Re: Kesavananda Bharati vs State Of Kerala And ors

2153. I am unable to read in this legislative history an inference that the word 'amendment' was used in Article 304 in order to curtail the scope of the amending power. It is significant that the Government of India (Third Amendment) Act, 1939 was described in its title as an "Act to further amend the G.I. Act 1935" and the Preamble stated that it was expedient to amend the Government of India Act, 1935. By Section 4 the old Section 291 was "repealed" totally and the new Section 291 was "substituted". By Section 3 a new sub-section was "inserted". By Section 5 a new item was "substituted" and totally new itmes Nos. 31B and 31C were "inserted". The Act of 1949 therefore leaves no room for doubt that the word 'amend' included the power of addition, alteration and repeal. Apart from this it is well recognized that the use of different words does not necessarily produce a change in the meaning. (See Maxwell 'Interpretation of Statutes' 12th Ed., pp. 286 to 289; State of Bombay v. Heman Alreja A.I.R. 1952 Bom. 16, 20 per Chagla C.J. and Gajendragadkar J.).
2154. Finally, it is important that 5 out of the 11 Judges in the Golak Nath case took the view that the word 'amendment' must be given a wide meaning. The leading majority judgment did not consider that question on the ground that so far as Fundamental Rights were concerned, the question could be answered on a narrower basis. Ramaswami J. also did not consider the meaning of the word 'amendment'. However, Wanchoo J. who delivered the leading minority judgment, Hidayatullah J. and Bachawat J. took the view that the word must be given a wide meaning. According to Hidayatullah J., "By an amendment new matter may be added, old matter removed or altered". 2156. Thus the word 'amendment' in Article 368 has a clear and definite import and it connotes a power of the widest amplitude to make additions, alterations or variations. The power contained in Article 368 to amend the Constitution is indeed so wide that it expressly confers a power by Clause (e) of the proviso to amend the amending power itself. No express restraint having been imposed on the power to amend the amending power, it is unnecessary to seek better evidence of the width of the power of amendment under our Constitution.
2157. Article 368, manifestly, does not impose any express limitations. The reason for this is obvious. The power of amendment is in substance and reality a power to clarify the original intention obscured, for example, by limitations of language and experience, so as to adjust the intention as originally expressed to meet new challenges. As a nation works out its destiny, new horizons unfold themselves, new challenges arise and therefore new answers have to be found. It is impossible to meet the new and unforeseen demands on the enervated strength of a document evolved in a context which may have largely lost its relevance. The power of amendment is a safety valve and having regard to its true nature and purpose, it must be construed as being equal to the need for amendment. The power must rise to the occasion. According to Friedrich Constitutional Government & Democracy, 4th Ed. p. 139, "The constituent power bears an intimate relation to revolution. When the amending provisions fail to work in adjusting the Constitutional document to altered needs, revolution may result." That is why, the rule of strict construction which applies to a penal or taxing statute is out of place in a Constitutional Act and a 'construction most beneficial to the widest possible amplitude" of its powers must be adopted British Coal Corporation v. Rex 1935 (A.C.) 500, 518. 2158. If, on the terms of Article 368 the power of amendment is wide and unfettered, does Article 13(2) impose any restraint on that power? Hereby hangs a tale. A majority of Judges held in the Golak Nath case that the power of amendment was to be traced to Article 368. But a majority, differently composed, held that amendment of the Constitution was 'law' within the meaning of Article 13(2) and, therefore, the Parliament had no power to take away or abridge the rights conferred by Part III of the Constitution. This finding contained in the judgment of the leading majority and of Hidayatullah J. is the nerve of the decision in the Golak Nath case. It is therefore necessary to consider that question closely.
2159. I will set out in juxtaposition Articles 13(2), 245 and 368 in order to highlight their inter-relation:
Article 13(2) Article 245 Article 368 The State shall Subject to the Amendment of this not make any Provisions of Constitution may be law which takes this Constitution initiated only by the away or abridges Parliament may make introduction of a Bill the rights conferred laws for the whole for the purpose in by this part. or any part of the either House of parliament, territory of India. and when the Bill, is passed each House by a majority of not less than two thirds of that House present and voting, it shall be presented to the Emphasis supplied) president for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill.
