases, Permanent Edition, Vol. 37 says, "The term 'repeal' is synonymous with abolish, rescind and annul. An amendment has been distinguished from alteration or change. It is said that an amendment keeps alive while a 'repeal' destroys." See State ex rel. Strutx v. Baker 299 N.W. 574, 578, N.D. 153. It is, therefore, apparent from the meaning of the word 'amendment' that it does not include 'repeal' or 'abrogation' nor is it the same as revision. I would now refer to certain provisions of the Constitution where the words "amend" or "repeal" have been used to indicate that the ambit of the power of amendment does not extend to repeal. A repeal of a provision of a law is different from the repeal of the law itself. The Constitution itself has made a distinction between the amendment of the law and repeal of the law. This becomes clear if we refer to Article 372(2) in which power has been given to the President by order to make such adaptations and modifications of any law whether by way of repeal or amendment, as may be necessary or expedient, to bring it in conformity with the provisions of the Constitution. See also Article 372(2)(b). Clause (2) of Article 252 provides that any Act passed by Parliament in respect of two or more States may be amended, or repealed by an act of Parliament. In this clause the word 'repeal' is used in contradistinction to 'amendment' as clearly implying that amendment does not include repeal of the Act itself. Even in Article 372(1), this distinction is brought out where a law in force immediately before the commencement of the Constitution was to continue in force until "altered or repealed or amended" by a competent authority. Similarly in Article 35(b) also any law in force immediately before the commencement of the Constitution in the territory with respect to any of the matters specified therein and to any adaptations and modifications that may be made therein under Article 372 continue in force until "altered or repealed or amended" by Parliament. See proviso to Clause (2) of Article 254 and Clause (5) of Article 350. It may also be noticed that before the repeal of Article 243, Clause (2) thereof provided that the President may make regulations for the peace and good government of territories in Part D of the First Schedule and any regulation so made may repeal or, amend any law made by Parliament or any existing law. It will, therefore, be observed that even where power has been given to a competent legislature or any other competent authority over a law in force to continue by virtue of the above referred; provisions, the framers have used the word 'repeal' of a law in contradistinction to the word 'amend' of a law. It may be contended with some force that where the framers intended to give full and plenary powers to competent legislatures to deal with laws in force, they were meticulous enough to use two distinct words. If the word 'amend' or 'amendment' in its generic connotation meant 'repeal' then this word would not have been used in contradistinction with the word amendment or amend in some articles, and only the word 'amend' or 'amendment' in others. In so far as the laws in force are concerned, it would appear that the intention was not to add to them, though the word 'alter' could imply also a variation. Nonetheless it is apparent that the word 'amendment' as used in Article 368 does not connote a plenitude of power. This is also clear from Sub-section (2) of Section 6 of the Indian Independence Act, 1947 which, as already seen, even in the context of the power to be possessed by the Constituent Assembly, uses the word 'repeal' or 'amend' to indicate the plentitude of the power of abrogation and repeal. Sections 32, 37, 74, 82 and 107(2) of the Government of India Act also use the word 'amendment' in the sense of change and not repeal of the law. On the other hand, Sections 106(2) of Government of India Act and Article 372(1) use the word 'repeal'. In the former, power is given to repeal a law, and in the latter it was provided that notwithstanding the repeal of enactments referred to in Article 395 to which included the Indian Independenet Act, etc., all the laws in force and also be replaced in the sense that they could be abrogated. Further in Clauses (3) and (4) of Article 109, the Council of State is empowered to make amendments in money bill which the House of the People may or may not accept and if it does not, it will be passed without any such amendment. The Council of States, cannot reject the bill altogether but can only make a change therein.

1197. The argument that if wide construction is given to the word 'amendment' all fundamental rights can be taken away by the requisite majority, whereas much less significant matters require the concurrence of not less than one-half of the States under the proviso is based on the misconception that unlike in the United States where there is a dual citizenship-one as a citizen of United States and the other as a citizen of the particular State in the Union, we have only one citizenship and that is as a citizen of India and it is Parliament and Parliament alone which can legislate in respect of that right. No State has the legislative power to affect that right, and, therefore, have not been given a power of ratification where the fundamental rights are sought to be amended under Article 368. This aspect is not, however, determinative of the extent of the power of amendment under Article 368. The word 'amendment' read with the other provisions indicates that it is used in the sense of empowering a change in contradistinction to destruction which a repeal or abrogation would imply. Article 368 empowers only a change in the Constitution as is evident from the proviso which requires that where the provisions specified in Clauses (a) to (e) have to be amended they have to be ratified by the resolution of not less than one-half of the Legislatures of the States. This proviso furnishes a key to the meaning of the word 'amendment', that they can be changed without destroying them just in the same way as the entire Constitution cannot be abrogated and a new Constitution substituted therefor. In this view, I agree with My Lord the Chief Justice, for the reasons given by him, that the amplitude of the power of amendment in Article 368 cannot be enlarged by amending the amending power under proviso (e) to Article 368.

1198. What follows from this conclusion is the next question to be considered. It is submitted that an amendment should not alter the basic structure of the Constitution or be repugnant to the objectives set out in the Preamble and cannot be exercised to make the Constitution unidentifiable by altering its basic concept governing the democratic way of life accepted by the people of this country. If the entire Constitution cannot be abrogated, can all the provisions of the Constitution leaving the Preamble, or one article, or a few articles of the original Constitution be repealed and in their place other provisions replaced, whereby the entire structure of the Constitution, the power relationship inter se three Departments, the federal character of the State and the rights of the citizens vis-a- vis the State, are abrogated and new institutions, power relationships and the fundamental features substituted therefor? In my view, such an attempt would equally amount to abrogation of the Constitution, because any such exercise of the power will merely leave the husk and will amount to the substitution of an entirely new Constitution, which it is not denied, cannot be done under Article 368.

1199. The Preamble to the Constitution which our founding fathers have, after the Constitution was framed, finally settled to conform to the ideals and aspirations of the people embodied in that instrument, have in ringing tone declared the purposes and objectives which the Constitution was intended to subserve. How far the Preamble can be resorted to for interpreting the Constitution has been the subject of debate. It was contended that it is not a part of the Constitution, and as we have been shown, that this concept had found approval of this Court in In Re: Berubari Union & Exchange of Enclaves, but the Court did not appear to have noticed that it was adopted by the Constituent Assembly as part of the Constitution. The observations of Gajendragadkar, C.J., must be understood in the context of his assumption that the Preamble is not a part of the Constitution. After referring to Story that the Preamble is "a key to open the mind of the makers" and a passage from Willoughby that it has never been regarded as source of any substantive power, etc., the learned Chief Justice concluded thus : What is true about the powers is equally true about the prohibitions and limitations. Besides, it is not easy to accept the assumption that the first part of the preamble postulates a very serious limitation on one of the very important attributes of sovereignty itself. As we will point out later, it is universally recognised that one of the attributes of sovereignty is the power to cede parts of national territory, if necessary. At the highest it may perhaps be arguable that if the terms used in any of the articles in the Constitution are ambiguous or are capable of two meanings, in

interpreting them some assistance may be sought in the objectives enshrined in the preamble. Therefore, Mr. Chatterjee is not right in contending that the preamble imports any limitation on the exercise of what is generally regarded as a necessary and essential attribute of sovereignty.

It may be pointed out that the passage from Story and Willoughby cited therein have not been fully extracted. For a proper appreciation of the views of these authors it is necessary to examine the relevant passages in, full. Story says, "It is an admitted maxim...that the preamble of a statute is a key to open the mind of the makers as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute...the will and intention of the legislature is to be regarded and followed. It is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the preamble. There does not seem any reason why, in a fundamental law or Constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble.... The preamble can never be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution. Its true office is to expound the nature, and extent, and application of the powers actually conferred by the Constitution, and not substantively to create them.... We have the strongest assurances, that this preamble was not adopted as a mere formulary but as a solemn promulgation of a fundamental fact, vital to the character and operations of the government". (Story, Constitution of the United States, Vol. I, pp. 443-446).

1200. It is clear from the above views of Story that: (a) the preamble is a key to open the mind of the makers as to the mischiefs, which are to be remedied; (b) that it is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; (c) even where the words are clear and unambiguous, it can be used to prevent an obvious absurdity or to a direct overthrow of the intention expressed in the preamble, and it would be much more so, if they were ambiguous; (d) there is no reason why, in a fundamental law or Constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble; (e) the preamble can never be resorted to, to enlarge the powers expressly given, nor to substantively create any power or to imply a power which is otherwise withdrawn from the Constitution; (f) its true function is to expound the nature, extent, and application of the powers actually conferred by the Constitution.

1201. The passage extracted from Willoughby no doubt shows that the Preamble may not be resorted to as a source of Federal Authority but in dealing with its value and use the learned author has stated thus:

Special significance has at various times been attached to several of the expressions employed in the Preamble to the Constitution. These expressions are:

1. The use of the phrase "We, the People of the United

States", as indicating the legislative source of the

Constitution.

2. The denomination of the instrument as a "Constitution".

2. The description of the federation entered into as "a more

perfect Union.

3. The enumeration of "the common defence" and "general

welfare" among the objects which the new Government is

established to promote" (Willoughby, Vol. I, p. 62).

4. These American authors, therefore, recognise the use of the Preamble to ascertain the essential concepts underlying the Constitution.

1202. The English cases show that the preamble can be resorted to as a means to discover the legislative intent of which one may be cited. In the Attorney-General v. Prince Earnest Augustus of Hanover, (1957) A.C. 436 the House of Lords considered the question whether and to what extent Preamble of a statute can be relied upon to construe the enacting part of the statute. Viscount Simond (with whom Lord Tucker agreed), observed at p. 461 : "For Words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive to be my right and duty to examine every word of a statute in its context, and I use 'context' in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state or the law, other statutes in Pari muteria, and mischief which I can, by those and other legitimate means, discern the statute was intended to remedy". Referring to the observations in Powell v. Kempton Park Racecourse Co. Ltd., (1899) A.C. 143 that 'the preamble cannot be made use of to control the enactments themselves where they are expressed in clear and unambiguous terms', Viscount Simond said at p. 463: "it is often difficult to say that any terms are clear and unambiguous until they have been studied in their context. That is not to say that the warning is to be disregarded against creating or imagining an ambiguity in order to bring in the aid of the preamble. It only means that the elementary rule must be observed that no one should profess to understand any part of a statute or of any other document before he had read the whole of it Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous.... I would suggest that it is better stated by saying that the context of the preamble is not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it And I do not propose to define that expression except negatively by saying...that it is not to be found merely in the fact that the enacting words go further than the preamble has indicated. Still less can the preamble affect the meaning of the enacting words when its own meaning is in doubt

1203. On this aspect Lord Normand said at pp. 467468: "when there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provision. The preamble is not, however, of the same weight as an aid to construction of a section of the Act as are other relevant enacting words to be found elsewhere in the Act or even in related Acts.... It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail...it is the court's business in any case of some difficulty, after informing itself of...the legal and factual context including the preamble, to consider in the light of this knowledge whether the enacting words admit of both the rival constructions put forward.... If they admit of only one construction that construction will receive effect even if it is inconsistent with the preamble, but if the enacting words are capable of either of the constructions offered by the parties, the construction which fits the preamble may be preferred." Lord Somervell said at p. 474, that, "The word 'unambiguous' must mean unambiguous in their context". Lord Thring, one of the great draftsmen of England in his book on "Practical Legislation", Chapter IV, pp. 92-93, made this pertinent observation as to preambles. He said, "a preamble may also be used to limit the scope of certain expressions in the Act, and sometimes a preamble is inserted for political reasons when the object of an Act is popular, and admits of being stated in a telling sentence or sentences." In Sajjan Singh's case at p. 968, Mudholkar, J., while taking note of the contention that it has been said that the preamble is not a part of the Constitution observed: "But, I think, that if upon a comparison of the preamble with the broad features of the Constitution it would appear that the preamble is an epitome of those features or, to put it differently, if these features are an amplification or concretisation of the concepts set out in the preamble it may have to be considered whether the preamble is not a part of the Constitution. While considering this question it would be of relevance to bear in mind that the preamble is not of the common run such as is to be found in an Act of a legislature. It has the stamp of deep deliberation and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it?" With great respect, I agree with the view expressed by him. 1204. These observations of the House of Lords, of the learned writers and of the Judges referred to above clearly point to the fact that the preamble will furnish a guide to the construction of the statute where the words are ambiguous, or even where the words are unambiguous to aid a construction which will not lead to an absurdity. Where the preamble conveys a clear and definite meaning, it would prevail over the enacting words which are relatively obscure or indefinite or if the words are capable of more than one construction, the construction which fits the preamble may be preferred. 1205. In In Re: Berubari Union & Exchange of Enclaves case the Court failed to refer to and consider the view of Story that the preamble can be resorted to, to expound the nature, the extent and the application of the powers or that the preamble can be resorted to, to prevent obvious absurdity or to a direct overthrow of the intention expressed therein. It may also be observed that the Court in that case did categorically say that the first part of the preamble is not a serious limitation. If the Court had taken a definite view that the preamble was not a source of limitation, the observation that, "it is not easy to accept the assumption that the first part of the preamble postulates a very serious limitation on one of the very important attributes of sovereignty" (emphasis supplied) was not necessary, because it implies that certain parts of the Preamble can be established to be a source of serious limitation if such exists. In any case though the advisory opinion is entitled to the greatest respect, it is not binding when any concrete issue arise for determination, particularly when the width of the power of amendment had not fallen for consideration in that case, nor was it in fact considered at all. 1206. I will now consider the question which has been streneously contended, namely, that there are no essential features, that every feature in the Constitution is essential, and if this were not so, the amending power under the Constitution will apply only to non- essential features which it would be difficult to envisage was the only purpose of the framers in inscribing Article 368 and that, therefore, there is no warrant for such a concept to be read into the Constitution. The argument at first flush is attractive, but if we were to ask ourselves the question whether the Constitution has any structure or is structureless or is a "jelly fish" to use an epithet of the learned Advocate for the petitioner, the answer would resolve our doubt. If the Constitution is considered as a mechanism, or call it an organism or a piece of Constitutional engineering, whichever it is, it must have a structure, or a composition or a base or foundation. What it is can only be ascertained, if we examine the provisions which the Hon'ble Chief Justice has done in great detail after which he has instanced the features which constitute the basic structure. I do not intend to cover the same field once again. There is nothing vague or unascertainable in the preamble and if what is stated therein is subject to this criticism it would be equally true of what is stated in Article 39(b) and (c) as these are also objectives fundamental in the governance of the country which the State is enjoined to achieve for the amelieration and happiness of its people. The elements of the basic structure are indicated in the preamble and translated in the various provisions of the Constitution. The edifice of our Constitution is built upon and stands on several props, remove any of them, the Constitution collapses. These are: (1) Sovereign Democratic Republic; (2) Justice, social, economic and political; (3) Liberty of thought, expression, belief, faith and worship; (4) Equality of status and of opportunity. Each one of these is important and collectively they assure a way of life to the people of India which the Constitution guarantees. To withdraw any of the above elements the structure will not survive and it will not be the same Constitution, or this Constitution nor can it maintain its identity, if something quite different is substituted in its place, which the sovereign will of the people alone can do. There can be a Democratic Republic in the sense that people may be given the right to vote for one party or only one candidate either affirmatively or negatively, and are not given the choice to choose another opposed to it or him. Such a republic is not what has been assured to our people and is unthinkable by any one foresworn to uphold, defend, protect, or preserve or work the Constitution. A democratic republic that is envisaged is the one based on a representative system in which people holding opposing view to one another can be candidates and invite the electorate to vote for them. If this is the system which is the foundation of a democratic republic, it is unthinkable that it can exist without elements (2) to (4) above either collectively or separately. What is democracy without social, economic and political justice, or what value will it have, where its citizens have no liberty of thought, belief, faith or worship or where there is no equality of status and of opportunity? What then are the essential features or the basic elements comprising the structure of our Constitution need not be considered in detail as these will fall for consideration in any concrete case where they are said to have been abrogated and made non-existent. The fact that a complete list of these essential elements constituting the basic structure are not enumerated, is no ground for denying that these exist. Are all the elements which make a law void and unConstitutional ever required to be concatenated for the recognition of the validity or invalidity of laws judged on the anvil of the Constitution? A sovereign democratic republic, Parliamentary democracy, the three organs of the State, certainly in my view constitute the basic structure. But do the fundamental rights in Part III and Directive Principles in Part IV constitute the essential element of the basic structure of our Constitution in that the Constitution will be the Constitution without them ? In other words, if Parts III and IV or either of them are totally abrogated, can it be said that the structure of the Constitution as an organic instrument establishing sovereign democratic republic as envisaged in the preamble remains the same? In the sense as I understand the sovereign democratic republic, it cannot: without either fundamental rights or directive principles, what can such a government be if it does not ensure political, economic, or social justice?

Re: Kesavananda Bharati vs State Of Kerala And ors

1207. The History of the agitation for political freedom, fundamental rights and self- government is well known. As I said earlier, ever since the second half of the 19th century the struggle has been going on and when ultimately India in spite of the partition, achieved its cherished dream of independence and territorial unity from north to south, and east to west, which in millinneum it could not achieve, the fundamental objectives formed the corner stone of the nation. As Granville Austin so aptly puts it in his book "The Indian Constitution" at page 50, "The Indian Constitution is first and foremost a social document. The majority of its provisions are either directly aimed at furthering the goals of the social revolution or attempt to foster this revolution by establishing the conditions necessary for its achievement. Yet despite the permeation of the entire Constitution by the aim of national renascence, the core of the commitment to the social revolution lies in Parts III and IV, in the Fundamental Rights and in the Directive Principle of State Polity. These are the conscience of the Constitution. The Fundamental Rights and Directive Principles had their roots deep in the struggle for independance And they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India The Rights and Principles thus connect India's future, present, and past, adding greatly to the significance of their inclusion in the Constitution, and giving strength to the pursuit of the social revolution in India. 1208. The demand for fundamental rights had its inspiration in the Magna Charta and the English Bill of Rights, the French Revolution, the American Bill of Rights incorporated in the Constitution of the United States in 1791. For the first rime, the Indian National Congress which was formed in 1885, made a demand for them in the Constitution of India Bill. 1895 and these demands were reiterated from time to time. Annie Besant's Commonwealth of India Bill contained a demand for 7 fundamental rights. The Simon Commission rejected these demands for inclusion of fundamental rights, but Moti Lal Nehru Committee drafted a Swaraj Constitution for India incorporating therein the declaration of rights. In respect of these rights, the report said: It is obvious that our first care should be to have our fundamental rights guaranteed in a manner which will not permit their withdrawal under any circumstances....

The Karachi Resolution of March 1931 on Fundamental Rights on economic and social change added a new dimension to Constitutional rights because till then State's negative obligations were alone being emphasised. By that Resolution "the demand now equally emphasised the State's positive obligations to provide its people with the economic and social conditions in which their negative rights would have actual meaning". (Granville Austin, p. 56). The Sapru Committee also incorporated these fundamental rights and for the first time divided them into justiciable and non-justiciable rights. During the Constituent Assembly Debates, Pt. Jawahar Lal Nehru in dealing with the confusion existing in the minds of the members in respect of the fundamental rights, said: "There is this confusion, this overlapping, and hence I think a great deal of difficulty has been brought into the picture. A fundamental rights should be looked upon not from the point of view of any particular difficulty of the moment, but as something that you want to make permanent in the Constitution. The other matter should be looked upon - however important it might be - not from this permanent and fundamental point of view, but from the more temporary point of view" (emphasis supplied). Dr. Radhakrishnan described the declaration of basic freedoms as a pledge to our own people and a pact with the civilised world". (Constituent Assembly Debates, Vol. II, p. 273). Dr. Ambedkar speaking on the Objectives Resolution, said that "when one reads that part of the Resolution, it reminds one of the declaration of the Rights of Man which was pronounced by the French Constituent Assembly. I think I am right in suggesting that, after the lapse of practically 450 years, the Declaration of the Rights of Man and the principles which are embodied in it has become part and parcel of our mental makeup, I say they have become not only the part and parcel of the mental makeup of modern man in every civilised part of the world, but also in our own country which is so orthodox, so archaic in its thought and its social structure, hardly anyone can be found to deny its validity. To repeat it now as the Resolution does, is to say the least, pure pedantry. These principles have become the silent immaculate premise of our outlook. It is therefore unnecessary to proclaim as forming a part of our creed. The Resolution suffers from certain other lacuna. I find that this part of the Resolution, although it enunciates certain rights, does not speak of remedies. All of us are aware of the fact that rights are nothing unless remedies are provided whereby people can seek to obtain redress when rights are invaded." The reference to the remedy that was absent in the Objectives Resolution, was made good by the inclusion of Article 32, with respect to which he said: "an article without which this Constitution would be a nullity.... I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance.... It is remedy that makes a right real. If there is no remedy there is no right at all..." (emphasis supplied) - Constituent Assembly Debates, Vol. VII, p. 953. Although he said while dealing with appropriateness of the English high prerogative writs as affording an effective remedy that these could be amended he did not say that either the judicial review could be abrogated or taken away by an amendment or the Court itself can be abolished. Nor was any question raised by any one in this regard. Dr. Ambedkar's observations cannot be read to suggest that by an amendment of the Constitution, Article 32 could be abrogated, for if it were so, his observations could be in clear conflict with the express language of Clause 4 of Article 32. The guarantee in Clause 4 of Article 32 could be conceived of only against amending power, for no ordinary law can suspend a right given by the Constitution unless permitted by the Constitution itself. When Clause 4 of Article 32 does not even permit suspension of the right under Article 32 except as otherwise provided in the Constitution, that is, by Article 359, it is highly unthinkable that by an amendment this right could be abrogated. This pivotal feature of the Fundamental Rights demonstrates that this basic structure cannot be damaged or destroyed. When a remedy cannot be abrogated, it should follow that the fundamental rights cannot be abrogated for the reason that the existence of a remedy would be meaningless without the rights. There is nothing else in the debates which would suggest that any of the members ever entertained any notion of abrogation of any of the fundamental rights. It was in the light of the makeup of the members and the dedicated way in which they spoke of these rights that these rights were cherished by the people. It could not be imagined that any one would have suggested anything to the contrary. In respect of the Directive Principles, though every one recognised these as of great importance, Shri B.N. Rau made several attempts to persuade the Drafting Committee to make the fundamental rights subordinate to the Directive Principles but he did not succeed. Sir Alladi Krishnaswami Ayyar, an eminent lawyer, had in his note of March 14, 1947, made a distinction between the Directive Principles and fundamental rights and said that it is impossible to equate those though it could not be denied that they were important. There can be no doubt that the object of the fundamental rights is to ensure the ideal of political democracy and prevent authoritarian rule, while the object of the Directive Principles of State policy is to establish a welfare State where there is economic and social freedom without which political democracy has no meaning. What is implicit in the Constitution is that there is a duty on the Courts to interpret the Constitution and the laws to further the Directive Principles which under Article 37, are fundamental in the governance of the country. As My Lord, the Chief Justice has put it, to say that the Directive Principles give a directive to take away fundamental rights, seems a contradiction in terms. There is no rationale in the argument that the Directive Principles can only be given effect to, if fundamental rights are abrogated. If that were the dissiderata then every Government that comes into power and which has to give effect to the Directive Principles of State policy in securing the welfare of its citizens, can say that since it cannot give effect to it so long as fundamental rights subsist, they must be abrogated. I do not think there is any such inherent postulate in the Constitution. Some of these rights, though limited, were subsisting from even the British days under the laws then in force, yet there were others which were repressive like the Bengal Regulation III of 1818, Madras Regulation II of 1819, Bombay Regulation XXV of 1827, the Indian Criminal Law Amendment Act XIV of 1908, etc., which were used to suppress the freedom of the people and detain persons on political grounds when they were found inconvenient to the rulers. The demand for securing fundamental rights since then became an Article of faith, which, as Dr. Ambedkar said, became part and parcel of the mental makeup and the silent immaculate premise of their outlook. The outlook of the framers of the Constitution could not have provided for such a contingency where they can be abrogated, nor in any view, is it a necessary concommitant of the Jeffersonian theory that no one can bind the succeeding generations who by the will of the majority of the people of the country, can bind themselves. One of the views in America since then held and which still persists, was expressed by Justice Hugo Black, one of the eminent Judges of the Supreme Court in these terms: "I cannot consider the Bill of Rights to be an outworn 18th century 'straight-jacket'. Its provisions may be thought out-dated abstractions by some. And it is true that they are designed to meet ancient evils. But they are the same against all human evils that have emerged from century to century whenever excessive power is sought by the few at the expense of many". In 1895, famous Jurist Maitland, even where Parliament was Supreme, said of Magna Charta that, "this document becomes and rightly becomes the sacred text, the nearest approach to an irrepealable 'fundamental statute' that England has ever had". [Pollock & Maitland, (1898) Volume I, p. 173] .

Re: Kesavananda Bharati vs State Of Kerala And ors

1209. In the frame of mind and with the recognition of the dominant 'mental make up and the silent immaculate premise of our outlook' which became the outlook of the people, the framers of our Constitution could not have provided for the freedoms inherent as a part of the right of civilised man to be abrogated or destroyed. The interest of the community and of the society will not be jeopardised and can be adjusted without abrogating, damaging, emasculating or destroying these rights in such a way as to amount to abrogation of the fundamental rights. The Advocate-General of Mysore said that even if fundamental rights are totally abrogated, it is not as if the people will be without any rights. They will be subject to ordinary rights under the law. I must repudiate this contention, because then the clock will be put back to the same position as existed when Britain ruled India and against which rule our leaders fought for establishing freedom, dignity and basic rights. In this view, my conclusion is that Article 13(2) inhibits only a law made by the ordinary legislative agency and not an amendment under Article 368; that Parliament could under Article 368 amend Article 13 and also the fundamental rights, and though the power of amendment under Article 368 is wide, it is not wide enough to totally abrogate or what would amount to an abrogation or emasculating or destroying in a way as would amount to abrogation of any of the fundamental rights or other essential elements of the basic structure of the Constitution and destroy its identity. Within these limits, Parliament can amend every article. In this view of the scope of the amending power in Article 368, I hold the Twenty-fourth Amendment valid, for it has the same amending power as it existed before the amendment.

1210. The Twenty-fifth Amendment, as the objects and reasons of the Bill showed, was enacted mainly to get over the decision in the case of R.C. Cooper v. Union of India [1970] 3 S.C.R. 530, (hereinafter referred to as the 'Bank Nationalisation' case). The previous decisions of this Court beginning from the State of West Bengal v. Mrs. Bela Banerjee (1954) S.C.R. 558 on account of which the Constitution (Fourth Amendment) Act, 1955, was enacted and the subsequent cases in P. Vajravelu Mudaliar v. Special Deputy Collector, Madras and Anr. (1965) 1 S.C.R. 614 Union of India v. The Metal Corporation of India Ltd., and Anr. (1967) 1 S.C.R. 255 State of Gujarat v. Shantilal Mangaldas and Ors. (1969) 3 S.C.R. 341 have been examined by my learned brother Hegde, J., in his judgment just pronounced, in the light of the contentions urged by the respondents, as such I do not find it necessary to refer to them or set out the ratio of these decisions again.

1211. It will be observed from the amendment in Clause (2) of Article 31 enacted by Section 2 of the above amendment that: (1) the word 'amend' has been substituted for the word 'compensation'; and (2) that the words "or that the whole or any part of such amount is to be given otherwise than in cash" have been added. The effect of the amendment is that the law now need not provide for giving 'compensation' in the sense of equivalent in value or just equivalent of the value of the property acquired and that the whole or part of the amount may be paid otherwise than in cash. The question then arises that if the word 'amount' which has no legal concept, and as the amended clause indicates, means only cash, which would be in the currency of the country, can the lowest amount of the current coin be fixed, and if fixed, will it amount to payment in lieu of the property acquired ? 1212. Ever since the Constitution (Fourth Amendment) Act, this Court has consistently held that where what is given in lieu of expropriating property of a citizen is illusory, arbitrary, or cannot be regarded as compensation, and bears no reasonable relation to the property acquired, the Court can go into it, and, secondly, where principles are fixed for determining the compensation, it can examine the question whether they are relevant to the subject-matter of the acquisition. That position has not in any way been affected by the amendment by merely substituting the word 'amount' for 'compensation', so that if the amount is illusory or arbitrary, and is such that it shocks the conscience of any reasonable man, and bears no reasonable relation to the value of the property acquired, the Court is not precluded from examining it.

1213. It has been contended that Parliament or the Legislature can either fix an amount without setting out any principles for determining the amount or set out the principles for determining the amount. In the former case, the respondents contend that it will not be open to the Court to examine on what principles the amount has been fixed. If the Legislature merely names an amount in the law for acquisition or requisition, it may be an arbitrary amount, or it may have some relationship or relevance to the value of the property acquired or requisitioned. The former cannot be, because it is provided that the acquisition is for an amount which may be fixed. If it is fixed, and as the term denotes, it must necessarily be fixed on some principle or criteria. Otherwise, no question of fixing an amount would arise: it would be merely naming an amount arbitrarily. The learned Advocate-General of Maharashtra was frank enough to admit that if principles are fixed, the amount to be determined thereunder becomes justiciable, but if the amount is fixed without stating any principles it is not justiciable and for this reason even the members of the Legislature, either of the opposition or of the ruling party, need not be told on what basis or principles the amount has been fixed, lest if this was disclosed the Courts would examine them. But how can this be avoided because if principles are fixed, the relevancy can be gone into as has been the consistent view of this Court, and yet it is said that if an amount is fixed without reference to any principles and arbitrarily, the Court cannot examine it. Such a view has no rational or logical basis. The Legislature, even in cases where it fixes an amount for the acquisition or requisition of a property, must be presumed to have fixed it on some basis, or applied some criteria or principles to determine the amount so fixed, and, therefore, where the law is challenged on the ground of arbitrariness, illusoriness or of having been based on irrelevant principles or any other ground that may be open to challenge by an expropriated owner, the State will have to meet the challenge, and the Court will have to go into these questions. This will be so even in respect to the manner of payment. Once it is satisfied that the challenge on the ground that the amount or the manner of its payment is neither arbitrary or illusory or where the principles upon which it was fixed were found to bear reasonable relationship to the value of the property acquired, the Court cannot go into the question of adequacy of the amount so fixed on the basis of such principles.

1214. Clause (2B) makes Sub-clause (f) of Article 19(1) inapplicable to Clause (2) of Article 31. In the Bank Nationalisation case by fa majority of ten to one, this Court held after an exhaustive review of all the cases beginning from A.K. Gopalan's case that, "If the acquisition is for a public purpose, substantive reasonableness of the restriction which includes deprivation, may unless otherwise established, be presumed, but enquiry into reasonableness of the procedural provisions will not be excluded. For instance, if a tribunal is authorised by an Act to determine compensation for property compulsorily acquired, without hearing the owner of the property, the Act would be liable to be struck down under Article 19(1)(f) .

1215. Thus, it will appear that where the acquisition is for a public purpose, what is sought to be excluded by Clause (2B) is the reasonableness of the procedural provisions by making Article 19(1)(f) inapplicable. Notwithstanding this amendment, it is apparent that the expropriated owner still continues to have the fundamental rights that his property will not be acquired save by the authority of law and for a public purpose. These propositions have been admitted by the learned Solicitor-General. The question whether an acquisition is for a public purpose is justiciable. Only the adequacy of the amount is not. If so, how can the expropriated owner establish that the acquisition is not for public purpose unless there are some procedural requirements to be complied with under the law? A notice will have to be served; he will have to be given an opportunity to contest the acquisition. Clause (2B) provides that "nothing in Sub-clause (f) of Clause (1) of Article 19 shall affect any such law as is referred to in Clause (2)". Does this mean that the fundamental right to reasonable restriction of procedural nature under Article 19(1)(f) which was available against any law of acquisition or requisition of property as held in the Bank Nationalisation case, is abrogated or destroyed? The answer to this question would depend upon what is the meaning to be given to the word "affect". Two constructions are possible: one is that Article 19(1)(f) will not be available at all to an expropriated owner under a law of acquisition made under Article 31(2) or to put it in another way, any law made under Article 31(2) for acquisition or requisitioning of any property abrogates Article 19(1)(f). Secondly, Clause (2B) was intended to provide that the law of acquisition or requisition will not be void on the ground that it abridges or affects the right under Article 19(1)(f). In choosing either of these constructions, regard must be had to that construction which would not result in the amendment being held invalid and void. Applying this approach, the second construction is more in consonance with the amendment because what the amendment provides for is that Article 19(1)(f) shall not affect any such law and this would imply that the bar against the application of Article 19(1)(f) to such a law may vary from a slight or partial encroachment to total prohibition or inapplicability. But since an amendment cannot totally abrogate a fundamental right, it can only be read by the adoption of the doctrine of "severability in application" and, accordingly, Clause (2B) must be held to be restricted only to the abridgement of, as distinct from abrogation, destroying or damaging the right under Article 19(1)(f). As I said earlier, the right to a reasonable procedure in respect of a law of acquisition or requisition for the effective exercise of the rights under Article 31(2), for a reasonable notice, a hearing opportunity to produce material and other evidence may be necessary to establish that a particular acquisition is not for a public purpose and for proving the value of the property and other matters that may be involved in a particular principle adopted in fixing the amount or for showing that what is being paid is illusory, arbitrary, etc.

Re: Kesavananda Bharati vs State Of Kerala And ors

1216. That apart, there is nothing in Clause (2B), to prohibit principles of natural justice which are part of the law of the land wherein the rule of law reigns supreme, from being applicable when the liberty of the individual or his property is affected by a law. I cannot read a sinister design in that amendment requiring the legislative organs to abrogate the rule of law in this country or deny to its citizens the benefit of the maxim 'audi alteram partem' that no man shall be condemned unheard, a concept of natural justice, "deeply rooted in our ancient history", which as Bylas, J., in Cooper v. The Wadsworth Board of Works 14 C.B. (N.S.) 180, expressed in the picturesque aphorism, "The laws of God and man both give the party an opportunity to make his defence, if he has any". 1217. There is one other aspect that has been stressed by the learned Advocate for the petitioner, which is more in the nature of the dire consequences that would ensue if the amendment is upheld, namely, that the citizen's right to property has now been transferred into the State's right to confiscation, that acquisition under the Land Acquisition Act and under other similar laws can be for the benefit of even Limitied Companies in the private sector, and that religious freedoms guaranteed by Articles 25 to 30 can be virtually stifled by the taking away of the properties held by religious and charitable purposes. If Parliament under the law can do any of the things which are referred, this Court cannot prevent the consequences of a law so made. I have spelt out what can be done. The law made for acquisition under Clause (2) of Article 31 has still to satisfy that it is being taken for a public purpose. The question whether acquisition for a private person or company is for public purpose may be open to challenge and determined by Courts in an appropriate action. As for the principles applicable in the Bill for the acquisition of Bardoli lands for determining the amount payable for acquisition, as admitted by both the learned Solicitor-General for the Union and the Advocate-General of Maharashtra will be applicable, then at any rate that will not be a case of confiscation, because an owner will at any rate get the amount paid by him together with the loss of interest for the years he had it. The plea that religious freedoms will be stifled also is not sustainable, because it has been already held by this Court in Khajamain Wakf Estates etc. v. The State of Madras (1971) 2 S.C.R. 790, that Article 26(c) and (d) of the Constitution provide that religious denominations shall have the right to own and acquire property and administer them according to law. But that does not mean that the properties owned by them cannot be acquired by the State. In the view I have taken, and for the reasons set out above, I hold Section 2 of the Twenty-fifth Amendment valid. 1218. Section 3 of the Twenty-fifth Amendment has caused me considerable difficulty because on the one hand the amendment is designed to give effect to Article 39(b) and (c) of the Directive Principles of the State policy in the larger interest of the community, and on the other the basic assumption underlying it is that this cannot be done without taking away or abridging any of the rights conferred by Articles 14, 19 and 31, and that such a law, where it contains a declaration that it is to give effect to the above policy, shall not be called in question in any Court on the ground that it does not give effect to such policy. The predominant articulate as well as inarticulate premise is not to hold invalid an amendment made under Article 368, if it conforms to the form and manner prescribed therein and is within the ambit of the amending power, but if the inexorable conclusion on a close scrutiny leads to a different conclusion it has to be so held. Article 31C is as follows:

Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy;

Provided that where such law is made by the Legislature of

a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration

of the President has received his assent.

1219. The learned advocate for the petitioner submits that Article 31C subverts seven essential features of the Constitution : (i) it destroys the supremacy of the Constitution by giving a blank charter to Parliament and all the State Legislatures to defy and ignore the Constitution; (ii) it subordinates the Fundamental Rights to Directive Principles of State Policy and thus destroys one of the foundations of the Constitution; (iii) the "manner and form" of amendment laid down in Article 368 is virtually abrogated, inasmuch as while the Fundamental Rights still remain ostensibly on the Statute Book and Article 368 remains unamended, the Fundamental Rights can be effectively silenced by a law passed by a simple majority in the Legislature; (iv) ten Fundamental Rights which are vital for the survival of democracy, the rule of law, and the integrity and unity of the Republic, are in effect abrogated. Seven of these ten Fundamental Rights are unconnected with property; (v) Judicial Review and enforceability of Fundamental Rights another essential feature of the Constitution is destroyed, in that the Court is prohibited from going into the question whether the impugned law does or does not give effect to the Directive Principles; (vi) the State Legislatures which cannot otherwise amend Article 368 are permitted to supersede a whole series of Fundamental Rights with the result that Fundamental Rights may prevail in some States and not in others, depending upon the complexion of the State Government; and (vii) the protection to the minorities and their religious, cultural, linguistic and educational rights can be seriously affected on the ground that the law was intended to give effect to the Directive Principles. 1220. On behalf of the respondent-State of Kerala-the learned Advocate-General of Maharashtra submitted "that Article 31C was introduced because of the reversal of Gujarat v. Shantilal in the Bank Nationalisation case which reverted, in substance, to the concept of full compensation", and in order to "exclude judicial review where the law provided for securing the principles provided in Clause (b) or (c) of Article 39". There is, according to him, no delegation of power under Article 31C on the State Legislatures to alter or amend the Constitution, but it merely removes the restrictions on the legislative power of the State Legislatures and Parliament imposed by the fundamental rights contained in Articles 14, 19 and 31 of the Constitution, which rights have been conferred by Part III and the contravention of which would have rendered any law void. In this submission what it amounts to is only a removal of the restriction which can only be effected by making Article 13 inapplicable. Answering the question whether a law containing a declaration as envisaged in Article 31C the major portion of which has no connection with Clause (b) or Clause (c) of Article 39 would protect the law, it was submitted "that on the principle laid down by the Supreme Court in Akadasi Padhan v. State of Orissa (1963) Supp. 2 S.C.R. 691 the answer must be in the negative", and that the proper construction to be put on the declaration referred to in Article 31C is that the impugned law must satisfy the condition precedent that it is designed to secure the principles specified in Clause (b) or Clause (c) of Article 39, and if it does not give effect to the principles, Akdasi's case would justify the Court in reading the provision relating to declaration as not covering a case, where only a few sections are in furtherance of Article 39(b) & (c) while others are unrelated to it. Another way of arriving at the same conclusion, according to him, is that Article 31C postulates that there must be some nexus, however remote, between the law and the directives of State policy embodied in Article 39(b) and (c)", and that "if no reasonable person could come to the conclusion that the impugned provisions of an Act protected by Article 31C and the declaration made under it had any connection with Article 39(b) and (c), the Court could hold that the Act showed that the legislature had proceeded on a mistaken view of its power, and that, therefore, the Court was not bound to give effect to the erroneous assumptions of the legislature". The observations of Das Gupta, J., in The Provincial Transport Service v. State Industrial Court [1963] 3 S.C.R. 650, were cited. Answering the contention that since the principles in Article 39(b) & (c) are widely expressed and as such there would always be some connection between them and practically any kind of law, the learned Advocate-General of Maharashtra said that the principles in Article 39(b) & (c) were designedly widely expressed but "that is not an objection to a law implementing those directives" because "public interest is a very wide concept and several rights are made subject to public interest," and that should not be the objection for upholding the validity of a law. This answer appears to be vague and uncertain, for what is conceded in the earlier part is withdrawn in the latter.

