Re: Kesavananda Bharati vs State Of Kerala And ors
1443. The machinery of amendment, it has been said, should be like a safety valve, so devised as neither to operate the machine with too great facility nor to require, in order to set it in motion, an accumulation of force sufficient to explode it. In arranging it, due consideration should be given on the one hand to the requisities of growth and on the other hand to those of conservatism. The letter of the Constitution must neither be idolized as a sacred instrument with that mistaken conservatism which ding to its own worn out garments until the body is ready to perish from cold, nor yet ought it to be made a plaything of politicians, to be tampered with and degraded to the level of an ordinary statute (see Political Science and Government by J.W. Garner, p. 538). 1444. The framers of our Constitution were conscious of the desirability of reconciling the urge for change with the need of continuity. They were not oblivious of the phenomenon writ large in human history that change without continuity can be anarchy; change with continuity can mean progress; and continuity without change can mean no progress. The Constitution-makers have, therefore, kept the balance between the danger of having a non-amendable Constitution and a Constitution which is too easily amendable. It has accordingly been provided that except for some not very vital amendments which can be brought about by simple majority, other amendments can be secured only if they are passed in each House of Parliament by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of each House present and voting. Provision is further made that in respect of certain matters which affect the interest of the States the amendment must also be ratified by the legislatures of not less than one half of the States by resolution to that effect. It can, therefore, be said that while a provision has been made for amendment of the Constitution, the procedure for the bringing about of amendment is not so easy as may make it a plaything of politicians to be tampered with and degraded to the level of ordinary statute. The fact that during the first two decades after the coming into force of the Constitution the amending Bills have been passed wihout much difficulty with requisite majority is a sheer accident of history and is due to the fact that one party has happened to be in absolute majority at the Centre and many of the States. This circumstance cannot obliterate the fact that in normal circumstances when there are well balanced parties in power and in opposition the method of amending the Constitution is not so easy.
1445. Another circumstance which must not be lost sight of is that no generation has monopoly of wisdom nor has any generation a right to place fetters on future generations to mould the machinery of government and the laws according to their requirements. Although guidelines for the organization and functioning of the future government may be laid down and although norms may also be prescribed for the legislative activity, neither the guidelines should be so rigid nor the norms so inflexible and unalterable as should render them to be incapable of change, alteration and replacement even though the future generations want to change, alter or replace them. The guidelines and norms would in such an event be looked upon as fetters and shackles upon the free exercise of the sovereign will of the people in times to come and would be done away with by methods other than Constitutional. It would be nothing short of a presumptous and vain act and a myopic obsession with its own wisdom for one generation to distrust the wisdom and good sense of the future generation and to treat them in a way as if the generations to come would not be sui juris. The grant of power of amendment is based upon the assumption that as in other human affairs, so in Constitutions, there are no absolutes and that the human mind can never reconcile itself to fetters in its quest for a better order of things. Any fetter resulting from the concept of absolute and ultimate inevitably gives birth to the urge to revolt. Santayana once said : "Why is there sometimes a right to revolution? Why is there sometimes a duty to loyalty? Because the whole transcendal philosophy, if made ultimate, is false, and nothing but a selfish perspective hypostasized, because the will is absolute neither in the individual nor in the humanity..." (see German Philosophy and Politics (1915) 645-649 quoted by Frankfurter J. in "Mr. Justice Holmes" 931 Ed. page 117). What is true of transcendal philosophy is equally true in the mundane sphere of a Constitutional provision. An unamendable Constitution, according to Mulford, is the worst tyranny of time, or rather the very tyranny of time. It makes an earthly providence of a convention which was adjourned without day. It places the sceptre over a free people in the hands of dead men, and the only office left to the people is to build thrones out of the stones of their sepulchres (see Political Science and Government by J.W. Garner pages 537, 538).
1446. According to Woodrow Wilson, political liberty is the right of those who are governed to adjust government to their own needs and interest. Woodrow Wilson in this context quoted Burke who had said that every generation sets before itself some favourite object which it pursues as the very substance of liberty and happiness. The ideals of liberty cannot be fixed from generation to generation; only its conception can be, the large image of what it is. Liberty fixed in unalterable law would be no liberty at all. Government is a part of life, and, with life, it must change, alike in its objects and in its practices; only this principle must remain unaltered, this principle of liberty, that there must be the freest right and opportunity of adjustment. Political liberty consists in the best practicable adjustment between the power of the government and the privilege of the individual; and the freedom to alter the adjustment is as important as the adjustment itself for the ease and progress of affairs and the contentment of the citizen (see Constitutional Government in the United States by Woodrow Wilson, p. 4-6).