Article 13(2) clearly echoes the language of Article 245. Article 245 gives the power to 'make laws', while Article 13(2) imposes a limitation on the exercise of the power to 'make laws'. As between the two articles, Article 13(2) is the paramount law for, Article 245 is expressly subject to all the provisions of the Constitution including Article 13(2). 2160. Article 368 avoids with scrupulous care the use of the word 'law', because there is a fundamental distinction between Constitutional law and ordinary law. The term 'Constitutional law' is never used in the sense of including the laws made under the Constitution. (See Jennings-The Law and the Constitution, 5th Ed., pp. 62-65). Constitutional law is the fundamental, superior or paramount law. Its authority and sanction are higher than those of ordinary laws. (Encyclopaedia Britannica, Vol. VI, Constitution and Constitutional Law, p. 314). As stated by Dicey in his 'Introduction to the study of the Law of the Constitution' (10th Ed.,) pp. 149-151), the legislature in a federal Constitution is a subordinate law-making body whose laws are in the nature of bye-laws within the authority conferred by the Constitution.
2161. Articles 3, 4, 169, Paragraph 7 of the Fifth Schedule and Paragraph 21 of the Sixth Schedule emphasises an important aspect of the distinction between Constitutional law and ordinary law. What is authorised to be done by these provisions would normally fall within the scope of Article 368. In order however to take out such matters from the scope of that article and to place those matters Within the ordinary legislative sphere, special provisions are made in these articles that any laws passed thereunder shall not be deemed to be an amendment of the Constitution for the purposes of Article 368. 2162. Article 13(1) provides:
Laws inconsistent with or in derogation of the fundamental rights.-(1) All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are in consistent with the provisions of this Part shall, to the extent of such inconsistency, be void.
This article deals with the effect of inconsistency between the provisions of Part III and the pre-Constitution laws and provides that to the extent of such inconsistency the pre- Constitution laws shall be void Article 13(2) pursues the same strain of thought by making void postConstitution laws to the extent of their inconsistency with the provisions of Part III. The pre-Constitution and the post-Constitution laws dealt with by the two clauses of Article 13 are in nature and character identical. They are ordinary laws as distinguished from Constitutional laws.
2163. Counsel for the petitioner urged that Article 395 of the Constitution repealed only the Indian Independence Act, 1947 and the Government of India Act of 1935 and under Article 372, notwithstanding the repeal of these two enactments, all the laws in force in the territory of India immediately before the commencement of the Constitution continued in force until altered, repealed or amended. It is urged that several Constitutional laws of the then Indian States were in force on the 26th January, 1950 and the object of Article 13(1) was partly to save those laws also. There is no substance in this contention. It is in the first place a proposition of doubtful authority that the Indian States had a Constitution properly so-called. But even assuming that such Constitutions were at one time in force, they would cease to be in operation as Constitutional Laws on the integration of the States with the Indian Union. Article 13(1) therefore does not include any Constitutional laws.
2164. Article 13(3)(a) contains an inclusive definition of 'law' as including any Ordinance, order bye-law, rule regulation, notification, custom or usage having in the territory of India the force of law. It is surprising that the necessity to include amendments of the Constitution within the inclusive definition of 'law' should have been overlooked if indeed Article 13(2) was intended to take in Constitutional amendments. There is high and consistent authority for the view that Constitution is the fundamental or basic law, and that it is a law of superior obligation to which the ordinary law must conform. (Corpus Juris Secundum, Vol. 16, pp. 22-25; Weaver-Constitutional Law and its Administration (1946) p. 3; Burgess-Political Science and Constitutional Law, Vol. 1, pp. 145-146). Unless, therefore, Constitutional law was expressly included in Article 13(3)(a), it would fall outside the purview of Article 13(2).
2165. In America, there is a large volume of authority that the legislatures of the various States, in initiating Constitutional amendments do not exercise ordinary legislative power. This distinction is brought out clearly by saying that in relation to the federal Constitution of America, a State Constitutional provision or amendment is 'law' within the meaning of the federal Constitution. Again, when under Article V of the Constitution the Congress makes a proposal for amendment and the States ratify it, neither the Congress nor the States are legislating. (Corpus Juris Secundum, Vol. 16, pp. 48, 49; Charles R. Burdick-The Law of the American Constitution, pp. 40-42). 2166. The fundamental distinction between Constitutional law and ordinary law lies in the criterion of validity. In the case of Constitutional law, its validity is inherent whereas in the case of an ordinary law its validity has to be decided on the touchstone of the Constitution, With great respect, the majority view in Golak Nath case, did not on the construction of Article 13(2), accord due importance to this essential distinction between legislative power and the constituent power. In a controlled Constitution like ours, ordinary powers of legislatures do not include the power to amend the Constitution because the Body which enacts and amends the Constitution functions in its capacity as the Constituent Assembly. The Parliament performing its functions under Article 368 discharges those functions not as a Parliament but in a constituent capacity. 2167. There is a fundamental distinction between the procedure for passing ordinary laws and the procedure prescribed by Article 368 for affecting amendments to the Constitution. Under Article 368, a bill has to be initiated for the express purpose of amending the Constitution, it has to be passed by each House by not less than two-thirds members present and voting and in cases falling under the proviso, the amendment has to be ratified by the legislatures of not less than half the States. A bill initiating an ordinary law can be passed by a simple majority of the members present and voting at the sitting of each House or at a joint sitting of the two Houses. Article 368 does not provide for a joint sitting of the two Houses. The process of ratification by the States under the Proviso cannot possibly be called an ordinary legislative process for, the ratification is required to be made by "resolutions" to that effect. Ordinary bills are not passed by resolutions. 2168. The distinction between constituent power and ordinary legislative power can best be appreciated in the context of the nature of the Constitution which the court has to interpret in regard to the amending power. In McCawley v. The King [1920] A.C. 691, Lord Birkenhead used the words 'controlled' and 'uncontrolled' for bringing about the same distinction which was made between 'rigid' and 'flexible' Constitution first by Bryce and then by Dicey. In a 'controlled' or 'rigid' Constitution, a different procedure is prescribed for amendming the Constitution than the procedure prescribed for making ordinary laws.