1221. The submission of the learned Solicitor-General is, firstly, that Article 31C protects only law and not mere executive action; secondly, the law referred to therein must be made either by Parliament or State Legislature and does not include within itself ordinance, order, rule, regulation, notification, custom or usage in accordance with the procedure prescribed in Article 368; thirdly, the intention of the founding fathers who had enacted Clauses (4) and (6) of Article 31 to give effect to the Directive Principles of State policy set out in Article 39(b) & (c), as the experience shows, could not be given effect to because of the Constitutional hurdles which necessitated the Constitution (First Amendment) Act by which Article 31A and 31B was added under which the operation of Part III as a whole was excluded. According to him, the significance of this total exclusion of Part III is that it brings out in an unmistakable manner the true relationship between the provisions of Part IV and Part III of the Constitution, namely, that the liberty of the individual, valuable as that is, will not operate as unsurmountable barrier in the path of legislative efforts towards the achievement of the goal of a society envisaged in Part IV, and whenever and to whatever extent such a problem arose the amending process would be able to resolve it. He cited the observations of Das, J., in The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh and Ors. [1952] S.C.R. 889 at 997, that, "a fresh outlook which places the general interest of the community above the interest of the individual pervades our Constitution," and of Hidayatullah, J., in his dissenting judgment in Sajjan Singh's case that, "the rights of society are made paramount and they are placed above those of the individual". These two observations, if I may say so, are torn out of context, particularly those of Hidayatullah, J., where after stressing the fact that Article 19 by Clauses (2) to (6) allows the curtailment of rights in the public interest, which goes to show that Part III is not static and visualises change and progress, but at the same time it preserves the individual rights, he said after citing the observation above referred, that, "This is as it should be" (p. 962). It is further the case of the Union of India that the only laws which will receive the protection of Article 31C must disclose a nexus between the law and the objectives set out in Article 39(b) & (c) which is a condition precedent for the applicability of Article 31C and as such the question is justiciable and the only purpose of the declaration is to remove from the scope of judicial review question of a political nature. As an example the learned Solicitor-General instanced a law dealing with divorce which could not be protected by a declaration nor can a law not attracting Article 31C be protected by a declaration by merely mixing it with other laws really falling within Article 31C with those under that Article. In such a case, therefore, the Court will always be competent to examine "the true nature and character of the legislation in the particular instance under discussion-its design and the primary matter dealt with-its object and scope (1882) 7 A.C. at pp. 838-840". It was further averred that if a legislation enacted ostensibly under one of the powers conferred by the Constitution, is in truth and fact, really to accomplish an unauthorised purpose, the Court would be entitled to tear the veil and decide according to the real nature of the statute, as in Attorney-General v. Queen Insurance Co. [1873] 3 A.C. 1090, and that except Articles 14, 19 and 31 the rest of the relevant provisions of the Constitution will apply and the Court is entitled to go into and consider the challenge of infringement of other rights, and that there are only three safeguards against the evil of discrimination, namely, (a) the innate good sense of the community and of the legislature and the administrator; (b) the proviso to Article 31C requiring the President's assent; (c) the power of judicial review of the Courts to the extent not excluded, and of these, "The first safeguard is the only real safeguard ultimately and there is no real substitute for the character of the citizens". What is still open to the Court to examine is whether there is any violation of the provisions of Articles 15, 16, 286 and Part XIII (Articles 301, 303 and 304). The exclusion of Article 14, without excluding Articles 15, 16 etc., is only to enable the Legislatures and the Parliament to evolve new principles of equality in the light of the objectives set out in the Directive Principles without discrimination. The exclusion of Article 19 is on the footing that laws which are to give effect to the directives set out in Part IV must constitute reasonable restrictions on the individual's liberty and the exclusion of Article 31(2) is to introduce the considerations of social justice in the matter of acquisition. 1222. In so far as the question whether Article 31C amounts to delegation of amending power to State Legislature or to Parliament in its ordinary legislative capaciy is concerned, the learned Solicitor-General submits that a class of legislation or a legislative field may be identified or categorised in several ways, for instance, with reference to the period within which the law is passed [Article 31(4) and Article 31(6)] or the topic of the legislation [Article 21(2) and Article 31A]; or the objective or purpose of the legislation [Article 15(4)] for the advancement of the backward class of citizens; Article 31(5)(ii) for promotion of health and Article 33 for proper discipline in the forces etc. Article 31C likewise carves out a legislative field with reference to the object of the legislation and in this respect it is similar to Articles 15(4), 31(b)(ii) and 33. Each of these articles creates a legislative field to achieve a social objective and for this purpose modifies the operation of some fundamental rights contained in Part III. Even assuming that Article 31C involves an element of delegation of the amending power, he contends there is no violation of Article 368 and the absence of non-obstante clause or the label cannot make any difference, and since Article 368 empowers its own amendment, it follows that Article 31C, if there is a partial substitution of an amending machinery and procedure, will operate as a partial modification of Article 368.

1223. It is contended that Article 31C is similar to the legislative device adopted in Articles 31A and 31B, which was added by the Constitution (First Amendment) Act, 1950, the first of which declared that "Notwithstanding anything in the foregoing provisions of this Part (i.e. Part III), no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part", namely, Part III. Article 31B is also in similar terms and gives complete protection to the Acts specified in the Ninth Schedule from any of the provisions of Part III.

1224. In so far as Article 31A was concerned, it authorised a law for the acquisition of an estate as defined in Clause (2). Article 31B as introduced by the First Amendment protected from challenge, on the ground of infringement of the rights in Part III, certain Acts enacted for agrarian reforms which, after very careful scrutiny that they pertain to agrarian reforms, were added to the Ninth Schedule. Zamindari abolition and agrarian reform had become an article of faith of free India and in respect of which the Bills either were pending at the time when the Constitution was being framed or they had been enacted into law after the commencement of the Constitution. The debates in the Constituent Assembly on Article 31 will disclose that after postponing its consideration for nearly a year, in the end a compromise was arrived at between those who were for the acquisition law to provide for payment of full compensation and those who wanted the right in Article 31 not to extend to the acquisition of land for giving effect to agrarian reforms. This compromise resulted in the inclusion of Clauses (4) and (6) giving protection to laws made thereunder from being questioned in any Court; in the case of the former, to laws dealing with agrarian reforms in respect of which Bills were pending in any of the Legislatures of the States at the commencement of the Constitution and had been reserved for the consideration of the President who subsequently assented to them and to those laws which were passed not more than eighteen months before the commencement of the Constitution, and if submitted within three months after such commencement to the President for his certification had been so certified by him by public notification. It was thought that the jurisdiction of the Courts would be barred in respect of the legislation of the character above mentioned, but the Patna High Court had held Article 14 was applicable and even when the appeals were pending in this Court, the Constitution (First Amendment) Act, 1950, was passed and Article 31A and Article 31B were added by an amendment of the Constitution. At the time only 13 Acts were added to the Ninth Schedule, but when some of the members of the Provisional Parliament wanted to add several other Acts after the Bill had been scrutinised by the Select Committee, the Prime Minister pleaded with them not to do so. He said:

I would beg to them not to press this matter. It is not with any great satisfaction or pleasure that we have produced this long Schedule. These debates animated as they were, make interesting reading and one gets the impression that what was being done was what the original framers had intended to do but could not give effect to the object because of lacunae in the language of the Article. The Prime Minister said:

If there is one thing to which we as a party have been committed in the past generation or so it is the agrarian reforms and the abolition of the Zamindari system.

Shri Hussain Imam (Bihar) : "With compensation.

Shri Jawaharlal Nehru : "With adequate proper compensation not too much".

Shri Hussain Imam : "Adequate is quite enough".

Shri Shyama Prasad Mukherjee, representing the opposite view, pointed out the dangers inherent in the amendment, not because he was against the agrarian reforms but because of the precedent this would create. He said : "By this amendment to the Constitution you are saying that whatever legislation is passed it is deemed to be the law. Then why have your fundamental rights? Who asked you to have these fundamental rights at all? You might have said : Parliament is supreme and Parliament may from time to time pass any law in any matter it liked and that will be the law binding on the people". In referring to a few excerpts, I merely want to show what was the object of the amendment and what were the fears entertained in respect thereof.

1225. The First Amendment was challenged in Sankari Prasad's case, but this Court held it valid. The question, as we have seen earlier, was whether Article 13(2) imposed a bar on Article 368 from amending fundamental rights? It was held that it did not, but no contention was urged or agitated before it that even apart from Article 13(2), the amending power did not extend to the abrogation of fundamental rights. In Sajjan Singh's case the principal point which was urged was that the impugned Constitution (Seventeenth Amendment) Act was invalid for the reason that before presenting it to the President for his assent the procedure prescribed, by the proviso to Article 368 had not been followed, though the Act was one which fell within the scope of the proviso. It was, however, not disputed before the Court that Article 368 empowered Parliament to amend any provision of the Constitution including the provisions in respect of fundamental rights enshrined in Part III. Hidayatullah and Mudholkar. JJ., did, however, express doubts as to whether it is competent for Parliament to make any amendment at all to Part III of the Constitution (see pp. 961 and 968). Mudholkar, J., further raised the question whether the Parliament could "go to the extent it went when it enacted the First Amendment Act and the Ninth Schedule and has now added 44 agrarian laws to it? Or was Parliament incompetent to go beyond enacting Article 31A in 1950 and now beyond amending the definition of estate"? (p. 969) Even in Golaknath's case the question raised before us was not conclusively decided. In this state of law to say that since Article 31C is similar to Article 31A and 31B and since the latter were held to be valid in Sankari Prasad's case, fundamental rights could be abrogated by an amendment, would not be justified. It may be observed that both in Sajjan Singh's case and Golaknath's case one of the grounds which was taken into consideration was that if the amendment was held invalid, millions of people will be affected and since in the latter case the majority had held that Parliament could not by amendment under Article 368 affect fundamental rights, the doctrine of prospective overruling or acquiescence was resorted to. But since the crucial question of the extent of the power of amendment has been mooted in this case before the largest Bench constituted so far and has been fully argued, this aspect can be reconsidered. In this regard Gajendragadkar, C.J., while considering the question of stare decisis, observed in Sajjan Singh's case at pp. 947-948): It is true that the Constitution does not place any restriction on our powers to review our earlier decisions or even to depart from them and there can be no doubt that in matters relating to the decision of Constitutional points which have a significant impact on the fundamental rights of citizens, we would be prepared to review our earlier decisions in the interest of public good. The doctrine of stare decisis may not strictly apply in this context, and one can dispute the position that the said doctrine should not be permitted to perpetuate erroneous decisions pronounced by this Court to the detriment of general welfare. Even so, the normal principle that judgments pronounced by this Court would be final, cannot be ignored and unless considerations of substantial and compelling character make it necessary to do so, we should be slow to doubt the correctness of previous decisions or to depart from them.

1226. I have already pointed out that two of the learned Judges did doubt the power of Parliament to amend fundamental rights and since then this question has not remained unchallenged either on the ground of Article 13(2) preventing such amendments or on other grounds urged before us. In these circumstances, it is not correct to say that just because the validity of Article 31A and 31C was sustained by this Court, though in Golaknath's case it may have been on the grounds of expediency, Article 31C must also on that account be sustained. However, an analogy of other Articles like Article 33, Article 15(4) and Article 16(4) is sought to be put forward in support of the contention that a similar device has been adopted in Article 31C. I find that in none of the articles to which the learned Soliciton-General has drawn our attention, is there a total abrogation of any of the rights as sought to be affected by Article 31C. Article 33 for example, restricts or abrogates fundamental rights in Part III only in respect of the discipline of Armed Forces or forces charged with the maintenance of public order and nothing more. It does not extend to discrimination in recruitment to the service nor to any other rights possessed by the citizens in the Armed Forces which are unrelated with the proper discharge of their duties and the maintenance of discipline among these forces. Article 15(4) which was referred to as an example of empowerment based on objective or purpose of legislation, has no analogy with Article 31C. In the first place, Article 15 is an exception to the classification which would have been permissible under Article 14, for instance on the basis of religion, race, caste, sex and place of birth and hence Article 15 prohibits such a classification in the case of citizens, and Article 16 makes a like provision in the case of public employment with the addition of descent. The restriction is only to a limited extent from out of an area which permits the making of wide variety of classification. Clause (4) of Article 15 was added by the Constitution (First Amendment) Act, 1950, to enable a state to make provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and the scheduled tribes. Clause (4) of Article 16 likewise enables the State to make provision for the reservation of appointments or posts in favour of any backard class of citizens which, in the opinion of the State, is not adequately repressented in the services under the State. The effect of these amendments is to permit the making of classification for favourable treatment on the ground that the persons so favoured were Scheduled Castes, Scheduled tribes, etc., which would otherwise have been permissible under Article 14 to the extent of its reasonable relationship with the objects of the law, had the same not been prohibited by Article 15(1) and Article 16(2). These provisions do not in anyway abrogate the right in Article 14 and I do not think the analogy between these provisions and Article 31C is apt.

Re: Kesavananda Bharati vs State Of Kerala And ors

1227. The Directives under Article 39(b) & (c) are wide and indeterminate. They affect the whole gamut of human activity vis-a-vis the society. The State is enjoined to ensure that ownership and control of the material resources of the community are so distributed as best to subserve the common good and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. These objectives are ends which may be implemented by a party in power through legislative action by resort to any one of the diverse philosophies, political ideologies and economic theories. The implementation of these obectives is the means. These theories and ideologies both political, economic and sociological may vary and change from generation to generation and from time to time to suit the social conditions, existing during any particular period of history. We have in the world to-day countries adopting different political systems, according to the historical development of economic thought, the philosophy and ideology which is considered best to subserve the common good of that particular society. There is no standardisation, and what is good for the one country may not be suitable to another. The accelerating technological advance and the exploitation of these development and discoveries indicate the economic thought prevalent in that society. The various theories are, therefore, related to the development and the practical means which are adopted for achieving the ends. In a developing country such as ours, where millions are far below the standard of sustenance and have not the means of having the normal necessities of life, there is further a deeper philosophical question of the kind of society and the quality of life which has to be achieved. It is, therefore, the duty of the State to devise ways and means of achieving the ends. A Government which comes to power with a particular political philosophy and economic theory as having been endorsed by the electorate, has to give effect to that policy in the manner which it considers best to subserve the end. Any legislation to give effect to the principles and policy to achieve these ends is the legislative judgment which is not within the province of Courts to examine as to whether they in fact subserve these ends as "otherwise there would be a conflict between the Judges and Parliament as to whether something was good for the country or not, and the whole machinery of justice was not appropriate for that consideration" (See Liyanage's case at p. 267). The Government and Parliament or the Government and Legislature of a State have, within the sphere allotted to each other, the undoubted right to embark on legislative action which they think will ensure the common good, namely, the happiness of the greatest number and so they have the right to make mistakes and retrace any steps taken earlier to correct such mistakes when that realisation dawns on them in giving effect to the above objectives. But if the power to commit any mistake through democratic process is taken away as by enabling an authoritarian system, then it will be the negation of parliamentary democracy. The State, therefore, has the full freedom to experiment in implementing its policy for achieving a desired object. Though the Courts, as I said, have no function in the evaluation of these policies or in determining whether they are good or bad for the community, they have, however, in examining legislative action taken by the State in furthering the ends, to ensure that the means adopted do not conflict with the provisions of the Constitution within which the State action has to be confined. It is, therefore, necessary to keep in view, the wide field of Governmental activity enjoined in Article 39(b) & (c) in determining the reach of the means to achieve the ends and the impact of these means on the Fundamental Rights which Article 31C effects. 1228. The impugned Article 31C enables Parliament and the State legislarures to make laws unfettered by Articles 14, 19 and 31 in respect of the wide and undefined field of objectives indicated in Article 39(b) & (c). All these objectives before the amendment had to be achieved by the exercise of the legislative power enumerated in VII Schedule which would ordinarily be exercised within the limitations imposed by the Constitution and the fundamental rights. The amendment removes these limitations, though the law made must still be within the legislative power conferred under the VII Schedule, and enables Parliament and the State legislatures, subject to one tenth quorum of its members present and by a simple majority, to enact laws which contravene the fundamental rights conferred under Articles 14, 19 and 31 and which Parliament by complying with the form and manner provided under Article 368, could alone have effected. Whether one calls this removing restrictions on the legislative organs or of conferring complete sovereignty on them within the wide field inherent in Article 39(b) & (c) is in effect one and the same. It is contended that in conferring this power by Article 31C on Parliament and the State Legislatures, acting under Articles 245 to 248, Parliament has abdicated its function under Article 368 and has permitted amendments being made without complying with the form and manner provided thereunder.

1229. It is not necessary in the view I am taking to consider the question whether Article 31C delegates the power of amendment to the State Legislatures and Parliament or that it does not indicate the subject-matter of legislation as in Article 31A but merely purports to enable the legislative organs to choose the subject-matter from a field which, as I said; is as wide and indeterminate as the term 'operation of the economic system' would denote. I would prefer to consider Article 31C as lifting the bar of the articles specified therein, and in so far as the subject-matter of the legislation is concerned, though the field is wide, any of the modes to give effect to the directives can only be a mode permissible within the legislative power conferred on the respective legislative organ under the VII Schedule to the Constitution.

1230. If Parliament by an amendment of the Constitution under Article 368, cannot abrogate, damage or destroy the basic structure of the Constitution or any of the essential elements comprising that basic structure, or run counter to defeat the objectives of the Constitution declared in the Preamble and if each and every fundamental right is an essential feature of the Constitution, the question that may have to be considered is whether the amendment by the addition of Article 31C as a fundamental right in Part III of the Constitution has abrogated, damaged or destroyed any of the fundamental rights. 1231. Article 31C has 4 elements : (i) it permits the legislature to make a law giving effect to Article 39(b) and Article 39(c) inconsistent with any of the rights conferred by Articles 14, 19 and 31; (ii) it permits the legislature to make a law giving effect to Article 39(b) and Article 39(c) taking away any of the rights conferred by Articles 14, 19 and 31; (iii) it permits the legislature to make a law giving effect to Article 39(b) and (c) abridging any of the rights conferred by Articles 14, 19 and 31; and (iv) it prohibits calling in question in any Court such a law if it contains a declaration that it is for giving effect to the policy of State towards securing the principles specified in Clauses (b) and (c) of Article 39 on the ground that it does not give effect to such a policy of the State. 1232. The first element seems to have been added by way of abundant caution, for it takes in the other two elements, namely, taking away and abridging of the rights conferred by Articles 14, 19 or 31. However, it would be ultra vires the amending power conferred by Article 368, if it comprehends within it the damaging or destruction of these fundamental rights. The second element, namely, taking away of these fundamental rights would be ultra vires the amending power, for taking away of these fundamental rights is synonymous with destroying them. As for the third element, namely, abridging of these rights, the validity will have to be examined and considered separately in respect of each of these fundamental rights, for an abridgement of the fundamental rights is not the same thing as the damaging of those rights. An abridgement ceases to be an abridgement when it tends to effect the basic or essential content of the right and reduces it to a mere right only in name. In such a case it would amount to the damaging and emasculating the right itself and would be ultra vires the power under Article 368. But a right may be hedged in to a certain extent but not so as to affect the basic or essential content of it or emasculate it. In so far as Article 31C authorises or permits abridgement of the rights conferred by Article 19, it Would be intra vires the amending power under Article 368 as thereby the damaging or emasculating of these rights is not authorised. It will, therefore, be necessary to examine what exactly Article 14 and Article 19 guarantee.

1233. The guarantee of equality contained in Article 14 has incorporated the principle of "liberty" and "equality" embodied in the Preamble to the Constitution. The prohibition is not only against the legislatures but also against the executive and the local authorities. Two concepts are inherent in this guarantee-one of 'equality before law', a negative one similar to that under the English Common Law; and the other 'equal protection of laws', a positive one under the United States Constitution. The negative aspect is in the prohibition against discrimination and the positive content is the equal protection under the law to all who are situated similarly and are in like circumstances. (See Subba Rao, J., in State of U.P. v. Deoman Upadhyaya (1961) 1 S.C.R. 14 at p. 34. 1234. The impact of the negative content on the positive aspect has not so far been clearly discerned in the decisions of this Court which has been mostly concerned with the positive aspect Again, Subha Rao, J., in his dissenting judgment in Lachhman Das on behalf of Firm Tilak Ram Ram Bux v. State of Punjab (1963) 2 S.C.R. 353 while holding that the Patiala Recovery of State Dues Act did not offend Article 14 of the Constitution, said at p. 395:

It shall also be remembered that a citizen is entitled to a fundamental right of equality before the law and that the doctrine of classification is only a subsidiary rule evolved by Courts to give a practical content to the said doctrine. Over emphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the article of its glorious content That process would inevitably and in substituting the doctrine of classification for the doctrine of equality: the fundamental right to equality before the law and equal protection of the laws may be replaced by the doctrine of classification.

In Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. (1959) S.C.R. 279, Das, C.J., summed up the principle enunciated in several cases referred to by him and consistently adopted and applied in subsequent cases, thus:

It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act tinder consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.

1235. In subsequent cases a further principle has been recognised by which Article 14 was also not to be violated by two laws dealing with the same subject-matter, if the sources of the two laws are different. (See State of Madhya Pradesh v. G.C. Mandawar [1955] 1 S.C.R. 599. I am not for the present concerned whether this latter principle is likely to mislead but would refer only to the various aspects of the classification recognised in this Court so far. It may, however, be pointed out that though the categories of classification are never closed, and ft may be that the objectives of Article 39(b) & (c) may form a basis of classification depending on the nature of the law, the purpose for which it was enacted and the impact which it has on the rights of the citizens, the right to equality before the law and equal protection of laws in Article 14 cannot be disembowelled by classification.

1236. The lifting of the embargo of Article 14 on any law made by Parliament or the Legislature of a State under Article 31C, by providing that no law made by these legislative organs to give effect to the policy of the State towards securing the principles specified in Clauses (b) and (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges the right conferred therein, would, in my view, abrogate that right altogether. I have held that Parliament cannot under Article 368 abrogate, damage or destroy any of the fundamental rights though it can abridge to an extent where if does not amount to abrogation, damage or destruction. The question is, whether the words 'inconsistent with or takes away, or', if severed, will achieve the purpose of the amendment? In what way can the abridgement of Article 14 be effected without robbing the content of that right? Can a law permitted under Article 31C affect persons similarly situated unequally or would equal protection of laws not be available to persons similarly situated or placed in like circumstances? While Article 39(b) & (c) can provide for a classification, that classification must have a rational relation to the objectives sought to be achieved by the statute in question.

1237. In so far as the abridgement of the right conferred by Article 14 is concerned, it would be ultra vires for the reason that a mere violation of this right amounts to taking away or damaging the right. The protection of the right was denied in Article 31A because the Courts had held invalid under Article 14, the provisions of certain land reform legislations relating to compensation for the acquisition etc., of the estates. The necessity for the exclusion of Article 14 from being applied to laws under Article 31C is not apparent or easy to comprehend. No law under Article 31C could possibly be challenged under Article 14 by the owners or the holders of the property, for the reason that to treat all owners or holders of property equally in matters of compensation would be contrary to the very objects enshrined in Article 39(b) & (c). Any rational principles of classification devised for giving effect to the policies adumberated in Article 39(b) & (c) will not be difficult to pass the test of equal protection of the laws under Article 14. The exclusion of Article 14 in Article 31A was confined to the aspect of acquisition and compensation in respect of land reforms laws, but, however, the laws under Article 31A were not immune from attack under Article 14, if the measures of agrarian reforms were tainted with arbitrariness. Though this question has not been finally decided by this Court in any of the cases under Article 31A, it was raised in Balmadies Plantations Ltd. and Ors. v. State of Tamil Nadu (1972) 2 S.C.R. 133, where the appellants contended that it would not be open to the Government under Section 17 of the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969, to terminate by notice the right of the lessee as that would be violative of the rights under Articles 14, 19 and 31 of the Constitution. This Court, however, did not find it necessary to deal with this aspect of the matter, because it was admitted that no notice about the termination of the lessee's rights had been issued under Section 17 of the Act to any of the appellants, and that question can only arise after the Act came into force. It was further observed by one of us, Khanna, J., speaking for the Court:

Even after the Act comes into force, the Government would have to apply its mind to the question as to whether in its opinion it is in public interest to terminate the rights of the plantation lessees. Till such time as such a notice is given, the matter is purely of an academic nature. In case the Government decides not to terminate the lease of the plantation lessees, any discussion in the matter would be an exercise in futility. If, on the contrary, action is taken by the Government under Section 17 in respect of any lease of land for purposes of the cultivation of plantation crop, the aggrieved party can approach the court for appropriate relief.

It may be mentioned that in that case Section 3 of the Act, in so far as it related to the transfer of forests in Janman estates to the Government was concerned, was held to be violative of the Constitution. It cannot, therefore, be said that this aspect of the matter is not res integra. On the other hand, it lends support to the view that the law can be challenged.

1238. The decisions of this Court in Nagpur Improvement Trust v. Vithal Rao(2), and the other two cases following it also do not affect my view that Article 14 is inapplicable to matters dealing with compensation under laws enacted to give effect to policies of Article 39(b) & (c). In the above case it was the State which was given the power to acquire property for the same public purpose under two different statutes, one of them providing for lesser compensation and the other providing for full compensation. My Lord the Chief Justice, delivering the judgment of the Constitution Bench of seven Judges, while holding that these provisions contravened Article 14, observed at p. 506: It would not be disputed that different principles of compensation cannot be formulated for lands acquired on the basis that the owner is old or young, healthy or ill, tall or short, or whether the owner has inherited the property or built it with his own efforts, or whether the owner is a politician or an advocate. Why is this sort of classification not sustainable? Because the object being to compulsorily acquire for a public purpose, the object is equally achieved whether the land belongs to one type of owner or another type.

Re: Kesavananda Bharati vs State Of Kerala And ors

There was no question in the above case of either distribution of ownership and control of material resources or the breaking up of concentration of wealth or the means of production which is an object different from that envisaged in Article 31(2). If in two given cases similarly circumstanced, the property of one is taken under Article 31C and that of the other under Article 31(2), then it will amount to discrimination and the Nagpur Improvement Trust case will apply. In a case of this nature, the objection is not so much to Article 14 being applied, but of adopting methods which run counter to Article 39(b) & (c), because the person who though similarly situated as that of the other is certainly favoured for reasons unconnected with Article 39(b) & (c). It cannot, therefore, be said that Article 14 has been misapplied or was a hindrance to the furtherance of the directive principles in Article 39(b) and (c), which is professed to be the object of implementation in such a case. If no such abuse is to be presumed, then there is no warrant for the apprehension that Article 14 will hinder the achievement of the said Directives. 1239. The sweep of Article 31C is far wider than Article 31A, and Article 14 is excluded in respect of matters where the protection was most needed for the effectuation of a genuine and bona fide desire of the State contained in the directives of Article 39(b) & (c). For instance, persons equally situated may be unequally treated by depriving some in that class while leaving others to retain their property or in respect of the property allowed to be retained or in distributing the material resources thereby acquired unequally, showing favour to some and discriminating against others. To amplify this aspect more fully, it may be stated that in order to further the directives, persons may be grouped in relation to the property they own or held, or the economic power they possess or in payment of compensation at different rates to differrent classes of persons depending on the extent or the value of the property they own or possess, or in respect of classes of persons to whom the material resources of the country are distributed. The object of Clauses (b) and (c) of Article 39 is the breaking up of concentration of wealth or the distribution of material resources. If full compensation is paid for the property taken in furtherance of the objectives under Article 39(b) & (c), that very objective sought to be implemented would fail, as there would in fact be no breaking up of concentration of wealth or distribution of material resources. It is, therefore, clear that the very nature of the objectives is such that Article 14 is inapplicable, firstly, because in respect of compensation there cannot be a question of equality, and, secondly, the exclusion thereof is not necessary because any law that makes a reasonable classification to further the objectives of Article 39(b) & (c) would undoubtedly fulfil the requirements of Article 14. The availability of Article 14 will not really assist an expropriated owner or holder because the objectives of Article 39(b) & (c) would be frustrated if he is paid full compensation. On the other hand, he has no manner of interest in respect of equality in the distribution of the property taken from him, because he would have no further rights in the property taken from him. The only purpose which the exclusion of Article 14 will serve would be to facilitate arbitrariness, inequality in distribution or to enable the conferment or patronage etc This right under Article 14 will only be available to the person or class of persons who would be entitled to receive the benefits of distribution under the law. In fact the availability of Article 14 in respect of laws under Article 31C would ensure 'distributive justice', or 'economic justice', which without it would be thwarted. In this View of Article 31C vis-a-vis Article 14, any analogy between Article 31C and Article 31A which is sought to be drawn is misconceived, because under the latter provision the exclusion of Article 14 was necessary to protect the subject-matter of legislation permissible thereunder in respect of compensation payable to the expropriated owner. There is another reason why there can be no comparison between Article 31A and Article 31C, because in Article 31A the exclusion of Article 14 was confined only to the acquisition etc. of the property and not to the distribution aspect which is not the subject- matter of that Article, whereas, as pointed out already, the exclusion of Article 14 affects distribution which is the subject-matter of Article 39 (b) & (c). 1240. It is not necessary to examine in detail the mischief that the abridgement or taking away of Article 14 will cause, It is not an answer to say that this may not be done and abuse should not be presumed. This may be true, but what I am concerned with is the extent of the power the legislative organs will come to possess. Once the power to do all that which has been referred above is recognised, no abuse can be presumed. But if the power does not extend to destruction, damage or abrogation of the right, the question of abuse, if any, has no relevance. It cannot be presumed that Parliament by exercising its amending power under Article 368, intended to confer a right on Parliament and the Legislatures of the States to discriminate persons similarly situated or deprive them of equal protection of laws. The objectives sought to be achieved under Article 39(b) & (c) can be achieved even if this article is severed.

1265. In respect of the exclusion of Article 19 by Article 31C a question was asked by one of us during the course of arguments addressed by the learned Advocate-General for Maharashtra on January 12, 1973, the thirtyfifth day, as to, what is the social content of the restriction on freedom of speech and freedom of movement which are not already contained in the restrictions to which those rights are subject? The learned Advocate- General said he would consider and make his submissions. On March, 1, 1973, he made his submissions on the understanding that the question was asked in the context of Article 31C which excludes the operation of whole of Article 19 and not only Article 19(1)(f) and Article 19(1)(g). The learned Advocate-General characterised the question as raising a matter of great importance. In my view, what was implied in the question was the core of the issue before us, as to whether there can be any justification for imposing more restrictions on such valuable rights as freedom of movement and freedom of speech than what the framers of the Constitution had already provided for in Article 19(2) to (6). After referring to the history and objects and reasons for enacting Constitution First, Fourth and Seventeenth Amendments, and after referring to the decisions of this Court, all of which relate to acquisition of property and have nothing to do either with freedom of speech or freedom of movement, he considered and answered the question posed under the following heads as under:

(i) Generally, with reference to reasonable restrictions to which the fundamental rights conferred by Article 19(1)(a) to (g) are subject under Article 19(2) to (6);

(ii) the reasonable restrictions to which the right to freedom of speech and the right to move throughout the territory of India should be made subject under Article 19(2) and (5) respectively.

1241. Under the first head he submitted the proposition that the social content of the restrictions to which the fundamental rights under Article 19(1)(a) to (g) are subject is narrower than all relevant social considerations to which the fundamental rights could be made subject. The reasons given were again the historical ones particularly the fact that the Constituent Assembly had rejected the suggestion made by Shri B.N. Rau that in case of conflict between fundamental rights and the Directives, the directives should prevail, otherwise necessary social legislation might be hampered. This meant that the social content of the Directive Principles was wider than the social content of permissible restrictions on fundamental rights. For, if this were not so, no question of giving primacy to Directive Principles in the case of conflict with fundamental rights could arise as the social content of fundamental rights and the Directive Principles would be the same. Since the Constitution gave primacy to fundamental rights over the Directives, making fundamental rights enforceable in a Court of law and the directives not so enforceable, the social content of the restrictions on fundamental rights was placed in the framework of the enforcement of rights by citizens or any person. This enforcement of individual fundamental rights naturally disregarded the injury to the public good caused by dilatory litigation which can hold up large schemes of necessary social legislation affecting a large number of people. To prevent this social evil, the First and the Fourth Amendments to the Constitution were enacted.

1242. The social content of restrictions which can be imposed under Article 19(2) to (6) naturally does not take in the injury to the public good by dilatory litigation holding up large schemes of social legislation. The fundamental rights conferred by Article 19(1)(a) to (g) are not mutually exclusive but they overlap. For example, the right to move peaceably and without arms conferred by Article 19(1)(b) may be combined with the right to freedom of speech and expression, if those who assemble peaceably carry placards or deliver speeches through microphones. Again, the right to carry on business under Article 19(1)(g) would overlap the right to hold, acquire and dispose of property, for ordinarily, business cannot be carried on without the use of property. This consideration must be borne in mind in considering the question why Article 31C excluded the challenge to the laws protected by Article 31C under the whole of Article 19, instead of excluding a challenge only under Article 19(1)(f) which relates to property; and Article 19(1)(g) which relates to business which would ordinarily require the use of property.

1243. Under the second head, he submitted that it is well settled that the right to freedom of speech includes the freedom of the Press, and thereafter referred to 'Press in a Democracy'-Chapter X of Modern Democracies by Lord Bryce, and long extracts were given from the above chapter, dealing with the change which had come over the Press and the dictatorship of a syndicated Press. The First Amendment of the U.S. Constitution was also referred. He thereafter submitted that our Constitution guarantees a freedom of speech and expression and by judicial construction that freedom has been held to include freedom of the Press. But according to him the freedom of speech as an individual right must be distinguished from the freedom of the Press and since ordinarily people asserting their individual right to the freedom of speech are not carrying on any trade or business and a law of acquisition has no application to individual exercise of the right to the freedom of speech and expression Article 31C can equally have no application to such individual right to the freedom of speech and expression. But different considerations apply when the freedom of speech and expression includes the Press, the running of which is clearly a business.

1244. Article 19(1)(a) is so closely connected with Article 19(1)(g) and (f) that if the last two sub-Articles are excluded by a law relating to the acquisition of property, it is necessary to exclude Article 19(1)(a) to prevent an argument that the rights are so inextricably mixed up that to impair the right to carry on the business of running a Press or owning property necessary for running the Press is to impair the right to freedom of speech. Again, the right to freedom of movement throughout the territory of India has been clubbed together by Article 19(5) with the right to reside and settle in any part of the territory of India, conferred by Article 19(1)(c) and the right to acquire, hold and dispose of property conferred by Article 19(1)(f) for the purpose of imposing reasonable restrictions in the interest of general public or for the protection of the interest of any scheduled Tribe.

1245. After referring to the observations of Patanjali Sastri and Mukherjea, JJ., in Gopalan's case, the learned Advocate-General submitted that those observations show that if a law of land acquisition was to be protected from challenge under Article 19(1)(f), it was necessary to protect it from challenge under Article 19(1)(d) and (e) to foreclose any argument that the rights under Article 19(1)(d), (e) and (f) are so closely connected that to take away the right under Article 19(1)(f) is to drain the rights under Article 19(1)(d) and (e) of their practical content. For these reasons, Parliament in enacting the First, Fourth and Seventeenth Amendments rightly excluded the challenge under the whole of Article 19 to the laws protected by those amendments and not merely a challenge under Article 19(1)(f) and (g). In the result, it was submitted that Article 31C only contemplates the process of giving primacy to the Directive Principles of State policy over fundamental rights, first recognised in Article 31(4) and (6) and then extended by Articles 31A and 31B and Schedule IX as first enacted and as subsequently amplified by the Fourth and the Seventeenth Amendments all of which have been held to be valid. Directive Principles are also fundamental and the amending power is designed to enable future Parliament and State Legislatures to provide for the changes in priorities which take place after the Constitution was framed and the amending power is extended to enacting Article 31C.

1246. I have set out in detail what according to the learned Advocate-General is the basis and the raison d'etre for excluding Article 19 by Article 31C. This able analysis surfaces the hidden implications of Article 31G in excluding Article 19. On those submissions the entire fundamental rights guaranteed to the citizens are in effect abrogated. Article 14 is taken away; Article 19(1)(a) to (g) is excluded on the ground that each of them have their impact on one or the other of the rights in Part III and since these rights are not mutually exclusive and any property and trade or business affected by legislation under Article 31C which necessarily must deal with property, if the directives in Article 39(b) and (c) are to be given effect, will in turn, according to the learned Advocate-General, come into conflict not only with Article 19(1)(f) & (g), but with the other Sub-clauses (a) to (e) of Clause (1) of that article.

1247. As far as I can see, no law, so far enacted under Article 31A and challenged before this Court has attempted to affect any of the rights in Article 19(1)(a) to (e), except Article 19(1)(f) & (g) and, therefore, this question did not fall for consideration of this Court. But that apart, I cannot understand by what logic the freedom to assemble peaceably and without arms, or for a citizen to move freely throughout India or to reside and settle in any part of the territory of India, has anything to do with the right to acquire and dispose of property or to practice any profession or to carry on any occupation, trade or business. Are persons whose trade and business is taken away, or are deprived of their property not entitled to the guaranteed rights to move freely throughout India or settle in any part of India or to practise any profession or occupation? What else can they do after they are deprived of their property but to find ways and means of seeking other employment or occupation and in that endeavour to move throughout India or settle in any part of India? If they are prohibited from exercising these basic rights, they will be reduced to mere serfs for having owned property which the State in furtherance of its policy expropriates. If the law made under the directives has nothing to do with property, how does the duty to prevent the operation of the economic system from resulting in concentration of wealth and means of production, has any relevance or nexus with the movement of the citizens throughout India or to settle in any part of India ? Are those to whom property is distributed in furtherance of the directive principles, ought not to be secured against infringement of those rights in property so distributed by laws made under Article 31C? It would seem that those for whose benefit legislation deprives others in whom wealth is concentrated themselves may not be protected by Article 19 and Article 14, if Article 31C can take away or destroy those rights. Without such a protection they will not have a stake in the survival of democracy, nor can they be assured that economic justice would be meted out to them. Nor am I able to understand why where an industry or undertaking is taken over, is it necessary Co take away the right of the workers in that industry or undertaking to form associations or unions. The industry taken away from the owners has nothing to do with the workers working therein, and merely because they work there they will also be deprived of their rights. I have mentioned a few aspects of the unrelated rights which are abridged by Article 31C. No doubt, the recognition of the freedom of Press in the guarantee of freedom of speech and expression under Article 19(1)(a) was highlighted by the learned Advocate-General of Maharashtra. Does this mean that if a monopoly of the Press is prohibited or where it is sought to be broken up under Article 39(b) and (c) and the Printing Presses and undertakings of such a Press are acquired under a law, should the citizens be deprived of their right to start another Press, and exercise their freedom of speech and expression? If these rights are taken away, what will happen to the freedom of speech and expression of the citizens in the country, which is a concomitant of Parliamentary democracy? In the State of Bombay and Anr. v. F.N. Balsara (1951) S.C.R. 682, it was held under the unamended Clause (2) of Article 19 that Section 23(a) and Section 24(1)(a) which prohibited "commending" or advertising intoxicants to public were in conflict with the right guaranteed in Article 19(1)(a) as none of the conditions in Clause (2) of that Article applied. But the first Amendment has added 'incitement to an offence' as a reasonable restriction which the State can provide by law. In any case, the absence of such a law making power is no ground to abrogate the entire right of free speech and expression of the citizens.

1248. Article 15 merely confines the right to those who are not women socially and educationally backward classes of citizens, scheduled castes or scheduled tribes all of whom were afforded protective discrimination. Article 16 is again similarly conditioned. Articles 17, 18, 23 and 24 are prohibitions which the State is enjoined to give affect to. Articles 25 to 28 which guarantee religious freedom, can be affected by Article 31C in furtherance of directive principles because these denominations own properties, schools, institutions, etc., all of which would be meaningless without the right to hold property. Likewise, Articles 29 and 30 would become hollow when Articles 19 and 14 are totally abrogated. The only rights left are those in Articles 20, 21 and 22, of which Article 22 has abridged by reason of Clauses (4) to (7) by providing for preventive detention, which no doubt, is in the larger interest of the security, tranquillity and safety of the citizens and the States. I have pointed out the implications of the contentions on behalf of the respondents to show that if these are accepted, this country under a Constitution and a Preamble proclaiming the securing of fundamental rights to its citizens, will be without them. The individual rights which ensure political rights of the citizens in a democracy may have to be subordinated to some extent to the Directive Principles for achieving social objectives but they are not to be enslaved and driven out of existence. Such could not have been contemplated as being within the scope of the amending power.