1447. Each generation, according to Jefferson, should be considered as a distinct nation, with a right by the will of the majority to bind themselves but none to bind the succeeding generations, more than the inhabitant of another country. The earth belongs in usufruct to the living, the dead have neither the power nor the right over it. Jefferson even pleaded for revision or opportunity for revision of Constitution every nineteen years. Said the great American statesman:
The idea that institutions established for the use of the nation cannot be touched or modified, even to make them answer their and, because of rights gratuitously supposed in those employed to manage them in the trust for the public, may perhaps be a salutary provision against the abuses of a monarch, but is most absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine and suppose that preceding generations held the earth more freely than we do, had a right to impose laws on us, unalterable by ourselves, and that we, in the like manner, can make laws and impose burdens on future generations, which they will have no right to alter; in fine that the earth belongs to the dead and not the living.
The above words were quoted during the course of the debate in the Constituent Assembly (see Vol. XI Constituent Assembly debates, p. 975)
1448. Thomas Paine gave expression to the same view in the following words: There never did, there never will, and there never can, exist a parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the 'end of time', or of commanding for ever how the world shall be governed, or who shall govern it; and therefore all such clauses, acts or declarations by which the makers of them attempt to do what they have neither the right not the power to do, nor take power to execute, are in themselves null and void. Every age and generation must be as free to act for itself in all cases as the ages and generations which preceded it The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation a property in the generations which are to follow.
We may also reproduce the words of Pt. Nehru in His speech to the Constituent Assembly on November 11, 1948:
And remember this that while we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitutions. Their should be a certain flexibility. If you make anything rigid and permanent you stop a Nation's growth, the growth of living vital organic people. Therefore it has to be flexible. 1449. If it is not permissible under Article 368 to so amend the Constitution as to take away or abridge the fundamental rights in Part III, as has been argued on behalf of the petitioners, the conclusion would follow that the only way to take away or abridge fundamental rights, even if the overwhelming majority of people, e.g. 90 per cent of them want such an amendment, is by resort to extra-Constitutional methods like revolution. Although, in my opinion, the language of Article 368 is clear and, contains no limitation on the power to make amendment so as to take away or abridge fundamental rights, even if two interpretations were possible, one according to which the abridgement or extinguishment of fundamental rights is permissible in accordance with the procedure prescribed by Article 368 and the other according to which the only way of bringing about such a result is an extra-Constitutional method like revolution, the court, in my opinion, should lean in favour of the first interpretation. It hardly needs much argument to show that between peaceful amendment through means provided by the Constitution and the extra-Constitutional method with all its dangerous potentialities the former method is to be preferred. The contrast between the two methods is so glaring that there can hardly be any difficulty in making our choice between the two alternatives. 1450. The aforesaid discussion would also reveal that the consequences which would follow from the acceptance of the view that there is no power under Article 368 to abridge or take away fundamental rights would be chaotic because of the resort to extra- Constitutional methods. As against that the acceptance of the opposite view would not result in such consequences. Judged even in this light, I find it difficult to accede to the contention advanced on behalf of the petitioner.
1451. I may at this stage deal with the question, adverted to by the learned Counsel for the petitioners as to how far the consequences have to be taken into account in construing the provisions of the Constitution. In this connection, I may observe that it is one of the well-settled rules of construction that if the words of a statute are in themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature. It is equally well-settled that where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction, or confusion into the working of the system (see Collector of Customs, Baroda v. Digvijaysinhji Spinning & Weaving Mills Ltd.  1 S.C.R. 896 (on p. 899)). These principles of construction apply with greater force when we are dealing with the provisions of a Constitution. 1452. I have kept the above principles in view and am of the opinion that as the language of Article 368 is plain and unambiguous, it is not possible to read therein a limitation on the power of Parliament to amend the provisions of Part III of the Constitution so as to abridge or take away fundamental rights; Apart from that, I am of the view that if two constructions were possible, the construction which I have, accepted would, as mentioned above, avoid chaotic consequences and would also prevent the introduction of uncertainty, friction or confusion into the working of our Constitution. 1453. It is also, in my opinion, not permissible in the face of the plain language of Article 368 to ascertain by any process akin to speculation the supposed intention of the Constitution-makers. We must act on the principle that if the word's are plain and free from any ambiguity the Constitution-makers should be taken to have incorporated their intention in those words.
1454. It seems inconceivable that the framers of the Constitution in spite of the precedents of the earlier French Constitutions which perished in violence because of their non-amendability, inserted in the Constitution a Part dealing with fundamental rights which even by the unanmious vote of the people could not be abridged or taken away and which left with people no choice except extra-Constitutional methods to achieve that object. The mechanics of the amendment of the Constitution, including those relating to extinguishment or abridgement of fundamental rights, in my opinion, are contained in the Constitution itself and it is not necessary to have recourse to a revolution or other extra- Constitutional methods to achieve that object.