1249. Although Article 31A protected the laws coming within its purview from the rights conferred by Article 19, such a protection could only be against the rights conferred by Clauses (f) and (g) of Article 19(1), as its subjected-matter was expressly stated to be the acquisition of or extinguishment or modification of rights in any estate as defined in Clause (2) thereof, and the taking over or amalgamation or termination etc., of rights of management and certain leasehold interests. Article 31C protects laws giving effect to the policies in Article 39(b) & (c). For achieving these twin objects the rights of the persons that have to be abridged could only be those rights in Article 19 which relate to property and trade, business, profession or occupation. Though the expression 'economic system' is used in Article 39(c), that article has not the object of changing the economic system generally, but is confined to only preventing concentration of wealth and means of production to the common detriment. What this Clause envisages is that the State should secure the operation of the economic system in such a way as not to result in the concentration of wealth and means of production to the common detriment Where there is already concentration of wealth and means of production which is to the common detriment, the law under Article 39(c) would be only to break up or regulate as may be necessary the concentration of wealth and means of production. All other rights are outside the purview of Article 31C and in this respect Article 31A and Article 31C can be said to be similar in scope and no different. In my view, therefore, the learned Solicitor- General has rightly submitted that the law under Article 31C will only operate on "material resources", "concentration of wealth", and "means of production", and if this is so, the rights in Article 19(1)(a) to (e) would have no relevance and are inapplicable. 1250. With respect to the exclusion of Article 31 by Article 31C, Clause (1) of Article 31 is not in fact affected by Article 31C, because under the latter any rights affected must be by law only. Even if Article 31C was enacted for making laws in the furtherance of the directive principles in Article 39(b) and (c) affecting property, those laws have to conform to Article 31(1) for they would be laws depriving persons of their property. Article 31C also contemplates the making of a law to give effect to the Directives in Article 39(b) and (c). In so far as Article 31(2) is concerned, Section 2 of the Twenty- fifth Amendment has already abridged the right contained in Article 31(2) and a further abridgement of this right authorised by Article 31C may amount in a given case to the destruction or abrogation of that right and it may then have to be considered in each case whether a particular law provides for such an amount for the acquisition or requisitioning of the property in question as would constitute an abrogation or the emasculation of the right under Article 31(2) as it stood before the Constitution (Twenty-fifth) Amendment. 1251. On the fourth element, I agree with the reasoning and conclusion of my learned brother Khanna, J., whose judgment I have had the advantage of perusing, in so far as it relates only to the severance of the part relating to the declaration, and with great respect I also adopt the reasoning on that aspect alone as an additional reason for supporting my conclusions on the first three elements also.

1252. If the first part of Article 31C is read in this manner, then it may be held to be intra vires the amending power only if those portions of the Article which make it ultra vires the amending power are severed from the rest of it. The portions that may have to be severed are the words, "is inconsistent with or takes away, or" and the words "Article 14" and the part dealing with the declaration by reason of which judicial review is excluded. The severability of these portions is permissible in view of the decision of the Privy Council in Punjab Province v. Daulat Singh and Ors. (1946) 73 Indian Appeals 59 and the principles laid down by this Court in B.M.D. Chamarbdugwalla v. The Union of India (1957) S.C.R. 930.

1253. The doctrine that the general words in a statute ought to be construed with reference to the powers of the Legislature which enacts it, and that the general presumption is that the Legislature does not intend to exceed its jurisdiction, is well established. In in Re. The Hindu Women's Rights to Property Act, [1941] F.C.R. 12 and in Daulat Singh's case it has been held that on the general presumption the Legislature does not intend to exceed its jurisdiction, and that the Court could sever that part of the provision in excess of the power if what remained could be given effect to. In the former case, the Act being a remedial Act seeking to remove or to mitigate what the Legislature presumably regarded as a mischief, was given the beneficial interpretation. (See the observations of Gwyer, C.J. at p. 31). In the latter case, the provisions of Section 13A of the Punjab Alienation of Land Act, 1900, which were added by Section 5 of the Punjab Alienation of Land (Second Amendment) Act No. X of 1933, providing for the avoidcnce of banami transactions as therein specified which were entered into either before or after the commencement of the Act of 1938, and for recovery of possession by the alienor would have been ultra vires the Provincial Legislature as contravening Sub-section (1) of Section 281 of the Government of India Act, 1935, in that in some cases Section 13A would operate as a prohibition on the ground of descent alone, but it was authorised and protected from invalidity as regards future transactions by Sub-section 2(a) of Section 298 of the Act of 1935 as amended by Section 4 of the India & Burma (Temporary and Miscellaneous Provisions) Act, 1942. As the provisions of Section 13A would have been ultra vires and void in so far as they purported to operate retrospectively, the Privy Council severed the retrospective element by the deletion of the words "either before or" in the section and the rest of the section was left to operate validly. Lord Thankerton, delivering the opinion of the Privy Council, observed at pp. 19-20: It follows, in the opinion of their Lordships, that the impugned Act, so far as retrospective, was beyond the legislative powers of the Provincial Legislature and, if the retrospective element were not severable from the rest of the provisions, it is established beyond controversy that the whole Act would have to be declared ultra vires and void. But, happily, the retrospective element in the impugned Act is easily severable, and by the the deletion of the words, "either before or" from Section 5 of the impugned Act, the rest of the provisions of the impugned Act, may be left to operate validly.

1254. In Chamarbaugwalla's case, Venkatarama Aiyer, J., after referring to the various cases including F.N. Balsara's case accepted the principle that when a statute is in part void, it will be enforced as regards the rest, if that is severable from what is invalid. It is immaterial for the purpose of this rule whether the invalidity of the statute arises by reason of its subject-matter being outside the competence of the legislature or by, reason of its provisions contravening Constitutional prohibitions. He enunciated seven rules of separability. In F.N. Balsara's case, apart from Section 23(a) and (b) and Section 24(1)(a) relating to commendation and incitement from the definition of the word 'liquor' in Section 2(24)(a) the words "all liquids consisting of or containing alcohol" were severed as these would include medicinal preparations. It will be seen that neither the whole Sub- clause (a) was deleted nor the whole of Clause (24) was separated. It is only the above words that were severed and held to make the remaining part of the definition valid. 1255. In Corporation of Calcutta v. Calcutta Tramways Co. Ltd. (1964) 5 S.C.R. 25 the question was whether Section 437(1)(b) of the Calcutta Municipal Act, 1851, was invalid under Article 19(1)(g) in so far as is made the opinion of the Corporation conclusive and non-challengeable in any court. The Sub-clause (b) of Section 437(1) reads as follows: any purpose which is, in the opinion of the Corporation (which opinion shall be conclusive and shall not be challenged in any court) dangerous to life, health or property, or likely to create a nuisance;

This Court held the portion in the parenthesis as violative of Article 19(1)(g). It was contended that the above portion in the sub-clause was inextricably mixed up with the rest and hence cannot be separated. The Court held that the third proposition in the Chamarbaugwalla's case, namely, that even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole, was inapplicable. Wanchoo, J., expressed the view that the parenthetical clause consisting of the words "which opinion shall be conclusive and shall not be challenged in any court" is severable from the rest of the clause referred to above. 1256. In the case of Kameshwar Prasad v. State of Bihar (1962) Supp. 3 S.C.R. 369 Rule 4-A of the Bihar Government Servants Conduct Rules, 1956, had provided that "No Government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service". The Court held the rule violative of Article 19(1)(a) and (b) in so far as it prohibited any form of demonstration, innocent or otherwise, and as it was not possible to so read it as to separate the legal from the unConstitutional portion of the provision, the entire rule relating to participation in any demonstration must be declared as ultra vires. The Court, however, did not strike down the entire Rule 4-A, but severed only that portion which elated to demonstration from the rest of it, and the portion dealing with the strike which was upheld continued to exist after severing the above, portion. However, in State of Madhya Pradesh v. Ranojirao Shinde and Anr. (1968) 3 S.C.R. 489 the doctrine of severability was not applied. In that case the term 'grant' was defined in Section 2(1) of the Madhya Pradesh Abolition of Cash Grants Act, 1963, in a language which was wide without making a distinction between various types of cash grants. This Court did not find any basis for severing some out of the several grants included therein and hence expressed the view that it is impermissible to rewrite that clause and confine the definition to such of the cash grants which the Legislature might be competent to abolish. The case is, therefore, distinguishable as the rule is inapplicable to such instances. 1257. I have considered the validity of Article 31C by applying the doctrine of severability although neither side dealt with this aspect in relation to Article 31C, because both had taken an extreme position, which if accepted, will either result in the total invalidation or in upholding its validity in entirety. If as the petitioner had contended that by an amendment any of the fundamental rights cannot be damaged or destroyed, the next logical step of the argument on his behalf should have been to establish that the entire Article 31C is bad on that account, and if not, to what extent it would have been sustained by applying the doctrine of severability particularly when the severability of the declaration' part of Article 31C was very much in the forefront during the arguments. Likewise the respondents knowing what the petitioner's case is, should have examined and submitted to what extent Article 31C is invalid on the petitioner's argument. When a question was asked on February 19, 1973 that "if once it is conceded that a Constitution cannot be abrogated, then what one has to find out is to what extent an amendment goes to abrogation" and the answer was that "the whole of the Constitution cannot be amended", and also when a question was raised that on the language of Article 31C it appears to be ineffective, neither side advanced any argument on this aspect. Nor when the question of severability of the declaration portion was mooted on several occasions during the arguments was any submission made by either party as to whether such a severance is, or is not, possible. In the circumstances, the Court is left to itself to examine and consider what is the correct position in the midst of these two extremes in a case of Constitutional amendment which has been enacted after following the form and manner prescribed in Article 368, as I said earlier, it should not be held invalid, if it could be upheld even by severing the objectionable part, where the valid part can stand on its own. It is not always in public interest to confine the consideration of the validity of a Constitutional amendment to the arguments, the parties may choose to advance, otherwise we will be constrained to interpret a Constitution only in the light of what is urged before us, not what was understand it to be is the true nature of the impugned amendment Happily, even if I am alone in this view, the portions indicated by me are severable, leaving the unsevered portion operative and effective so as to enable laws made under Article 31C to further the directives of State Policy enshrined in Article 39(b) and (c). In the view I have entertained, the words "inconsistant with, or takes away or" and the words "Article 14" as also the portion "and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy" being severable, be deleted from Article 31C. In the result, on the construction of Article 31C after severing the portions indicated above, I hold Section 3 of the Twenty-fifth Amendment valid.

1258. On the validity of the Constitution (Twenty-ninth) Amendment, my Lord the Chief Justice has come to the conclusion that notwithstanding this amendment the Constitution Bench will decide whether the impugned Acts take away fundamental rights or only abridge them and whether they effect reasonable abridgements in publiic interest, and if they take away, they will have to be struck down. My learned brothers Hegde and Mukherjea, JJ., have in effect come to the same conclusion, when they hold that this amendemnt is valid, but whether the Acts which were brought into the IXth Schedule by that Amendment or any provision in any of them abrogate any of the basic elements or essential features of the Constitution will have to be examined when the validity of those Acts is gone into. With respect, I agree in effect with these conclusions which are consistent with the view I have expressed in respect of Articles 31A and 31B. I also agree that the contention of the learned Advocate for the petitioner that Article 31B is intimately connected with Article 31A is unacceptable and must be rejected for the reasons given in these judgments. The question whether fundamental rights are abrogated or emasculated by any of the Acts or provisions of these Acts included by the impugned Amendment, will be open for examination when the validity of these Acts is gone into, and subject to this reservation, I hold the Constitution (Twenty-ninth) Amendment valid. 1259. I now state my conclusions which are as follows:

(1) On the construction placed on Articles 12, 13 and other provisions of Part III and Article 368, Article 13(2) does not place an embargo on Article 368, for amending any of the rights in Part III, and on this view it is unnecessary to decide whether the leading majority judgment in Golaknath's case is right in finding the power of amendment in the residuary entry 97 of List I of Schedule VII, nor is it called for, having regard to the majority decision therein that the power of amendment is to be found in Article 368 itself.

(2) Twenty-fourth Amendment:

1260. The word 'amendment' in Article 368 does not include repeal. Parliament could amend Article 368 and Article 13 and also all the fundamental rights and though the power of amendment is wide, it is not wide enough to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements in the basic structure of the Constitution or of destroying the identity of the Constitution. Within these limits, Parliament can amend every article of the Constitution. Parliament cannot under Article 368 expand its power of amendment so as to confer on itself the power to repeal, abrogate the Constitution or damage, emasculate or destroy any of the fundamental rights or essential elements of the basic structure of the Constitution or of destroying the identity of the Constitution, and on the construction placed by me, the Twenty-fourth Amendment is valid, for it has not changed the nature and scope of the amending power as it existed before the Amendment.

Twenty-fifth Amendment:

(i) SECTION 2

(a) Clause (2) to Article 31 at substituted.-Clause (2) of Article 31 has the same meaning and purpose as that placed by this Court in the several decisions referred to except that the word 'amount' has been substituted for the word 'compensation', after which the principle of equivalent in value or just equivalent of the value of the property acquired no longer applies. The word 'amount' which has no legal concept and, as the amended clause indicates, it means only cash which would be in the currency of the country, and has to be fixed on some principle. Once the Court is satisfied that the challenge on the ground that the amount or the manner of its payment is neither arbitrary or illusory or where the principles upon which it is fixed are found to bear reasonable relationship to the value of the property acquired, the Court cannot go into the question of the adequacy of the amount so fixed or determined on the basis of such principles.

(b) Clause (2B) as added.-On the applicability of Article 19(1)(f) to Clause (2) of Article 31, the word 'affect' makes two constructions possible, firstly, that Article 19(1)(f) will not be available at all to an expropriated owner, and this, in other words, means that it totally abrogates the right in such cases, and secondly, Clause (2B) was intended to provide that the law of acquisition or requisition will not be void on the ground that it abridges or affects the right under Article 19(1)(f). The second construction which makes the amendment valid is to be preferred, and that Clause (2B) by the adoption of the doctrine of severability in application is restricted to abridgement and not abrogation, destroying or damaging the right of reasonable procedure in respect of a law of acquisition or requisition for the effective exercise of the right under Article 31(2); for, a reasonable notice, a hearing opportunity to produce material and other evidence, may be necessary to establish that a particular acquisition is not for public purpose and for providing the value of the property and other matters that may be involved in a particular principle adopted in fixing the amount or for showing chat what is being paid is illusory, arbitrary etc. Therefore, in the view taken, and for the reasons set out in this judgment, Section 2 of the Twenty-fifth Amendment is valid.

(ii) SECTION 3 OF THE TWENTY-FIFTH AMENDMENT

1261. New Article 31C is only valid if the words "inconsistent with or takes away or", the words "Article 14" and the declaration portion "and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy", are severed, as in my view they are severable. What remains after severing can be operative and effective on the interpretation given by me as to the applicability of Articles 19 and 31, so as to enable laws made under Article 31C to further the directives enshrined in Article 39(b) & (c). In the result on the construction of Article 31C, after severing the portions indicated above, I hold Section 3 of the Twenty-fifth Amendment valid.

(4) Twentyninth Amendment:

1262. The contention that Articles 31A and 31B are inter-connected is unacceptable and is rejected. The Constitution (Twenty-ninth) Amendment is valid, but whether any of the Acts included thereby in Schedule IX abrogate, emasculate, damage or destroy any of the fundamental rights in Part III or the basic elements or essential features of the Constitution will have to be examined when the validity of those Acts is challenged. 1263. The petitions will now be posted for hearing before the Constitution Bench for disposal in accordance with the above findings. In the circumstances the parties will bear their own costs.

D.G. Palekar, J.

1264. The facts leading to this petition have been stated in judgment delivered by my lord the Chief Justice and it is not therefore necessary to recount the same. 1265. In this petition the Constitutional validity of the Kerala Land Reforms (Amendment) Act, 1969 and the Kerala Land Reforms (Amendment) Act, 1971 has been challenged. As the petitioner apprehended that he would not succeed in the challenge in view of the recently passed Constitution Amendment Acts, he has also challenged the validity of these Acts. They are:

(1) The Constitution 24th Amendment Act, 1971;

(2) The Constitution 26th Amendment Act, 1971 and

(3) The Constitution 29th Amendment Act, 1972.

1266. The crucial point involved is whether the Constitution is liable to be amended by the Parliament so as to abridge or take away fundamental rights conferred by Part III of the Constitution.

1267. By the 24th Amendment, some changes have been made in Articles 13 and 368 with the object of bringing them in conformity with the views expressed by a majority of Judges of this Court with regard to the scope and ambit of Articles 13 and 368. In Sankari Prasad Singh v. Union of India [1952] S.C.R. 89 the Constitutional Bench of five Judges of this Court unanimously held that fundamental rights could be abridged or taken away by ah amendment of the Constitution under Article 368. In the next case of Sajjan Singh v. State of Rajasthan [1965] (1) S.C.R. 933 a majority of three Judges expressed the view that Sankari Prasad's case was correctly decided. Two Judges expressed doubts about that view but considered that it was not necessary to dissent from the decision as the point was not squarely before the court In the third case namely Golak Nath v. State of Punjab [1967] (2) S.C.R. 762 the, view taken in the earlier cases by eight Judges was overruled by a majority of six Judges to five. The majority held that Parliament had no power to amend the Constitution under Article 368 so as to abridge or take away the fundamental rights, one of them (Hidayatullah, J), who delivered a separate judgment, expressing the view that this could not be done even by amending Article 368 with the object of clothing the Parliament with the necessary powers. In this state of affairs the Union Government was obliged to take a definite stand. It would appear that the Union Government and the Parliament agreed with the view taken in Sankari Prasad's case by the majority in Sajjan Singh's case and the substantial minority of Judges in Golak Nath's case. They were out of sympathy with the view adopted by the majority in Golak Nath's case. Hence the 24th Amendment. That amendment principally sought to clarify what was held to be implicit in Articles 13 and 368 by a majority of Judges of this Court over the years, namely, (1) that nothing in Article 13 applied to an amendment to the Constitution made under Article 368; (2) that Article 368 did not merely lay down the procedure for a Constitutional amendment but also contained the power to amend the Constitution; (3) that the Parliament's power under Article 368 was a constituent power as distinct from legislative power; (4) that this power to amend included the power to amend by way of addition, variation or repeal of any provision of the Constitution. 1268. After passing the 24th Amendment the other two amendments were passed in accordance with the Constitution as amended by the 24th Amendment. 1269. In his argument before us Mr. Palkhivala, appearing on behalf of the petitioner, supported the majority decision in Golak Nath with supplemental arguments. In any event, he further contended, the power of Parliament to amend the Constitution under Article 368 did not extend to the damaging or destroying what he called the essential features and basic principles of the Constitution and since fundamental rights came in that category, any amendment which damaged or destroyed the core of these rights was impermissible. The argument on behalf of the State of Kerala and the Union of India was that an amendment of the Constitution abridging or taking away fundamental rights was not only permissible after the clarificatory 24th Amendment but also under the unamended Articles 13 and 368, notwithstanding the refinement in the arguments of Mr. Palkhivak with regard to essential features and basic principles of the Constitution. We are, therefore, obliged to go back to the position before the 24th Amendment and consider whether the majority view in Golak Nath was not correct. A fuller bench of 13 Judges was, therefore, constituted and it will be our task to deal with the crucial question involved. This course cannot be avoided, it is submitted; because if the fundamental rights were unamendable by the Parliament so as to abridge or take them away, Parliament could not increase its power to do so by the device of amending Articles 13 and 368 whether one calls that amendment clarificatory or otherwise. The real question is whether the Constitution had granted Parliament the power to amend the Constitution in that respect, because, if it did not, no amendment of Articles 13 and 368 would invest the Parliament with that power. We have, therefore, to deal with the Constitution as it obtained before the 24th Amendment.

Re: Kesavananda Bharati vs State Of Kerala And ors

1270. Since fundamental questions with regard to the Constitution have been raised, it will be necessary to make a few prefatory remarks with regard to the Constitution. The Constitution is not an indigenous product. Those who framed it were, as recognised by this Court in The Automobile Transport (Rajasthan) Ltd. v. The State of Rajasthan and Ors. [1963] 1 S.C.R. 491 at p. 539, 540 thoroughly acquainted with the Constitutions and Constitutional problems of the more important countries in the world, especially, the English speaking countries. They knew the Unitary and Federal types of Constitutions and the Parliamentary and Presidential systems of Government. They knew what Constitutions were regarded as "Flexible" Constitutions and what Constitutions were regarded as "rigid" Constitutions. They further knew that in all modern written Constitutions special provision is made for the amendment of the Constitution. Besides, after the Government of India Act, 1935 this country had become better acquainted at first hand, both with the Parliamentary system of Government and the frame of a Federal Constitution with distribution of powers between the centre and in the State. All this knowledge and experience went into the making of our Constitution which is broadly speaking a quasi - Federal Constitution which adopted the Parliamentary System of Government based on adult franchise both at the centre and in the States. 1271. The two words mentioned above 'flexible' and 'rigid' were first coined by Lord Bryce to describe the English Constitution and the American Constitution respectively. The words were made popular by Dicey in his Law of the Constitution first published in 1885. Many generations of lawyers, thereafter, who looked upon Dicey as one of the greatest expositors of the law of the Constitution became familar with these words. A 'flexible' Constitution is one under which every law of every description (including one relating to the Constitution) can legally be changed with the same ease and in same manner by one and the same body. A 'rigid' Constitution is one under which certain laws generally known as Constitutional or fundamental laws cannot be changed in the same manner (as ordinary laws). See 'Dicey's Law of the Constitution 10th edition, 1964 p.

127. It will be noted that the emphasis is on the word 'change' in denoting the distinction between the two types Constitutions. Lord Birkanhead in delivering the judgment of the judcial Committee of the Privy Council in McCawley v. The King [1920] A.C. 691 used the words 'uncontrolled' and 'controlled' for the words 'flexible' and 'rigid' respectively which were current then. He had to examine the type of Constitution Queensland possessed, whether it was a 'flexible' Constitution or a 'rigid' one in order to decide the point in controversy. He observed at page 703 The first point which requires consideration depends upon the distinction between Constitutions the terms of which may be modified or repealed with no other formality than is necessary in the case of other legislation, and Constitutions which can only be altered with some special formality and in some cases by a specially convened assembly.' He had to do that because the distinction between the two types of Constitutions was vital to the decision of the controversy before the privy Council. At page 704 he further said 'Many different terms have been employed in the text-books to distinguish these two contrasted forms of Constitution. Their special qualities may perhaps be exhibited as clearly by oiling the one a 'controlled' and the other an 'uncontrolled' Constitution as by any other nomenclature'. Perhaps this was an apology for not using the words 'rigid' and 'flexible' which were current when he delivered the judgment. In fact, sic John Simon in the course of his argument in that case had used the words 'rigid' and 'flexible' and he had specifically referred to 'Dicey's Law of the Constitution' Strong in his text-book on Modern Political Constitution, Seventh revised edition, 1968 reprinted in 1970 says at p. 153 "The sole criterion of a rigid Constitution is whether the Constituent Assembly which drew up the Constitution left any special directions as to how it was to be changed. If in the Constitution there are no such directions, or if the directions, explicitly leave the Legislature a free hand, then the Constitution is 'flexible'.

1272. The above short disquisition into the nature of Constitutions was necessary in order to show that when our Constitution was framed in 1949 the framers of the Constitution knew that there were two constrasted types of democratic Constitutions in vogue in the world-one the 'flexible' type which could be amended by the ordinary procedure governing the making of a law and the other the 'rigid' type which cannot be so amended but required a special procedure for its amendment. Which one of these did our framers adopt the 'flexible' or the 'rigid'? On an answer to the above question some important consequences will follow which are relevant to our enquiry.

1273. Our Constitution provides for a Legislature at the Centre and in the States. At the centre it is the Parliament consisting of the Lok Sabha and the Rajya Sabha. In the States the Legislature consists of the State Assembly and, in some of them, of an Upper Chamber known as the Legislative Council. Legislative power is distributed between the centre and the States, Parliament having the power to make laws with regard to subject matters contained in List I of the Seventh Schedule and the State Legislatures with regard to those in List II. There is also List III enumerating matters in respect of which both the Parliament and the State Legislatures have concurrent powers to make laws. This power to make laws is given to these bodies by Articles 245 to 248 and the law making procedure for the Parliament is contained in Articles 107 to 122 and for the State Legislatures in Articles 196 to 213. The three Lists in the Seventh Schedule no where mention the 'Amendment of the Constitution' as one of the subject matters of legislation for either the Parliament or the State Legislatures. On the other hand, after dealing with all important matters of permanent interest to the Constitution in the first XIX parts covering 367 Articles, the Constitution makes special provision for the 'Amendment of the Constitution' in Part XX in one single Article, namely, Article 368. A special procedure is provided for amendment which is not the same as the one provided for making ordinary laws under Articles 245 to 248. The principle features of the legislative procedure at the Centre are that the law must be passed by both Houses of Parliament by a majority of the members present and voting in the House, and in case of an impasee between the two Houses of Parliament, by a majority vote at a joint sitting. All that is necessary is that there should be a coram which we understand is 10% of the strength of the House and if such a coram is available the two houses separately or at a joint meeting, as the case may be, may make the law in accordance with its legislative procedure laid down in Articles 107 to 122. The point to be specially noted is that all ordinary laws which the Parliament makes in accordance with Articles 245 to 248 must be made in accordance with this legislative procedure and no other. Under Articles 368 however, a different and special procedure is provided for amending the Constitution. A Bill has to be introduced in either House of Parliament and must be passed by each House separately by a special majority. It should be passed not only by 2/3rd majority of the members present and voting but also by a majority of the total strength of the House. No joint sitting of the two Houses is permissible. In the case of certain provisions of the Constitution which directly or indirectly affect interstate relations, the proposed amendment is required to be ratified by the Legislatures which is not a legislative process of not less than one half of the States before the Bill proposing the amendment is presented to the President for his assent. The procedure is special in the sense that it is different and more exacting or restrictive than the one by which ordinary laws are made by Parliament. Secondly in certain matters the State Legislatures are involved in the process of making the amendment. Such partnership between the Parliament and the State Legislatures in making their own laws by the ordinary procedure is not recognised by the Constitution. It follows from the special provision made in Article 368 for the amendment of the Constitution that our Constitution is a 'rigid' or 'controlled' Constitution because the Constituent Assembly has "left a special direction as to how the Constitution is to be changed." In view of Article 368, when the special procedure is successfully followed, the proposed amendment automatically becomes a part of the Constitution or, in other words, it writes itself into the Constitution.

1274. The above discussion will show that the two separate procedures one for law making and the other for amending the Constitution were not just an accident of drafting. The two procedures have been delibarately provided to conform with well-know Constitutional practices which make such separate provisions to highlight the different procedures one commonly known as the legislative procedure and the other the constituent procedure. The word 'constituent' is so well-known in modern Political Constitutions that it is defined in the dictionaries as 'able to frame or alter a Constitution.' And the power to frame or alter the Constitution is known as constituent power. See The Concise Oxford Dictionary.

1275. Where then in our Constitution lie the legislative power and the constituent power? The legislative power is given specifically by Articles 245 to 248, subject to the Constitution, and these Articles are found under the heading 'Distribution of legislative powers'. That alone is enough to show that these articles do not deal with the constituent power. The point is important because the leading majority judgment in Golak Nath's case proceeds on the footing that the power lies in Article 248 read with the residuary entry 97 in List I of the Seventh Schedule. That finding was basic to the decision because unless an amendment of the Constitution is equated with a law made by Parliament under one or the other of the entries in List I of the Seventh Schedule it was not easy to invoke the bar of Article 13(2). Mr. Palkhivala says that he is indifferent as to whether the power is found in Article 248 or elsewhere. But that does not conclude the question because if we agree with the view that it falls in Article 248 the decision that an amendment abridging or taking away fundamental rights, being a law under Article 248, would be barred by Article 13(2) would be unassailable.

1276. In Golak Nath's case Subha Rao, C.J. who spoke for himself and his four learned colleagues held that the power to amend the Constitution was not found in Article 368 but in Article 248 read with the residuancy entry 97 of List I of the Seventh Schedule. The five learned Judges who were in a minority held that the power is in Article 368, Hidayatullah, J. on the other hand, held that Article 368 did not give the power to any particular person or persons and that if the named authorities acted according to the law of Article, the result of amendment was achieved. And if the procedure could be deemed to be a power at all it was a legislative power, sui generis, to be found outside the three lists in Schedule Seven of the Constitution. In other words, six learned Judges did not find the power in the residuary entry 97 of List I, while five found it there. We have, therefore, to see whether the view of Subba Rao, C.J. and his four colleagues who held that the power lay in Article 248 read with the residuary entry 97 is correct. In my view, with respect, it is not.

1277. Article 368 is one single article in Part XX entitled. The amendment of the Constitution.' It is a special topic dealt with by that Part. In other articles like Articles 4,169, para 7 of Schedule V and para 31 of Schedule VI a power is granted to the Parliament to amend specific provisions 'by law' i.e., by adopting the ordinary procedure of legislation, though it altered certain provisions of the Constitution. The alterations are 'a law' made by the Parliament and, therefore, liable to be struck down, unless specifically saved, in case of inconsistency with the provisions of the Constitution. Secondly in every such case a provision is deliberately added explaining that the amendment so made by law is not to be deemed an amendment of the Constitution for the purpose of Article 368. The warning was necessary to emphasise that an amendment of the Constitution in accordance with the procedure laid down in Article 368 was of a special quality-a quality different from amendments made 'by law' by the Parliament. The special quality flowed from the fact that the Parliament and the States which were to participate in the process performed not their ordinary legislative function but a special function known in all Federal or quasi-federal or controlled Constitutions as a 'constituent' function. The difference between the ordinary function of making law and the function of amending the Constitution loses its significance in the case of a sovereign body like the British Parliament or a Parliament like that of Newzealand which has a written Constitution of the Unitary type. These bodies can amend a Constitutional law with the same ease with which they can make an ordinary law. The reason is that their Constitutions are 'flexible' Constitutions. But in countries which have a written Constitution which is a 'rigid' or 'controlled' Constitution the Constitution is liable to be amended only by the special procedure, and the body or bodies which are entrusted with the amendment of the Constitution are regarded as exercising constituent power to distinguish it from the power they exercise in making ordinary legislation under the Constitution. So far as we are concerned, our Constitution gives specific powers of ordinary legislation to the Parliament and the State legislatures in respect of well demarcated subjects. But when it comes to the amendment of the Constitution, a special procedure has been prescribed in Article 368. Since the result of following the special procedure under the Article is the amendment of the Constitution the process which brings about the result is known as the exercise of constituent power by the bodies associated in the task of amending the Constitution. It is, therefore, obvious, that when the Parliament and the State Legislatures function in accordance with Article 368 with a view to amend the Constitution, they exercise constituent power as distinct from their ordinary legislative power under Articles 245 to 248. Article 368 is not entirely procedural. Undoubtedly part of it is procedural. But there is a clear mandate that on the procedure being followed the 'proposed amendment shall become part of the Constitution, which is the substantive part of Article

368. Therefore, the peculiar or special power to amend the Constitution is to be sought in Article 368 only and not elsewhere.

1278. Then again if the constituent assembly had regarded the power to amend the Constitution as no better than ordinary legislative power the framers of the Constitution who were well-aware of the necessity to provide for the power to amend the Constitution would not have failed to add a specific entry to that effect in one or the other of the lists in the Seventh Schedule instead of leaving it to be found in a residuary entry. The very fact that the framers omitted to include it specifically in the list but provided for it in a special setting in Part XX of the Constitution is eloquent of the fact that the power was not to be sought in the residuary entry or the residuary Article 248. In this connection it may be recalled that in the Draft Constitution Article 304 had a separate provision in Clause 2. Clause 1 of that article fairly corresponds with our present Article 368. In Clause 2 power was given to the States to propose amendments in certain matters and Parliament had to ratify such amendments. There was thus a reverse process of amendment. There was no residuary power in the States and the amendment of the Constitution was not a specific subject of legislative power in draft List II. This goes to show that in the Draft Constitution, in all but two matters, the proposal for amendment was to be made by the Parliament and in two specified matters by the State Legislatures. If the power for the latter two subjects was to be found in Clause 2 of Article 304 of the Draft Constitution it is only reasonable to hold that the power of Parliament to amend the rest of the Constitution was to be found in Article 304(1) which corresponds to the present Article 368.

1279. Moreover the actual wording of Article 245 which along with Articles 246 to 248 comes under the topic "Distribution of legislative powers" is important. Article 245 provides that Parliament may make laws for the whole or any part of India and the legislature of a State may make laws for the whole or any part of the State. Thus Article 245 confers the power to make laws on Parliament and the Legislatures of the State for and within the territory allocated to them. Having conferred the power, Articles 246 to 248 distribute the subject matters of legislation in respect of which the Parliament and the State Legislatures have power to make the laws referred to in Article 245. But there is an important limitation on this power in the governing words with which Article 245 commences. It is that the power was subject to the provisions of the Constitution thereby lifting the Constitution above the 'laws'. That would mean that the Parliament and the State Legislatures may, indeed make laws in respect of the areas and subject matters indicated, but the exercise must be "subject to the provisions of the Constitution" which means that the power to make laws does not extend to making a law which contravenes or is inconsistent with any provision of the Constitution which is the supreme law of the land. A law is inconsistent with the provision of the Constitution when, being given effect to, it impairs or nullifies the provision of the Constitution. Now no simpler way of impairing or nullifying the Constitution can be conceived than by amending the text of the provision of the Constitution. Therefore, since a law amending the text of a Constitutional provision would necessarily entail impairing or nullifying the Constitutional provision it would contravene or be inconsistent with the provision of the Constitution and hence would be impermissible and invalid under the governing words "subject to the provisions of the Constitution" in Article 245. It follows that a law amending the Constitution if made on the assumption that it falls within the residuary powers of the Parliament under Article 248 read with entry 97 of List I would always be invalid. Then again a law made under Articles 245 to 248 must, in its making, conform with the ordinary legislative procedure for making it laid down for the Parliament in Part V, Chapter II and for the State Legislature in Part VI, Chapter III of the Constitution and, no other. To say that the power to make law lies in Article 245 and the procedure to make it in Article 368 is to ignore not only this compulsion, but also the fundamental Constitutional practice followed in our Constitution, as in most modern controlled Constitutions, prescribing special procedure for the amendment of the Constitution which is different from the procedure laid down for making ordinary laws. The conclusion, therefore, is that the power of amendment cannot be discovered in Article 248 read with the residuary entry. The argument that Article 368 does not speak of the power to amend but only of the procedure to amend in pursuance of the power found elsewhere is clearly untenable. The true position is that the alchemy of the special procedure prescribed in Article 368 produces the constituent power which transports the proposed amendment into the Constitution and gives it equal status with the other parts of the Constitution. 1280. Moreover, if an amendment of the Constitution is a law made under Article 248 read with entry 97 List I strange results will follow. If the view taken in Golak Nath's case is correct, such 'a law being repugnant to Article 13(2) will be expressly invalidated so far as Part III of the Constitution is concerned. And such a law amending any other article of the Constitution will also be invalid by reason of the governing words "subject to the provisions of the Constitution" by which Article 245 commences. In that event no article of the Constitution can be amended. On the other hand, if the law amending an article of the Constitution is deemed to be not repugnant to the article which is amended, then every article can be amended including those embodying the fundamental rights without attracting the bar of Article 13(2) which can only come in on a repugnancy. On the argument, therefore, that an amendment is a law made under Article 248 the whole of the Constitution becomes unamendable, and on the argument that such a law never becomes repugnant to the article amended the whole of the Constitution becomes amendable, in which case, we are unable to give any determinate value to Article 13(2). Instead of following this complicated way of tracing the power in Article 248 read with the residuary entry 97 of List I it would be correct to find it in Article 368 because that is a special article designed for the purposes of the amendment of the Constitution which is also the subject heading of Part XX. In my opinion, therefore, the power and the procedure to amend the Constitution are in Article 368.

Re: Kesavananda Bharati vs State Of Kerala And ors

1281. The next question which requires to be examined is the nature of this constituent power, specially, in the case of 'controlled' or 'rigid' Constitutions. A student of Modern Political Constitutions will find that the methods of modern Constitutional amendment are (1) by the ordinary legislature but under certain restrictions; (2) by the people through a referendum; (3) by a majority of all the unions of a Federal State; (4) by special convention; and (5) by a combination of two or more of the above methods which are mentioned in order of increasing rigidity as to the method. Where the power of amending the Constitution is given to the legislature by the Constituent Assembly the Legislature working under restrictions assumes a special position. Strong in the book, already referred to, observes at page 152 "The constituent assembly, knowing that it will disperse and leave the actual business of legislation to another body, attempts to bring into the Constitution that it promulgates as many guides to future action as possible. If it wishes, as it generally does, to take out of the hands of the ordinary legislature the power to alter the Constitution by its own act, and since it cannot possibly foresee all eventualities, it must arrange for some method of amendment. 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.

(emphasis supplied)

1282. Authorities are not wanting who declare that such amending power is sovereign constituent power. Orfield in his book, the Amending of the Federal Constitution (1942) page 155 (1971 Edn.) says that in America the amending body is sovereign in law and in fact Herman Finer in his book The Theory and Practice of Modern Government, fourth edition 1961 reprinted in 1965, pages 156/157 says "Supremacy is shown and maintained chiefly in the amending process.... Too difficult a process, in short, ruins the ultimate purpose of the amending clause.... The amending clause is so fundamental to a Constitution that I am tempted to call it the Constitution itself." Geoffery Marshall in his Constitutional Theory (1971) p. 36 says "there will in most Constitutional systems, be an amending process and some "collection" of persons, possibly complex, in whom sovereign authority to alter any legal rule inheres....Constitutions unamendable in all or some respects are non-standard cases and a sovereign entity whether (as in Britain) a simple legislative majority, or a complex specially convened majority can be discovered and labelled "sovereign" in almost all systems." Wade in his Introduction to Dicey's Law of the Constitution, 10th edition says as follows at page 36 "Federal government is a system of government which embodies a division of powers between a central and a number of regional authorities. Each of these "in its own sphere is co-ordinate with the others and independent of them." This involves a division of plenary powers and such a division is a negation of sovereignty. Yet somewhere lies the power to change this division. Wherever that power rests, there is to be found legal sovereignty." Having regard to this view of the jurists, it was not surprising that in Sankari Prasad's case Patanjali Shastri, J., speaking for the court, described the power to amend under Article 368 as "soverign constitutent power" (p. 106). By describing the power as "sovereign" constituent power it is not the intention here to declare, if somebody is allergic to the idea, that legal sovereignty lies in this body or that. It is not necessary to do so for our immediate purpose. The word 'sovereign' is used as a convenient qualitative description of the power to highlight its superiority over other powers conferred under the Constitution. For example, legislative power is subject to the Constitution but the power to amend is not. Legislative activity can operate only under the Constitution but the power of amendment operates over the Constitution. The word 'sovereign', therefore, may, for our purpose, simply stand as a description of a power which is superior to every one of the other powers granted to its instrumentalities by the Constitution. 1283. The amplitude and effectiveness of the constituent power is not impaired because it is exercised by this or that representative body or by the people in a referendum. One cannot say that the power is less when exercised by the ordinary legislature as required by the Constitution or more when it is exercised-say by a special convention. This point is relevant because it was contended that our Parliament is a constituted body-"a creature of the Constitution" and cannot exercise the power of amending the Constitution to the same extent that a constituent assembly specially convened for the purpose may do. It was urged that the sovereignty still continues with the people and while it is open to the people through a convention or a constituent assembly to make any amendments to the Constitution in any manner it liked, there were limitations on the power of an ordinary Parliament-'a constituted body', which precluded it from making the amendments which damaged or destroyed the essential features and elements of the Constitution. We shall deal with the latter argument in its proper place. But for the present we are concerned to see whether the power to amend becomes more or less in content according to the nature of the body which makes the amendment. In my view it does not. Because as explained by Strong in the passage already quoted "In short it (i.e. the constituent assembly which framed the Constitution) attempts to arrange for the recreation of a constituent assembly whenever such matters are in future to be considered even though that assembly be nothing more than the ordinary legislature acting under certain restrictions." Only the methods of making amendments are less rigid or more rigid according to the historical or political background of the country for which the Constitution is framed. For example Article V of the American Constitution divides the procedure for formal amendment into two parts-proposal and ratification. Amendments may be proposed in two ways; (1) by two-thirds vote of both Houses of Congress; (2) by national Constitutional conventions called by Congress upon application of two-thirds of the State Legislatures. Amendments may be ratified by two methods, (1) by the legislatures of three-fourths of the States; (2) by special conventions in three-fourths of the States. Congress has the sole power to determine which method of ratification is to be used. It may direct that the ratification may be by the state legislatures or by special conventions.