1455. Confronted with the situation that if the stand of the petitioners was to be accepted about the inability of the Parliament to amend Part III of the Constitution except by means of a revolution or other extra-Constitutional methods, the learned Counsel for the petitioners has argued that such an amendment is possible by making law for convening a Constituent Assembly or for holding a referendum. It is urged that there would be an element of participation of the people in the conventing of such a Constituent Assembly or the holding of a referendum and it is through such means that Part III of the Constitution can be amended so as to take away or abridge fundamental rights. The above argument, in my opinion, is untenable and fallacious. If Parliament by a two-thirds majority in each House and by following the procedure laid down in Article 368 cannot amend Part III of the Constitution so as to take away or abridge fundamental rights, it is not understood as to how the same Parliament can by law create a body which can make the requisite amendment. If it is not within the power of Parliament to take away or abridge fundamental rights even by a vote of two-thirds majority in each House, would it be permissible for the same Parliament to enact legislation under entry 97 List I of Seventh Schedule by simple majority for creating a Constituent Assembly in order to take away or abridge fundamental rights ? Would not such a Constituent Assembly be a creature of statute made by parliament even though such a body has the high-sounding name of Constituent Assembly ? The nomenclature of the said Assembly cannot conceal its real nature as being one created under a statute made by the Parliament. A body created by the Parliament cannot have powers greater than those vested in the Parliament. It is not possible to accept the contention that what the Parliament itself could not legally do, it could get done through a body created by it. If something is impermissible, it would continue to be so even though two steps are taken instead of one for bringing about the result which is not permitted. Apart from the above if we were to hold that the Parliament was entitled under entry 97 List I to make a law for convening a Constituent Assembly for taking away or abridging fundamental rights, some startling results are bound to follow. A law made under entry 97 List I would need a simple majority in each House of the Parliament for being brought on statute book, while an amendment of the Constitution would require a two-thirds majority of the members of each House present and voting. It would certainly be anamolous that what Parliament could not do by two-thirds majority, it can bring about by simple majority. This apart, there are many articles of the Constitution, for the amendment of which ratification by not less than half of the State Legislatures is required. The provision regarding ratification in such an event would be set at naught. There would be also nothing to prevent Parliament while making a law for convening a Constituent Assembly to exclude effective representation or voice of State Legislatures in the covening of Constituent Assembly.
1456. The argument that provision should be made for referendum is equally facile. Our Constitution-makers rejected the method of referendum. In a country where there are religious and linguistic minorities, it was not considered a proper method of deciding vital issues. The leaders of the minority communities entertained apprehension regarding this method. It is obvious that when passions are roused, the opinion of the minority in a popular referendum is bound to get submerged and lose effectiveness. 1457. It also cannot be said that the method of bringing about amendment through referendum is a more difficult method. It is true that in Australia over 30 amendments were submitted to referendum, out of which only four were adopted and two of them were of trivial nature. As against that we find that the method of referendum for amending the Constitution has hardly provided much difficulty in Switzerland. Out of 64 amendments proposed for amending the federal Constitution, 49 were adopted in a popular referendum. So far as the method of amendment of the Constitution by two-third majority in either House of the Central Legislature and the ratification by the State Legislatures is concerned, we find that during first 140 years since the adoption of the United States Constitution, 3,113 proposals of amendment were made and out of them, only 24 so appealed to the Congress as to secure the approval of the Congress and only 19 made sufficient appeal to the State legislatures to secure ratification (see Constitutional Law of United States by Willis, p. 128). It, therefore, cannot be said that the method of referendum provides a more effective check on the power of amendment compared to the method of bringing it about by prescribed majority in each house of the Parliament.
1458. Apart from that I am of the view that it is not permissible to resort to the method of referendum unless there be a Constitutional provision for such a course in the amendment provision. In the case of George S. Hawkes v. Harvey C. Smith as Secretary of State of Ohio 64 Lawyers Ed. 871 the US Supreme Court was referred in the context of ratification by the States of the Eighteenth Amendment to the Constitution of the Ohio State which contained provision for referendum. It was urged that in the case of such a State ratification should be by the method of referendum. Repelling this contention, the court held:
Referendum provisions of State Constitutions and statutes cannot be applied in the ratification or objection of amendments to the Federal Constitution without violating the requirement of Article 5 of such Constitution, that such ratification shall be by the legislatures of the several states, or by conventions therein, as Congress shall decide. The same view was reiterated by the US Supreme Court in State of Rhode Island v. A. Mitchell Palmer Secretary of State and other connected cases better known as National Prohibition Cases 253 S.C.R. 350 64 Lawyers Edition 946.
1459. Argument has been advanced on behalf of the petitioner that there is greater width of power for an amendment of the Constitution if the amendment is brought about by a referendum compared to the power of amendment vested in the two Houses of Parliament or Federal Legislature even though it is required to be passed by a prescribed majority and has to be ratified by the State Legislatures. In this respect we find that different Constitutions have devised different methods of bringing about amendment. The main 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 units of a federal state;
(4) by a special convention.
In some cases the system of amendment is a combination of two or more of these methods.