1284. One thing which stands out so far as Article V is concerned is that referendum as a process of Constitutional amendment has been wholly excluded. In fact it was held by the Supreme Court of America in Dodge v. Woolsey (1855) 18 How 331 at 348 "the Constitution is supreme over the people of the United States, aggregately and in their separate sovereignties, because they have excluded themselves from any direct or immediate agency in making amendments to it, and have directed that amendments should be made representatively for them." In other words, the people, having entrusted the power to amend the Constitution to the bodies mentioned in Article V, had completely withdrawn themselves from the amending process. Out of the two combinations of the bodies referred to in Article V-one is a combination of the Congress and the State Legislatures and between them, though they are constituted bodies, they can qualitatively amend the Constitution to the same extent as if the proposal made by the Congress was to be ratified by convention by 3/4th number of States. As a matter of fact on the proposal made by the Congress all the amendments of the U.S. Constitution, with the exception of the twenty first which repealed the 18th amendment, have been ratified by State legislatures. Such an amendment accomplished by the participation of the Congress and the State Legislatures has not been held by the U.S. Supreme Court as being any less effective because the Congress had not obtained the ratification from a convention of the States. The question arose in United States v. Sprague. 282 U.S. 716 That case was on the 28th (Prohibition) Amendment. The amendment became part of the Constitution on a proposal by the Congress and ratification by the State legislatures. Objection was raised to the validity of the amendment on the ground that since the amendment affected the personal liberty of the subject and under Article X the people had still retained rights which had not been surrendered to the Federal Constitution, the ratification ought to have been by the representatives of the people at a special convention and not by the State legislatures. That objection was rejected on the ground that the Congress alone had the choice as to whether the State legislatures or the conventions had to ratify the amendment. Conversely, in Hawke v, Smith 253 U.S. 221 which also related to the 18th amendment it was held that the State of Ohio could not provide for the ratification of the 18th amendment by popular referendum since such a procedure altered the plain language of Article V which provides for ratification by State legislatures rather than by direct action of the people. It will be seen from this case that the State legislature for Ohio, instead of deciding on the ratification itself as it was bound to do under Article V, decided to obtain the opinion of the people by a referendum but such a procedure was held to be illegal because it did not find a place in Article V. This establishes that an amendment of the Constitution must be made strictly in accordance with the method laid down in the Constitution and any departure from it even for the purpose of ascertaining the true wishes of the people on the question would be inadmissible. An amendment of the Constitution must be made only in accordance with the procedure laid down in the Constitution and whatever individuals and bodies may think that it had better be made by a representative constituent assembly or a convention or the like is of really no relevance.

1285. Under Article 368 the Parliament is the Principal body for amending the Constitution except in cases referred to in the proviso. Parliament need not be associated with the State legislatures in making an amendment of the Constitution in cases excepted from the proviso. It cannot be lost sight of that Parliament in a very large way represents the will of the people. Parliament consists of two Houses-the Lok Sabha and the Rajya Sabha. The Lok Sabha is elected for five years on the basis of adult franchise. The Rajya Sabha is a permanent body-members of which retire by rotation. The Rajya Sabha consists of members elected by the State legislatures who are themselves elected to those legislatures on the basis of adult franchise. Then again there is a striking difference between the position occupied by the Congress in relation to the President in United States and the position of the Executive in relation to the Parliament and the State legislatures in India. In America the President is directly elected by the people for a term and is the Executive head of the Federal Government. The Congress may make laws but the President is not responsible to the Congress. In India, however, in our Parliamentary system of democracy, as in Great Britain, the Executive is entirely responsible to the legislature. The Congress in U.S.A. will not be held responsible by the people for what the President had done in his Executive capacity. The same is true in respect of State legislatures in America. In India people will hold the Parliament responsible for any executive action taken by the Cabinet. While in the context of a Constitutional amendment it is facile to decry the position of Parliament as a constituent body, we cannot ignore the fact that in both Great Britain and New-Zealand-one with an unwritten Constitution and the other with a written Constitution-governed by Parliamentary democracy, the Constitution could be changed by an ordinary majority. 1286. Why the power to amend the Constitution was given in the main to Parliament is not fully clear. But two things are clear. One is that as in America the people who gave us the Constitution completely withdrew themselves from the process of amendment. Secondly, we have the word of Dr. Ambedkar-one of the principal framers of our Constitution that the alternative methods of referendum or convention had been considered and definitely rejected. See Constituent Assembly Debates, Vol. VII page 43. They decided to give the power to Parliament, and Dr. Ambedkar has gone on record as saying that the amendment of the Constitution was deliberately made as easy as was reasonably possible by prescribing the method of Article 368. The Constituent Assembly Debates show that the chief controversy was as to the degree of flexibility which should be introduced into the Constitution. There may have been several historical reasons for the constituent assembly's preference for Parliament. Our country is a vast continent with a very large population. The level of literacy is low and the people are divided by language, castes and communities not all pulling in the same direction. On account of wide-spread illiteracy, the capacity to understand political issues and to rise above local and parochial interests is limited. A national perspective had yet to be assiduously fostered. It was, therefore, inevitable that a body which represented All-India leadership at the centre should be the choice. Whatever the reasons, the Constituent Assembly entrusted the power of amendment to the Parliament and whatever others may think about a possible better way, that was not the way which the constituent assembly commanded. The people themselves having withdrawn from the process of amendment and entrusted the task to the Parliament instead of to any other representative body, it is obvious that the power of the authorities designated by the Constitution for amending the Constitution must be co-extensive with the power of a convention or a constituent assembly, had that course been permitted by the Constitution.

1287. We have already shown that constituent power is qualitatively superior to legislative power. Speaking about the legislative competence of the Canadian Parliament, Viscount Sankey L.C. speaking for the Judicial Committee of the Privy Council observed in British Coal Corporation v. The King [1935] A.C. 500 at p. 518 "Indeed, in interpreting a constituent or organic statute such as the Act (British North America Act) that construction most beneficial to the widest possible amplitude of its powers must be adopted. This principle has been again clearly laid down by the Judicial Committee in Edwards v. Attorney-General for Canada [1930] A.C. 124, 136. "Their Lordships do not conceive it to be the duty of this Board - it is certainly not their desire - to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the Provinces to a great extent, but within certain fixed limits, are mistresses in theirs". If that is the measure of legislative power the amplitude of the power to amend a Constitution cannot be less. 1288. The width of the amending power can be determined from still another point of view. The Attorney-General has given to us extracts from nearly seventy one modem Constitutions of the world and more than fifty of them show that those Constitutions have provided for their amendment. They have used the word 'amend', 'revise', or 'alter', as the case may be, and some of them have also used other variations of those words by showing that the Constitutional provisions may be changed in accordance with some special procedures laid down. Some have made the whole of the Constitution amendable some others have made some provisions unamendable; and two Constitutions - that of Somalia and West Germany have made provisions relating to Human Rights unamendable. In some of the Constitutions a few provisions are made partially amendable and other provisions only under special restrictions. But all have given what is commonly known as the 'Amending power' to be exercised in circumstances of more or less rigidity. The methods or processes may be more rigid or less rigid-but the power is the same, namely, the amending power.

1289. The raison d'etre for making provisions for the amendment of the Constitution is the need for orderly change. Indeed no Constitution is safe against violent extra- Constitutional upheavals. But the object of making such a provision in a Constitution is to discourage such upheavals and provide for orderly change in accordance with the Constitution. On this all the text-books and authorities are unanimous. Those who frame a Constitution naturally want it to endure but, however gifted they may be, they may not be able to project into the future, when, owing to internal or external pressures or the social, economic and political changes in the country, alterations would be necessary in the Constitutional instrument responding all the time to the will of the people in changed conditions. Only thus an orderly change is ensured. If such a change of Constitution is not made possible, there is great danger of the Constitution being overtaken by forces which could not be controlled by the instruments of power created under the Constitution. Wide-spread popular revolt directed against the extreme rigidity of a Constitution is triggered not by minor issues but by major issues. People revolt not because the so-called 'unessential' parts of a Constitution are not changed but because the 'essential' parts are not changed. The essential parts are regarded as a stumbling block in their progress to reform. It is, therefore, evident that if for any reason, whether it is the extreme rigidity of a Constitution or the disinclination of those who are in power to introduce change by amendment, the essential parts looked upon with distrust by the people are not amended, the Constitution has hardly a chance to survive against the will of the people. If the Constitution is to endure it must necessarily respond to the will of the people by incorporating changes sought by the people. The survival of the American Constitution is generally attributed not so much to the amending Article V of the Constitution but to its vagueness which was exploited by the great judges of the Supreme Court of America who by their rulings adapted the Constitution to the changing conditions. Legislative enactments, custom and usage also played a part. If the Constitution were to merely depend upon Constitutional amendments there are many who believe that the Constitution would not have survived. The reason was the extreme rigidity of the process of amendment. But framers of modern Constitutions as of India learning from experience of other countries have endeavoured to make their Constitution as precise and as detailed as possible so that one need not depend upon judicial interpretation to make it survive. Correspondingly they have made it more flexible so that it is amenable to amendment whenever a change in the Constitution is necessary.

1290. A good deal of unnecessary dust was raised over the question whether the amendment of the Constitution would extend to the repeal of the Constitution. That is an interesting subject for speculation by purists and theoretical jurists, but politicians who frame a Constitution for the practical purposes of government do not generally concern themselves with such speculations. The pre-eminent object in framing a Constitution is orderly government. Knowing that no Constitution, however, good it may seem to be when it was framed, would be able to bear the strain of unforeseen developments, the framers wisely provide for the alteration of the Constitution in the interest of orderly change. Between these two co-ordinates, namely, the need for orderly government and the demands for orderly change, both in accordance with the Constitution, the makers of the Constitution provide for its amendment to the widest possible limit. If any provision requires amendment by way of addition, alteration or repeal, the change would be entirely permissible. If one were to ask the makers of the Constitution the rhetorical question whether they contemplated the repeal of the Constitution, the answer would be, in all probability, in the negative. They did not toil on the Constitution for years in order that it may be repealed by the agencies to whom the amendment of the Constitution is entrusted. They wished it to be permanent, if not eternal, knowing that as time moved, it may continue in utility incorporating all required changes made in an orderly manner. Declaring their faith in the Constitution they will express their confidence that the Constitution which they had framed with the knowledge of their own people and their history would be able to weather all storms when it is exposed to orderly changes by the process of amendment To them the whole-sale repeal would be unthinkable; but not necessary changes in response to the demands of time and circumstance which, in the opinion of the then amending authorities, the current Constitutional instrument would be able to absorb. This is sufficient for the courts to go on as it was sufficient for the framers of the Constitution. Quibbling on the meaning of the word 'amendment' as to whether it also involved repeal of the whole Constitution is an irrelevant and unprofitable exercise. Luckily for us besides the word 'amendment' in Article 368 we have also the uncomplicated word 'change' in that article and thus the intention of the framers of the Constitution is sufficiently known. Then again the expression 'amendment of the Constitution' is not a coinage of the framers of our Constitution. That is an expression well-known in modern Constitutions and it is commonly accepted as standing for the alteration, variation or change in its provisions.

1291. Whichever way one looks at the amending power in a Constitution there can be hardly any doubt that the exercise of that power must correspond with the amplitude of the power unless there are express or necessarily implied limitations on the exercise of that power. We shall deal with the question of express and implied limitations a little later. But having regard to the generality of the principle already discussed the meaning of the word 'amendment of the Constitution' cannot be less than 'amendment by way of addition, variation or repeal of any provision of the Constitution" which is the clarification of that expression accepted by the Constitutional 24th Amendment. 1292. We shall now see if there are express or implied limitations in Article 368 itself. Article 368 is found in Part XX of the Constitution which deals with only one subject, namely, the Amendment of the Constitution. The article provides that when the special procedure directed by it is successfully followed the Constitution stands amended in terms of the proposal for amendment made in the Bill. Whatever provision of the Constitution may be sought to be amended, the amendment is an Amendment of the Constitution. The range is the whole of this Constitution which means all the provisions of the Constitution. No part of the Constitution is expressly excepted from amendment. Part XX and Article 368 stand in supreme isolation, after the permanent provisions of the Constitution are exhausted in the previous XIX parts. The power to amend is not made expressly subject to any other provision of the Constitution. There are no governing words like "subject to the Constitution" or this or that part of the Constitution. If the framers of the Constitution had thought it necessary to exclude any part or provision of the Constitution from amendment, they would have done so in this part only as was done in the American Constitution. Article V of that Constitution, which was undoubtedly consulted before drafting Article 368, made two specific exceptions. The language structure of Article V has a close resemblance to the language structure of our Article

368. Therefore, if any part of the Constitution was intended to be excluded from the operation of the power to amend it would have normally found a place in or below Article 368. As a matter of fact, in the draft Constitution below Article 304, which corresponds to the present Article 368, there was Article 305 which excluded certain provisions from amendment, but later on Article 305 itself was deleted. Even Article 368 itself was not safe from amendment because the proviso to Article 368 shows that the provisions of the article could be changed. Then again we find that when the people through the constituent assembly granted the power to amend, they made no reservations in favour of the people. The people completely withdrew from the process of amendment. In other words, the grant of power was without reservation. Another thing which is to be noted is that when the Constituent Assembly directed that amendments of the Constitution must be made by a prescribed method, they necessarily excluded every other method of amending the Constitution. As long as the article stood in its present form the Parliament could not possibly introduce its own procedure to amend the Constitution by calling a constituent assembly, a convention or the like. Altogether, it will be seen that the grant of power under Article 368 is plenary, unqualified and without any limitations, except as to the special procedure to be followed.

1293. The character of an amendment which can be made in a Constitution does not depend on the flexibility or rigidity of a Constitution. Once the rigidity of the restrictive procedure is overcome, the Constitution can be amended to the same degree as a flexible Constitution. So far as a flexible Constitution like that of Great Britain is concerned, we know there are no limits to what the Parliament can do by way of amendment. It can, as pointed out by Dicey, repeal the Act of Union of Scotland by appropriate provisions even in a Dentist's Act. (Law of the Constitution page 145). We know that by the statute of Westminster the British Parliament removed most of the Imperial fetters from the self governing colonies and by the Independence of India Act, 1947 surrendered its Indian Empire. Recently the British Parliament invited inroads on its sovereignty by joining the Common Market. Similarly, as we have seen in McCawley's case, referred to earlier, the legislature of queensland, whose Constitution was a flexible Constitution, was held competent to amend its Constitutional provisions with regard to the tenure of office of the Judges of the Supreme Court by a subsequent Act passed in 1916 on the subject of Industrial Arbitration. To the objection that so important a provision of the Constitution was not permissible to be amended indirectly by a law which dealt with Industrial arbitration, Lord Birkenhead made the reply at page 713. "Still less is the Board prepared to assent to the argument, at one time pressed upon it, that distinctions may be drawn between different matters dealt with by the Act, so that it becomes legitimate to say of one section: "This section is fundamental or organic; it can only be altered in such and such a manner"; and of another: "This section is not of such a kind; it may consequently be altered with as little ceremony as any other statutory provision." Their Lordships therefore fully concur in the reasonableness of the observations made by Isaacs and Rich JJ that, in the absence of any indication to the contrary, no such character can be attributed to one section of the Act which is not conceded to all; and that if Sections 15 and 16 (relating to the tenure of office of the Judges) are to be construed as the respondents desire, the same character must be conceded to Section 56, which provides that in proceedings for printing any extract from a paper it may be shown that such extract was bona fide made". This only emphasizes that all provisions in a Constitution must be conceded the same character and it is not possible to say that one is more important and the other less important. When a legislature has the necessary power to amend, it can amend an important Constitutional provision as unceremoniously as it can amend an unimportant provision of the Constitution. Dicey observes in his Law of the Constitution, 10th edition p. 127: "The "flexibility" of our Constitution in the right of the Crown and the two Houses to modify or repeal any law whatever; they can alter the succession to the Crown or repeal the Acts of Union in the same manner in which they can pass an Act enabling a company to make a new railway from Oxford to London. 1294. As already pointed out what distinguishes a 'rigid' Constitution from a 'flexible' Constitution is that it requries a special procedure for its amendment. It cannot be legally changed with the same case and in the same manner as ordinary laws. But if the rigid procedure is successfully followed, the power to amend operates equally on all provisions of the Constitution without distincition. Indeed, rigid Constitutions may safeguard certain provisions from amendment even by the special procedure. But where no such provision is protected the power of amendment is as wide as that of a Parliament with a flexible Constitution. Rigidity of procedure in the matter of amendment is the only point of primary distinction between a 'rigid' and 'flexible' Constitution and when this rigidity is overcome by following the special procedure, the power of amendment is not inhibited by the fact that a Constitutional provisions is either important or unimportant. The amending power operates on all provisions as effectively as it does in a flexible Constitution. If the nature of the provision is so important that the Constitution itself provides against its amendment the amending power will have to inspect the provision. But if it is not so protected, every provision, important or otherwise, can be amended by the special procedure provided. In that respect the fact that the Constitution is a 'rigid' Constitution does not place any additional restraint.

1295. We have already referred to the principle underlying the Amending provision in a written Constitution. In some Constitutions, the special procedure is very 'rigid' as in the American Constitution. In others, especially in more modern Constitutions, having regard to the disadvantages of providing too rigid and restrictive procedures, amending procedures have been made more and more flexible. Our Constitution which learnt from the experience of other similar Constitutions made the amending procedure as flexible as was reasonably possible. There are several articles in the Constitution which permit the Parliament to make laws which are of a Constitutional character. There are some other articles which permit amendments to certain other specified provisions of the Constitution by the ordinary legislative procedure. For the rest there is Article 368 which provides a much more flexible procedure than does the American Constitution. The following passages from the book 'Political Science and Comparative Constitutional Law, Vol. I' written by the great jurist John W. Burgess will show both the rationale for including an amendment clause in a Constitution and the need of making the amending procedure as less rigid as possible. At page 137 he says "A complete Constitution may be said to consist of three fundamental parts. The first is the organisation of the state for the accomplishment of future changes in the Constitution. This is usually called the amending clause, and the power which it describes and regulates is called the amending power. This is the most important part of a Constitution. Upon its existence and truthfulness, i.e. its correspondence with real and natural conditions, depends the question as to whether the state shall develop with peaceable continuity or shall suffer alterations of stagnation, retrogression and revolution. A Constitution, which may be imperfect and erroneous is its other parts, can be easily supplemented and corrected, if only the state be truthfully organised in the Constitution; but if this be not accomplished, error will accumulate until nothing short of revolution can save the life of the state". Than at pages 150/151 commenting on the disadvantages of the amending procedure of the American Constitution he remarks "When I reflect that, while our natural conditions and relations have been requiring a gradual strengthening and extension of the powers of the Central Government, not a single step has been taken in this direction through the process of amendment prescribed in that article, except as the result of civil war, I am bound to conclude that the organization of the sovereign power within the Constitution has failed to accomplish the purpose for which it was constructed.... But I do say this that when a state must have recourse to war to solve the internal questions of its own politics, this is indisputable evidence that the law of its organization within the Constitution is imperfect; and when a state cannot so modify and amend its Constitution from time to time as to express itself truthfully therein, but must writhe under the bonds of its Constitution until it perishes or breaks them asunder, this is again indisputable evidence that the law of its organization within the Constitution is imperfect and false. To my mind the error lies in the artificially excessive majorities required in the production of Constitutional changes." These passages express the deep anguish of the jurist and his disappointment with the current process of amendment prescribed in the U.S. Constitution. He gives the amending provision supreme importance in the Constitution and wants it to be very much less rigid than what it is, so that the Constitution can correspond with the truth of contemporary, social and political changes. The whole object of providing for amendment is to make the Constitution as responsive to contemporary conditions as possible because, if it is not the danger of popular revolt, civil war or even revolution in a rapidly changing world may soon overtake the people. That being the political philosophy behind the amending provision it is obvious that the provision must serve the same purpose as in a Parliamentary democracy with a flexible Constitution. The latter can adjust itself more readily with changing conditions and thus discourage violent revolts. If the object of a Constitution is the same, namely, orderly government and orderly change in accordance with the law, it must be conceded that all Constitutions whether flexible or rigid must have the power to amend the Constitution to the same degree; and if flexible Constitutions have the power to make necessary changes in their most cherished Constitutional principles, this power cannot be denied to a Constitution merely because it is a rigid Constitution. The amending power in such a Constitution may therefore, reach all provisions whether important or unimportant, essential or unessential. 1296. The above proposition is supported by several decisions of the Supreme Court of America and the Supreme Courts of the American States, the Constitutions of which are all 'rigid'. In Edwards v. Lesueur South Western Reporter Vol. 33, 1130 it was held that if a State Constitution provides that General Assembly may at any time propose such amendments to that instrument as a majority of the members elected to each house deem expedient the substance and extent of amendment are left entirely to the discretion of the General Assembly. In Livermore v. Waite 102 Cal. 118 only one of the judges, Judge Harrison, held the view that the word 'amendment' in the State Constitution implied such an addition or change within the lines of the original instrument as will effect an improvement or better carrying out of the purpose for which it was framed. But that view is not shared by others. In the State Constitution of California the word 'amendment' was used in addition to the word 'revision' and that may have influenced the judge to give the word 'amendment' a special meaning. The actual decision was dissented from in Edwards v. Lesueur referred to above, decided about 10 years later, and the opinion of Judge Harrison with regard to the meaning of the word 'amendment' was dissented from in Ex- parte Dillon. 262 Federal Reporter 563 decided in 1920 This case went to the Supreme Court of America in Dillon v. Gloss 65 Law edn. 994 and the decision was affirmed. The challenge was to the Prohibition Amendment (18th) and the court observed at p. 996 "An examination of Article V discloses that it is intended to invest Congress with a wide range of power in proposing amendments. Passing a provision long since expired (that provision expired in 1808) it subjects this power to only two restrictions: one that the proposal shall have the approval of two thirds of both Houses, and the other excluding any amendment which will deprive any state, without its consent, of its equal suffrage in the Senate. A further mode of proposal-as yet never invoked-is provided, which is, that on application of the two thirds of the states Congress shall call a convention for the purpose. When proposed in either mode, amendments, to be effective, must be ratified by the legislatures, or by conventions, in three fourths of the states, "as the one or the other mode of ratification may be proposed by the Congress." Thus the people of the United States, by whom the Constitution was ordained and established, have made it a condition to amending that instrument that the amendment be submitted to representative assemblies in the several states and be ratified in three fourths of them. The plain meaning of this is (1) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ratification by these assemblies in three fourths of the states shall be taken as a decisive expression of the people's will and be binding on all". The above passage is important from two points of view. One is that Article V subjects the amending power to no restrictions except the two expressly referred to in the article itself, and the second point which is relevant for our purpose is that the people's ratification may be obtained in one of two ways, namely, by the State legislatures or by State conventions. It was for the Congress to choose between these two ways of ratification. But whichever method was chosen, the ratification whether by the State legislatures or by special conventions, was the ratification on behalf of the people because they were representative assemblies who could give a decisive expression of the people's will. As a matter of fact although several amendments have been made to the Constitution under Article V there has been only one, namely, the 21st Amendment which had been referred to state conventions. All other amendments were proposed by the Congress and ratified by the State legislatures-the ratification being regarded as by people's representatives who could decisively express the people's will. If the State legislatures in America which have no responsibility for the executive government of the State are deemed to reflect the will of the people there is greater reason to hold that our Parliament and State legislatures are no less representative of the will of the people when they participate in the process of amendment of the Constitution.

1297. But reverting to the consideration of the character of "an amendment of the Constitution", we find from decided American cases that there are no limits except those expressly laid down by the Constitution. In Ex-parte Mrs. D.C. Kerby 103 Or. 612 decided by the Oregon Supreme Court in 1922 which concerned an amendment restoring the death penalty which had been abolished by a previous amendment to the Bill of Rights of the State Constitution, the following observations in State v. Cox 8 Ark. 436 were quoted with approval. "The Constitution, in prescribing the mode of amending that instrument, does not limit the power conferred to any particular portion of it, and except other provisions by declaring them not to be amendable. The general assembly, in amending the Constitution, does not act in the exercise of its ordinary legislative authority of its general powers; but it possesses and acts in the character and capacity of a convention, and is, quoad hoc, a convention expressing the supreme will of the sovereign people and is unlimited in its powers save by the Constitution of the United States. Therefore, every change in the fundamental law, demanded by the public will for the public good, may be made, subject to the limitation above named. 1298. In Downs v. City of Birmingham 198 Southern Reporter, 231 the Supreme Court of Alabama held that an amendment to state Constitution may extend to a change in form of the state's government, which may be in any respect except that the government must continue to be a republican form of government as required by the U.S. federal Constitution, which was inviolable, and that rights acquired under the Constitution are subject to Constitutional provisions permitting amendments to the Constitution, and no right can be acquired under the State consitution which cannot be abridged by an amendment of the Constitution and such a rule extends to contract and property rights. 1299. In Schneiderman v. United States of America 87 Law. ed. 1796 which was a denaturalization case on the ground of non-allegiance to the "principles" of the American Constitution, Murphy J. delivering the opinion of the court said, pp. 1808-1809: "The Constitutional fathers, fresh from a revolution, did not forge a political strait-jacket for the generations to come. Instead they wrote Article V and the First Amendment, guaranteeing freedom of thought, soon followed. Article V contains procedural provisions for Constitutional change by amendment without any present limitation whatsoever except that no State may be deprived of equal representation in the Senate without its consent. Cf. National Prohibition Cases (Rhode Island v. Palmer) 65 Law. ed.

946. This provision and the many important and far-reaching changes made in the Constitution since 1787 refute the idea that attachment to any particular provision or provisions is essential, or that one who advocates radical changes is necessarily not attached to the Constitution.

1300. In Ullmann v. United States 100 Law. ed. 511 Frankfurter, J. delivering the opinion of the Supreme Court on the privilege against self-incrimination (Vth amendment) which, by the way, is recognized by our Constitution as a fundamental right, quoted with approval Chief Judge Macgruder who said "if it be thought that the privilege is out- moded in the conditions of this modern age then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion. 1301. Recently in Whitehill v. Elkins, 19 Law. ed. 2d. 228 Douglas, J. delivering the opinion of the court, observed at p. 231 "If the Federal Constitution is our guide, a person who might wish to "alter" our form of Government may not be cast into the outer darkness. For the Constitution prescribes the method of "alteration" by the amending process in Article V; and while the procedure for amending it is restricted, there is no restraint on the kind of amendment that may be offered.

1302. It is unnecessary to multiply cases to appreciate the width of the amending power in a 'rigid' Constitution. Even the dictionaries bring out the same sense. The word 'amend' may have different nuances of meaning in different contexts, like "amend once conduct", "amend a letter or a document", "amend a pleading", "amend a law" or "amend a Constitution". We are concerned with the last one, namely, what an amendment means in the context of a Constitution which contains an amending clause. In the Oxford English Dictionary, Vol. I the word 'amend' is stated to mean "To make professed improvements in (a measure before Parliament); formally, to alter in detail, though practically it may be to alter its principle so as to thwart it.

Re: Kesavananda Bharati vs State Of Kerala And ors

1303. Sutherland in his Statutes and Statutory Construction, third edition, Vol. I, p. 325 has explained an "amendatory act", as any change of the scope or effect of an existing statute, whether by addition, omission, or substitution of provisions, which does not wholly terminate its existence, whether by an act purporting to amend, repeal, revise, or supplement, or by an act independent and original in form.

1304. In Words and Phrases, Permanent edition Vol. 3, p. 447 it is generally stated that the word 'amendment' involves an alteration or change, as by addition, taking away or modification. It is further explained that the words 'amend', 'alter', and 'modify' are in general use and their meaning is not uncertain. Each means to change. A broad definition of the word 'amendment' would include any alteration or change. Further on (458) it is explained in the context of a Constitution that an 'amendment' of a Constitution, repeals or changes some provision in, or adds something to, the instrument amended. Then citing Downs v. City of Birmingham, already referred to, it is stated that every proposal which effects a change in a Constitution or adds to or takes away from it is an 'amendment', and the proposal need not be germane to any other feature of the Constitution, nor to the feature which is amended.

1305. Similarly citing State v. Fulton 124 N.E. 172 it is explained that the word 'amendment', when used in connection with the Constitution, may refer to the addition of a provision on a new and independent subject, complete in itself and wholly disconnected from other provisions, or to some particular article, or section, and is then used to indicate an addition to, the striking out, or some change in that particular section. 1306. In Standard Dictionary of Funk and Wagnalls 'amendment' is defined as an act of changing a fundamental law as of a political Constitution or any change made in it according to a prescribed mode of procedure; as to alter the law by amendment, an amendment of the Constitution.

1307. In a Dictionary of the Social Sciences edited by Julius Gould and William L. Kolb compiled under the auspices of the Unesco p. 23, the word 'amendment' has been explained. "The term 'amendment', whenever used, has the core denotation of alteration or change. Historically the change or alteration denoted was for the sake of correction or improvement. In the realities and controversies of politics, however, the nature of correction or improvement becomes uncertain, so that alteration or change remains the only indisputable meaning as the term is applied. Probably the most fundamental type of formal amendment is that which is constituted by the alteration of the formal language of written Constitutions. The importance of the amending procedure in a time of serious social change has been stated by C.J. Friedrich. 'A well drawn Constitution will provide for its own amendment in such a way as to forestall as far as is humanly possible revolutionary upheavals. That being the case the provisions for amendment form a 'vital part of most modern Constitutions.' (Constitutional Government and Democracy-Boston 1941 p. 135)." It will be thus seen that having regard to the object of providing an amendment clause in a modern Constitution, amendment must stand for alteration and change in its provisions.

1308. That this was intended is clear from the wording of Article 368. The main part of the Article speaks only of "an amendment of this Constitution." It shows how a proposal for amendment becomes part of the Constitution. The language structure of Article 368 recalls the language structure of Article V of the American Constitution. There also the words used are "amendment of this Constitution", and nothingmore. No such supplementary words like "by addition, alteration or repeal" are used. Yet we have seen that so far as Article V is concerned an amendment under Article V involves alteration and change in the Constitution. Article 368 has a proviso which begins with these words "provided that if such amendment seeks to make any change in-(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or

(e) the provisions of this article, the amendment shall also require to be ratified by the legislatures etc. etc." The proviso, therefore, clearly implies that an amendment under Article 368 seeks to make a change in the provisions of the Constitution. If the amendment seeks to make a change in the provisions referred to in Sub-clause (a) to (e) then only the amendment which makes such a change in these provisions requires ratification by the State legislatures. Otherwise, the amendment making a change in other provisions does not require ratification. We have already observed that the, meaning of the word 'change' is uncomplicated and can be easily felt and understood. The noun 'change' according to the Shorter Oxford English Dictionary means "substitution or succession of one thing in place of another; substitution of other conditions; variety." It also means "alteration in the state or quality of anything; variation, mutation." There can be no doubt, therefore, that, having regard to the importance of the amending clause in our Constitution, an amendment contemplates changes in the provisions of the Constitution which are capable of being effected by adding, altering or repealing them, as found necessary, from time to time. As a matter of fact it is impossible to conceive of even the simplest form of amendment without adding, altering or repealing. If you add some words to a provision of the Constitution you thereby alter the provision. If you substitute a few words, you alter and repeal. Mr. Palkhivala admitted that he had no objection whatsoever to an amendment improving the Constitution so that it can serve the people better. He said that it was open to the Parliament to improve the content of the Constitution by making necessary changes. All that would necessarily imply amendment by way of addition, variation or repeal of a provision of the Constitution which is just what the 24th amendment seeks to do. As a matter of fact any amendment to the Constitution which the representatives of the people want to make is professedly an improvement. No proposer of an amendment of a Constitution, whatever his opponents may say to the contrary, will ever agree that his proposal is retrogressive. Therefore, improvement or non-improvement cannot be the true test of an amendment. Alteration and change in the provisions is the only simple meaning, which the people for whom the Constitution is made, will understand.

1309. Having seen the importance of the amending clause in a Constitution, the philosophy underlying it and the amplitude of its power, it will be improper to try to cut down the meaning of the word 'amendment' in the expression 'amendment of the Constitution' by comparing it with the same word used in other provisions of the Constitution or other statutes in a different context. Not that such a comparison will in any way serve the object with which it is made, but it will amount to comparing, in effect, two words-one operating on a higher plane and the other on a lower. The word amendment in the expression "amendment of the Constitution" operates on a higher plane and is substantially different in connotation from the same word used on a lower plane in some other provision of the Constitution or any other statute in an entirely different context. To say that the word 'amendment' in 'amendment of the Constitution' is used in a low key because padding words like amendment "by way of addition, variation or repeal" are used elsewhere in the Constitution would be to ignore the status of the word 'amendment' when used in the context of amending the Constitution. Indeed the expression "amendment by way of addition, variation or repeal" would also amount to 'amendment'. But it is more appropriately used when some distinct provisions of a statute are under consideration and even the extreme limit of a repeal of such provisions is contemplated. In the case of an amendment of the Constitution this extreme limit of the repeal of the Constitution is not, as already pointed out, ordinarily contemplated. In the present case the comparison was principally made with "amend by way of addition, variation or repeal in sub-paragraphs (1) of para 7 and 21 in the Fifth and Sixth Schedules respectively. In both these cases, Parliament is authorized from time to time, by law, to make the amendment in any of the provisions of the two schedules. The authority is not only to add to the provision or vary the provision but even repeal the provision. Having provided that way in sub-paragraph 1 the framers of the Constitution added sub-para (2) in each case, but for which, what was done in accordance with sub-para (1) was likely to be misunderstood as an amendment of the Constitution as described in Article 368. Textually the provisions in the Schedules would stand amended. But this amendment is carried out 'by law'. On the other hand, if even a word in any provision of the Constitution is changed in accordance with Article 368, it is not described as an amendment of the provision but an Amendment of the Constitution with all its wide connotations.

1310. In Articles 4 and 169 (2) we have just the word 'amendment' for amending certain provisions of the Constitution by law, and both of them show in their context, without even the use of the padding words, that such an amendment would be really by way of addition, alteration and repeal. Then again such amendments are expressly taken out of the class of "amendment of the Constitution for the purposes of Article 368" but for which they would have amounted textually to an amendment.

1311. Reference was also made to the amendment made by the constituent assembly in Section 291 of the Government of India Act, 1935 where similar padding words were used along with the word 'amend'. Here again it will be seen that the amendment was not an amendment of the Constitution but an authorization of the Governor General to amend, by Order, certain provisions relating to the Provincial Legislatures which were liable even to be repealed. No implications can be drawn with regard to the power under Article 368 by a reference to another statute where a particular phraseology is adopted in its own context. On the other hand this may be contrasted with the wording of Section 308 (later repealed) which provided for 'the amendment of the Act and the Orders in Council' on the proposals made by the Federal and State legislatures. The Act referred to is the Government of India Act, 1935. No padding words are used in the section although the context shows that amendment would inevitably involve adding, altering or repealing certain provisions of the Government of India Act or Orders in Council. 1312. The structure of Article 368 is now changed by the 24th amendment and the expanded expression "amendment by way of addition, variation or repeal, any provision of this Constitution" is adopted. The language structure of the original Article 368 was, however, different and there was no reference to "the provisions" of the Constitution therein. The article commenced with the words "An amendment of this Constitution" without reference to any provisions. Reference to "provisions of the Constitution" having been eschewed, to pad the expression "amendment of the Constitution" by the words "by way of addition, variation or repeal" would have been inappropriate; because such padding was likely to give the impression that the intention was to amend by addition to and, alteration and repeal of, the Constitution, considered as a whole. Neither the alteration nor the repeal of the Constitution, as a whole, could have been intended and hence the padding words would not have commended themselves to the Draftsmen. And because that was not the intention, we have to take the first step of legally construing "this Constitution" as "every provision of the Constitution" and then import the padding words with reference to the provision. Such a construction is perfectly permissible having regard to the general meaning of the word 'amendment'. Since doubts were expressed in the leading majority judgment of five judges in opposition to the view of the other six judges, who agreed that the word 'amendment' was wide in its application, the 24th amendment had to clarify the position.

1313. Article V of the American Constitution used only the words 'amendment to the Constitution' without any padding like "by way of addition, variation or repeal" and yet no body questions the fact that after 1789, when the Constitution was framed, there have been several additions, alterations and repeals. Actually the 18th amendment was repealed by the 21st.

1314. We thus come to the conclusion that so far as the wording of Article 368 itself is concerned, there is nothing in it which limits the power of amendment expressly or by necessary implication. Admittedly it is a large power. Whether one likes it or not, it is not the function of the court to invent limitations where there are none. Consequences of wreckless use of the power are political in character with which we are not concerned. Consequences may well be considered in fixing the scope and ambit of a power, where the text of the statute creating the power is unclear or ambiguous. Where it is clear and unambiguous, courts have to implement the same without regard to consequences good or bad, just or unjust. In Vacher's [1913] A.C. 107 case Lord Shaw observed at page 126 "Were they (words) ambiguous, other sections or sub-sections might have to be invoked to clear up their meaning; but being unambiguous, such a reference might distort that meaning and so produce error. And of course this is a fortiori the case, if a reference is suggested, not to something within, but to considerations extraneous to, the Act itself. If, for instance, it be argued that the mind of Parliament "looking before and after," having in view the past history of a question and the future consequences of its language, must have meant something different from what is said, then it must be answered that all this essay in psychological dexterity may be interesting, may help to whittle language down or even to vaporize it, but is a most dangerous exercise for any interpreter like a Court of law, whose duty is loyally to accept and plainly to expound the simple words employed. 1315. We have to see next whether there are express limitations on the amending power elsewhere in the Constitution. The only provision to which our attention is drawn in Article 13(2). The article, before its amendment by the 24th amendment, was as follows:

13. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State 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) "laws in force" includes laws passed or made by a

Legislature or otherwise competent authority in the

territory of India before the commencement of this

Constitution and not previously repealed, notwithstanding

that any such law or any part thereof may not be then in

operation either at all or in particular areas.

It is obvious from Articles 13(1) and (2) that the intention was to make the fundamental rights paramount and invalidate all laws which were inconsistent with the fundamental rights. On the commencement of the Constitution of India there could not possibly be a vacuum with regard to laws and, therefore, by Article 372(1) all the laws in force in the territory of India immediately before the commencement of the Constitution were continued in force until altered or repealed or amended by a competent legislature or other competent authority. Such laws which were in force before the commencement of the Constitution and were continued under Article 372(1) were, in the first instance, declared void to the extent of their inconsistency with the provisions of Part III containing the fundamental rights. As to future laws provision was made under Clause (2) which commanded that the State shall not make a law which takes away or abridges the rights conferred by Part III and further added that any law made in contravention of the clause would be void to the extent of the contravention.