1460. There are three ways in which the legislature may be allowed to amend the Constitution, apart from the case where it may do so in the ordinary course of legislation. The simplest restriction is that which requires a fixed quorum of members for the consideration of proposed amendments and a special majority for their passage. The latter condition operated in the now defunct Constitution of Rumania. According to Article 146 of the Constitution of USSR the Constitution may be amended only by a decision of Supreme Soviet of USSR adopted by a majority of not less than two-thirds of the votes in each of its chambers. A second sort of restriction is that which requires a dissolution and a general election on the particular issue, so that the new legislature, being returned with a mandate for the proposal, is in essence, a constituent assembly so far as that proposal is concerned. This additional check is applied in Belgium, Holland, Denmark and Norway (in all of which, however, also a two-thirds parliamentary majority is required to carry the amendment after the election) and in Sweden. A third method of Constitutional change by the legislature is that which requires a majority of the two Houses in joint session, that is to say, sitting together as one House, as is the case, for example, in South Africa. 1461. The second method is that which demands a popular vote or referedum or plebiscite. This device was employed in France during the Revolution and again by Louis Napoleon, and in Germany by Hitler. This system prevails in Switzerland, Australia, Eire, May, France (with certain Presidential provisios in the Fifth Republic) and in Denmark.
1462. The third method is peculiar to federations. The voting on the proposed measure may be either popular or by the legislatures of the states concerned. In Switzerland and Australia the referendum is in use; in the United States any proposed amendment requires ratification by the legislatures, or special conventions of three fourth of the several states. 1463. The last method is one in which a special body is created ad hoc for the purpose of Constitutional revision. In some of the states of the United States, for example, this method is in use in connection with the Constitution of the states concerned. Such a method is also allowed if the Federal Congress proposes this method for amendment of the United States Constitutions. This method is prevalent in some of the states in Latin America also (see Modern Political Constitutions by C.F. Strong, p. 153-154). 1464. The decision as to which method of amending the Constitution should be chosen has necessarily to be that of the Constituent Assembly. This decision is arrived at after taking into account the national requirements, the historical background, conditions prevailing in the country and other factors or circumstances of special significance for the nation. Once a method of amendment has been adopted in a Constitution, that method has to be adhered to for bringing about the amendment. The selection of the method of amendment having been made by the Constituent Assembly it is not for the court to express preference for another method of amendment. Amendment brought about by one method prescribed by the Constitution is as effective as it would have been if the Constitution had prescribed another method of bringing about amendment unless there be something in the Constitution itself which restricts the power of amendment. Article 138 of the Italian Constitution makes provision for referendum to bring about amendment of the Constitution. It has however, been expressly provided in the article that referendum does not take place if a law has been approved in its second vote by a majority of two- thirds of the members of each chamber. The Italian Constitution thus makes a vote of majority of two-thirds of the members of each chamber at the second voting as effective as a referendum. Article 89 of the Constitution of the French Fifth Republic like-wise makes provision for referendum for amendment of Constitution. It is, however, provided in that article that the proposed amendment is not submitted to a referendum when the President of the Republic decides to submit it to Parliament convened in Congress; in that case the proposed amendment is approved only if it is accepted by three-fifth majority of the votes cast.
1465. We may at this stage advert to Article 5 of the United States Constitution which reads as under:
The Congress, whenever two-thirds of both Houses shall deem it
necessary, shall propose amendments to this Constitution, or, on the application of the legislature of two-thirds of the several States, shall call a convention for proposing amendments, which in either case, shall be valid to all intents and purposes, as part of this Constitution when ratified by the legislatures of three fourths of the several States, or by conventions in three fourth thereof, as the one or the other mode of ratification may be proposed by the Congress; Provided 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.
The above article makes it clear that there are two methods of framing and proposing amendments.
(A) Congress may itself, by a two-thirds vote in each house, prepare and propose amendments.
(B) The legislatures of two-thirds of the States may require Congress to summon a Constitutional Convention. Congress shall thereupon dc so, having no option to refuse; and the Convention when called shall draft and submit amendments. No provision is made as to the election and composition of the Convention, matters which would therefore appear to be left to the discretion of Congress.
1466. There are the following two methods of enacting amendments framed and proposed in either of the foregoing ways. It is left to Congress to prescribe one or other method as Congress may think fit.
(X) The legislatures of three-fourths of the States may ratify any amendments submitted to them.
(Y) Conventions may be called in the several States, and three-fourths of these conventions may ratify.
1467. Except for Twentyfirst Amendment, on all the occasions on which the amending power has been exercised, method A has been employed and method X for ratifying-i.e., no drafting conventions of the whole Union or ratifying conventions in the several States have ever been summoned. The consent of the President is not required to a Constitutional amendment (see American Commonwealth by James Bryce, pp. 365-366). 1468. There is one provision of the Constitution which cannot be changed by this process. It is that which secures to each and every State equal representation in one branch of the legislature because according to proviso to Article V, no State without its consent shall be deprived of its equal suffrage in the Senate.
1469. The question as to whether the width of power of amendment is greater in case the amendment is passed by a people's convention compared to the width of the power if it is passed by the prescribed majority in the legislatures arose in the case of United States v. Sprague 282 U.S. 716 decided by the Supreme Court of the United States. In that case the Constitutional validity of the Eighteenth Amendment was assailed on the ground that it should have been ratified by the Conventions because it took away the powers of the States and conferred new direct powers over individuals. The trial court rejected all these views and yet held the Eighteenth Amendment unConstitutional on theories of "political science," the "political thought" of the times, and a "scientific approach to the problem of government." The United States Supreme Court on appeal upheld the Eighteenth Amendment. After referring to the provisions of Article 5 Roberts J., who gave the opinion of the court, observed:
The choice, therefore, of the mode of ratification, lies in the sole discretion of Congress. Appellees, however, pointed out that amendments may be of different kinds, as e.g., mere changes in the character of federal means or machinery, on the one hand, and matters affecting the liberty of the citizen on the other. They say that the framers of the Constitution expected the former sort might be ratified by legislatures, since the States as entities would be wholly competent to agree to such alterations, whereas they intended that the latter must be referred to the people because not only of lack of power in the legislatures to ratify, but also because of doubt as to their truly representing the people.
Repelling the contention on behalf of the appellees, the court observed: If the framers of the instrument had any thought that amendments differing in purpose should be ratified in different ways, nothing would have been simpler than so to phrase Article 5 as to exclude implication or speculation, The fact that an instrument drawn with such meticulous care and by men who so well understood how to make language fit their thought does not contain any such limiting phrase affecting the exercise of discretion by the Congress in choosing one or the other alternative mode of ratification is persuasive evidence that no qualification was intended. The court referred to 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 argument that the language of the Tenth Amendment demonstrates that the people reserved to themselevs powers over their personal liberty, that the legislatures were not competent to enlarge the powers of the Federal Government in that behalf and that the people never delegated to the Congress the unrestricted power of choosing the mode of ratification of a proposed amendment was described by the Court to be complete non sequitur. The fifth Article, it was observed, does not purport to delegate any governmental power to the United States, nor to withhold any from it. On the contrary, that article is a grant of authority by the people to Congress, and not to the United States. The court further observed: They (the people) deliberately made the grant of power to Congress in respect to the choice of the mode of ratification of amendments. Unless and until that Article be changed by amendment, Congress must function as the delegated agent of the people in the choice of the method of ratification.
1470. I am, therefore, of the view that there is no warrant for the proposition that as the amendments under Article 368 are brought about by the prescribed majority of the two Houses of Parliament and in certain cases are ratified by the State Legislatures and the amendments are not brought about through referendum or passed in a Convention, the power of amendment under Article 368 is on that account subject to limitations. 1471. Argument has then been advanced that if power be held to be vested in Parliament under Article 368 to take away or abridge fundamental rights, the power would be, or in any case could be, so used as would result in repeal of all provisions containing fundamental rights. India, it is urged, in such an event would be reduced to a police state wherein all cherished values like freedom and liberty would be non-existent. This argument, in my opinion, is essentially an argument of fear and distrust in the majority of representatives of the people. It is also based upon the belief that the power under Article 368 by two-thirds of the members present and voting in each House of Parliament would be abused or used extravagently. I find it difficult to deny to the Parliament the power to amend the Constitution so as to take away or abridge fundamental rights by complying with the procedure of Article 368 because of any such supposed fear or possibility of the abuse of power. I may in this context refer to the observations of Marshall C.J. regarding the possibility of the abuse of power of legislation and of taxation in the case of The Providence Bank v. Alpheus Billings. 29 U.S. 514
This vital power may be abused; but the Constitution of the United States was not intended to furnish the corrective for every abuse of power which may be committed by the State governments. The interest, wisdom, and justice of the representative body, and its relations with its constituents furnish the only security where there is no express contract against unjust and excessive taxation, as well as against unwise legislation generally. 1472. That power may be abused furnishes no ground for denial of its existence if government is to be maintained at all, is a proposition, now too well established (fee the unanimous opinion of US Supreme Court in Exparte John L. Rapier 15 U.S. 93). Same view was expressed by the Judicial Committee in the case of Bank of Toronto and Lambe 12, A.C. 575 while dealing with the provisions of Section 92 of the British North America Act relating to the power of Quebec legislature.