1316. It was contended before us that an amendment of the Constitution under Article 368 was a law made by the State and, therefore, to the extent that it contravened Clause (2) it would be void. The submission was similar to the one made in Golak Nath's case which was upheld by the majority of six judges. In the leading majority judgment it was held that it was a law which was made under Article 248 read with the residuary entry 97 of List I of the Seventh Schedule and, therefore, would be void if it took away or abridged any of the fundamental rights. Hidayatullah, J. who agreed with the conclusion did not agree that the power to amend was traceable to the residuary article referred to above. Nevertheless he held "it was indistinguishable from the other laws of the land for the purpose of Article 13(2)." The other five judges who were in the minority agreed substantially with the view taken in Sankari Prasad's case and by the majority in Sajjan Singh's case that this was not a law within the meaning of Article 13(2) because, in their opinion, an amendment of the Constitution under Article 368 was an act in exercise of the constituent power and was, therefore, outside the control of Article 13(2). 1317. Mr. Palkhivala submitted that he was not interested in disputing where the power to amend actually lay. Even assuming, he contended, the power to amend was to be found in Article 368, the worst that could be said against him was that the amendment was a Constitutional law and in his submission even such a law would be taken in by Article 13(2). In this connection he argued that there were certain laws made in the Indian States or even other laws which could be properly described as Constitutional laws which continued in force after the commencement of the Constitution and came within the category described in Article 13(1) and, therefore, there was no reason why an amendment of the Constitution which was also a Constitutional law should not come within the prohibition of Article 13(2). The Indian Independence Act, 1947 and the Government of India Act, 1935 which were the two main Constitutional statutes in accordance with which the country had been governed had been specifically repealed by Article 395. No other statute of similar competence and quality survived our Constitution. It may be that certain statutes of the States and other Constitutional documents may have continued in force as laws under Article 13(1) but it would be wrong to conclude therefrom that an amendment of the Constitution, also being a Constitutional law, would be deemed to have been included in the word 'law' in Article 13(2). We must be clear as to what 'Constitutional law' means in a written Constitution. Jennings in his The Law and the Constitution (fifth edition), pp. 62-65 points out that there is a fundamental distinction between Constitutional law and the rest of the law and that the term 'Constitutional law' is never used in the sense of including the law of the Constitution and the law made under it. In the context of the question in issue, we are concerned with our Constitution which is the supreme fundamental law, on the touch-stone of which the validity of all other laws- those in force or to be made by the State-is to be decided and since an amendment of the supreme law takes an equal place, as already pointed out, with the rest of the provisions of the Constitution we have to see whether an amendment of such quality and superiority is sought to be invalidated by Article 13(2). Other laws in force at the time of the commencement of the Constitution consisting of state treaties or state statutes were not laws of this superior category. In fact Article 372(1) itself shows that if they were to continue in force they were to do so subject to the other provisions of this Constitution and were liable to be altered or repealed or amended by a competent legislature or the other competent authority. All such laws though vaguely described as Constitutional were made absolutely subordinate to the Constitution. In that respect they were no better than any other laws which were continued in force after the commencement of the Constitution and to the extent that they were inconsisent with the fundamental rights, they stood on the same footing as any other laws which continued in force after the commencement of the Constitution. Their status was entirely subordinate to the Constitution. On the other hand, the stature of a Constitutional amendment, as already seen, is the stature of the Constitution itself and, therefore, it would be wrong to equate the amendment of the Constitution with a so-called Constitutional law or document which survived after the commencement of the Constitution under Article 372(1). 1318. An amendment of the Constitution cannot be regarded as a law as understood in the Constitution. The expressions 'law', 'by law', 'make a law', are found scattered throughout the Constitution. Some articles, as shown by Bachawat, J. in Golak Nath's case at pages 904 and 905, are expressly continued until provision is made by law. Some articles of the Constitution continue unless provision is made otherwise by law; some continue save as otherwise provided by law. Some articles are subject to the provisions of any law to be made and some are expnessed not to derogate from the power of making laws. Articles 4, 169, para 7 of the Fifth Schedule and para 21 of the Sixth Schedule empower the Parliament to amend the provisions of the first, fourth, fifth and sixth schedules by law. A reference to all these articles will show that in all these articles the expression 'law' means a law made by the Parliament in accordance with its ordinary legislative procedure. On the other hand, it is a point worthy of note that Article 368 scrupulously avoids the use of the word 'law'. After the proposal for amendment, introduced in Parliament in the form of a Bill, is passed by the two Houses separately with the requisite majority and is assented to by the President with prior ratification by the requisite number of States in certain cases mentioned in the proviso, the proposed amendment writes itself into the Constitution as a part of it. It is not passed, as already pointed out, as any other law is passed by the ordinary procedure by competent legislatures. The ratification by the State legislatures by a resolution is not a legislative act. The whole procedure shows that the amendment is made by a process different from the one which is compulsory for any other laws made by the Parliament or the State legislatures, and hence advisedly the term 'law' seems to have been avoided. In doing this the framers of the Constitution might have been influenced by the view held by many jurists in America that Article V of the American Constitution to which Article 368 conforms to some extent in its language structure don't regard an amendment of the Constitution as a legislative act. Finer called it, as we have already seen, the Constitution itself. "In proposing a Constitutional amendment, the legislature is not exercising its ordinary legislative function." Corpus Juris Secundum, Vol. 16 pp. 48, 49. "Under Article V of the American Constitution the proposal by the Congress for amendment and the ratification by the States are not acts of legislation". Burdick-The Law of the American Constitution, pp. 40-42. "Ratification by the States is not a legislative act"-Weaver Constitutional Law and its Administration, p.

50.

1319. Secondly, we find in several places in our Constitution the two words 'Constitution' and the 'law' juxtaposed which would have been unnecessary if the word 'law' included the Constitution also. For example, in the oath of the President mentioned in Article 60 and of the Governor of a State in Article 159 it would have been sufficient for him to swear that he would "preserve, protect and defend the laws" instead of swearing that he would "preserve, protect and defend the Constitution and the law". Similarly the Attorney General under Article 76 and the Advocate Generals of the States under Article 165 need have merely sworn that he would "discharge the functions conferred on him by law" instead of that "he would discharge the functions conferred by and under this Constitution or any other law for the time being in force". Similar is the case with the oaths prescribed in the IIIrd Schedule for the judges of the Supreme Court and the High Courts and the Comptroller and Auditor General. Indeed it is quite possible to urge that the Constitution has been specially mentioned in order to emphasize its importance. But that is the very point. Its importance lies in its supremacy over all kinds of others laws-a special position which the framers of the Constitution, thoroughly acquainted with federal and quasi- federal Constitutions of the more important countries in the world, must have always known. In any case they knew that the Constitution was distinct from other laws. On that footing it would be only reasonably expected that if an Amendment, not being of the nature of an ordinary law, was intended to be included in word 'law' in Article 13(2), it would have been specifically mentioned in the definition of the word 'law' given in Clause 3(1) of Article 13. The definition is an inclusive definition. It does not mention enacted law or statute law in the definition, apparently because no-body needs to be told that an act of a legislature is law. But it includes such things like an Ordinance, Order, bye-law, rule, regulation, notification, custom or usage in order to clarify that although the aforesaid are not enactments of a legislature, they were still 'law' falling within the definition. An objection seems to have been anticipated that ordinances, orders, bylaws etc., not being the acts of a legislature, are not laws. That apparently was the reason for their specific inclusion. If, therefore, an amendment of the Constitution was intended to be regarded as 'law', not being an ordinary statute of the legislature, it had the greatest claim to be included specifically in the definition. Its omission is, therefore, very significant.

1320. The significance lies in the fact that the Constitution or its amendment is neither a law in force within the meaning of Article 13(1) continued under Article 372(1); nor can it be regarded as a law made by the State within the meaning of Article 13(2). The bar under Article 13(2) is not merely against law but a law made by the State. A fundamental right conferred by Part III could not be taken away or abridged by law made by the "State". To leave no doubt as to what the 'State' means, Part III, containing the fundamental rights, opens with the definition of the word "State" in Article 12. According to that definition the State includes the Government and the Parliament of India and the Government and the Legislarure of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. The definition thus includes all governmental organs within the territories of India and these governmental organs are either created under the Constitution or under the laws adopted by the Constitution under Article 372. In other words, they are all organs or agencies operating under the Constitution owing superior obligation to the Constitution. It would be, therefore, wrong to identify 'state' in Article 13(2) with anything more than the instruments created or adopted by the Constitution and which are required to work in conformity with the Constitution. Nor can the word 'state' be regarded as standing for a Nation or a Conglomeration of all the governmental Agencies. The Nation is an amorphous conception. The bar under Article 13(2) is against concrete instrumentalities of the State, instrumentalities which are capable of making a law in accordance with the Constitution.

1321. By its very definition as discussed earlier, a body or set of bodies exercising, as indicated in the Constitution, sovereign constituent power whether in a 'flexible' or a 'rigid' Constitution is not a governmental organ owing supreme obligation to the Constitution. The body or bodies operate not under the Constitution but over the Constitution. They do not, therefore, while amending the Constitution, function as governmental organs and, therefore, cannot be regarded as the State for the purposes of Part III of the Constitution.

1322. We thus reach the conclusion that an amendment of the Constitution is not a law made by the State and hence Article 13(2) would not control an amendment of the Constitution.

1323. The same conclusion is arrived at by a slightly different approach. Article 13(2) speaks of a law which becomes void to the extent it takes away or abridges a fundamental right as conferred by certain articles or provisions in Part III of the Constitution. Thus it embodies the doctrine of ultra vires well-known in English law. In other words, it is a law about which one can predicate voidability with reference to the provisions of the Constitution. This is possible only when it is a law made by the organs of the State. When an amendment is made, we have already shown, it becomes part of the Constitution, taking an equal status with the rest of the provisions of the Constitution. Voidability is predicated only with reference to a superior law and not an equal law. There is no superior law with reference to which its voidability can be determined. Indeed, if the amendment cannot entirely fit in with some other provisions of the Constitution the courts might have to reconcile the provisions, as was done in Sri Venktaramana v. The State of Mysore [1958] S.C.R. 895 in which the fundamental right under Article 26(b) was read subject to Article 25(2)(b) of the Constitution. The point, however, is that courts have no jurisdiction to avoid one provision of the law with reference to another provision of the same law. It becomes merely a matter of construction. It follows, therefore, that an amendment of the Constitution not being liable to be avoided with reference to a superior law is not a law about which you can predicate avoidability and, hence, stands outside the operation of Article 13(2).

1324. If the fundamental rights in Part III were unamendable, nothing would have been easier than to make a specific provision about it in Part XX which dealt specifically with the subject of the amendment of the Constitution. That was the proper place. Article V of the American Constitution clearly indicated the two subjects which were unamend able. The Draft Constitution shows that, as a matter of fact, there was Article 305 under the subject "amendment of the Constitution" and that article had specifically made some parts of the Constitution unamendable. Later, Article 305 was deleted and the main amending article in the Draft Constitution, namely, Article 304 appeared in the garb of Article 368 of the Constitution with some additional subjects in the proviso. 1325. In adopting the distinction between the 'Constitution' and 'the law' the framers of the Constitution did not create any new concept of the law being subordinate to the Constitution. That was a concept which was well-recognized in Federal Constitutions specially providing for the amendment of the Constitution by a special procedure. 1326. No body disputes that law in its widest sense includes Constitutional law as it does natural law, customary law or ecclesiastical law. The point is whether in our Constitution 'law' includes an "amendment of the Constitution". As already shown our Constitution has maintained a meticulous distinction between ordinary law made by the legislature by ordinary legislative procedure and an amendment of the Constitution under Article 368. This is highlighted even when certain provisions of the Constitution are amended by ordinary law. As already shown Articles 4, 169 and paras 7 and 22 of the Fifth and Sixth Schedules respectively permit the Parliament to make 'by law' certain amendments in the Constitution, but in every case it is further provided that such an amendment made 'by law' shall not be deemed to be an amendment of the Constitution for the purposes of Article 368. When such a distinction is maintained between 'law' and 'an amendment of the Constitution' the same cannot be impaired by reference to the word 'law' used by the Privy Council in a more comprehensive sense in McCawley's case and Rana Singhe's [1965] A.C. 172 case. In the former the Constitution was a flexible Constitution. In the latter, though it was a controlled Constitution the provision with regard to the amendment of the Constitution namely Section 29(4) of the Ceylon (Constitution) Order in Council was part of Section 29 which specifically dealt with the making of laws and came under the subject heading of Legislative power and procedure. In both cases the legislature was sovereign and as often happens in legislatures, principally modelled after the British Parliament, the distinction between Constitutional law and ordinary law becomes blurred and the use of the word 'law' to describe a Constitutional law is indeterminate. We are, however, concerned with our Constitution and cannot ignore the distinction maintained by it in treating ordinary laws as different from the amendment of the Constitution under Article 368. The forms of oath in the IIIrd Schedule referring to "Constitution as by law established" prove nothing to the contrary because as "by law established" merely means Constitution "as legally established." There is no indication therein of any intended dichotomy between 'law' and 'the Constitution'.

1327. Reference was made to the consitutent assembly debates and to the several drafts of the Constitution to show how the original provision which culminated in Article 13 underwent" changes from time to time. They hardly prove anything. The fact that initially Article 13 was so worded as not to override the amendment of the fundamental rights, but later the Drafting Committee dropped that provision does not prove that the framers of the Constitution were of the view that Article 13(2) should reach an amendment of the Constitution if it abridged fundamental rights. It had been specifically noted in one of the notes accompanying the first draft that Article 13(2) would not control an amendment of the Constitution and, therefore, any clarification by a special provision to the effect that fundamental rights are amendable was not necessary except by way of abundant caution. (See : Shiva Rao "The Framing of India's Constitution, Vol. IV, page 26). That was apparently the reason for deleting that part of Article 13 which said that Article 13 should not come in the way of an amendment to the Constitution by which fundamental rights were abridged or taken away. Neither the speeches made by the leaders connected with the drafting of the Constitution nor their speeches (the same constituent assembly had continued as the provisional Parliament) when the first amendment was passed incorporating serious inroads into the fundamental rights conferred by Articles 15, 19 and 31 show that the fundamental rights were intended or understood to be unamendable- rather the contrary.

1328. The further argument that fundamental rights are inalienable natural rights and, therefore, unamendable so as to abridge or take them away does not stand close scrutiny. Articles 13 and 32 show that they are rights which the people have "conferred" upon themselves. A good many of them are not natural rights at all. Abolition of untouchability (Article 17), abolition of titles (Article 18); protection against double jeopardy (Article 20(2)); protection of children against employment in factories (Article 24); freedom as to attendance at religious instruction or religious worship in certain educational institutions (Article 28) are not natural rights. Nor are all the fundamental rights conceded to all as human beings. The several freedoms in Article 19 are conferred only on citizens and not non-citizens. Even the rights conferred are not in absolute terms. They are hedged in and restricted in the interest of the general public, public order, public morality, security of the State and the like which shows that social and political considerations are more important in our organized society. Personal liberty is cut down by provision for preventive detention which, having regard to the conditions prevailing even in peace time, is permitted. Not a few members of the constituent assembly resented the limitations on freedoms on the ground that what was conferred was merely a husk. Prior to the Constitution no such inherent inalienability was ascribed by law to these rights, because they could be taken away by law.

1329. The so called natural rights which were discovered by philosophers centuries ago as safeguards against contemporary political and social oppression have in course of time, like the principle of laissez faire in the economic sphere, lost their utility as such in the fast changing world and are recognized in modern political Constitutions only to the extent that organized society is able to respect them. That is why the Constitution has speciafically said that the rights are conferred by the people on themselves and are thus, a gift of the Constitution. Even in the most advanced and orderly democratic societies in the world in which political equality is to a large extent achieved, the content of liberty is more and more recognized to be the product of social and economic justice without which all freedoms become meaningless. To claim that there is equal opportunity in a society which encourages or permits great disparties in wealth and other means of social and political advancement is to run in the face of facts of life. Freedoms are not intended only for the fortunate few. They should become a reality for those whose entire time is now consumed in finding means to keep alive. The core philosophy of the Constitution lies in social, economic and political justice-one of the principal objectives of our Constitution as stated in the Preamble and Article 38, and any move on the part of the society or its government made in the direction of such justice would inevitably impinge upon the "sanctity" attached to private property and the fundamental right to hold it. The Directive Principles of State Policy, which our Constitution commands should be fundamental in the governance of the country, require the state to direct its policy towards securing to the citizens adequate means of livelihood. To that end the ownership and control of the material resources of the community may be distributed to serve 'the common good, and care has to be taken that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. See : Articles 37 to 39. This mandate is as important for the State as to maintain individual freedoms and, therefore, in the final analysis it is always a continuous endeavour of a State, having the common good of the people at heart, so to harmonize the Directive Principles and the fundamental rights that, so far as property rights are concerned, the unlimited freedom to hold it would have to undergo an adjustment to the demands of the State policy dictated by the Directive Principles. Deprivation of property in one form or other and even expropriation would, in the eyes of many, stand justified in a democratic organization as long as those who are deprived do not earn it by their own effort or otherwise fail to make adequate return to the society in which they live. The attribute at 'sacrcdness' of property vanishes in an egalitarian society. And once this is accepted and deprivation and expropriation are recognized as inevitable in the interest of a better social organization in which the reality of liberty and freedom can be more widely achieved, the claim made on behalf of property that it is an immutable and inalienable natural right loses its force. One cannot lift parts of the Constitution above it by ascribing ultra-Constitutional virtues to them. The Constitution is a legal document and if it says that the whole of it is amendable, we cannot place the fundamental rights out of bounds of the amending power. It is essential to note in the present case that though the plea was generally made on behalf of all fundamental rights, the fundamental right with which we are concerned, principally, is the right to property. It will be sufficient to note here that in modern democracies the tendency is not to recognize right to property as an inalienable natural right. We can do no better than quote here a few passages from W. Friedmann's Legal Theory, fifth edition, 1967. The official doctrine of the modern Roman Catholic Church, from Rerum Novarum (1891) onwards, and of most neo-scholastic philosophers, is that the right of private property is a dictate of natural law. But St. Thomas Aquinas and Suarez strongly deny the natural law character of the right of private property and regard it (rightly as I believe) merely as a matter of social utility.

When faced with the solution of concrete legal problems, we find time and again that natural law formulae may disguise but not solve the conflict between values, which is a problem of constant and painful adjustment between competing interest, purposes and policies. How to resolve this conflict is a matter of ethical or political evaluation which finds expression in current legislative policies and to some extent in the impact of changing ideas on judicial interpretations. And, of course, we all have to make up our minds as responsible human beings and citizens what stand we will take, for example, in the tension between state security and individual freedom. The danger is that by giving our faith the halo of natural law we may claim for it an absolute character from which it is only too easy to step to the condemnation or suppression of any different faith". pp. 357-

358.

The time is past when Western beliefs can be regarded as a measure of all things. Nor will the natural law hypothesis aid much in the solution of the agonising problem of the limits of obedience to positive law. p. 359; The main forces in the development of modern democratic thought have been the liberal idea of individual rights protecting the individual and the democratic idea proper, proclaiming equality of rights and popular sovereignty. The gradual extension of the idea of equality from the political to the social and economic field has added the problems of social security and economic planning. The implementation and harmonisation of these principles has been and continues to be the main problem of democracy.

But democratic communities have universally, though with varying speed and intensity, accepted the principle of social obligation as limiting individual right.

But modern democracy, by the same process which has led to the

increasing modification of individual rights by social duties towards neighbours and community, has every-where had to temper freedom of property with social responsibilities attached to property. The limitations on property are of many different kinds. The State's right of taxation, its police power and the power of expropriation-subject to fair compensation- are examples of public restrictions on freedom of property which are now universally recognised and used. Another kind of interference touches the freedom of use of property, through the growing number of social obligations attached by law to the use of industrial property, or contracts of employment.

The degree of public control over private property depends largely on the stringency of economic conditions. Increasing prosperity and availability of consumer goods has led to a drastic reduction of economic controls, and a trend away from socialisation in Europe. But in the struggling new democracies such as India, poor in capital and developed resources, and jealous of their newly-won sovereignty, public planning and control over vital resources are regarded as essential. The Constitution of the West German Republic of 1949, which reflects a blend of American British and post-war German ideas on the economic aspects of democracy, lays down that land, minerals and means of production may be socialised or be subjected to other forms of public control by a statute which also regulates compensation. Such compensation must balance the interests of the community and those of the individual and leave recourse to law open to the person affected. This still permits wide divergencies of political and economic philosophy, but in the recognition of social control over property, including socialisation as a, legitimate though not a necessary measure, it reflects the modern evolution of democratic ideas. Between the capitalistic democracy of the United States and the Social democracy of India there are many shades and variations. But modern democracy looks upon the right of property as one conditioned by 'social responsibility by the needs of society, by the "balancing of interests" which looms so large in modern jurisprudence, and not as preordained and untouchable private right.

1330. Nor is it correct to describe the fundamental rights, including the right to property, as rights "reserved" by the people to themselves. The Constitution does not use the word "reserved". It says that the rights are "conferred" by the people upon themselves, suggesting thereby that they were a gift of the Constitution. The Constitution had, therefore, a right to take them away. This is indirectly recognised in Golak Nath's case where the majority has conceded that all the fundamental rights could be taken away by a specially convened constituent assembly. When rights are reserved by the people the normal mode, as in the several states of America, is a referendum, the underlying principles being that ultimately it is the people, who had given the Constitution and the rights therein, that could decide to take them away. In our Constitution the people having entrusted the power to the Parliament to amend the whole of the Constitution have withdrawn themselves from the process of amendment and hence clearly indicated that there was no reservation. What the Constitution conferred was made revocable, if necessary, by the amendatory process. In my view, therefore, Article 13(2) does not control the amendment of the Constitution. On that conclusion, it must follow that the majority decision in Golak Nath's case is not correct.

1331. No reference was made to any other provision in the Constitution as expressly imposing a limitation on the Amending Power.

1332. It was next contended that there are implied or inherent limitations on the amendatory power in the very structure of the Constitution, the principles it embodies, and in its essential elements and features (described briefly as essential features). They are alleged to be so good and desirable that it could hot have been intended that they were liable to be adversely affected by amendment. Some of the essential features of the Constitution were catalogued as follows:

(1) The supremacy of the Constitution;

(2) The sovereignty of India;

(3) The integrity of the country;

(4) The democratic way of life;

(5) The Republican form of Government;

(6) The guarantee of basic human rights referred to in the Preamble and elaborated as fundamental rights in Part III of the Constitution; (7) A secular State;

(8) A free and independent judiciary;

(9) The dual structure of the Union and the States;

(10) The balance between the legislature, the executive and the judiciary; (11) A Parliamentary form of Government as distinct from Presidential form of Government;

(12) The amendability of the Constitution as per the basic scheme of Article 368.

1333. These, according to Mr. Palkhivala, are some of the essential features of the Constitution and they cannot be substantially altered by the amendatory process. 1334. A question of very wide import is raised by the submission. So far as the present case is concerned, the 24th amendment does no more than give effect to Parliament's acceptance of the view taken in Sankari Prasad's case, the majority in Sajjan Singh's case and the minority in Golak Nath's case with regard to the nature of the amending power in relation to fundamental rights. It is clarificatory of the original Article 368. What was implicit in Article 368 is now made explicit and the essence of Article 368 is retained. Therefore, there can be no objection to the 24th Amendment on the ground that any essential feature of the Constitution is affected.

1335. The 25th Amendment introduces some abridgement of the fundamental right to property. Right to property has been subject to abridgement right from the Constitution itself (See : Article 31(4) & (6)) and the 25th amendment is a further inroad on the right to property. In Golak Nath's case, the first, fourth and the seventeenth amendments were held by the majority as having contravened Article 13(2). Nevertheless the amendments were not struck down but permitted to continue as if they were valid. Since I have come to the conclusion that Article 13(2) does not control an amendment of the Constitution, it must be held that all previous amendments to the Constitution, so far made, could not be challenged on the ground of repugnancy to Article 13(2). It follows that any amendment of the Constitution cannot be challenged on that ground, and that would be true not only of the 24th amendment but also the 25th amendment, and the 29th amendment. 1336. The question still survives whether the 25th amendment and the 29th amendment are invalid because, as contended by Mr. Palkhivala, an essential feature of the Constitution has been substantially affected. The argument proceeds on the assumption that in the absence of any express limitation on the power of amendment, all the provisions in the Constitution are liable to be amended. He agrees, on this assumption, that even fundamental rights may be somewhat abridged if that is necessary. In this connection, he referred to the first amendment by which Articles 15 and 19 were amended and in both these cases the amendment did abridge the fundamental rights. Similarly he conceded that Articles 31A and 31B were amendments whereby the rights in landed estates were extinguished or substantially affected, but that was in the interest of agrarian reform, a fact of supreme importance in the Indian polity which could not have been ignored for long and to which the Ruling party was committed for a long time. Thus although there had been amendments which abridged fundamental rights, these amendments in his submission did not go to the length of damaging or destroying the fundamental rights. According to him they had not reached the 'core' of the rights. In other words, his submission is that there are some very good and desirable things in the Constitution. One of them is fundamental rights, and though these fundamental rights could be abridged somewhat, it was not permissible to affect by amendment the core of the fundamental rights, including the core of the right to property. For this argument he relies on the basic scheme of the Constitution as first promulgated and contends that any Amendments made thereafter, including the 24th Amendment, would not affect his argument, because, according to him, every one of them, must be evaluated on the principles and concepts adopted in that basic scheme. His further submission was that if such a core of a fundamental right is damaged or destroyed by an amendment, such an amendment is illegal and, therefore, liable to be struck down by this Court as the guardian of the Constitution. It necessarily follows from the submission that Mr. Palkhivala wanted this Court to decide whether by any particular amendment the core of an essential feature like a fundamental right has been damaged or destroyed-undoubtedly a terrifying responsibility for this Court to undertake. It may appear as very odd that while the framers of the Constitution did not think it necessary to expressly exclude even one provision of the Constitution from being amended, they still intended that this Court, as the guardian of the Constitution, should make parts of it unamendable by implying limitations on the Amending power. Indeed this Court is a guardian of the Constitution in the sense that will not permit its contravention by any of its instrumentalities, but it cannot constitute itself a guardian against change Constitutionally effected. 1337. Though the argument had a wide sweep, namely, that the several essential features catalogued by Mr. Palkhivala were not liable to be damaged or destroyed, in the ultimate result the case really boils down to whether the core of the fundamental right to property has been damaged or destroyed principally by the 25th amendment, and, if so whether there was any implied or inherent limitation on the amendmg power which prohibited such an amendment. The several essential features listed by Mr. Palkhivala do not come into the picture in the present case. It is not the case that by the recent 25th amendment either the sovereignty of India is affected or the Republican form of Government has been destroyed. One of the several essential fca'tures listed by him is fundamental rights. Amongst fundamental rights also most are untouched by the amendment. The 25th amendment deals principally with property rights and Articles 14, 19 and 31 in relation to them. By that amendment chiefly two things are sought to be accomplished (1) There shall be no right to receive 'compensation', as judicially interpreted, for a State acquisition for a public purpose, but only to receive an 'amount', (2) A law made to achieve the aims of equitable distribution of community resources or for the prevention of concentration of wealth and means of production shall not be challenged on the ground of repugnancy to Articles 14, 19 and 31. Since it is not the practice of this Court to decide questions which are not 'in immediate controversy it would not be proper to pronounce whether this or that particular so-called essential feature can or cannot be damaged or destroyed by amendment. But since it is argued on behalf of the State that there can be no limitations on the amending power except those expressly provided in the Constitution and since that will affect our decision as to the 25th amendment, we shall have to deal briefly with the question of im"plied and inherent limitations with special reference to fundamental rights including property rights.

1338. Whatever one may say about the legitimacy of describing all the Tights conferred in Part III as essential features, one thing is clear. So far as the right to property is concerned, the Constitution, while assuring that no-body shall be deprived of property except under the authority of law and that there shall be a fair return in case of compulsory acquisition (Article 31(1) & (2)), expressly declared its determination, in the interest of the common good, to break up concentration of wealth and means of production in every form and to arrange for redistribution of ownership and control of the material resources of the community. See : Article 39(b) & (c). If anything in the Constitution deserves to be called an essential feature, this determination is one. That is the central issue in the case before us, however dexterously it may have been played down in the course of an argument which painted the gloom resulting by the denial of the fundamental rights under Articles 14, 19 and 31 in the implementation of that determination. The Constitution had not merely stopped at declaring this determination but actually started its implementation from the commencement of the Constitution itself by incorporating Clauses (4) & (6) under Article 31, the first two clauses of which spelt out the fundamental right to property. Apart front what Pandit Jawaharlal Nehru said about the Article in the Constituent Assembly Debates-and what he said was not at all sympathetic to Mr. Palkhivala's argument before us-the fundamental right to receive compensation under Clause (2), as then framed, was completely nullified by Clauses (4) & (6) in at least one instance of concentration of wealth and material resources viz. Zamindaris and landed estates. These clauses were deliberately inserted in the original Article 31 leaving no manner of doubt that Zamindaris and Estates were sought to be abolished on payment of even illusory compensation. The various States had already passed laws or were in the process of passing laws on the subject, and specific provision was made in the two clauses, securing such laws from challenge on the ground that they were not acquired by the State for a public purpose or that adequate compensation was not paid. The first case under the Bihar Land Reforms Act, 1950, State of Bihar v. Kameshwar Singh [1952] S.C.R. 889 shows that the law was highly unjust (from the prevailing point of view of 'justice') and the compensation payable was in some cases purely illusory. (See : Mahajan J. p. 936). And yet by virtue of Article 31(4) there could be no challenge to that Act and other similar laws on those grounds. By oversight, challenge to such laws under Articles 14 and 19 had not been expressly excluded, and so when the case was pending in this Court, the first Amendment Act was passed inserting Articles 31A and 31B by which, to take no chances, a challenge based on all fundamental rights in Part III was wholly excluded. The course taken by the Constitution and its first Amendment leaves no doubt that Zamindaris and Estates were intended to be expropriated from the very beginning and no 'core' with regard to payment of compensation was sought to be safeguarded. By the time the 4th Amendment was made in 1955, it became apparent that the challenge to any scheme of redistribution or breaking up of concentration of property was confined generally to Articles 14, 19 and 31, and hence Article 31A Was amended. By the amendment all intermediaries, including small absentee landlords, were permitted to be eliminated and challenge to Article 31A was excluded only under Articles 14, 19 and 31. In short, rights in landed agricultural property were extinguished without a thought to the necessity of paying fair compensation. In a real sense concentration of wealth in the form of agricultural lands was broken and community resources were distributed. On the other hand, a protectionist economic system, reinforced by controls, followed in the realm of trade and industry with a view to achieve greater production of goods and services led to other forms of concentration of wealth and means of production in the wake of Independence. So comes the 25th Amendment, the object of which is the same viz implementation of Article 39(b) & (c). It has made clear that owners of property when it is acquired for a public purpose are not entitled to compensation as interpreted by this Court, and any law made with the aforesaid object cannot be challenged on the grounds arising out of Articles 14, 19 and

Re: Kesavananda Bharati vs State Of Kerala And ors

31. In principle, there is no difference in Article 31A and the new Article 31C inserted by the 25th Amendment. In trying to support his arguments on the core principle of essential features, Mr. Palkhivala tried to play down the role of Article 31(4) & (6) and Article 31A excusing them on the ground that they related to very necessary agrarian reforms to which the majority party in the Constituent Assembly was for years before the Constitution, committed. But that is not a legal argument. Articles 31(4)(6) and Article 31A clearly show that community interests were regarded as supreme and those Articles were only a step in the implementation of the Directive Principles in Article 39(b) & (c). (Compare the observations of Das J. in 1952 S.C.R. 889 at pages 996 to 999.) The Constitution definitely refused to accept the 'core' principle with regard to property rights, if property was required to be expropriated in the common interest in pursuance of the Directive Principles. The mood of the majority party is reflected in the speech of Pandit Govind Vallabh Pant, the then Chief Minister of Uttar Pradesh. Speaking in the Constituent Assembly on Article 31 and after justifying the provision of Article 31(4) & (6) in relation to laws regarding Zamindaris and agricultural estates (there were 20 lakh Zamindars) according to him, in U.P. alone (he said "I presume that if at any time this legislature chooses to nationalise industry, and take control of it, whether it be all the industries or any particular class of it, such as the textile industry or mines, it will be open to it to pass a law and to frame the Principles for such purpose, and those principles will be invulnerable in any court. They will not be open to question, because the only condition for disputing them, as has been pointed out by Shri Alladi, (Krishnaswamy Iyer) one of the most eminent jurists which our country has ever produced, is this, that it should he a fraud on the Constitution)." (See : Constituent Assembly Debates Vol. IX page 1289). It shows that Article 31(4)(6) were the first step as applied to land legislation, in the direction of implementing the Directive Principles of Article 39(b) & (c), and it was only a matter of time when the principles would be applied to other types of concentration of wealth and its distribution. As Mahajan, observed in State of Bihar v. Kameshwar Singh at pages 929-30, our Constitution raised the obligation to pay compensation for compulsory acquisition of property to the status of a fundamental right. At the same time by specifically inserting Clauses (4) & (6) in Article 31, it made the issues of public purpose and compensation prescribed in Article 31(2) non-justiciable in some specified laws dealing with concentration and distribution of wealth in the form of landed agricultural property. This clearly negatived the idea of protecting concentration of wealth in a few hands as an essential feature of the Constitution. Hidyatullah, J. was saying practically the same thing when he remarked in Golak Nath's case that it was an error to include property rights in Part III and that they were the weakest of fundamental rights.

1339. I have already discussed the amplitude of power conferred by the amending clause of the Constitution. In countries like America and Australia where express limitations have been imposed in the amending clause itself there is substantial authority for the view that even these express limitations can be removed by following the procedure laid down in the amending clause. According to them this could be done in two steps the first being to amend the amending clause itself. It is not necessary for us to investigate the matter further because Article 368 does not contain any express limitation. On the other hand, the power is wide enough even to amend the provisions of Article 368. See : proviso (e) of that article. In other words, Article 368 contains unqualified and plenary powers to amend the provisions of the Constitution including the Amending clause. Prima facie, therefore, to introduce implied prohibitions to cut down a clear affirmative grant in a Constitution would be contrary to the settled rules of construction. (See the dissenting judgment of Isaacs and Rich JJ in McCawley v. The King 26 C.L.R. 43-68 approved by the Privy Council in 1920 A.C. 691).

1340. When such an Amending clause is amended without affecting the power the amendment will principally involve the Amending procedure. It may make amendment easier or more difficult. The procedure may also differ substantially. Parliament may be eliminated from the process leaving the amendment to the States. The proviso might be dropped, enlarging the role of the Parliament. On the other hand, the Parliament and State Assemblies may be divested of the function by providing for a referendum plebiscite or a special convention. While, thus the power remains the same, the instrumentalities may differ from time to time in accordance with the procedure prescribed. Hidayatullah, J., with respect, was right in pointing out that the power to amend is not entrusted to this or that body. The power is generated when the prescribed procedure is followed by the instrumentalities specified in the Article. Since the instrumentalities are liable to be changed by a proper amendment it will be inaccurate to say that the Constituent Assembly had entrusted the power to any-body. If the authority which is required to follow the procedure is the Parliament for the time being, it may be convenient to describe Parliament as the authority to whom the power is granted or entrusted, but strictly that would be inaccurate, because there is no grant to any body. Whichever may be the instrumentality for the time being, the power remains unqualified. 1341. If the theory of implied limitations is sound-the assumption made being that the same have their origin in the rest of the Constitutional provisions including the Preamble and the fundamental rights-then these limitations must clog the power by whatever Agency it is exercised. The rest of the Constitution does not change merely because the procedure prescribed in Article 368 is changed. Therefore, the implied limitations should continue to clog the power. Logically, if Article 368 is so amended as to provide for a convention or a referendum, the latter will be bound to respect the implied limitations-a conclusion which Mr. Palkhivala is not prepared to accept. He agrees with the jurists who hold that a convention or a referendum will not be bound by any limitations. The reason given is that the people directly take part in a referendum or, through their elected representatives, in a convention. Even in Golak Nath it was accepted that any part of the Constitution including the fundamental rights could be amended out of existence by a Constituent Assembly.

1342. The argument seems to be that a distinction must be made between the power exercised by the people and the power exercised by Parliament. In fact Mr. Palkhivala's whole thesis is that the Parliament is a creature of the Constitution and the limitation is inherent in its being a constituted authority. We have already examined the question and shown that where the people have withdrawn completely from the process of Amendment, the Constituent body to whom the power is entrusted can exercise the power to the same extent as a Constituent Assembly and that the power does not vary according to the Agency to whom the power is entrusted. Therefore, this reason also viz. that Parliament is a constituted body and, therefore, it suffers from inherent limitations does not hold good.

1343. From the conclusion that the power of Amendment remains unqualified by whomsoever it is exercised, it follows that there can be no implied or inherent limitations on the Amending power. If a special convention admittedly does not suffer from limitations, any other constituent body cannot be subject to it. 1344. The leading majority judgment in Golak Nath's case had seen some force in this, doctrine of implied limitations (808), but did not find it necessary to decide on the issue. To remove all doubts on that score the 24th Amendment is now suitably amended. Its first clause says that Parliament may amend any provision of the Constitution notwithstanding anything in it. Therefore, in the matter of amendment Parliament may not, now, be inhibited by the other express provisions of the Constitution, which would mean that it may also ignore all implications arising therefrom. 1345. Where power is granted to amend the Amending power, as in our Constitution, there is no limit to the extent this may be done. It may be curtailed of 'enlarged'. This is well illustrated in Ryan v. Lennox [1935] Irish Reports, 170. Under the Irish State Constitution Act of 1922, the Parliament (Oireachtas) had been given power to amend the Constitution under Article 50 of the Act. Under that Article, amendments during the first eight years of the Constitution, could be validly made without having recourse to a referendum unless specially demanded by the persons, and in the manner specified in Article 47, but amendments made after that period had to be approved in every case by a referendum and the people. By a Constitutional amendment of 1928 (Amendment NO. 10) the compulsion of Article 47 was got rid of, and by an amendment of 1929 (Amendment No. 16) made within the eight year period already referred to, the period of 8 years was extended to 16 years. The result was that the Constitution now authorized the Parliament to amend by ordinary legislation its Constitution for the period of 16 years from the commencement of the Constitution without being required to have recourse to a referendum. In 1931 by a further Amendment (Amendment No. 17) extensive alterations were made by which inter alia, personal liberty was curtailed, denying trial by Jury or by the regular courts. Ryan who was one of the victims of the new law applied to the High Court for a Writ of Habeas Corpus on the ground that the several amendments were invalid, especially No. 16, by which the period of 8 years had been extended to 16 years. If Amendment No. 16 was invalid, that would have automatically resulted in Amendment No. 17 being invalid, having been made after the first period of 8 years. The High Court (3 JJ) unanimously held that all the Amendments were valid. In appeal to the Supreme Court that decision was confirmed by a majority, Kennedy, Chief Justice, dissenting. One of the chief contentions directed against Amendment No. 16 was that the Parliament could not have 'enlarged' its power from 8 to 16 years to change the Constitution without a referendum by ordinary legislation. This conten tion was rejected by the majority. Kennedy, C.J. took a different view of the amendment. He held that Article 50 did not provide for the amending of the Amendatory power, conceding that otherwise the power could have been so 'enlarged'. Since there is no dispute in our case that by reason of Clause (e) of proviso of Article 368 power is given to amend the amendatory power, it was open to Parliament to 'enlarge' the power by amendment. If it is assumed-and we have shown there is no ground to make such an assumption-that there was some implied limitation to be derived from other provisions of the Constitution, that limitation, if any, is now removed by the non-obstante clause in Clause 1 of the Amended Article 368. 1346. It is of some interest to note here that in a case which later went to the Privy Council, Moore v. Attorney General for the Irish State [1935] A.C. 484 and in which a Constitutional amendment made by the Irish Parliament in 1933 (Amendment No. 22) was challenged, Mr. Greene (Later Lord Greene) conceded before the Privy Council that Amendment No. 16 of 1929 was valid and their Lordships observed (494) "Mr. Wilfied Greene for the petitioners rightly conceded that Amendment No. 16 was regular and that the validity of these subsequent amendments could not be attacked on the ground that they had not been submitted to the people by referendum." The question of validity of Amendment No. 16 was so vital to the petitioner's case that it is impossible to believe that a counsel of the standing of Lord Greene would not have challenged the same and, in the opinion of their Lordships, 'rightly'. According to Keith the judgment of Kennedy, C.J. in Rayan's case was wrong. See : Letters on Imperial Relations Indian Reform Constitutional and International Law 1916-1935 page 157.

1347. The importance of Rayan's case lies in the fact that though Article 50 of the Irish Free State Constitution did not expressly say that Article 50 itself is liable to be amended, no less than five judges of the Irish Courts held it could be amended though the amendment resulted in the 'enlargement' of the power of the Irish Parliament to amend the Constitution. How wide the power was further established in Moore's case which held that Amendment No. 22 was valid, though by this Amendment even the Royal Prerogative regarding appeals to the Privy Council was held to have been abrogated by the combined operation of the, Statute of Westminster and the Constitutional Amendment, in spite of Article 50 having been originally limited by the terms of the Scheduled Treaty of 1922. In our case Article 368 authorizes its own amendment and such an amendment can enlarge the powers of the Parliament, if such was the need. 1348. Apart from reasons already given, we will consider, on first principles, whether the constituent body is bound to respect the so-called 'essential feature' of the fundamental rights especially that of right to property. The fact that some people regard them as good and desirable is no adequate reason. The question really is whether the constituent body considers that they require to be amended to meet the challenge of the times. The philosophy of the amending clause is that it is a safety-valve for orderly change and if the good and desirable feature has lost its appeal to the people the constituent body would have undoubtedly the right to change it.

1349. Indeed, if there are some parts of the Constitution which are made expressly unamendable the constituent body would be incompetent to change them, or if there is anything in the provisions of the Constitution embodying those essential features which by necessary implication prohibit their amendment those provisions will also become unamendable. The reason is that in law there is no distinction between an express limitation and a limitation which must be necessarily implied. Secondly, it is an accepted rule of construction that though a provision granting the power does not contain any limitation that may not be conclusive. That limitation may be found in other parts of the statute. But we have to remember that Article 368 permits the amendment of all the provisions of the Constitution expressly. And if that power is to be cut down by something that is said in some other provision of the Constitution the latter must be clear and specific. As far back as 1831 Tindal, C.J. delivering the unanimous opinion of the Judges in the House of Lords in Warburton v. Loveland (1831) II Dow & Clark, 480 observed at page 500 "No rule of construction can require that, when the words of one part of a statute convey a clear meaning...it shall be necessary to introduce another part of the statute which speaks with less perspicuity, and of which the words may be capable of such construction as by possibility to diminish the efficacy of the other provisions of the Act." To control the true effect of Article 368 "you must have a context even more plain or at least as plain as the words to be controlled". See : Jessel M.R. in Bentley v. Rotherham (1876-77) 4 Ch. D. 588 (592). Neither the text nor the context of the articles embodying the fundamental rights shows that they are not exposed to Article 368. Moreover, when we are concerned with a power under a statute, it is necessary to remember the following observations of Lord Selborne in Reg. v. Burah (1878) 3 App. CAS. 889 at pp. 904 & 905 "The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions." Similarly Earl Loreburn in Attorney-General for the Province of Ontario v. Attorney-General for the Dominion of Canada (1912) App. Cas. 571 observed at page 583 "In the interpretation of a completely self-governing Constitution founded upon a written organic instrument such as the British North America Act, if the text is explicit the text is conclusive, alike in what it directs and what it forbids. When the text is ambiguous, as for example, when the words establishing too mutually exclusive jurisdictions are wide enough to bring a particular power within either, recourse must be had to the context and scheme of the Act." The only course which is open to courts is to determine the extent of power expressly granted after excluding what is expressly or by necessary implication excluded. That is the view of the Privy Council in Webb v. Outrim [1907] A.C. 81 the effect of which is summarized by Isaacs, J. in The Amalgamated Society of Engineers v. The Adelaide Steamship Co. Limited and Ors. 28 C.L.R. 129 at p. 150 as follows: ...we should state explicitly that the doctrine of "implied prohibition" against the exercise of a power once ascertained in accordance with ordinary rules of construction, was definitely rejected by the Privy Council in Webb v. Outrun.

1350. Having regard to the rules of construction relating to power referred to above, we have to see if either the provisions relating to the fundamental right to property or any related provisions of the Constitution contain words of prohibition or limitation on the amending power. Right to property is sought to be safeguarded under Article 31, and Article 19 deals with freedoms having relation to property, profession, trade and business. We find nothing in these provisions to suggest that rights to property cannot be abridged by an amendment of the Constitution. On the other hand, Article 31(1) suggests that one can be deprived of property under the authority of law. The right to receive compensation under Clause (2) of Article 31, as it stood at the time of the commencement of the Constitution, had been considerably cut down by several provisions contained in the other clauses of that article. Article 31(4) & (6) not only envisaged breaking up of concentration of landed property in the hands of Zamindars and the like but also expropriation without payment of just compensation. That necessarily called for the exclusion of Articles 14, 19 and 31, because no scheme for expropriation or extinguishment of rights in property would succeed without their exclusion. Thereafter there has been a spate of amendments curtailing property rights and none of them seems to have been challenged on the ground that there was something in the provisions themselves (apart from the fact that they affect a 'transcedental' fundamental right) suggesting an implied or inherent limitation on the amending power. The last sentence from Lord Loreburn's judgment quoted about embodies a well-known rule of construction which is useful when the text of a statute is ambiguous. Where the text is clear and unambiguous there can be no recourse to the context or the scheme of the Act; nor can the context or the scheme be utilised to make ambiguous what is clear and unambiguous. Moreover the rule does not permit in case of ambiguity recourse to the scheme and context which is unhelpful in resolving the ambiguity. It does not authorize investigating the scheme and context with an effect of delimiting the power referred to in the 'ambiguous' text, if the scheme and the context do not contain words which expressly or by necessary implication have the effect. All this is important in connection with the construction of the word 'Amendment in Article 368. We have already shown that the word 'Amendment' used in the context of a Constitution is clear and unambiguous. Therefore, the scheme and the context are irrelevant. The scheme and the context on which reliance is placed before us consist principally of the alleged dominating statuts of the Preamble and the alleged transcedental character of the fundamental rights neither of which helps us in the legal interpretation of the word 'Amendment'. They are being pressed into service merely to create an ambiguity where there is none. Actually the context and scheme are here used to cut down the ambit and scope of the expression 'amendment of the Constitution' by investing them with that effect where neither expressly nor by necessary implication do they contain any prohibition or limitation on the Amending power. Therefore, as a matter of construction no implied limitations can be inferred from the Preamble or the fundamental rights, being as much part of a legal document as any other provision of the Constitution, are subject to equal consideration in the matter of legal construction. To be relevant, the scheme and context must say or reasonably suggest something with regard to Amending power.

1351. Mr. Palkhivala sought to draw support for his doctrine of implied limitations from the preamble. According to him the Preamble sets out the objectives of the Constitution and, therefore, any tampering with these objectives would destroy the identity of the Constitution. And since an amendment of the Constitution, howsoever made, must preserve the identity of the Constitution the objectives of the Preamble should be treated as permanent and unamendable. On that basis he further contended that since the fundamental rights are mostly an elaboration of the objectives of the Preamble, it was implied that the fundamental rights or, at least, the essence of them was not liable to be damaged or destroyed by an amendment.

1352. The submission that the fundamental rights are an elaboration of the preamble is an over-statement and a half truth. According to the Preamble the people of India have given unto themselves the Constitution to secure to all its citizens (a) JUSTICE, social, economic and political; (b) LIBERTY of thought, expression, belief, faith and worship; (c) EQUALITY of status and of opportunity; and to promote among the citizens (d) FRATERNITY assuring the dignity of the individual and the unity of the Nation. There is no doubt that the Constitution is intended to be a vehicle by which the goals set out in it are hoped to be reached. Indeed, being a part of the Constitution, strictly speaking, it is amendable under Article 368. But we will assume that the people of India will not be rash enough to amend the glorious words of the Preamble; and as long as the Preamble is there the Governments will have to honour the Preamble and the Constitution will have to continue as a vehicle which would lead us to the goals. But to say that the fundamental rights are an elaboration of these goals would be a caricature. Most of the fundamental rights may be traced to the principles of LIBERTY and EQUALITY mentioned in the Preamble. But whereas the concepts of LIBERTY and EQUALITY are mentioned in absolute terms in the Preamble the fundamental rights including the several freedoms are not couched in absolute terms. They reflect the concepts of LIBERTY and EQUALITY in a very attenuated form with several restrictions imposed in the interest of orderly and peaceable Government.

1353. The pre-eminent place in the Preamble is given to JUSTICE-social, economic and political, and it is obvious that without JUSTICE the other concepts of LIBERTY, EQUALITY and FRATERNITY would be illusory. In a democratic country whose institutions are informed by JUSTICE-social, economic and political, the other three concepts of LIBERTY, EQUALITY and FRATERNITY will be automatically fostered. Social and political Justice takes care of Liberty; and Justice, social and economic, takes care of Equality of status and of opportunity. Therefore, even in the Directive Principles the supreme importance of Justice-social, economic and political-is highlighted in Article 38, in which the State is given a mandate to strive to promote the welfare of the people by securing and protecting a social order in which justice-social, economic and political shall inform all the institutions of the National life. Where genuine and honest efforts are made in the implementation of this mandate the content and ambit of the concepts of Liberty and Equality are bound to increase and expand. As Wade has pointed out in his introduction to Dicey's Law of the Constitution at page lxxxii "Liberty today involves the ordering of social and economic conditions by governmental authority, even in those countries where political, if not economic equality of its citizens, has been attained. Without expansion of that authority, which Federal States must find more difficult to achieve than a unitary State like the United Kingdom, there is inevitably a risk that the Constitution may break down before a force which is not limited by considerations of Constitutional niceties." Again he points out at pages xxiv and xxv that the modern House of Commons is a forum in which both parties put forward incessant demands for the remedying of some social or economic ill of the body politic...and the changing conditions have all been brought about by the action of Parliament. In doing that, Wade says, it could not be denied that legislation has shifted the emphasis on individual liberty to the provision of services for the public good. In the terms of our Constitution especially the Preamble and Article 38, the shift of emphasis is from individual liberty to Justice-social, economic and political.

1354. The absolute concepts of Liberty and Equality are very difficult to achieve as goals in the present day organised society. The fundamental rights have an apparent resemblance to them but are really no more than rules which a civilized government is expected to follow in the governance of the country whether they are described as fundamental rules or not. England developed these rules in its day to day Government under the rule of law and does not make a song and dance about them. British rulers of India tried to introduce these rules in the governance of this country, as proof of which we can point out to the vast mass of statutes enacted during the British period which have been continued, practically without change, under our Constitution. No body can deny that when Imperial interests were in jeopardy, these rules of good government were applied with an unequal hand, and when the agitation for self rule grew in strength these rules were thrown aside by the rulers by resorting to repressive laws. It was then that people in this country clamoured for these elementary human rights. To them their value in our social and political life assumed such importance that when the Constitution was framed we decided that these rules of Civilized government must find a place in the Constitution, so that even our own Governments at the centre and the States should not overlook them. That is the genesis of our fundamental rights. The importance of these rights as conferred in the Constitution lies not in their being something extraordinary but in the bar that the Constitution imposed against laws which contravened these rights and the effective remedy supplied under Article 32. Indeed the framers of the Constitution took good care not to confer the fundamental rights in absolute terms because that was impractical. Knowing human capacity for distorting and misusing all liberties and freedoms, the framers of the Constitution put restrictions on them in the interest of the people and the State thus emphasizing that fundamental rights i.e. rules of civilized government are liable to be altered, if necessary, for the common good and in the public interest.

1355. And yet, as we have seen above, even in U.K. individual Liberty as it was understood a generation or two ago is no longer so sacrosanct, especially, in relation to ownership of property Several statutes in the economic and social field have been passed which while undoubtedly impinging upon the individual liberties of a few have expanded social and economic justice for the many; If U.K. had stood staunchly by its Victorian concept of laissez faire and individual liberty, the progress in social and economic justice which it has achieved during the last half a century would have been difficult. Even so, though very much more advanced than our country, U.K. cannot claim that it has fully achieved social and economic justice for all its citizens. But there is no doubt that the parties which form the Governments there have always this goal in view though their methods may be different. In a country like ours where we have, on the one hand, abject poverty on a very large scale and great concentration of wealth on the other, the advance towards social and economic justice is bound to be retarded if the old concept of individual liberty is to dog our footsteps. In the ultimate analysis, liberty or freedoms which are so much praised by the wealthier sections of the community are the freedom to amass wealth and own property and means of production, which, as we have already seen, our Constitution does not sympathise with. If the normal rule is that all rules of civilized government are subject to public interest and the common weal, those rules will have to undergo new adjustments in the implementation of the Directive Principles. A blind adherence to the concept of freedom to own disproportionate wealth will not take us to the important goals of the Preamble, while a just and sympathetic implementation of the Directive Principles has at least the potentiality to take us to those goals, although, on the way, a few may suffer some dimunition of the unequal freedom they now enjoy. That being the philosophy underlying the Preamble the fundamental rights and the Directive Principles taken together, it will be incorrect to elevate the fundamental rights as essentially an elaboration of the objectives of the Preamble. As a matter of fact a law made for implementing the Directive Principles of Article 39(b) and (c), instead of being contrary to the Preamble, would be in conformity with it because while if may cut down individual liberty of a few, it widens its horizon for the many. 1356. It follows that if in implementing such a law the rights of an individual under Articles 14, 19 and 31 are infringed in the course of securing the success of the scheme of the law, such an infringement will have to be regarded as a necessary consequence and, therefore, secondary. The Preamble read as a whole, therefore, does not contain the implication that in any genuine implementation of the Directive Principles, a fundamental right will not suffer any dimunition. Concentration and control of community resources, wealth and means of production in the hands of a few individuals are, in the eyes of the Constitution, an evil which must be eradicate from the social organization, and hence, any fundamental right, to the extent that it fosters this evil, is liable to be abridged or taken away in the interest of the social structure envisaged, by the Constitution. The scheme of the fundamental rights in Part III itself shows that restrictions on them have been placed to guard against their exercise in an evil way.

1357. Nor is there anything in the Preamble to suggest that the power to amend the fundamental right to property is cut down. Actually there is no reference to the right to property. On the other hand, while declaring the objectives which inspired the framers of the Constitution to give unto themselves the Constitution which, they hoped, would be able to achieve them, they took good care to provide for the amendment of "this Constitution". It was clearly implied that if the operative parts of the Constitution failed to put us on the road to the objectives, the Constitution was liable to be appropriately amended. Even the Preamble, which, as we know, had been adopted by the constituent assembly as a part of the Constitution. (Constituent Assembly Debates Vol. X p. 456) was liable to be amended. Right to property was, perhaps, deliberately not enthroned in the Preamble because that would have conflicted with the objectives of securing to all its citizens justice, social, economic and political, and equality of opportunity, to achieve which Directive Principles were laid down in Articles 38 to 51. Moreover the Preamble, it is now well settled-can neither increase nor decrease the power granted in plain and clear words in the enacting parts of a statute. See : The Berubari Union and Exchange of Enclaves [1960] 3 S.C.R. 250 at pp. 281 and 282. Further, the legislature may well-intend that the enacting part do extend beyond the apparent ambit of the Preamble. See : Secretary of State v. Maharajah of Bobbili 43 Madras 529 P.C. at 536. As a matter of fact if the enacting part is clear and unambiguous it does not call for construction. In Sprague's case the Supreme Court of America had been called upon to construe Article V, the amending clause, so as to cut down the amending power by implications arising out of certain other provisions of the Constitution itself. Replying to the argument the court observed, "the United 'State asserts that Article V is clear in statement and in meaning contains no ambiguity and calls for no resort to rules of construction. A mere reading demonstrates that this is true." These observations apply with greater force to our amending clause namely Article 368, for in Article V of the American Constitution there was some room for play of argument on the basis of alternative methods permitted for the ratification of the proposed amendments. On the basis of the alternative methods provided in Article V-one by the State legislature and the other by the State convention-it was argued that, the State convention was the appropriate method Bo the exclusion of the State legislature, because the prohibition amendment (18th amendment) directly affected personal liberty. Where personal liberty was involved, it was submitted, the people alone through their convention could ratify an amendment, especially, as under Article X the people had reserved to themselves the powers which were not expressly conferred on the federal Constitution. This argument was rejected by the Supreme Court on the ground that the language of Article V was clear and unambiguous and though alternative methods were provided for, the ultimate authority as to which alternative method should be adopted was the Congress and if the Congress chose the method of ratification by the State legislature there was an end of the matter. The court observed "In the Constitution words and phrases were used in their normal and ordinary as distinct from technical meaning. When the intention is clear, there is no room for construction and no excuse for interpolation". By interpolation the court specifically meant an addition in the nature of a proviso to Article V limiting the power of the Congress as to the choice of the body it would make for the purposes of ratification.

1358. Reference was made to certain cases with a view to show that though there were no words suggesting a limitation on a power, implied limitations or prohibitions are noticed by courts. In a recent Australian case of Victoria v. The Commonwealth 45 A.L.I.R. 251 the question arose as to the power of the Commonwealth Parliament under Section 51(ii) of the Constitution to make laws with respect to taxation under the Pay-roll Tax Assessment Act, 1941-1969. It was unanimously held by the court that the Commonwealth Parliament had the power. During the course of arguments, the question arose, which has been troubling the Australian courts for years, whether there were implied limitations on commonwealth Legislative power under the Constitution in view of the fact that the Preamble to the Constitution recited that the people had agreed "to unite in one indissoluble federal commonwealth under the Crown." In Amalgamated Engineers case, already referred to, which had been regarded for a long time as the final word on the question, the alleged implied prohibition or limitation had been rejected. The question was held to be a question of construction with regard to the extent of power and if the power was ascertained from the express words, there could be no further limitation thereon by implication. But in the case referred to above, while three Judges accepted that view as still good, the other four were of the contrary opinion. Whichever view is correct that really makes no difference to me question before us. We are concerned with the amending power. In the Australian case the Judges were concerned with legistative power and that had to be ascertained within the four corners of the Constitution by which the power had been created and under which it had to be exercised. There was room for construction on the basis of the words and structure of the Constitution, especially, the Preamble which was not liable to be amended by the Commonwealth. On the other hand, since the power to amend the Constitution is a superior power it cannot Be bound by any provision of the Constitution itself, the obvious reason being that even such a provision is amendable under the Constitution. In re The Initiative and Referendum Act, [1919] A.C. 935 it was held by the Privy Council that the British North America Act, 1867, Section 92, head 1, which empowers a Provincial legislature to amend the Constitution of the Province, "excepting as regards the office of Lieutenant-Governor," excludes the making of a law which abrogates any power which the Crown possesses through the Lieutenant- Governor who directly represents the Crown. By the Initiative and Referendum Act the legislative assembly of Manitoba-a Province in Canada-compelled the Lieutenant- Governor to submit a proposed law to a body of voters totally distinct from the legislature of which he is the Constitutional head, and would render him powerless to prevent it from becoming an actual law if approved by those voters. It was held that this directly affected the office of the Lieutenant-Governor as part of the legislature and since the amendment to the Constitution had the effect of affecting that office which was expressly excepted from the amending power the law was void. It is thus seen that there was no question of an implied limitation. In the other case cited before us namely Don John Francis Douglas Livanage and Ors. v. The Queen [1967] A.C. 259 no question of amending the Constitution arose. There by an ordinary act of the legislature made in 1962 under Section 29(1) of the Ceylon (Constitution and Independence) Orders in Council, 1946-47 an attempt was made to partially vest in the legislature and the executive the judicial powers of the judges which vested in them under a separate Imperial Charter viz. the Charter of Justice, 1833 the effective operation of which was recognized in the Constitution of 1946-47. It was held that the Act was ultra vires the Constitution. Some more cases like Ranasinghe's [1965] A.C. 172 case, Taylor v. Attorney General of Queensland 23 C.L.R. 457, Mangal Singh v. Union of India [1967] 2 S.C.R. 109 at 112, were cited to show that Constitutional laws permit implications to be drawn where necessary. No body disputes that proposition. Courts may have to do so where the implication is necessary to be drawn. In Ranasinghe's case the Privy Council is supposed to have expressed the opinion on a construction of Section 29 of the Ceylon (Constitution) Order in Council, 1946 that Sub-sections 2 and 3 are unamendable under the Constitution. In the first place, the observation is obiter, and it is doubtful if their Lordships intended to convey that even under Section 29(4), they were unamendable. A plain reading of the latter provision shows they were amend able by a special majority. Secondly, in an earlier portion of the judgment provisions 29(2) & (3) are described as 'entrenched', the plain dictionary meaning of which is that they are not to be repealed except under more than stringent conditions. See also Wade's Introduction to Dicey pages xxxvi to xxxvii. Jennings in his Constitution of Ceylon (1949) points out at page 22 that the limitations of 29(2) & (3) can be altered or abridged by the special procedure under Section 29(4). Similarly we are in Constitutional Structure of the Commonwealth 1960 reprinted in 1963 pages 83-84. In any event, that was a pure matter of construction on a reading of Sub-sections 1 to 4 of Section 29 together. In Taylor's case the question for consideration was as to the interpretation of the expression 'Constitution of such legislature' in Section 5 of the Colonial Laws Validation Act, 1865. At the time in question the legislature consisted of a lower house and an upper house and it was held that the expression 'Constitution of such legislature" 'was wide enough to include the conversion of a bicameral legislature into a unicameral one. Issacs, J. also held 'legislature' in the particular context meant the houses of legislature and did not include the. Crown. In Mangal Singh's case it was merely held that if by law made under Article 4 of our Constitution a state was formed, that state must have legislative, executive and judicial organs which are merely the accoutrements of a state as understood under the Constitution. The connotation of a 'state' included these three organs. That again was a matter of pure construction. None of the cases sheds any light on the question with which we are concerned viz. whether an unambiguous and plenary power to amend the provisions of the Constitution, which included the Preamble and the fundamental rights, must be frightened by the fact that some superior and transcedental character has been ascribed to them.

1359. On the other hand, in America where implied limitations were sought to be pressed in cases dealing with Constitutional amendments, the same were rejected. In Sprague's case the Supreme Court rejected the contention of implied limitation supposed to arise from some express provisions in the Constitution itself. Referring to this case Dodd in Cases in Constitutional Law, 5th edition pages 1375-1387 says"This case it is hoped puts an end to the efforts to have the court examine into the subject matter of Constitutional amendment" In The National Prohibition 65 Law, edn. 994 cases decided earlier, the Prohibition Amendment (18th) was challenged, as the briefs show, on a host of alleged implied limitations based on the Constitution, its scheme and its history. The opinion of the court did not accept any of them, in fact, did not even notice them. American jurists are clearly of the opinion that the Supreme Court had rejected the argument of implied limitations. See for example Cooley Constitutional Law, 4th edition, 46-47; Burdick Law of American Constitution pp. 45 to 48.

1360. The argument that essential features (by which Mr. Palkhivala means "essential features, basic elements or fundamental principles")' of the Constitution, though capable of amendment to a limited extent are not liable to be damaged or destroyed is only a variation on the argument previously urged before this Court on the basis of the socalled "spirit of the Constitution" which had been rejected as far back as 1952. See : State of Bihar v. Kameshwar Singh [1952] S.C.R. 889. That case arose out of the Bihar Land Reforms Act, 1950 which was pending in the Bihar Legislature at the time of the commencement of the Constitution. After it became law it was reserved for the consideration of the President who gave assent to it. Thus it became one of the laws referred to in Article 31(4) of the Constitution and in virtue of that provision it could not be called in question on the ground that it contravened the provisions of Clause 2 of Article 31. Under that law Zamindari was abolished and the lands vested in the State. The Zamindars received what was described as illusory compensation. As there was danger of challenge under Articles 14, 19 and 31, the Constitution was amended to incorporate Article 31A and Article 31B to take effect from the date of the commencement of the Constitution and this Act along with similar other Acts were included in the Ninth Schedule. In Sankari Prasad's case Che amendment was held valid and when the case came before this Court the arguments became limited in scope. Mr. P.R. Das who appeared for the Zamindars tried to skirt the bar under Article 31(4) by relying on Entry 36 List II and Entry 42 in List III arguing that the law in so far as it did not acquire the Zamindaris for a public purpose or make provision for adequate compensation was incompetent under those entries. Dr. Ambedkar who appeared for other Zamindars took a different stand. In the words of Patanjali Shastri, C.J. "He maintained that a Constitutional prohibition against compulsory acquisition of property without public necessity and payment of compensation was deducible from what he called the "spirit of the Constitution", which, according to him was a valid test for judging the Constitutionality of a statute. The Constitution, being avowedly one for establishing liberty, justice and equality and a government of a free people with only limited powers, must be held to contain an implied prohibition against taking private property without just compensation and in the absence of a public purpose. (Emphasis is supplied) He relied on certain American decisions and text-books as supporting the view that a Constitutional prohibition can be derived by implication from the spirit of the Constitution where no express prohibition has been enacted in that behalf. Articles 31-A and 31-B barred only objections based on alleged infringements of the fundamental rights conferred by Part III, but if, from the other provisions thereof, it could be inferred that there must be a public purpose and payment of compensation before private property could be compulsorily acquired by the State, there was nothing in the two articles aforesaid to preclude objection on the ground that the impugned Acts do not satisfy these requirements and are, therefore, unConstitutional." (Emphasis supplied) This argument was rejected in these words "In the face of the limitations on the State's power of compulsory acquisition thus incorporated in the body of the Constitution, from which "estates" alone are excluded, it would, in my opinion, be contrary to elementary canons of statutory construction to read, by implication, those very limitations into entry 36 of List II, alone or in conjunction with entry 42 of List III of the Seventh Schedule, or to deduce them from "the spirit of the Constitution", and that too, in respect of the very properties excluded." The argument was that having regard to the Preamble and the fundamental rights which established liberty, justice and equality and a government of a free people with only limited powers, taking of private property without just compensation and in the absence of a public purpose was unConstitutional, and this conclusion should be drawn by implied prohibition in spite of Article 31(4), 31A & 31B expressly barring challenge on those very grounds. In other words, an express provision of the Constitution validating a state law was sought to be nullified on the basis of 'essential features and basic principles' underlying the Preamble and the fundamental rights, but the attempt was negatived. I sec no distinction between Dr. Ambedkar's argument in the above case and the case before us, because the plenary power of amendment under Article 368 is sought to be limited by implications supposed to arise from those same 'essential features and basic principles'.

1361. A legislature functioning under a Constitution is entitled to make a law and it is not disputed that such a law can be amended in any way the legislature likes by addition, alteration or even repeal. This power to amend is implicit in the legislative power to make laws. It can never be suggested that when the legislature amends its own statute either directly or indirectly it is inhibited by any important or essential parts of that statute. It can amend the important, desirable, parts as unceremoniously as it can any other unimportant parts of the statute. That being so, one does not see the reasonableness of refusing this latitude to a body which is specifically granted the unqualified power to amend the Constitution. While the legislature's power to amend operates on each and every provision of the statute it is difficult to see why the amending clause in a Constitution specifically authorising the amendment of the Constitution should stand inhibited by any of the Constitution. Essential parts and unessential parts of a Constitution should make no difference to the amending power (Compare passage from McCawley's case already quoted at p. 43-4) That a legislature can repeal an act as a whole and the constituent body does not repeal the Constitution as a whole is not a point of distinction. A legislature repeals an Act when it has outlived its utility. But so far as a Constitution is concerned it is an organic instrument continuously growing in utility and the question of its repeal never arises as long as orderely change is possible. A Constitution is intended to last. Legislative acts do not have that ambition. It is the nature and character of the Constitution as a growing, organic, permanent and sovereign instrument of government which exclude the repeal of the Constitution as a whole and not the nature and character of the Amending power.

Re: Kesavananda Bharati vs State Of Kerala And ors

1362. Since the 'essential features and basic principles' referred to by Mr. Palkhivala are those culled from the provisions of the Constitution it is clear that he wants to divide the Constitution into parts-one of provisions containing the essential features and the other containing non-essential features. According to him the latter can be amended in any way the Parliament likes, but so far as the former provisions are concerned, though they may be amended, they cannot be amended so as to damage or destroy the core of the essential features. Two difficulties arise. Who is to decide what are essential provisions and nonessential provisions ? According to Mr. Palkhivala it is the court which should do it If that is correct, what stable standard will guide the court in deciding which provision is essential and which is not essential? Every provision, in one sense, is an essential provision, because if a law is made by the Parliament or the State legislatures contravening even the most insignificant provision of the Constitution, that law will be void. From that point of view the courts acting under the Constitution will have to look upon its provisions with an equal eye. Secondly, if an essential provision is amended and a new provision is inserted which, in the opinion of the constituent body, should be presumed to be more essential than the one repealed, what is the yardstick the court is expected to employ? It will only mean that whatever necessity the constituent body may feel in introducing a change in the Constitution, whatever change of policy that body may like to introduce in the Constitution, the same is liable to be struck down if the court is not satisfied either about the necessity or the policy. Clearly this is not a function of the courts. The difficulty assumes greater proportion when an amendment is challenged on the ground that the core of an essential feature is either damaged or destroyed. What is the standard? Who will decide where the core lies and when it is reached ? One can understand the argument that particular provisions in the Constitution embodying some essential features are not amendable at all. But the difficulty arises when it is conceded that the provision is liable to be amended, but not so as to touch its 'core'. Apart from the difficulty in determining where the 'core' of an 'essential feature' lies, it does not appear to be sufficiently realized what fantastic results may follow in working the Constitution. Suppose an amendment of a provision is made this year. The mere fact that an amendment is made will not give any body the right to come to this Court to have the amendment nullified on the ground that it affects the core of an essential feature. It is only when a law is made under the amended provision and that law affects some individual's right, that he may come to this Court. At that time he will first show that the amendment is bad because it affects the core of an essential feature and if he succeeds there, he will automatically succeed and the law made by the Legislature in the confidence that it is protected by the amended Constitution will be rendered void. And such a challenge to the amendment may come several years after the amendment which till then is regarded as a part of the Constitution. In other words, every amendment, however innocuous it may seem when it is made is liable to be struk down several years after the amendment although all the people have arranged their affairs on the strength of the amended Constitution. And in dealing with the challenge to a particular amendment and searching for the core of the essential feature the court will have to do it either with reference to the original Constitution or the Constitution as it stood with all its amendments upto date. The former procedure is clearly absurd because the Constitution has already undergone vital changes by amendments in the meantime. So the challenged amendment will have to be assessed on the basis of the Constitution with all its amendments made prior to the challenged amendment. All such prior amendments will have to be accepted as good because they are not under challenge, and on that basis Judges will have to deal with the challenged amendment. But the other amendments are also not free from challenge in subsequent proceedings, because we have already seen that every amendment can be challenged several years after it is made, if a law made under it affects a private individual. So there will be a continuous state of flux after an amendment is made and at any given moment when the court wants to determine the core of the essential feature, it will have to discard, in order to be able to say where the core lies, every other amendment because these amendments also being unstable will not help in the determination of the core. In other words, the courts will have to go by the original Constitution to decide the core of an essential feature ignoring altogether all the amendments made in the meantime, all the transformations of rights that have taken place after them, all the arrangements people have made on the basis of the validity of the amendments and all the laws made under them without question. An argument which leads to such obnoxious results can hardly be entertained. In this very case if the core argument were to be sustained, several previous amendments will have to be set aside because they have undoubtedly affected the core of one or the other fundamental right. Prospective overruling will be the order of the day.

1363. The argument of implied limitations in effect invites us to assess the merits and demerits of the several provisions of the Constitution as a whole in the light of social, political and economic concepts embodied therein and determine on such an assessment what is the irreducible minimum of the several features of the Constitution. Any attempt by amendment, it is contended, to go beyond such irreducible minimum-also called the 'core' of essential features-should be disallowed as invalid. In other words, we are invited to resort to the substantive due process doctrine of the Supreme Court of America in the interpretation of a Constitutional Amendment. That doctrine was rejected long ago by this Court (Gopalan's case) even in its application to ordinary legislation. See 1950 S.C.R. 88 (Kania, C.J. 110) (Das, J. 312). The argument does not have anything to do with the meaning of the expression 'Amendment of the Constitution' because it is conceded for the purpose of this argument that 'amendment of this Constitution' means amendment of all provisions by way of addition, alteration or repeal' What is contended, is that by the very implications of the structure, general principles and concepts embodied in the Constitution, an amendment can go only thus far and no further. In other words, the scope of amendment is circumscribed not by what the constituent body thinks, but by what the Judges ultimately think is its proper limits. And these limits, it is obvious, will vary with individual Judges, and as in due process, the limits will be those fixed by a majority of Judges at one time, changed, if necessary, by a bigger majority at another. Every time an amendment is made of some magnitude as by the Twenty-fifth Amendment we will have, without anything to go on, to consider how, in our opinion, the several provisions of the Constitution react on one another, their relative importance from our point of view, the limits on such imponderable concepts as liberty, equality, justice, we think proper to impose, whether we shall give preponderance to directive principles in one case and fundamental rights in another-in short, determine the 'spirit of the Constitution' and decide how far the amendment conforms with that 'spirit'. We are no longer, than construing the words of the Constitution which is our legitimate province but determining the spirit of the Constitution-a course deprecated by this Court in Gopalan's case at pages 120-121. When concepts of social or economic justice are offered for our examination in their interaction on provisions relating to right to property-matters traditionally left to legislative policy and wisdom, we are bound to flounder "in labyrinths to the character of which we have no sufficient guides.

1364. It is true that Judges do judicially determine whether certain restrictions imposed in a statute are reasonable or not. We also decide questions involving reasonableness of any particular action. But Judges do this because there are objective guides. The Constitution and the Legislatures specifically leave such determination to the higher courts, not because they will be always right, but because the subject matter itself defies definition and the legislatures would sooner abide by what the judges say. The same is true about limits of delegated legislation or limits of legislative power when it encroaches on the judicial or any other field. Since the determinataon of all these questions is left to the higher judiciary under the Constitution and the law, the judges have to apply themselves to the tasks, however difficult they may be, in order to determine the legality of any particular legislative action. But all this applies to laws made under the Constitution and have no relevance when we have to deal with a Constitutional amendment. The Constitution supplies the guides for the assessment of any statute made under it. It does not supply any guides to its own amendment which is entirely a matter of policy. 1365. The 'core' argument and the division into essential and nonessential parts are fraught with the greatest mischief and will lead to such insuperable difficulties that, if permitted, they will open a Pandora's box of endless litigation creating uncertainty about the provisions of the Constitution which was intended to be clear and certain. Every single provision emobies a concept, a standard, norm or rule which the framers of the Constitution thought was so essential that they included it in the Constitution. Every amendment thereof will be liable to be assailed on the ground that an essential feature or basic principle was seriously affected. Our people have a reputation of being litigious lot. We shall be only adding to this.

1366. When an amendment is successfully passed, it becomes part of the Constitution having equal status with the rest of the provisions of the Constitution. If such an amendment is liable to be struck down on the ground that it damages or destroys an essential feature, the power so claimed should, a fortiori, operate on the Constitution as it stands. It will be open to the court to weigh every essential feature like a fundamental right and, if that feature is hedged in by limitations, it would be liable to be struck down as damaging an essential feature. Take for example personal liberty, a fundamental right under the Constitution. If the court holds the opinion that the provision with regard to preventive detention in Article 22 damages the core of personal liberty it will be struck down. The same can be said about the freedom in Article 19. If this Court feels that the provision with regard to, say State monopolies damages the fundamental right of trade of a citizen, it can be struck down. In other words, if an amendment which has become part of the Constitution is liable to be struck down because it damages an essential feature it should follow that every restriction originally placed on that feature in the Constitution would necessarily come under the pruning knife of the courts.

1367. In short, if the doctrine of unamendability of the core of essential feature is accepted, it will mean that we add some such proviso below Article 368 : "Nothing in the above Amendment will be deemed to have authorized an Amendment of the Constitution, which has the effect of damaging or destroying the core of the essential features, basic principles and fundamental elements of the Constitution as may be determined by the Courts." This is quite impermissible.

1368. It is not necessary to refer to the numerous authorities cited before us to show that what are described as some of the essential features are not unamendable. It will be sufficient to refer to only a few. Bryce in his book "The American Commonwealth" New and revised edition, Vol. I says at pages 366-67 with reference to Article V of the American Constitution "But looking at the Constitution simply as a legal document, one finds nothing in it to prevent the adoption of an amendment providing a method for dissolving the existing Federal tie, whereupon such method would be applied so as to form new unions, or permit each State to become an absolutely sovereign and independent commonwealth. The power of the people of the United States appears competent to effect this, should it ever be desired, in a perfectly legal way, just as the British Parliament is legally competent to redivide Great Britain into the sixteen or eighteen independent kingdoms which existed within the island in the eighth century." Randall in his revised edition, 1964 The Constitutional Problems under Lincoln, says at page 394 with reference to Article V "Aside from the restriction concerning the "equal suffrage" of the States in the Senate, the Constitution, since 1808, has contained no amendable part, and it designates no field of legislation that may not be reached by the amending power. An Amendment properly made becomes "valid, to all intents and purposes, as part of this Constitution", having as much "force as any other article. There is no valid distinction between "the Constitution itself" and the amendments. The Constitution at any given time includes all up to the latest amendments, and excludes portions that have not survived the amending process. We should think not of "the Constitution and its amendments," but of "the Constitution as amended". This is especially true when we reflect that certain of the amendments supplant or construe portions of the original document." Colley in his book, The General Principles of Constitutional Law in the United States of America, fourth edition, says at pages 46-47 "Article V of the Constitution prohibits any amendment by which any State "without its consent shall be deprived of its equal suffrage in the Senate". Beyond this there appears to be no limit to the power of amendment. This, at any rate, is the result of the decision in the so-called National Prohibition Cases.... The amendment was attacked on the grounds that it was legislative in its character, an invasion of natural rights and an encroachment on the fundamental principles of dual sovereignty, hut the contention was overruled. The decision totally negatived the contention that "An amendment must be confined in its scope to an alteration or improvement of that which is already contained in the Constitution and cannot change its basic structure, include new grants of power to the Federal Government, nor relinquish to the State those which already have been granted to it." Quick and Carran writing in the "Annotated Constitution of the Australian Commonwealth" (1901) observe as follows at p. 989 with regard to the amending clause of the Constitution namely Section 128. "It may be concluded that there is no limit to the power to amend the Constitution, but that it can only be brought into action according to certain modes prescribed. We will consider the modes and conditions of Constitutional reforms further; meanwhile it is essential to grasp the significance and comprehensiveness of the power itself. For example, the Constitution could be amended either in the direction of strengthening or weakening the Federal Government; strengthening it, by conferring on it new and additional powers; weakening it, by taking away powers. The Constitution could be amended by reforming the structure of the Federal Parliament and modifying the relation of the two Houses; by increasing or diminishing the power of the Senate in reference to Money Bills; by making the Senate subject to dissolution at the same time as the House of Representatives. It is even contended by some daring interpreters that the Constitution could be amended by abolishing the Senate. It could certainly be amended by remodeiling the Executive Department, abolishing what is known as Responsible Government, and introducing a new system, such as that which prevails in Switzerland; according to which the administration of the public departments is placed in the hands of officers elected by the Federal legislature. The Constitution could be amended by altering the tenure of the judges, by removing their appointment from the Executive, and authorizing the election of judges by the Parliament or by the people. The Constitution could be amended in its most vital part, the amending power itself, by providing that alterations may be initiated by the people, according to the plan of the Swiss Popular Initiative; that proposed alterations may be formulated by the Executive and submitted to the people; that proposed alterations may, with certain Constitutional exceptions, become law on being approved of by a majority of the electors voting, dispensing with the necessity of a majority of the States.

1369. On a consideration, therefore, of the nature of the amending power, the unqualified manner in which it is given in Article 368 of the Constitution it is impossible to imply any limitations on the power to amend the fundamental rights. Since there are no limitations express or implied on the amending power, it must be conceded that all the Amendments which are in question here must be deemed to be valid. We cannot question their policy or their wisdom.