1473. Apart from the fact that the possibility of abuse of power is no ground for the denial of power if it is found to have been legally vested, I find that the power of amendment under Article 368 has been vested not in one individual but in the majority of the representatives of the people in Parliament. For this purpose, the majority has to be of not less than two-thirds of the members present and voting in each House. In addition to that, it is required that the amendment Bill should be passed in each House by a majority of the total membership of that House. It is, therefore, not possible to pass an amendment Bill by a snap vote in a House wherein a small number of members are present to satisfy the requirement of the rule of quorum. The condition about the passing of the Bill by each House, including the Rajya Sabha, by the prescribed majority ensures that it is not permissible to get the Bill passed in a joint sitting of the two Houses (as in the case of ordinary legislation) wherein the members of the Rajya Sabha can be outvoted by the members of the Lok Sabha because of the latter's greater numerical strength. The effective voice of the Rajya Sabha in the passing of the amendment Bill further ensures that unless the prescribed majority of the representatives of the states agree the Bill cannot be passed. The Rajya Sabha under our Constitution is a perpetual body; its members are elected by the members of the State Assemblies and one-third of them retire every two years. We have besides that the provision for the ratification of the amendment by not less than one-half of the State Legislature in case the amendment relates to certain provisions which impinge upon the rights of the States. The fact that a prescribed majority of the people's representatives is required for bringing about the amendment is normally itself a guarantee that the power would not be abused. The best safeguard against the abuse or extravagant use of power is public opinion and not a letter on the right of people's representatives to change the Constitution by following the procedure laid down in the Constitution itself. It would not be a correct approach to start with a distrust in the people's representatives in the Parliament and to assume that majority of them would have ah aversion for the liberties of the people and would act against the public interest. To quote the words of Justice Holmes in Missouri Kansas & Texas Ry. v. May 194 U.S. 267 (on p. 270).
Great Constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts. 1474. L.B. Orfield has dealt with the question of the abuse of power in his book "The Amending of Federal Constitution", in the following words on page 123: 'Abuse' of the amending power is an anomalous term. The proponents of implied limitations resort to the method of reductio ad absurdum in pointing out the abuses which might occur if there were no limitations on the power to amend.... The amending power is a power of an altogether different kind from the ordinary governmental powers. If abuse occurs, it occurs at the hands of a special organization of the nation and of the states representing an extraordinary majority of the people, so that for all practical purposes it may be said to be the people, or at least the highest agent of the people, and one exercising soverign powers. Thus the people merely take the consequences of their own acts :
It has already been mentioned above that the best safeguard against the abuse of power is public opinion. Assuming that under the sway of some overwhelming impulse, a climate is created wherein cherished values like liberty and freedom lose their significance in the eyes of the people and their representatives and they choose to do away with all fundamental rights by amendment of the Constitution, a restricted interpretation of Article 368 would not be of much avail. The people in such an event would forfeit the claim to have fundamental rights and in any case fundamental rights would not in such an event save the people from political enslavement, social stagnation or mental servitude. I may in this context refer to the words of Learned Hand in his eloquent address on the Spirit of Liberty:
I often wonder whether we do not rest our hopes too much upon
Constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no Constitution, no law no court can save it; no Constitution, no law, no court can even do much to help it. While it lies there it needs no Constitution, no law, no court to save it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow. (see pages 189-190 Spirit of Liberty edited by Irving Dilliard). Similar idea was expressed in another celebrated passage by Learned Hand in the Contribution of an Independent Judiciary to Civilization:
You may ask what then will become of the fundamental principles of equity and fair play which our Constitutions enshrine; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say what will be left of those principles; I do not know whether they will serve only as counsels; but this much I think I do know that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish. (see p. 164 supra).
1475. It is axiomatic that the involvement of a nation in war by a declaration of war against another country can change the entire course of history of the nation. A wrong decision in this respect can cause untold suffering, result in national humiliation, take toll of thousands of lives and cripple the economy of the nation for decades to come. If the Government and the Parliament can be entrusted with power of such far reaching magnitude on the assumption that such a power would not be abused but would be exercised reasonably in the national interest, it would seem rather anomalous to have an approach of distrust in those very organs of the state and to deny to the Parliament the power of amendment of fundamental rights because of the supposed possibility of the abuse of such power.
1476. There is one other aspect of the matter which may be not lost sight of. Part III deals with a number of fundamental rights. Assuming that one relating to property, out-of the many fundamental rights, is found to be an obstacle in pushing forward certain ameliorative measures and it is proposed to abridge that fundamental right and it is also decided not to abridge or take away any other fundamental right, the present position, according to the stand taken on behalf of the petitioners, is that there is no power under Article 368 to abridge the obstructive fundamental right. The result is that even though reference is made on behalf of the petitioners to those fundamental rights as enshrine within themselves the valued concept of liberty of person and freedom of expression, the protection which is, in fact, sought is for the fundamental right to property which causes obstruction to pushing forward ameliorative measures for national weal. It is not, in my opinion, a correct approach to assume that if Parliament is held entitled to amend Part III of the Constitution so as to take away or abridge fundamental rights, it would automatically or necessarily result in the abrogation of all fundamental rights. I may mention in this context that for seventeen years, from 1950 till 1967 Golak Nath case (supra) was decided, the accepted position was that the Parliament had the power to amend Part III of the Constitution so as to take away or abridge fundamental rights. Despite the possession of that power by the Parliament, no attempt was made by it to take away or abridge fundamental rights relating to cherished values like liberty of person and freedom of expression. If it was not done in the past, why should we assume that the majority of members of the Parliament in future would acquire sudden aversion and dislike for these values and show an anxiety to remove them from the Constitution. There is a vital distinction, in my opinion, between the vesting of a power, the exercise of the power and the manner of its exercise. What we are concerned with is as to whether on the true construction of Article 368, the Parliament has or has not the power to amend the Constitution so as to take away or abridge fundamental rights. So far as this question is concerned, the answer, in my opinion, should be in the affirmative, as long as the basic structure of the Constitution is retained.