1370. Coming to the actual amendments made in the Constitution by the twenty-fifth amendment Act, we find in the first place that the original Clause (2) of Article 31 is recast to some extent by deleting any reference to 'compensation' in cases of compulsory acquisition and requisition for a public purpose. The fundamental right now is not to receive 'compensation' which this Court construed to mean 'a just equivalent' but to receive an "amount" which the legislature itself may fix or which may be determined in accordance with the principles as may be specified by the law. Then again the "amount" may be given in cash or in such manner as the law may specify. The principal objection to the amendment is that the clause arms the legislature with power to fix any amount which it considers fit and such fixation may be entirely arbitrary having no nexus whatsoever with the property of which a person is actually deprived. In similar cases, it is submitted, the amount fixed may be more in one and very much less in another depending entirely on the whim of the legislature. Conceivably the amount may be illusory having regard to the value of the property. The principles for determining the amount may equally be arbitrary and unrelated to the deprivation. Therefore, it is contended, the amendment is bad. It is difficult to understand how an amendment to the Constitution becomes invalid because the Constitution authorizes the legislatures to fix an "amount" or to specify the principles on which the "amount" is to be determined instead of fixing the "compensation" or specifying the principles for determining "compensation". Even compensation ultimately is an "amount". All that the amendment has done is to negative the interpretation put by this Court on the concept of compensation, Clause (2) recognizes the fundamental right to receive an amount in case of compulsory acquisition or requisition and all that it wants to clarify is that the fundamental right is not to receive compensation as interpreted by this Court but a right to receive an amount in lieu of the deprivation which the legislature thinks fit. It is not the case that if a fair amount is fixed for the acquisition or fair principles to determine it are laid down, the amendment would still be invalid. The contention is that it becomes invalid because there is a possibility of the abuse of the power to fix the amount. There is no power which cannot be abused. All Constitutions grant power to legislatures to make laws on a variety of subjects and the mere possibility of the power being used unwisely, injuriously or even abused is not a valid ground to deny legislative power. See : Bank of Toronto v. Lambe 1887, Vol. XII-Appeal Cases 575 at pages 586-587. If that is the position with regard to legislative power, there does not appear to be any good reason why the possibility of abuse of it by the legislature should inhibit an amendment of the Constitution which gives the power. Whether a particular law fixes an amount which is illusory or is otherwise a fraud on power denying the fundamental right to receive an amount specifically conferred by Clause (2) will depend upon the law when made and is tested on the basis of Clause (2). One cannot anticipate any such matters and strike down an amendment which, in all conscience, does not preclude a fair amount being fixed for payment in the circumstances of a particular acquisition or requisition. The possibility of abuse of a power given by an amendment of the Constitution is not determinative of the validity of the amendment.

1371. The new Clause 2B inserted in Article 31 having the consequence of excluding the application of Article 19(1)(f) to a law referred to in Clause (2) of Article 31 is merely a re-statement of the law laid down by this Court after the constiution came into force. The mutual exclusiveness of Article 19(1)(f) and Article 31(2) had been recognized by this Court in a scries of cases. See : Sitabati Debi and Anr. v. State of West Bengal and Anr. [1967] (2) S.C.R. 949. That principle is now embodied in the new amendment. 1372. The only substantial objection to the twenty-fifth amendment is based on the new Article 31C inserted in the Constitution by Section 3 of the twenty-fifth amendment act. 1373. The new article is as follows:

31C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the state towards securing the principles specified in Clause (b) or Clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a declaration chat it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy.

Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.

1374. Ignoring the proviso for the moment, one finds that the main clause of the article falls into two parts. The first part provides that a law of a particular description shall not be deemed to be void on the ground that it affects injuriously somebody's fundamental rights under Articles 14, 19 and 31. The second part provides that if such a law contains a particular declaration, courts shall not entertain a particular kind of objection. 1375. In the first place, it should be noted that what is saved by Article 31C is a law i.e. a law made by a competent legislature. Secondly since Article 31C comes under the specific heading 'Right to property' in Part III dealing with fundamental rights it is evident that the law must involve right to property. That it must of necessity do so is apparent from the description of the law given in the article. The description is that the law gives effect to the policy of the State towards securing the principles specified in Clauses (b) & (c) of Article 39. That article is one of the several articles in Part IV of the Constitution dealing with Directive Principles of State Policy. Article 37 provides that though the Directive Principles are not enforceable by any court, they are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. It follows from this that the Governments and Legislatures are enjoined to make laws giving effect to the Directive Principles. We are immediately concerned with the Directive Principles contained in Article 39(b) and (c) namely, that the State shall direct its policy towards securing (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; and (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. In short Clause (b) contemplates measures to secure what is known as equitable distribution of community resources and Clause (c) contemplates measures for preventing concentration of wealth and means of production in a few private hands. Read along with Article 38 and other principles in this Part, they justify the conclusions of Granville Austin in his Indian Constitution : Cornerstone of a Nation-that our Constitution is informed by social democratic principles. See : pages 41-52 of the book. The final conclusion he came to is expressed in this way:

By establishing these positive obligations of the state, the members of the Constituent Assembly made it the responsibility of future Indian governments to find a middle way between individual liberty and the public good, between preserving the property and the privilege of the few and bestowing benefits on the many in order to liberate the powers of all men equally for contributions to the common good. p. 52.

The philosophy which informs the Constitution looks on concentration of wealth and means of production as a social evil because such concentration, resulting in the concentration of political and economic power in the hands of a few private individuals, not only leads to unequal freedom, on the one hand, but results, on the other, in undermining the same in the case of many. In such conditions it is widely believed that the goals of Equality and Justice, social, economic and political, become unreal, and since the Constitution itself directs that laws may be made to inhibit such conditions it is inevitable that these laws aimed at the reduction of unequal freedoms enjoyed by a few will impair to some extent their fundamental rights under Articles 14, 19 and 31. That would be justified even on the 'core' theory of Mr. Palkhivala because he admits the possibility of an abridgement of a fundamental right in similar cases. Therefore, Article 31C provides, even as Article 31A provided many years ago, that such laws should not be called in question on the grounds furnished by Articles 14, 19 and 31. If a law is made with a view to giving effect to the Directive Principles mentioned in Article 39(b) and 39(c) the law is in conformity with the direct mandate of the Constitution and must be deemed to be Constitutional. The effect of the first part of Article 31C is the I same as if, a proviso had been inserted below Article 13(2) or each of the several Articles 14, 19 and 31 excluding its application to the particular type of law mentioned in Article 31C. If the law does not genuinely purport to give effect to the specified Directive Principles it will not be secure against the challenge under Articles 14, 19 and 31. Indeed since the Directive Principles are couched in general terms they may present some difficulty in judging whether any individual law falls within the ambit of the description given in Article 31C but such a difficulty is no reason for denying, the validity of the amendment. Courts had no difficulty in deciding whether any particular law did fall under Article 31A or not.

1376. The real difficulty is raised by the second part of Article 31C which provides "No law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy." The contention is that if any law makes a declaration as stated, that is conclusive of the fact that it is covered by Article 39(b) or (c) and courts will be debarred from entertaining any objection on the ground that it is not so covered. In other words, it is submitted, the declaration when made in a law whether genuinely falling under Article 39(b) or (c) or not will conclude the issue and the courts will be debarred from questioning the declaration. The result is, according to the submission, that the legislatures may with impunity make a law contravening provisions of the Constitution and by the simple device of a declaration insert the law as an exception to Articles 14, 19 and 31-i.e. in other words amend the Constitution which the legislature cannot do. The Constitution, it is pointed out, may be amended only in the way prescribed in Article 368 and no other and, therefore, Article 31C authorising an amendment in a way other than the one laid down in Article 368, which still forms part of the Constitution with full force, is invalid. 1377. On behalf of the Union, however, it is claimed that the new Article 31C does not have the effect, attributed to it on behalf of the petitioners. It is, submitted, that Article 31C does not prevent judicial review as to whether the law referred to therein is of the description it maintains it is. If on a consideration of its true nature and character the court considers that the legislation is not one having a nexus with the principles contained in Article 39(b) or (c), it will not be saved under Article 31C. The sole purpose of the declaration', according to the submission is to remove from the scope of judicial review a question of a political nature the reason for it being, as explained in Beauharanis v. Illinois 343 U.S. 250. "The legislative remedy in practice might not mitigate the evil or might itself give rise to new problems which would only manifest once again the paradox of reform. It is the price to be paid for the trial and error inherent in legislative efforts to deal with obstinate social issues.

1378. It appears to us that the approach suggested on behalf of the Union is the correct approach to the interpretation of Article 31C.

1379. The State's functional policy is to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political shall, inform all the institutions of the national life. (Article 38). That is the goal of the State poticy. As practical steps, the State is commanded in the next following articles from Articles 39 to 51 to direct its policy towards securing some aims which, being well-known concepts of social democratic theory, are described as 'principles'. See for example the marginal note of Article 39. Compendiously these are described as Directive Principles of State Policy under the heading of Part IV. 1380. We are concerned with Article 39(b) and (c). The State is commanded, in particular, to direct its policy towards securing two aims, one described in (b) and the other in (c). In directing its policy towards securing the aims, the State will evidently have to make laws. A description of such a law is given in the first part of Article 31C-as a law giving effect to the policy of the State towards securing the principles (aims) specified in Articles 39(b) or (c). If a law truly answers that description it will be secure against a challenge under Articles 14, 19 and 31; otherwise not. When such a challenge is made, it will be the obvious duty of the court to ascertain on an objective consideration of the law whether it falls within the description. What the court will have to consider is whether it is a law which can reasonably be described as a law giving effect to the policy of the State towards securing the aims of Article 39(b) or (c). That is an issue which is distinct from the other issue whether the law doesnot give effect to the policy of the State towards securing the said aims. A law reasonably calculated to serve a particular aim or purpose may not actually serve that aim or purpose; and it is this latter issue which is excluded from judicial review. In doing so the declaration does no more than what the courts themselves have beenalways saying viz. that they are not concerned with the wisdom or policy of the legislation. Prohibition laws-for example in U.S.A. and elsewhere, though made in order to give effect to the policy of the State to secure the eradication of the evil of drink did not have that effect. That may have been so because the law was inadequate or because the law gave rise to problems which were unforeseen. But that did not impair the genuineness of the law as being reasonably calculated to achieve a certain result. The two questions are different. One involves the process of identification of the type of legislation by considering its scope and object, its pith and substance. The other involves a process of evaluation by considering its merits and defects, the adequacy or otherwise of the steps taken to implement it or their capability of producing the desired result. A law made to give effect to the State's policy of securing eradication of the drink evil can be properly identified, as such, if such identification is necessary to bemade by a court in order to see the application of a Constitutional provision. But it is an entirely different proposition to say that thelaw does not actually give effect to the State's policy of securing the eradication of drink. That would require an enquiry which courts cannot venture to undertake owing to lack of adequate means of knowledge and sources of information. An enquiry, like that of a Commission, will lead to debatable questions as to the adequacy of the provisions of the law, its deficiencies, the sufficiency and efficiency of the executive side of the Government to implement it effectively, the problems that arise in the course of implementation of the law and the like, ail of which do not legitimately fall within the ambit of an enquiry by a court. The problems are problems of legislative policy. It is for the legislature to decide what should go into the law to give effect to its policy towards securing its purpose. The legislature will have to consider the divergent views in the matter and make its own choice as to how it can effectuate its policy. The courts are not concerned with that aspect of the matter and even if a Jaw is considered a failure, courts cannot refuse to give effect to the same. The declaration does no more than forbid such an enquiry by the courts which the courts themselves would not have undertaken. The declaration is only by way of abundant caution.

1381. No other ground is precluded from judicial review under Article 31C. It was rightly conceded on behalf of the Union that the court in deciding whether the law falls within the general description given of it in Article 31C will be competent to examine the true nature and character of the legislation, its design and the primary matter dealt with, its object and scope. See : e.g. Charles Russell v. The Queen [1882] (VII) Appeal Cases 829 (838-840). If the court comes to the conclusion that the above object of the legislation was merely a pretence and the real object was discrimination or something other than the object specified in Article (b) and (c), Article 31C would not be attracted and the validity of the Statute would have to be tested independently of Article 31C. Similarly as observed in Attorney-General v. Queen Insurance Co. [1878] 3 Appeal Cases 1090 "if the legislation ostensibly under one of the powers conferred by the Constitution is in truth and fact really to accomplish an unauthorised purpose the court would be entitled to tear the veil and decide according to the real nature of the statute. 1382. In that view of the true nature of Article 31C it cannot be said that the amendment is invalid.

1383. The twenty-fifth Amendment Act is, therefore, valid.

Re: Kesavananda Bharati vs State Of Kerala And ors

1384. By the twenty-ninth Amendment, the two Kerala Acts challenged in this petition were included in the Ninth Schedule. Like other Acts included in that Schedule they are immune from challenge by reason of the protection given to the Schedule by Article 31B. It was sought to be argued that unless the Acts related to agrarian reform, implicit in the words 'Without prejudice to the generality of the provisions contained in Article 31A' with which Article 31B opens, the protection was not available. That argument has been rejected previously. See for example N.B. Jeejeebhoy v. Assistant Collector, Thana [1965] (1) S.C.R. 636. Actually the argument does not amount to a challenge to the validity of the Amendment, hut an attempt to show that in spite of the Amendment, the two laws would not be saved by Article 316. The twenty-ninth Amendment is not different from several similar Amendments made previously by which Statutes were added from time to time to the ninth schedule and whose validity has been upheld by this Court. The twenty-ninth Amendment is, therefore, valid.

1385. My conclusions are:

(1) The power and the procedure for the amendment of the Constitution were contained in the unamended Article 368. An Amendment of the Constitution in accordance with the procedure prescribed in that Article is not a 'law' within the meaning of Article 13. An Amendment of the Constitution abridging or taking away a fundamental right conferred by Part III of the Constitution is not void as contravening the provisions of Article 13(2). The majority decision in Golak Nath v. State of Punjab is with respect, not correct.

(2) There were no implied or inherent limitations on the Amending power under the unamended Article 368 in its operation over the fundamental rights. There can be none after its amendment.

(3) The twenty fourth, the twenty-fifth and the twenty-ninth Amendment Acts are valid.

1386. The case will now be posted before the regular bench for disposal in accordance with law.

H.R. Khanna J.

1387. Questions relating to the validity of the Constitution (Twentyfourth Amendment) Act, Constitution (Twentyfifth Amendment) Act and Constitution (Twehtyninth Amendment) Act, as well as the question whether the Parliament acting under Article 368 of the Constitution can amend the provisions of Part III of the Constitution so as to take away or abridge fundamental rights arise for determination in this petition under Article 32 of the Constitution. A number of other important questions, to which reference would be made hereafter, have also been posed during discussion, and they would be dealt with at the appropriate stage. Similar questions arise in a number of other petitions, and the counsel of the parties in those cases have been allowed to intervene. 1388. The necessary facts may now be set out, while the details which have no material bearing for the purpose of this decision can be omitted. Kerala Land Reform's Act, 1963 (Act 1 of 1964) as originally enacted was inserted as item No. 39 in the Ninth Schedule to the Constitution. The said Act was subsequently amanded by Kerala-Land Reforms (Amendment) Act, 1969 (Act 35 of 1969). The petitioner filed the present writ petition on March 21, 1970 challenging the Constitutional Validity of the Kerala Land Reforms Act,. 1963 (Act 1 of 1964) as amended by the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969). The aforesaid Act was also challenged in a number of petitions before the Kerala High Court. A Full Bench of the Kerala High Court as per its decision in V.N. Narayanan Nair v. State of Kerala ILR [1970] (II) Kerala 315 upheld the validity of the said Act, except in respect of certain provisions. Those provisions were declared to be invalid. The State of Kerala came up in appeal to this Court against the judgment of the Kerala High Court in so far as that court had held a number of provisions of the Act to be invalid. This Court dismissed the appeals of the State as per judgment dated April 26, 1972. (1972) 2 S.C.C. 364. Appeals filed by private parties against the judgment of the Kerala High Court upholding the validity of the other provisions too were dismissed. Some writ petitions filed in this Court challenging the validity of the above mentioned Act were also disposed of by this Court in accordance with its decision in the appeals filed by the the State of Kerala and the private parties.

1389. The Kerala High Court as per judgment dated October 21, 1970 declared some other provisions of the Kerala Land Reforms Act as amended by Act 35 of 1969 to the invalid and unConstitutional. After the above judgment of the High Court the Kerala Land Reforms Act was amended by Ordinance 4 of 1971 which was promulgated on January 30, 1971. The Kerala Land Reforms (Amendment) Bill, 1971 was thereafter introduced in the Legislative Assembly to replace the ordinance. The Bill was passed by the Legislative Assembly on April 26, 1971 and received the assent of the President on August 7, 1971. It was thereafter published as the Kerala Land Reforms Act, 1971 (Act 25 of 1971) in the Gazette Extraordinary on August 11, 1971. By the Constitution (Twentyninth Amendment) Act, 1972 which was assented to by the President on June 9, 1972 the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969> and Kerala Land Reforms (Amendment) Act, 1971 (Act 25 of 1971) were included in the Ninth Schedule to the Constitution.

1390. The writ petition was amended twice. The first amendment was made with a view to enable the petitioner to impugn the Constitutional validity of the Kerala Reforms (Amendment) Act (Act 25 of 1971). The second amendment of the petition was made with a view to include the prayer to declare the Twentyfourth, Twentyfifth and Twentyninth Amendments to the Constitution as unConstitutional, ultra vires, null and void.

1391. It may be mentioned that the Twentyfourth Amendment related to the amendment of the Constitution. Section 2 of the Amendment Act added Clause (4) in Article 13 as under:

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.

1392. Section 3 of the Amendment Act read as under:

3. Article 368 of the Constitution shall be renumbered as Clause (2) thereof, and

(a) for the marginal heading to that article, the following marginal heading shall be substituted, namely:

Power of Parliament to amend the Constitution and

procedure therefor.;

(b) before Clause (2) as so re-numbered, the following clause shall be inserted, namely:

(1) Notwithstanding anything in this Constitution,

Parliament may in exercise of its constituent power amend

by way of addition, variation or repeal any provisions of

this Constitution in accordance with the procedure laid

down in this article,;

(c) in Clause (2) as so re-numbered, for the words "it shall be presented to the President for his assent and upon such assent being given to the Bill," the words "it shall be presented to the President who shall give his assent to the Bill and thereupon" shall be substituted;

(d) after Clause (2) as so re-numbered, the following clause shall be inserted, namely:

(3) Nothing in Article 13 shall apply to any amendment

made under this article.

Re: Kesavananda Bharati vs State Of Kerala And ors

We may set out Articles 13 and 368 as they existed both before and after amendment made by the Twentyfourth Amendment Act:

Before the Amendment After the Amendment 13. (1) All laws in force in the territory of 13. (1) All laws in force in the territory India immediately before the of India immediately before commencement of this Constitution, the commencement of this Consitution, so far as they are inconsistent in far so as they are inconsistent with the provisions of this part, shall with the provisions of this Part, to the extent of such inconsistency, shall to the extent of such inconssistency be void. be void. (2) The State shall not make any law (2) The State shall not make any law which takes away or abridges the rights which takes away or abridges the conferred by this Part and any law made rights

conferred by this Part and any in contravention of this clause shall, law made in contravention of this to the extent of the contravention, clause shall, to the extent of the be void. contravention, be void. (3) In this article, unless the context (3) In this article, unless the context otherwise requires. otherwise requires, (a) "law" includes any Ordinance, order (a) "law" includes any Ordinance byelaw, rules, regulation, notification, order, byelaw, rule, regulation, custom or usage having in the territory notification, of India the force of law; custom or usage having in the territory of India the force, of law; (b) "laws inforce" includes laws passed (b) "laws in force" includes laws or made by a Legislature or passed or made by a Legislature or other competent authority in the other competent authority in the territory of India before the commencement territory of India before the

commencement of the Constitution and not of this Constitution and previously repealed, notwithstanding not previously repealed,

notwithstanding that any such law or any part that any such law or any thereof may not be then in operation part thereof may not be then of either at all or in particular areas. operation either at all or in particular areas (4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368. 368. An

amendment of this Constitution 368. (r) Notwithstanding anything may be initiated only by the introdution in this Constitution, Parliament may of a Bill for the purpose in in exercise of its constituent power either House of Parliament, and when amend by way of addition,

variation the Bill is passed in each House or repeal any provision of this Constitution by a majority of the total membership in accordance with the procedure of that House and by a majority of not laid down in this article less than twothirds of the members of that House present and voting, it shall (2) An amendment of this Constitution be presented to the President may be initiated only by the introduction for his assent and upon such assent being of a Bill for the purpose in given to the Bill, the Constitution either House of Parliament, and when shall stand amended in accordance with the Bill is passed in each House by a the terms of the Bill : majority of the total membership of that House and by a majority of Provided that if such amendment seeks to not less than two-thirds of the members make any change in- of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall Stand amended in accordance with the terms of the Bill : Provided that if such amendment seeks to make any change in- (a) Article 54, Article 55, Article 73, (a) Article 54, Article 55, Article 73, Article 162 or Article 241, or Article 162 or Article 241, or (b) Chapter IV of Part V, Chapter V (b) Chapter IV of Part V, Chapter : V of Part VI, or Chapter I of Part XI or of Part VI, or Chapter I of Part XI or (c) any of the Lists in the Seventh (c) any of the Lists in the Seventh Schedule, or Schedule, or (d) the representation of States in (d) the representration of States in Parliament, or Parliament, or (e) the provisions of this article, (e) the provisions of this article, the amendment shall also require to the amendment shall also require to be ratified by the Legislatures of not be ratified by the Legislatures of less than one-half of the States by not less than one-half of the States by resolutions to that effect passed by resolutions to that effect passed by those Legislatures before the Bill making those Legislatures before the Bill provision for such amendment is presented making provision of or such amendment to the President for assent. is presented to the President for assent. (3) Nothing in Article 13 shall apply to any amendment made under this article.

1393. The Constitution (Twentyfifth Amendment) Act, 1971 amended Article 31 of the Constitution. The scope of the amendment would be clear from Section 2 of the Amendment Act which reads as under:

2. In Article 31 of the Constitution,-

(a) for Clause (2), the following clause shall be substituted

namely:

(2) No property shall be compulsorily

acquired or requisitioned save for a public

purpose and save by authority of a law

which provides for acquisition or

requisitioning of the property for an amount

which may be fixed by such law or which

may be determined in accordance with such

principles and given in such manner as may

be specified in such law; and no such law

shall be called in question in any court on

the ground that the amount so fixed or

determined is not adequate or that the whole

or any part of such amount is to be given

otherwise than in cash:

Provided that in making any law providing

for the compulsory acquisition of any

property of an educational institution

established and administered by a minority,

referred to in Clause (1) of Article 30, the

State shall ensure that the amount fixed by

or determined under such law for the

acquisition of such property is such as

would not restrict or abrogate the right

guaranteed under that clause";

(b) after Clause (2A), the following clause shall be inserted,

namely:

(2B) Nothing in Sub-clause (f) of Clause (1)

of Article 19 shall affect any such law as is

referred to in Clause (2).

1394. The Constitution (Twentyfifth Amendment) Act also added Article 31C after Article 31B as under:

31C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy.

Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.

1395. The Constitution (Twentyninth Amendment) Act, as mentioned earlier, inserted the following as entries No. 65 and 66 respectively in the Ninth Schedule to the Constitution: (i) The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969); and

(ii) The Kerala Land Reforms (Amerdment) Act, 1971 (Kerala Act 25 of 1971).

1396. The question as to whether the fundamental rights contained in Part III of the Constitution could be taken away or abridged by amendment was first considered by this Court in the case of Sri Sankari Prasad Singh Deo v. Union of India And Anr. [1952] S.C.R. 89 In that case the appellant challenged the First Amendment of the Constitution. The First Amendment made changes in Articles 15 and 19 of the Constitution. In addition, it provided for insertion of two Articles, 31A and 31B, in Part III. Article 31A provided that no law providing for acquisition by the State of any estate or of any such rights therein or the extinguishment or modification of any such right, shall be deemed to be void on the ground that it was inconsistent with or took away or abridged any of the rights conferred by any provision in Part III. The word "estate" was also defined for the purpose of Article 31A. Article 31B provided for validation of certain Acts and Regulations which were specified in the Ninth Schedule to the Constitution. The said Schedule was added for the first time in the Constitution. The Ninth Schedule at that time contained 13 Acts, all relating to estates, passed by various Legislatures off the Provinces or States. It was provided that those Acts and Regulations would not 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 any provision of Part III. It further provided that notwithstanding any judgment, decree or order of any court or Tribunal to the contrary, all such Acts and Regulations, subject to the power of any competent Legislature to repeal or amend them, would continue in force.

Re: Kesavananda Bharati vs State Of Kerala And ors

1397. The attack on the validity of the First Amendment was based primarily on three grounds. Firstly, that amendments to the Constitution made under Article 368 were liable to be tested under Article 13(2); secondly, that in any case as Articles 31A and 31B inserted in the Constitution by the First Amendment affected the powers of the High Court under Article 226 and of this Court under Articles 132 and 136, the Amendment required ratification under the proviso to Article 368; and thirdly, that Articles 31A and 31B were invalid on the ground that they related to matters covered by the State List. This Court rejected all the three contentions. It held that although "law" would ordinarily include Constitutional law, there was a clear demarcation between ordinary law made in the exercise of legislative power and Constitutional law made in the exercise of constituent power. In the context of Article 13, "law" must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to Constitution made in the exercise of constituent power. Article 13(2), as such, was held not to affect amendments made under Article 368. This Court further held that Articles 31A and 31B did not curtail the power, of this Court and of the High Court and as such did not require ratification under the proviso contained in Article 368. Finally, it was held that Articles 31A and 31B were essentially amendments to the Constitution and the Parliament had the power to make such amendments. In consequence, the First Amendment to the Constitution was held to be valid.

1398. The second case in which there arose the question of the power of the Parliament to amend fundamental rights was Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R. 933. In this case the Seventeenth Amendment made on June 29, 1964 was challenged. By the Seventeenth Amendment changes were made in Article 31A of the Constitution and 44 Acts were included in the Ninth Schedule to the Constitution to give them complete protection from attack under any provision of Part III of the Constitution. One of the contentions advanced in Sajjan Singh's case was that, as Article 226 was likely to be affected by the Seventeenth Amendment, it required ratification under the proviso to Article 368 and that the decision in Sankari Prasad's case (supra) which had negatived such a contention required reconsideration. It was also urged that the Seventeenth Amendment was legislation with respect to land and the Parliament had no right to legislate in that respect. It was further argued that as the Seventeenth Amendment provided that Acts put in the Ninth Schedule would be valid in spite of the decision of the courts, it was unConstitutional. This Court by a majority of 3 to 2 upheld the correctness of the decision in Sankari Prasad's case. This Court further held unanimously that the Seventeenth Amendment did not require ratification under the proviso to Article 368. The Parliament, it was held, in enacting the amendment was not legislating with respect to land and that it was open to Parliament to validate legislation which had been declared invalid by courts. By a majority of 3 to 2 the Court held that the power conferred by Article 368 included the power to take away fundamental rights guaranteed by Part III and that the power to amend was a very wide power which could not be controlled by the literal dictionary meaning of the word "amend". The word "law" in Article 13(2), it was held, did not include an amendment of the Constitution made in pursuance of Article 368. The minority, however, doubted the correctness of the view taken in Sankari Prasad's case to the effect that the word "law" in Article 13(2) did not include amendment to the Constitution made under Article 368.

1399. The correctness of the decision of this Court in Sankari Prasad's case and of the majority in Sajjan Singh's case was questioned in the case of I.C. Golak Nath and Ors. v. State of Punjab and Anr. [1967] 2 S.C.R. 762. The case was heard by a special bench consisting of 11 judges. This Court in that case was concerned with the validity of the Punjab Security of Land Tenures Act, 1953 and of the Mysore Land Reforms Act. These two Acts had been included in the Ninth Schedule to the Constitution by the Constitution (Seventeenth Amendment) Act, 1964. It was held by Subba Rao C.J., Shah, Sikri, Shelat and Vaidialingam JJ. Hidayatullah J. concurring) that fundamental rights cannot be abridged or taken away by the amending procedure in Ariticle 368 of the Constitution. An amendment of the Constitution, it was observed, is "law" within the meaning of Article 13(2) and is, therefore, subject to Part III of the Constitution. Subba Rao C.J., who gave the judgment on his own behalf as well as on behalf of Shah, Sikri, Shelat and Vaidialingam JJ. gave his conclusions as under:

(1) The power of the Parliament to amend the Constitution is derived from Articles 245, 246 and 248 of the Constitution and not from Article 368 thereof which only deals with procedure. Amendment is a legislative process.

(2) Amendment is 'law' within the meaning of Article 13 of the

Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void.

(3) The Constitution (First Amendment) Act, 1951 Constitution (Fourth Amendment) Act, 1955, and the Constitution (Seventeenth Amendment) Act, 1964, abridge the scope of the fundamental rights. But, on the basis of earlier decisions of this Court, they were valid.

(4) On the application of the doctrine of 'prospective over-ruling', as explained by us earlier, our decision will have only prospective operation and, therefore, the said amendments will continue to be valid.

(5) We declare that the Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein. (6) As the Constitution (Seventeenth Amendment) Act holds the field, the validity of the two impugned Acts, namely, the Punjab Security of Land Tenures Act X of 1953, and the Mysore Land-Reforms Act X of 1962, as amended by Act XIV of 1965, cannot be questioned on the ground that they offend Articles 13, 14 or 31 of the Constitution.

Hidayatullah J. summed up his conclusions as under:

(i) that the Fundamental Rights are outside the amendatoryprocess if the amendment seeks to abridge or take away any of the rights;

(ii) that Sankari Prasad's case (and Sajjan Singh't case which followed it) conceded the power of amendment over Part III of the Constitution on an erroneous view of Articles 13(2) and 368;

(iii) that the Fust, Fourth and Seventh Amendments being part of the Constitution by acquiescence for a long time, cannot now be challenged and they contain authority for the Seventeenth Amendment

(iv) that this Court having now laid down that Fundamental Rights cannot be abriged or taken away by the exercise of amendtory process in Article 368, any further inroad into these rights as they exist today will be illegal and unConstitutional unless it complies with Part III in general and Article 13(2) in particular;

(v) that for abridging or taking away Fundamental Rights, a Constituent body will have to be convoked; and

(vi) that, the two impugned Acts, namely, the Punjab Security of Land Tenures Act, 1953 (X of 1953) and the Mysore Land Reforms Act, 1961 (X of 1962) as amended by Act XIV of 1965 are valid under the

Constitution not because they are included in Schedule 9 of the Constitution but because they are protected by Article 31-A, and the President's assent.

As against the view taken by the majority, Wanchoo, Bachawat, Ramaswami, Bhargava and Mitter, JJ. gave dissenting judgments. According to them, Article 368 carried the power to amend all parts of the Constitution including the fundamental rights in Part III of the Constitution. An amendment, according to the five learned Judges, was not "law" for the purpose of Article 13(2) and could not be tested under that article. The learned Judges accordingly reaffirmed the correctness of the decision in the cases of Sankari Prasad and Sajjan Singh. Some of the conclusions arrived at by Wanchoo J., who gave the judgment on his own behalf as well as on behalf of Bhargava and Mitter JJ. may be reproduced as under:

(i) The Constitution provides a separate part headed 'Amendment of the Constitution' and Article 368 is the only article in that Part. There can therefore, be no doubt that the power to amend the Constitution must be contained in Article 368.

(ii) There is no express limitation on power of amendment in Article 368 and no limitation can or should be implied therein. If the Constitution makers intended certain basic provisions in the Constitution, and Part III in particular, to be not amendable there is no reason why it was not so stated in Article 368.

(iii) The power conferred by the words of Article 368 being unfettered, inconsistency between that power and the provision in Article 13(2) must be avoided Therefore in keeping with the unfettered power in Article 368 the word "law" in Article 13(2) must be read as meaning law passed under the ordinary legislative power and not a Constitutional amendment. (iv) Though the period for which Sankari Prasad's case has stood unchallenged is not long, the effects which have followed on the passing of State laws on the faith of that decision, are so overwhelming that the decision should not be disturbed, otherwise chaos will follow. This is the fittest possible case in which the principle of stare decisis should be applied.

(v) The doctrine of prospective overruling cannot be accepted in this country. The doctrine accepted here is that courts declare law and that a declaration made by a court is the law of the land and takes effect from the date the law came into force. It would be undesirable to give up that doctrine and supersede it with the doctrine of prospective overruling. The main conclusions of Bachawat J. were as under:

(i) Article 368 not only prescribes the procedure but also gives the power of amendment.

(ii) The power to amend the Constitution cannot be said to reside in Article 248 and List I, item 97 because if amendment could be made by ordinary lagislative process Article 368 would be meaningless.

(iii) The contention that a Constitutional amendment under Article 368 is a law within the meaning of Article 13 must be rejected.

(iv) There is no conflict between Articles 13(2) and 368. The two articles operate in different fields, the former in the field of law, the latter in that of Constitutional amendment.

(v) If the First, Fourth, Sixteenth & Seventeenth Amendment Acts are void they do not legally exist from their inception. They cannot be valid from 1951 to 1957 and invalid thereafter. To say that they were valid in the past and will be invalid in the future is to amend the Constitution. Such a naked power of amendment is not given to the Judges and therefore the doctrine of prospective overruling cannot be adopted.

We may now set out some of the conclusions of Ramswami J. as under: (i) In a written Constitution the amendment of the Constitution is a substantive constituent act which is made in the exercise of the sovereign power through a predesigned procedure unconnected with ordinary legislation. The amending power in Article 368 is hence sui generis and cannot be compared to the lawmaking power of Parliament pursuant to Article 246 read with Lists I and III. It follows that the expression 'law' in Article 13(2) cannot be construed as including an amendment of the Constitution which is achieved by Parliament in exercise of its sovereign constituent power, but must mean law made by Parliament in its

legislative capacity under Article 246 read with List I and List III of the 7th Schedule.

(ii) The language of Article 368 is perfectly general and empowers Parliament to amend the Constitution without any exception whatsoever. The use of the word 'fundamental' to describe the rights in Part III and the word 'gurantecd' in Article 32 cannot lift the fundamental lights above the Constitution itself.

(iii) There is no room for an implication in the construction of Article 368. If the Constitution makers wanted certain basic features to be

unamendable they would have said so.

(iv) It cannot be assumed that the Constitution makers intended to forge a political strait-jacket for generations to come. Today at a time when absolutes are discredited, it must not be too readily assumed that there are basic features of the Constitution which shackle the amending power and which take precedence over the general welfare of the nation and the need for agrarian and social reform.

(v) If the fundamental rights are unamendable and if Article 368 does not include any such power it follows that the amendment of, say Article 31 by insertions of Articles 31A and 31B can only be made by a voilent revolution. It is doubtful if the proceedings of a new Constitutent Assembly that may be called will have any legal validity for if the Constitution provides its own method of amendment, any other method will be unConstitutional and void.

(vi) It was not necessary to express an opinion on the doctrine of prospective overruling of legislation.

1400. Before dealing with Article 368, we may observe that there are twotypes of Constitutions, viz., rigid and flexible. It is a frequently held but erroneous impression that this is the same as saying nondocumentary or documentary. Now, while it is true that a non-documentary Constitution cannot be other than flexible, it is quite possible for a documentary Constitution not to be rigid. What, then, is that makes a Constitution flexible or rigid? The whole ground of difference here is whether the process of Constitutional law-making is or is not identical with the process of ordinary law-making. The Constitution which can be altered or amended without any special machinery is a flexible Constitution. The Constitution which requires special procedure for its alteration or amendment is a rigid Constitution (see p. 66-68 of the Modern Political Constitutions by C.F. Strong). Lord Birkenhead L.C. adopted similar test in the Australian (Queensland) case of McCawley v. The King [1920] A.C. 763 though he used the nomenclature controlled and uncontrolled Constitutions in respect of rigid and flexible Constitutions. He observed in this connection:

The difference of view, which has been, the subject of careful analysis by writers upon the subject of Constitutional law, may be traced mainly to the spirit and genius of the nation in which a particular Constitution has its birth. Some communities, and notably Great Britain, have not in the framing of Constitutions felt it necessary, or thought it useful, to shackle the complete independence of their successOrs. They have shrunk from the assumption that a degree of wisdom and foresight has been conceded to their generation which will be, or may be, wanting to their successors, in spite of the fact that those successors will possess more exprience of the circumstances and necessities amid which their lives are lived. Those Constitution framers who have adopted the other view must be supposed to have believed that certainty and stability were in such a matter the supreme desiderata. Giving effect to this belief, they have created obstacles of varying difficulty in the path of those who would lay rash hands upon the ark of the Constitution.

1401. Let us now deal with Article 368 of the Constitution. As amendments in Articles 13 and 368 of the Constitution were made in purported exercise of the powers conferred by Article 368 in the form it existed before the amendment made by the Twentyfourth Amendment, we shall deal with the article as it was before that amendment. It may be mentioned in this context that Article 4, Article 169, Fifth Schedule Para 7 and Sixth Schedule Para 21 empower the Parliament to pass laws amending the provisions of the First, Fourth, Fifth and Sixth Schedules and making amendments of the Constitution consequential on the formation of new States or alteration of areas, boundaries, or names of existing States, as well as on abolition or creation of legislative councils in States. Fifth Schedule contains provisions as to administration of controlled areas and scheduled tribes while Sixth Schedule contains provisions as to the administration of tribal areas. It is further expressly provided that no such law would be deemed to be an amendment of the Constitution for the purpose of Article 368. There are a number of articles which provide that they would continue to apply till such time as a law is made in variance of them. Some of those articles are:

10, 53(3), 65(3), 73(2), 97, 98(3), 106, 120(2), 135, 137, 142(1), 146(2), 148(3), 149, 171(2), 186, 187(3), 189(3), 194(3), 195, 210(2), 221(2), 225, 229, 239(1), 241(3), 283(1) and (2), 285 (2), 287, 300(1), 313, 345 and

373.

1402. The other provisions of the Constitution can be amended by recourse to Article 368 only.

1403. Article 368 finds its place in Part XX of the Constitution and is the only article in that part. The part is headed "Amendment of the Constitution". It is not disputed that Article 368 provides for the procedure of amending the Constitution. Question, however, arises as to whether Article 368 also contains the power to amend the Constitution. It may be stated in this connection that all the five Judges who gave the dissenting judgment in the case of Golaknath, namely, Wanchoo, Bachawat, Ramaswamil, Bhargava and Mitter JJ. expressed the view that Article 368 dealt with not only the procedure of amending the Constitution but also contained the power to amend the Constitution. The argument that the power to amend the Constitution was contained in the residuary power of Parliament in Article 248 read with item 97 of List I was rejected. Hidayatullah J. agreed with the view that amendment to the Constitution is not made under power derived from Article 248 read with entry 97 of List I. According to him, the power of amendment was sat generis. As against that, the view taken by Subha Rao C.J., Shah, Sikri, Shelat and Vidialingam JJ. was that Article 368 merely prescribed the various steps in the matter of amendment of the Constitution and that power to amend the Constitution was derived from Articles 245, 246 and 248 read with item 97 of List I. It was said that the residuary power of Parliament can certainly take in the power to amend the Constitution. 1404. Amendment of the Constitution, according to the provisions of Article 368, is initialed by the introduction of a Bill in either House of Parliament The Bill has to be passed in each House by a majority of total membership of that House and by a majority of not less than two-thirds members of the House present and voting. After it has been so passed, the Bill is to be presented to the President for his assent. When the President gives his assent to the Bill, the Constitution, according to Article 368, shall stand amended in accordance with the terms of the Bill. There is a proviso added to Article 368 with respect to amendment of certain articles and other provisions of the Constitution including Article 368. Those provisions can be amended only if the Bill passed by the two Houses of Parliament by necessary majority, as mentioned earlier, is ratified by the Legislatures of not less than one-half of the States by iresolutions to that effect. In such a case, the Bill has to be presented to the President for his assent only after the necessary ratification by the State Legislatures. On the assent being given, the Constitution stands amended in accordance with the terms of the Bill.

1405. The words in Article 368 "the Constiuttion shall stand amended in accordance with the terms of the Bill", in my opinion, clearly indicate that the said article provides not merely the procedure for amending the Constitution but also contains the power to amend Article 368. The fact that a separate Part was provided with the heading "Amendment of the Constitution" shows that the said part was confined not merely to the procedure for making the amendment but also contained the power to make the amendment. It is no doubt true that Article 248 read with item 97 of List I has a wide scope, but in spite of the width of its scope, it cannot, in my opinion, include the power to amend the Constitution. The power to legislate contained in Articles 245, 246 or 248 is subject to the provisions of the Constitution. If the argument were to be accepted that the power to amend the Constitution is contained in Article 248 read with item No. 97 List I, it would be difficult to make amendment of the Constitution because the amendment would in most of the cases be inconsistent with the article proposed to be amended. The only amendments which would be permissible in such an event would be, ones like those contemplated by Articles 4 and 169 which expressly provide for a law being made for the purpose in variance of specified provisions of the Constitution. Such law has to be passed by ordinary legislative process. Article 368 would thus become more or less a dead letter. 1406. Article 248 read with entry 97 List I contemplates legislative process. If the amendment of the Constitution were such a legislative process, the provision regarding ratification by the legislatures of not less than one-half of the States in respect of certain amendments of the Constitution would be meaningless because there is no question of ratification of a legislation made by Parliament in exercise of the power conferred by Article 248 read with entry 97 List I. It is noteworthy that ratification is by means of resolutions by State Legislatures. The passing of resolution can plainly be not considered to be a legislative process for making a law. The State Governors also do not come into the picture for the purpose of ratification. The State Legislatures in ratifying, it has been said, exercise a constituent function. Ratifying process, according to Orfield, is equivalent to roll call of the States. Ratification by a State of Constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of the assent of the States to the proposed amendment (see The Amending of the Federal Constitution p. 62-63).

1407. The fact that the marginal note of Article 368 contained the words "Procedure for Amendment of the Constitution" would not detract from the above conclusion as the marginal note cannot control the scope of the article itself. As mentioned earlier, the words in the article that "the Constitution shall stand amended in accordance with the terms of the Bill" indicate that the power to amend the Constitution is also contained in Article 368. The existence of such a power which can clearly be discerned in the scheme and language of Article 368 cannot be ruled out or denied by invoking the marginal note of the article.

1408. The various subjects contained in entries in List I, List II and List III of Seventh Schedule to the Constitution were enumerated and specified at great length. Our Constitution in this respect was not written on a tabula rasa. On the contrary, the scheme of distribution of legislative lists in the Government of India Act, 1935 was to a great extent adopted in the Constitution. Referring to the' said distribution of lists and the residuary provisions in the Government of India Act, Gwyer C.J. observed in the case In re. The Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 [1939] F.C.R. 38.

The attempt to avoid a final assignment of residuary powers by an exhaustive enumeration of legislative subjects has made the Indian Constitution Act unique among federal Constitutions in the length and detail of its Legislative Lists.

Our Constitution-makers made list of the legislative entries still more exhaustive and the intention obviously was that the subjects mentioned should be covered by one or other of the specific entries, so that as few subjects as possible and which did not readily strike to the Constitution-makers should be covered by the residuary entry 97 in List 1. The Constitution-makers, in my opinion, could not have failed to make an entry in the lists in the Seventh Schedule for amendment of the Constitution if they had wanted the amendment of Constitution to be dealt with as an ordinary legislative measure under Articles 245, 246 and 248 of the Constitution. The fact that they provided separate Part in the Constitution for amendment of the Constitution shows that they realised the importance of the subject of amendment of the Constitution. It is difficult to hold that despite their awareness of the importance of Constitutional amendment, they left it to be dealt with under and spelt out of entry 97 List I which merely deals with "any other matter not enumerated in List II or List III including any tax not mentioned in either of those lists.

1409. The residuary entry is essential in a federal Constitution and the sole object of the residuary entry is to confer on the federal legislature or the State Legislatures, as the case may be, the power to make ordinary laws under and in accordance with the Constitution in respect of any matter, not enumerated in any other list for legislation. By the very nature of things the power to amend the Constitution cannot be in the residuary entry in a federal Constitution because the power to amend the Constitution would also include the power to alter the distribution of subjects mentioned in different entries. Such a power can obviously be not a legislative power.

1410. It was originally intended that the residuary power of legislation should be vested in the States. This is clear from the Objective Resolution which was moved by Pt. Nehru in the Constituent Assembly before the partition of the country on December 13, 1946 (see Constituent Assembly debates, Vol. I, p. 59). After the partition, the residuauy power of legislation was vested in the Centre and was taken out of the State List. If the intention to vest residuary powers in States had been eventually carried out, no argument could possibly have been advanced that the power to amend the Constitution was possessed by the States and not by the Union. The fact that subsequently the Constitutent Assembly vested the residuary power in the Union Parliament subject to ratification by State Legislatures in certain cases, would not go to show that the residuary clause included the power to amend the Constitution.

1411. I am therefore of the view that Article 368 prescribes not only the procedure for the amendment of the Constitution but also confers power of amending the Constitution. 1412. Irrespective of the source of power, the words in Article 368 that "the Constitution shall stand amended" indicate that the process of making amendment prescribed in Article 368 is a self-executing process. The article shows that once the procedure prescribed in that article has been complied with, the end product is the amendment of the Constitution.

1413. Question then arises as to whether there is any power under Article 368 of amendment of Part III so as to take away or abridge fundamental rights. In this respect we find that Article 368 contains provisions relating to amendment of the Constitution. No words are to be found in Article 368 as may indicate that a limitation was intended on the power of making amendment of Part III with a view to take away or abridge fundamental rights. On the contrary, the words used in Article 368 are that if the procedure prescribed by that article is complied with, the Constitution shall stand amended. The words "the Constitution shall stand amended" plainly cover the various articles of the Constitution, and I find it difficult in the face of those clear and unambiguous words to exclude from their operation the articles relating to fundamental rights in Part III of the Constitution. It is an elemental rule of construction that while dealing with a Constitution every word is to be expounded in its plain, obvious and commonsense unless the context furnishes some ground to control, qualify or enlarge it and there cannot be imposed upon the words any recondite meaning or any extraordinary gloss (see Story on Constitution of the United States, Vol. I, Para 451). It has not yet been erected into a legal maxim of Constitutional construction that words were meant to conceal thoughts. If framers of the Constitution had intended that provisions relating to fundamental rights in Part III be not amended, it is inconceivable that they would not have inserted a provision to that effect in Article 368 or elsewhere. I cannot persuade myself to believe that the framers of the Constitution deliberately used words which cloaked their real intention when it would have been so simple a matter to make the intention clear beyond any possibility of doubt.

Re: Kesavananda Bharati vs State Of Kerala And ors

1414. In the case of The Queen v. Burah [1878] 3 A.C. 889 at p. 904-5 Lord Selborne observed:

The established courts of justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited,...it is not for any court of justice to inquire further, or to enlarge constructively those conditions or restrictions.

Although the above observations were made in the context of the legislative power, they have equal, if not greater, relevance in the context of the power of amendment of the Constitution.:

1415. It also cannot be said that even though the framers of the Constitution intended that Part III of the Constitutilon relating to fundamental rights should not be amended, by inadvertent omission they failed to make an express provision for the purpose. Reference to the proceedings dated September 17, 1949 of the Constituent Assembly shows that an amendment to that effect was moved by Dr. P.S. Deshmukh. This amendment which related to insertion of Article 304A after Article 304 (which corresponded to present Article 368) was in the following words:

Notwithstanding anything contained in this Constitution to the contrary, no amendment which is calculated to infringe or restrict or diminish the scope of any individual rights, any rights of a person or persons with respect to property or otherwise, shall be permissible under this Constitution and any amendment which is or is likely to have such an effect shall be void and ultra vires of any Legislature.

The above amendment, which was subsequently withdrawn, must have been incorporated in the Constitution if the framers of the Constitution had intended that no amendment of the Constitution should take away or abridge the fundamental rights in Part III of the Constitution.

1416. Before the Constitution was framed, Mr. B.N. Rau, Constitutional Adviser, sent a questionnaire along with a covering letter on March 17, 1947 to the members of the Central and Provincial Legislatures. Question 27 was to the effect as to what provision should be made regarding the amendment of the Constitution. The attention of the members of the Central and Provincial Legislatures was invited in this context to the provisions for amendment in the British, Canadian, Australian, South African, US, Swiss and Irish Constitutions. Some of those Constitutions placed limitations on the power of amendment and contained express provisions in respect of those limitations. For instance, Article 5 of the United States contained a proviso "that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article and that no State, without its consent, shall be deprived of its equal suffrage in the Senate". It is inconceivable that, despite the awareness of the fact that in the Constitutions of other countries where restriction was sought to be placed on the power of amendment an express provision to that effect had been inserted, the framers of our Constitution would omit to insert such a provision in Article 368 or in some other article if, in fact, they wanted a limitation to be placed on the power of amendment in respect of articles relating to fundamental right. On the contrary, there is clear indication that the Drafting Committee was conscious of the need of having an express provision regarding limitation on the power of amendment in case such a limitation was desired. This is clear from Article 305 of the Draft Constitution which immediately followed Article 304 corresponding to Article 368 of the Constitution as finally adopted. Article 305 of the Draft Constitution, which was subsequently dropped, was in the following terms:

305. Notwithstanding anything contained in Article 304 of this

Constitution, the provisions of this Constitution relating to the reservation of seats for the Muslims, the Scheduled Castes, the Scheduled Tribes or the Indian Christians either in Parliament or in the Legislature of any State for the time being specified in Part I of the First Schedule shall not be amended during a period of ten years from the commencement of this Constitution and shall cease to have effect on the expiration of that period unless continued in operation by an amendment of the Constitution. Article 305 of the Draft Constitution reproduced above makes it manifest that the Drafting Committee made express provision for limitation on the power of, amendment in case such a limitation was desired. The fact that in the Constitution as ultimately adopted, there was no provision either in Article 368 or in any other article containing a limitation on the power of amendment shows that no such limitation was intended. 1417. The speech of Dr. Ambedkar made on September 17, 1949 while dealing with the provision relating to amendment of the Constitution also makes it clear that he divided the various articles of the Constitution into three categories. In one category were placed certain articles which would be open to amendment by Parliament by simple majority. To that category belonged Articles 2 and 3 of the Draft Constitution relating to the creation and reConstitution of the existing States as well as some other articles like those dealing with upper chambers of the State Legislatures. The second category of articles were those which could be amended by two-thirds majority of members present and voting in each House of Parliament. The third category dealt with articles which not only required two- thirds majority of each House of Parliament but also the ratification of not less than half of the Legislatures of the States. There was nothing in the speech of Dr. Ambedkar that apart from the three categories of articles, there was a fourth category of articles contained in Part III which was not amendable and as such, could not be the subject of amendment.

1418. It may be mentioned that according to the report of the Constituent Assembly debates, the speech of Dr. Ambedkar delivered on September 17, 1949 contains the following sentence:

If the future Parliament wishes to amend any particular article which is not mentioned in Part III or Article 304, all that is necessary for them is to have two-thirds majority. (Vol IX. P. 1661)

The words "Part III" in the above sentence plainly have reference to the third category of articles mentioned in the proviso to draft Article 304 (present Article 368) which required two-thirds majority and ratification by at least half of the State Legislatures. These words do not refer to Part III of the Constitution, for if that were so the sentence reproduced above would appear incongruous in the context of the entire speech and strike a discordant note against the rest of the speech. Indeed, the entire tenor of the above speech, as also of the other speeches delivered by Dr. Ambedkar in the Constituent Assembly, was that all the articles of the Constitution were subject to the amendatory process.

1419. Another fact which is worthy of note is that the Constitution (First Amendment) Act, 1951 was passed by the Provisional Parliament which had also acted as the Constituent Assembly for the drafting of the Constitution. By the First Amendment, certain fundamental eights contained in Article 19 were abridged and amended. Speeches in support of the First Amendment were made by Pt. Nehru and Dr. Ambedkar. It was taken for granted that the Parliament had by adhering to the procedure prescribed in Article 368 the right to amend the Constitution, including Part III relating to fundamental rights. Dr. Shyama Prasad Mukherjee who opposed the First Amendment expressly conceded that Parliament had the power to make the aforesaid amendment. If it had ever been the intention of the framers of the Constitution that the provisions relating to fundamental rights contained in Part III of the Constitution could not be amended, it is difficult to believe that Pt. Nehru and Dr. Ambedkar who played such an important role in the drafting of the Constitution would have supported the amendment of the Constitution or in any case would have failed to take note of the fact in their speeches that Part III was not intended to be amended so as to take away or abridge fundamental rights. Pt. Nehru in the course of his speech in support of the First Amendment after referring to the need of making the Constitution adaptable to changing social and economic conditions and changing ideas observed:

It is of the utmost importance that people should realise that this great Constitution of ours, over which we laboured for so long, is not a final and rigid thing, which must either be accepted or broken. A Constitution which is responsive to the people's will which is responsive to their ideas, in that it can be varied here and there, they will respect it all the more and they will not fight against, when we want to change it. Otherwise, if you make them feel that it is unchangeable and cannot be touched, the only thing to be done by those who wish to change it is to try to break it. That is a dangerous thing and a bad thing. Therefore, it is a desirable and a good thing for people to realise that this very fine Constitution that we have fashioned after years of labour is good in so far as it goes but as society changes, as conditions change we amend it in the proper way. It is not like the unalterable law of the Medes and the Persians that it cannot be changed, although the world around may change.

1420. The First Amendment is contemporaneous practical exposition of the power of amendment under Article 368. Although as observed elsewhere, the provisions of Article 368 in my view are plain and unambiguous and contain no restrictions so far as amendment of Part III is concerned, even if it may be assumed that the matter is not free from doubt the First Amendment provides clear evidence of how the provisions of Article 368 were construed and what they were intended and assumed to convey by those who framed the Constitution and how they acted upon the basis of the said intention and assumption soon after the framing of the Constitution. The contemporaneous practical exposition furnishes considerable aid in resolving the said doubt and construing the provisions of the article. It would be pertinent to reproduce in this context the observations of Chief Justice Puller while speaking for the US Supreme Court in the case of William McPherson v. Robert R. Blacker : 146 U.S. 1.

The framers of the Constitution employed words in their natural sense; and where they are plain and clear, resort to collateral aids to interpretation is unnecessary and cannot be indulged in to narrow of enlarge the text; but where there is ambiguity or doubt, or where two views may well be entertained contemporaneous and subsequent practical construction are entitled to the greatest weight. Certainly, plaintiffs in error cannot reasonably assert that the clause of the Constitution under consideration soplainly sustains their position as to entitle them to object that contemporaneous history and practical construction are not to be allowed their legitimate force, and, conceding that their argument inspires a doubt sufficient to justify resort to the aids of interpretation thus afforded, we are of opinion that such doubt is thereby resolved against them, the contemporaneous practical exposition of the Constitution being too strong and obstinate to be shaken or controlled.

I may also reproduce in this context the following passage from pages 49- 50 of Willoughby's Constitution of the United States, Vol. I:

In Lithographic Co. v. Sarony 111 U.S. 53 the court declared : The construction placed upon the Constitution by the first act of 1790 and the act of 1802 by the men who were contemporary with its formation, many of whom were members of the Convention who framed it, is of itself enttitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive.

1421. So far as the question is concerned as to whether the speeches made in the Constituent Assembly can be taken into consideration, this Court has in three cases, namely, I.C. Golak Nath and Ors. v. State of Punjab and Anr. (supra), H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Ors. v. Union of India [1971] 3 S.C.R. 9 and Union of India v. H.S. Dhillon [1972] 2 S.C.R. 33 taken the view that such speeches can be taken into account. In Golak Nath's case Subba Rao C.J. who spoke for the majority referred to the speeches of Pt. Jawaharlal Nehru and Dr. Ambedkar on page 791. Reference was also made to the speech of Dr. Ambedkar by Bachawat J. in that case on page 924. In the case of Madhav Rao, Shah J. who gave the leading majority judgment relied upon the speech of Sardar Patel, who was Minister for Home Affairs, in the Constituent Assembly (see page 83). Reference was also made to the speeches in the Constituent Assembly by Mitter J. on pages 121 and 122. More recently in H.S. Dhillon's case relating to the validity of amendment in Wealth Tax Act, both the majority judgment as well as the minority judgment referred to the speeches made in the Constituent Assembly in support of the conclusion arrived at. It can, therefore, be said that this Court has now accepted the view in its decisions since Golak Nath's case that speeches made in the Constituent Assembly can be referred to while dealing with the provision of the Constitution.

1422. The speeches in the Constituent Assembly, in my opinion, can be referred to for finding the history of the Constitutional provision and the background against which the said provision was drafted. The speeches can also shed light to show as to what was the mischief which was sought to be remedied and what was the object which was sought to be attained in drafting the provision. The speeches cannot, however, form the basis for construing the provisions of the Constitution. The task of interpreting the provision of the Constitution has to be done independently and the reference to the speeches made in the Constituent Assembly does not absolve the court from performing that task. The draftsmen are supposed to have expressed their intentions in the words' used by them in the provisions. Those words are final repositories of the intention and it would be ultimately from the words of the provision that the intention of the draftsmen would have to be gathered.

1423. The next question which arises for consideration is whether the word "law" in Article 13(2) includes amendment of the Constitution. According to Article 13(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. "State" has been defined in Article 12 to include, unless the context otherwise requires, the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. The stand taken on behalf of the petitioners is that amendment of the Constitution constitutes "law" for the purpose of Article 13(2). As such, no amendment of the Constitution can take away or abridge the fundamental rights conferred by Part III of the Constitution. Reference has also been made to Clause (1) of Article 13, according to which all laws in force in the territory of India immediately before the commencement of this Constitution in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. It is urged that word "law" in Article 13(2) should have the same meaning as that word in Article 13(1) and if law in Article 13(1) includes Constitutional law, the same should be its meaning for the purpose of Article 13(2). Our attention has also been invited to Article 372(1) of the Constitution which provides that notwithstanding the repeal by this Constitution of the enactment referred to in Article 395 but subject to the other provisions of the Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. According to Explanation I to Article 372, the expression "law in force" shall include a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed notwithstanding that it or parts of it may not be then in operation either at all or in particular areas. The same is the definition of "law in force" in Article 13(3). 1424. I find it difficult to accept the contention that an amendment of Constitution made in accordance with Article 368 constitutes law for the purpose of Article 13(2). The word "law" although referred to in a large number of other articles of the Constitution finds no mention in Article 368. According to that article, the Constitution shall stand amended in accordance with the terms of the Bill after it has been passed in compliance with the provisions of that article. Article 368 thus contains an indication that what follows as a result of the compliance with Article 368 is an amendment of the Constitution and not law in the sense of being ordinary legislation. In a generic sense. "law" would include Constitutional laws, including amendment of the Constitution, but that does not seem to be the connotation of the word "law" as used in Article 13(2) of the Constitution. There is a clear distinction between statutory law made in exercise of the legislative power and Constitutional law which is made in exercise of the constituent power and the distinction should not be lost sight of A Constitution is the fundamental and basic law and provides the authority under which ordinary law is made. The Constitution of West Germany, it may be stated, is called the basic law of the Federal Republic of Germany. A Constitution derives its authority generally from the people acting in their sovereign capacity and speaking through their representatives in a Constituent Assembly or Convention. It relates to the structure of the government, the extent and distribution of its powers and the modes and principles of its operation, preceding ordinary laws in the point of time and embracing the settled policy of the nation. A statute on the other hand is law made by the representatives of the people acting in their legislative capacity, subject to the superior authority, which is the Constitution. Statutes are enactments or rules for the government of civil conduct or for the administration or for the defence of the government. They relate to law and order, criminal offences, civil disputes, fiscal matters and other subjects on which it may become necessary to have law. Statutes are quite often tentative, occasional, and in the nature of temporary expedients (see Constitutional Law and Its Administration by S.P. Weaver, p. 3), Article 13(2) has reference to ordinary piece of legislation. It would also, in view of the definition given in Clause (a) of Article 13(3), include any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. The Constitution has thus made it clear in matters in which there could be some doubt as to what would constitute "law". If it had been the intention of the framers of the Constitution that the "law" in Article 13 would also include Constitutional law including laws relating to the amendment of Constitution, it is not explained as to why they did not expressly so state in Clause (a) of Article 13(3). The Constitution itself contains indications of the distinction between the Constitution and the laws framed under the Constitution. Article 60 provides for the oath or affirmation to be made and subscribed by the President before entering upon office. The language in which that oath and affirmation have been couched, though not crucial, has some bearing. The form of the oath or affirmation is as under:

swear in the name of God I, A.B., do

_________________________ solemnly affirm

that I will faithfully execute the office of President (or discharge the functions of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India. The facts that both the words "the Constitution and the law" have been used in the above form tends to show that for the purpose of the Constitution the law and the Constitution are not the same.

1425. It may be mentioned that Articles 56(1)(b) and 61(1) which deal with impeachment of the President refer only to "violation of the Constitution". There is no reference in those articles to violation of law. Article 69 which prescribes the oath for the Vice- President refers to "allegiance to the Constitution as by law established". The words "as by law established" indicate the legal origin of the Constitution. Article 143, to which our attention has been invited, gives power to the President to refer to the Supreme Court a question of law or fact of such importance that it is expedient to obtain the opinion of this Court. It is pointed out that question of law in that article would include a question relating to Constitutional law. This no doubt is so but this is due to the fact that words "questions of law or fact" constitute a well known phrase in legal terminology and have acquired a particular significance. From the use of those words in Article 143 it cannot be inferred that the framers of the Constitution did not make a distinction between the Constitution and the law.

1426. Articles 245, 246 and 248 deal with the making of laws. The words "shall not make any law" in Article 13(2) seem to echo the words used in Articles 245, 246 and 248 of the Constitution which deal with the making of laws. The words "make any law" in Article 13 as well as the above three articles should carry, in my opinion, the same meaning, namely, law made in exercise of legislative power. In addition to that, the law in Article 13 in view of the definition in Article 13(3) shall also include special provisions mentioned in Clause (3).

1427. It has already been mentioned above that there is no question in the case of a law made by the Parliament of its ratification by the resolutions passed by the State Legislatures. The fact that in case of some of the amendments made under Article 368 such ratification is necessary shows that an amendment of the Constitution is not law as contemplated by Article 13(2) or Articles 245, 246 and 248.

1428. Article 395 of the Constitution repealed the Indian Independence Act, 1947 and the Government of India, Act, 1935, together with all enactments amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949. The law in force mentioned in Article 372(1) has reference not to any Constitutional law in the sense of being a law relating to the Constitution of either the territory of erstwhile British India or the territory comprised in the Indian States. So far as the territory of British India was concerned, the law before January 26, 1950 relating to the Constitution was contained in the Government of India Act, 1935 and the Indian Independence Act, 1947. Both these Acts were repealed by Article 395 when the Constitution of India came into force. As regards the territory comprised in Indian States, the law relating to their Constitutions in so far as it was inconsistent with the provisions of the Constitution of India also came to an end before January 26, 1950 when the said Constitution came into force. The only Constitution which was in force since that date was the Constitution of India and it applied to the whole of India, including the erstwhile Indian States and the British India. The various notifications which were issued before January 26, 1950 mentioned that with effect from that date "the Constitution of India shortly to be adopted by the Constituent Assembly of India shall be the Constitution for the States as for other parts of India and shall be enforced as such" (see White Paper on Indian States, pages 365 to 371). It would thus appear that hardly any law containing the Constitutions of territory of erstwhile Indian States remained in force after the coming into force of the Constitution of India with all its exhaustive provisions. If the law in force contemplated by Article 372(1) must be such as was continued after January 26, 1950, it would follow that Article 372 does not relate to the Constitutional law in the sense of being law relating to the Constitution of a territory. 1429. Although the law in force referred to in Article 372(1) would not include law relating to the Constitutions of the territory of erstwhile British India or the Indian States, it did include law relating to subjects dealt with by the Constitutions in force in those territories. Such a law which partakes of the nature of either a statutory law or an Order made under the organic provisions of those Constitutions, continued in force under Article 372(1). A statutory law or Order is obviously of an inferior character and cannot have the same status as that of a Constitution. Article 372(1) in the very nature of things deals with laws made under the provisions of Constitutions which were in force either in the erstwhile British India or the territory comprised in Indian States. The opening words of Article 372(1) "notwithstanding the repeal by this Constitution of the enactments referred to in Article 395" indicate that the laws in force contemplated by Article 372 are those laws which were framed under the repealed Indian Independence Act, 1947 and the Government of India Act, 1935 or similar other legislative enactments or orders made under the provisions of Constitutions of erstwhile Indian States. Such legislative enactments or Orders were inferior in status to a Constitution. I am, therefore, of the view that the word "law" in Article 372 has reference to law made under a Constitution and not to the provisions of a Constitution itself.

1430. Article 372(1) is similar to the provisions of Section 292 of the Government of India Act, 1935. As observed by Gwyer C.J. in the case of The United Provinces v. Mst. Atiqa Begum and Ors. [1940] 2 F.C.R. 110 such a provision is usually inserted by draftsmen to negative the possibility of any existing law being held to be no longer in force by reason of the repeal of the law which authorized its enactment. The question with which we are concerned is whether law in Article 13 or Article 372 could relate to the provisions of the Constitution or provisions relating to its amendment. So far as that question is concerned, I am of the opinion that the language of Articles 372 and 13 shows that the word "law" used therein did not relate to such provisions. The Constitution of India was plainly not a law in force at the time when the Constitution came into force. An amendment of the Constitution in the very nature of things can be made only after the Constitution comes into force. As such, a law providing for amendment of the Constitution cannot constitute law in force for the purpose of Article 13(1) or Article 372(1).

1431. The language of Article 13(2) shows that it was not intended to cover amendments of the Constitution made in accordance with Article 368. It is difficult to accede to the contention that even though the framers of the Constitution put no express limitations in Article 368 on the power to make amendment, they curtailed that power by implication under Article 13(2). In order to find the true scope of Article 13(2) in the context of its possible impact on the power of amendment, we should read it not in isolation but along with Article 368. The rule of construction, to use the words of Lord Wright M.R. in James v. Commonwealth of Australia [1936] A.C. 578 is to read the actual words used "not in vacuo but as occurring in a single complex instrument in which one part may throw light on another". A combined reading of Article 13(2) and Article 368, in my view, clearly points to the conclusion that extinguishment or abridgement of fundamental rights contained in Part III of the Constitution is not beyond the amendatory power conferred by Article 368. The alleged conflict between Article 13(2) and Article 368 is apparent and not real because the two provisions operate in different fields and deal with different objects.

1432. The Constitution itself treats the subject of ordinary legislation as something distinct and different from that of amendment of the Constitution. Articles 245 to 248 read with Seventh Schedule deal with ordinary legislation, while amendment of Constitution is the subject matter of Article 368 in a separate Part. Article 368 is independent and self-contained. Article 368 does not contain the words "subject to the provisions of this Constitution" as are to be found at the beginning of Article 245. The absence of those words in Article 368 thus shows that an amendment of the Constitution made under that article has a status higher than that of legislative law and the two are of unequal dignity. If there is any limitation on power of amendment, it must be found in Article 368 itself which is the sole fountain-head of power to amend, and not in other provisions dealing with ordinary legislation. As stated on pages 24-26 in the Amending of Federal Constitution by Orfield, 'limitation on the scope of amendment should be found written in the amending clause and the other articles of the Constitution should not be viewed as limitations'. The very fact that the power of amendment is put in a separate Part (Part XX) and has not been put in the Part and Chapter (Part XI Chapter I) dealing with legislative powers shows that the two powers are different in character and operate in separate fields. There is also a vital difference in the procedure for passing ordinary legislation and that for bringing about a Constitutional amendment under Article 368. The fact that an amendment Bill is passed by each House of Parliament and those two Houses also pass ordinary legislation does not obliterate the difference between the constituent power and the legislative power nor does it warrant the conclusion that constituent power is a species of legislative power.

1433. Our attention has been invited on behalf of the petitioners to the proceedings of the Constituent Assembly on April 29, 1947. Sardar Patel on that day made a move in the Constituent Assembly that Clause (2) be accepted. Clause (2) which provided the basis for Clauses (1) and (2) of Article 13 as finally adopted was in the following words: All existing laws, notifications, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this part of the Constitution shall stand abrogated to the extent of such inconsistency, nor shall the Union or any unit make any law taking away or abridging any such right.

Mr. K. Santhanam then moved an amendment for substituting the concluding words of Clause (2) by the following words:

Nor shall any such right be taken away or abridged except by an amendment of the Constitution.

The above amendment was accepted by Sardar Patel. Motion was thereafter adopted accepting the amended clause which was in the following words:

All existing laws, notifications, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under that part of the Constitution shall stand abrogated to the extent of such inconsistency, nor shall any such right be taken away or abridged except by an amendment of the Constitution.

1434. In October 1947 the Constitutional Adviser prepared the Draft Constitution, Sub- clause (2) of Clause 9 of which was as under:

(2) Nothing in this Constitution shall be taken to empower the State to make any law which curtails or takes away any of the rights conferred by Chapter II of this Part except by way of amendment of this Constitution under Section 232 and any law made in contravention of this sub-section shall, to the extent of the contravention, be void.

Minutes of the Drafting Committee of October 13, 1947 show that it was decided to revise Clause 9. Revised Clause 9 was put in the appendix as follows:

9. (1) All laws in force immediately before the commencement of this Constitution in the territory of India, in so far as they are inconsistent with any of the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make law which takes away or abridges the rights conferred by this Part and any law made in contravention of this sub- section shall, to the extent of the contravention be void.

Re: Kesavananda Bharati vs State Of Kerala And ors

(3) In this section, the expression 'law' includes any ordinance, order, bye- law, rule, regulation, notification, custom or usage having the force of law in the territory of India or any part thereof.

On February 21, 1948 Dr. Ambedkar forwarded the Draft Constitution of India to the President of the Constituent Assembly along with a covering letter. Clause 9 in this Draft Constitution was numbered as Clause 8. Sub-clause (2) of Clause 9 was retained as Sub- clause (2) of Clause 8. A proviso was also added to that sub-clause, but that is not material for the purpose of the present discussion. The Constitution was thereafter finally adopted and it contained Article 13, the provisions of which have been reproduced earlier.

1434. It has been argued on behalf of the petitioners that the members of the Drafting Committee who were eminent lawyers of India, deliberately revised Clause 9 of the Draft Constitution prepared by the Constitutional Adviser with a view to undo the effect of the amendment moved by Mr. Santhanam which had been accepted by the Constituent Assembly, because the members of the Drafting Committee wanted that the fundamental rights should not be abridged or taken away by the amendment of the Constitution. 1435. I find it difficult to accept the above argument. It is inconceivable that the members of the Drafting Committee would reverse the decision which had been taken by the Constituent Assembly when it accepted the amendment moved by Mr. Santhanam and adopted the motion for the passing of clause containing that amendment. It would appear from the speech of Mr. Santhanam that he had moved the amendment in order to remove doubt. Although there is nothing in the minutes to show as to why the members of the Drafting Committee did not specifically incorporate Mr. Santhanam's amendment in the revised clause, it seems that they did so because they took the view that it was unnecessary. In his letter dated February 21, 1948 Dr. Ambedkar, Chairman of the Drafting Committee wrote to the President of the Constituent Assembly; In preparing the Draft the Drafting Committee was of course expected to follow the decisions taken by the Constituent Assembly or by the various Committees appointed by the Constituent Assembly. This the Drafting Committee has endeavoured to do as far as possible. There were however some matters in respect of which the Drafting Committee felt it necessary to suggest certain changes. All such changes have been indicated in the draft by underlining or side-lining the relevant portions. Care has also been taken by the Drafting Committee to insert a footnote explaining the reason for every such change.

It is, therefore, plain that if it had been decided to make a material change in the draft article with a view to depart from the decision of the Constituent Assembly, the change would have been indicated by underlining or sidelining the relevant provision and also by inserting a footnote explaining reasons for the change. In the absence of any underlining, sidelining or footnote, it can be presumed that members of the Drafting Committee did not intend to make a change. A very material fact which should not be lost sight of in this context is the note which was put in October 1948 under the draft Article 8. It was stated in the Note:

Clause (2) of Article 8 does not override the provisions of Article 304 of the Constitution. The expression "law" used in the said clause is intended to mean "ordinary legislation". However, to remove any possible doubt, the following amendment may be made in Article 8:

In the proviso to Clause (2) of Article 8, after the words

"nothing in this clause shall" the words "affect the

provisions of Article 304 of this Constitution or be

inserted." (see page 26 Shiva Rao's "The Framing of India's

Constitution" Vol. IV).

The above note and other such notes were made by the Constitutional Adviser and reproduced fully the views of the Drafting Committee and/or of the Special Committee (see page 4 Shiva Rao's "The Framing of India's Constitution" Vol. I). It would thus appear that there is no indication that the members of the Drafting Committee wanted to deviate from the decision of the Constituent Assembly by making the provisions relating to fundamental rights unamendable. On the contrary, the note shows that they accepted the view embodied in the decision of the Constituent Assembly.

1436. Apart from that I am of the view that if the preservation of the fundamental rights was so vital an important a desideratum, it would seem logical that a proviso would have been added in Article 368 expressly guaranteeing the continued existence of fundamental rights in an unabridged form. This was, however, not done.

1437. The next question which should now engage our attention is about the necessity of amending the Constitution and the reasons which weighed with the framers of the Constitution for making provision for amendment of the Constitution. A Constitution provides the broad outlines of the administration of a country and concerns itself with the problems of the Government. This is so whether the Government originates in a forcible seizure of power or comes into being as the result of a legal transfer of power. At the time of the framing of the Constitution many views including those emanating from conflicting extremes are presented. In most cases the Constitution is the result of a compromise between conflicting views. Those who frame a Constitution cannot be oblivious of the fact that in the working of a Constitution many difficulties would have to be encountered and that it is beyond the wisdom of one generation to hit upon a permanently workable solution for all problems which may be faced by the State in its onward march towards further progress. Sometimes a judicial interpretation may make a Constitution broad-based and put life into the dry bones of a Constitution so as to make it a vehicle of a nation's progress. Occasions may also arise where judicial interpretation might rob some provision of a Constitution of a part of its efficacy as was contemplated by the framers of the Constitution. If no provision were made for the amendment of the Constitution, the people would be left with no remedy or means for adapting it to the changing need of times and would per force have recourse to extra-Constitutional methods of changing the Constitution. The extra-Constitutional methods may sometimes be bloodless but more often they extract a heavy toll of the lives of the citizen and leave a trail of smouldering bitterness. A State without the means of some change, as was said by Burke in his Reflections on Revolution, is without the means of its conservation. Without such means it might even risk the loss of that part of the Constitution which it wished the most religiously to preserve. According to Dicey, twelve unchangeable Constitutions of France have each lasted on an average for less than ten years, and have frequently perished by violence. Louis Phillipe's monarchy was destroyed within seven years of the time when Tocqueville pointed out that no power existed legally capable of altering the articles of the Charter. On one notorious instance at least-and other examples of the same phenomenon might be produced from the annals of revolutionary France-the immutability of the Constitution was the ground or excuse for its voilent subversion. To quote the words of Dicey:

Nor ought the perils in which France was involved by the immutability with which the statement of 1848 invested the Constitution to be looked upon as exceptional; they arose from a defect which is inherent in every rigid Constitution. The endeavour to create laws which cannot be changed is an attempt to hamper the exercise of sovereign power; it therefore tends to bring the letter of the law into conflict with the will of the really supreme power in the State. The majority of the French electors were under the Constitution the true sovereign of France; but the rule which prevented the legal re-election of the President in effect brought the law of the land into conflict with the will of the majority of the electors, and produced, therefore, as a rigid Constitution has a natural tendency to produce, an opposition between the letter of the law and the wishes of the sovereign. If the inflexibility of French Constitutions has provoked revolution, the flexibility of English Constitutions has, once at least, saved them from violent overthrow.

The above observations were amplified by Dicey in the following words: To a student, who at this distance of time calmly studies the history of the first Reform Bill, it is apparent, that in 1832 the supreme legislative authority of Parliament enabled the nation to carry through a political revolution under the guise of a legal reform.

The rigidity in short, of a Constitution tends to check gradual innovation; but, just because it impedes change, may, under unfavourable

circumstances occasion or provoke revolution.

According to Finer, the amending clause is so fundamental to a Constitution that it may be called the Constitution itself (see The Theory and Practice of Modern Government, p. 156-157). The amending clause, it has been said, is the most important part of a Constitution. Upon its existence and truthfulness, i.e. its correspondence with real and natural conditions, depends the question as to whether the state shall develop with peaceable continuity or shall suffer alterations of stagnation, retrogression, and revolution. A Constitution, which may be imperfect and erroneous in its other parts, can be easily supplemented and corrected, if only the state be truthfully organized in the Constitution; but if this be not accomplished, error will accumulate until nothing short of revolution can save the life of the state (see Political Science and Comparative Constitutional Law, Vol. I by Burgess, p. 137). Burgess further expressed himself in the following words:

It is equally true that development is as much a law of state life as existence. Prohibit the former, and the latter is the existence of the body after the spirit has departed. When, in a democratic political society, the well-matured, long and deliberately formed will of the undoubted majority can be persistently and successfully thwarted, in the amendment of its organic law, by the will of the minority, there is just as much danger to the state from revolution and voilence as there is from the caprice of the majority, where the sovereignty of the bare majority is acknowledged. The safeguards against too radical change must not be exaggerated to the point of dethroning the real sovereign. (ibid p. 152)

Justfying the amendment of the Constitution to meet the present conditions, relations and requirements, Burgess said we must not, as Mirabeau finely expressed it, lose the grande morale in the petite morale.

1438. According to John Stuart Mill, no Constitution can expect to be permanent unless it guarantees progress as well as order. Human societies grow and develop with the lapse of time, and unless provision is made for such Constitutional readjustments as their internal development requires, they must stagnate or retrogress (see Political Science and Government by J.W. Garner p. 536, 537).

1439. Willis in his book on the Constitutional Law of the United States has dealt with the question of amendment of the Constitution in the following words: Why should change and growth in Constitutional law stop with the present? We have always had change and growth, We have needed change and growth in the past because there have been changes and growth in our economic and social life. There will probably continue to be changes in our economic and social life and there should be changes in our Constitutional law in the future to meet such changes just as much as there was need of change in the past. The Fathers in the Constitutional Convention expected changes in the future : otherwise they would not have provided for amendment. They wanted permanency or our

Constitution and there was no other way to obtain it. The people of 1789 had no more sovereign authority than do the people of the present. 1440. Pleading for provision for amendment of a Constitution and at the same time uttering a note of caution against a too easy method of amendment, Willis wrote: If no provision for amendment were provided, there would be a constant danger of revolution. If the method of amendment were made too easy, there would be the danger of too hasty action all of the time. In either case there would be a danger of the overthrow of our political institutions. Hence the purpose of providing for amendment of the Constitution is to make it possible gradually to change the Constitution in an orderly fashion as the changes in social conditions make it necessary to change the fundamental law to correspond with such social change.

1441. We may also recall in this connection the words of Harold Laski in his tribute to Justice Holmes and the latter's approach to the provision of the US Constitution. Said Laski:

The American Constitution was not made to compel the twentieth-century American to move in the swaddling clothes of his ancestors' ideas. The American Constitution must be moulded by reason to fit new needs and new necessities.... The law must recognize change and growth even where the lawyer dislikes their implications. He may be skeptical of their implications; he has not the right to substitute his own pattern of Utopia for what they seek to accomplish.

1442. According to Ivor Jennings, flexibility is regarded as a merit and rigidity a defect because it is impossible for the framers of a Constitution to foresee the conditions in which it would apply and the problems which will arise. They have not the gift of prophecy. A Constitution has to work not only in the environments it was drafted, but also centuries later (see Some Characteristics of Indian Constitution, p. 14-15). It has consequently been observed by Jennings:

The real difficulty is that the problems of life and society are infinitely variable. A draftsman thinks of the problems that he can foresee, but he sees through a glass, darkly. He cannot know what problems will arise in ten, twenty, fifty or a hundred years. Any restriction on legislative power may do harm, because the effect of that restriction in new conditions cannot be foreseen.