1476. In the context of abuse of power of the amendment, reference has been made on behalf of the petitioners to the Constitution of Weimar Republic and it is urged that unless there are restrictions on the power of amendment in so far as fundamental rights are concerned, the danger is that the Indian Constitution may also meet the same fate as did the Weimar Constitution at the hands of Hitler. This argument, in my opinion, is wholly misconceived and is not based upon correct appreciation of historical facts. Following military reversals when Kaiser fled to Holland in 1918 his mutinous subjects proclaimed a republic in Germany. There was thus a break in the continuity of the authority and the Weimar Republic had to face staggering political problems. It had to bear the burden of concluding a humilitating peace. It was later falsely blamed for the defeat itself by some of the politicians who were themselves responsible for the collapse and capitulation of 1918. The Republic had to wrestle, within a decade and a half, with two economic crises of catastrophic proportions which ruined and made desperate the ordinarily stable elements of society. The chaos with political party divisions in the country was reflected in Reichstag where no party obtained a clear majority. There were 21 cabinets in 14 years. It was in those conditions that Hitler emerged on the scene. He made use of Article 48 of the Weimar Constitution which dealt with emergency powers. Under Article 48 of the Constitution, the President was empowered to issue decrees suspending the rights guaranteed by the basic law and to make direct use of the army and navy should emergency conditions so require. The purpose of the provisions was, of course, to provide the executive with means to act in the event of some grave national emergency where the immediate and concentrated use of the power of the state might become suddenly necessary. But what happened was that almost from its beginning the government found itself in one emergency after another, so that rule by executive decrees issued under the authority provided for by Article 48 supplanted the normal functioning of the legislative branch of government. The increasing division among the political parties, the staggering economic problem and the apparent failure of the parliamentary government to function, were accompanied by the steady growth in power of the National Socialist under Hitler. In less than two years, the Weimar Republic was transformed into a totalitarian dictatorship. The Enabling Act of March 23, 1933, pushed through the Reichstag by a narrow Nazi majority, provided government by decree without regard to Constitutional guarantees. The Act empowered the Government to enact the statutes without the sanction of the Parliament. Hitler made a show of following the Constitution, but the acts of his party in and out of the government in practice violated the basic law. The few limitations imposed upon the government were ignored, and Hitler's Third Reich was launched (see Modern Constitutions by R.F. Moore, p. 86-87 and The Constitutions of Europe by E.A. Goerner, p. 99-100). It would thus appear that it was not by use of the power of amending the Constitution but by acting under the cover of Article 48 of the Constitution dealing with emergency powers that Hitler brought about the Nazi dictatorship. He thus became what has been described as "...the supreme political leader of the people, supreme tender and highest superior of the administration, supreme judge of the people, supreme commander of the armed forces and the source of all law. 1477. Apart from the fact that the best guarantee against the abuse of power of amendment is good sense of the majority of the members of Parliament and not the unamendability of Part III of the Constitution, there is one other aspect of the matter. Even if Part III may be left intact, a mockery of the entire parliamentary system can be made by amending Articles 85 and 172, which are not in Part III and according to which the life of the Lok Sabha and Vidhan Sabhas of the States, unless sooner dissolved, would be five years, and by providing that the life of existing Lok Sabha and Vidhan Sabhas shall be fifty years. This would be a flagrant abuse of the power of amendment and I refuse to believe that public opinion in our country would reach such abysmal depths and the standards of political and Constitutional morality would sink so low that such an amendment would ever be passed. I need express no opinion for the purpose of this case as to whether this Court would also not quash such an amendment In any case such an amendment would be an open invitation for and be a precursor of revolution. 1478. Even without amending any article, the emergency provisions of the Constitution contained in Article 358 and 359 can theoretically be used in such a manner as may make a farce of the democratic set up by prolonging the rule of the party in power beyond the period of five years since the last general election after the party in power has lost public support. A Proclamation of Emergency under Article 352 can be issued by the President if he is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or even by internal disturbance. Such a Proclamation has to be laid before each House of Parliament. Resolution approving the Proclamation has thereafter to be passed by the Houses of Parliament. According to Article 83, the House of the People, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the House provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate. As the Government and Parliament play a vital part in the Proclamation and continuation of emergency, the emergency provisions can theoretically be used for avoiding the election and continuing a party in power even though it has lost popular support by extending the life of House of the People in accordance with Article 83(2). The effective check against such unabashed abuse of power is the sense of political responsibility, the pressure of public opinion and the fear of popular uprising. We need not go into the question as to whether the court would also intervene in such an event. It is, in my opinion, inconceivable that a party would dare to so abuse the powers granted by the emergency provisions. The grant of the above power under Article 83 (2) is necessarily on the assumption that such a power would not be abused. 1479. Argument has then been advanced on behalf of the petitioners that the power of amendment might well be used in such a manner as might result in doing away with the power of amendment under Article 368 or in any case so amending that articles as might make it impossible to amend the Constitution. It is, in my opinion, difficult to think that majority of members of future Parliament would attempt at any time to do away with the power of amendment in spite of the knowledge as to what was the fate of unamendable Constitutions in other countries like France. Assuming that at any time such an amendment to abolish all amendments of Constitution is passed and made a part of the Constitution, it would be nothing short of laying the seeds of a future revolution or other extra-Constitutional methods to do away with unamendable Constitution. It is not necessary for the purpose of this case to go into the question of the Constitutional validity of such an amendment.
1480. We may now deal with the question as to what is the scope of the power of amendment under Article 368. This would depend upon the connotation of the word "amendment". Question has been posed during arguments as to whether the power to amend under the above article includes the power to completely abrogate the Constitution and replace it by an entirely new Constitution. The answer to the above question, in my opinion, should be in the negative. I am further of the opinion that amendment of the Constitution necessarily contemplates that the Constitution has not to be abrogated but only changes have to be made in it. The word "amendment" postulates that the old Constitution survives without loss of its identity despite the change and continues even though it has been subjected to alterations. As a result of the amendment, the old Constitution cannot be destroyed and done away with; it is retained though in the amended form. What then is meant by the retention of the old Constitution? It means the retention of the basic structure or framework of the old Constitution. A mere retention of some provisions of the old Constitution even though the basic structure or framework of the Constitution has been destroyed would not amount to the retention of the old Constitution. Although it is permissible under the power of amendment to effect changes, "howsoever important, and to adapt the system to the requirements of changing conditions, it is not permissible to touch the foundation or to alter the basic institutional pattern. The words "amendment of the Constitution" with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution. It would not be competent under the garb of amendment, for instance, to change the democratic government into dictatorship or hereditary monarchy nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the state according to which the state shall not discriminate against any citizen on the ground of religion only cannot likewise be done away with. Provision regarding the amendment of the Constitution does not furnish a pretence for subverting the structure of the Constitution nor can Article 368 be so construed as to embody the death wish of the Constitution or provide sanction for what may perhaps be called its lawful harakiri. Such subversion or destruction cannot be described to be amendment of the Constitution as contemplated by Article 368.
1481. The words "amendment of this Constitution" and "the Constitution shall stand amended" in Article 368 show that what is amended is the existing Constitution and what emerges as a result of amendment is not a new and different Constitution but the existing Constitution though in an amended form. The language of Article 368 thus lends support to the conclusion that one cannot, while acting under that article, repeal the existing Constitution and replace it by a new Constitution.
1482. The connotation of the amendment of the Constitution was brought out clearly by Pt. Nehru in the course of his speech in support of the First Amendment wherein he said that "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." It is, therefore, plain that what Pt. Nehru contemplated by amendment was the varying of the Constitution "here and there" and not the elimination of its basic structure for that would necessarily result in the Constitution losing its identity.
1483. Reference to some authorities in the United States so far as the question is concerned as to whether the power to amend under Article 5 of US Constitution would include within itself the power to alter the basic structure of the Constitution are not helpful because there has been no amendment of such a character in the United States. No doubt the Constitution of the United States had in reality, though not in form, changed a good deal since the beginning of last century; but the change had been effected far less by formally enacted Constitutional amendments than by the growth of customs or institutions which have modified the working without altering the articles of the Constitution (see The Law of the Constitution by A.V. Dicey Tenth Ed. p. 129). 1484. It has not been disputed during the course of arguments that the power of amendment under Article 368 does not carry within itself the power to repeal the entire Constitution and replace it by a new Constitution. If the power of amendment does not comprehend the doing away of the entire Constitution but postulates retention or continuity of the existing Constitution, though in an amended form, question arises as to what is the minimum of the existing Constitution which should be left intact in order to hold that the existing Constitution has been retained in an amended form and not done away with. In my opinion, the minimum required is that which relates to the basic structure or framework of the Constitution. If the basic structure is retained, the old Constitution would be considered to continue even though other provisions have undergone change. On the contrary, if the basic structure is changed, mere retention of some articles of the existing Constitution would not warrant a conclusion that the existing Constitution continues and survives.