2169. In an 'uncontrolled' or 'flexible' Constitution the procedure for amending the Constitution is same as that for making ordinary laws. In such a Constitution, the distinction between Constitutional laws and ordinary laws tends to become blurred because any law repugnant to the Constitution repeals the Constitution pro tanto [McCawley v. The King [1920] A.C. 691].
2170. Thus, the true ground of division, by virtue of the nature of the Constitution, is whether it is flexible or rigid. That depends upon whether the process of Constitutional law-making is or is not identi cal with the process of ordinary law-making. A typical instance of a flexible Constitution is that of the United Kingdom. The Constitution of the former Kingdom of Italy was also flexible, so flexible indeed, that Mussolini was able profundly to violate the spirit of the Constitution without having to denounce it. The Constitution of the United States is rigid, as it cannot be amended without the special machinery being set in motion for that purpose. "In short, then, we may say that the Constitution which cannot be bent without being broken is a rigid Constitution." (See Modern Political Constitutions : an Introduction to the Comparative Study of Their History and Existing Form by C.F. Strong, 1970 Reprint). The Indian Constitution, considered as a whole is a 'controlled' or 'rigid' Constitution, because, broadly, none of the articles of that Constitution can be amended otherwise than by the special procedure prescribed by Article 368. Certain provisions thereof like Article 4 read with Articles 2 and 3, Article 169, para 7 of the Fifth Schedule and para 21 of the Sixth Schedule confer power to amend the provisions of the Constitution by the ordinary law-making process but these amendments are expressly excepted by the respective provisions from the purview of Article 368. Schedules V and VI of the Constitution are in fact a Constitution within a Constitution.
2171. The distinction between 'flexible' and 'rigid' Constitutions brings into sharp focus the true distinction between legislative and constituent power. This is the distinction which, with respect, was not given its due importance by the majority in the Golak Nath case. In a rigid Constitution, the power to make laws is the genus, of which the legislative and constituent powers are species, the differentia being the procedure for amendment. If the procedure is ordinary, the power is legislative; if it is special, the power is constituent. 2172. This discussion will show that in a rigid' or 'uncontrolled' Constitution-like ours-a law amending the Constitution is made in exercise of a constituent power and partakes fully of the character of Constitutional law. Laws passed under the Constitution, of which the validity is to be tested on the anvil of the Constitution are the only laws which fall within the terms of Article 13(2).
2173. The importance of this discussion consists in the injunction contained in Article 13(2) that the State shall not make any 'law' which takes away or abridges the rights conferred by Part III. An Amendment of Constitution within the terms of Article 368 not being law within the meaning of Article 13(2), it cannot become void on the ground that it takes away or abridges the rights conferred by Part III.
2174. Fundamental Rights undoubtedly occupy a unique place in civilized societies, whether you call them "transcendental", "inalienable", or as Lieber called them, "Primordial". There is no magic in these words for, the strength and importance of these rights is implicit in their very description in the Constitution as "fundamental". But the special place of importance which they occupy in the scheme of the Constitution, cannot by itself justify the conclusion that they are beyond the reach of the amending power. Article 13(2) clearly does not take in the amending power and Article 368 does not except the Fundamental Rights from its scope.
2175. But they cannot be tinkered with and the Constitution has taken care to ensure that they do not become a mere 'plaything' of a special majority. Members of the Lok Sabha are elected on adult universal suffrage by people of the States. Whereas, ordinary laws can be passed by a bare majority of those present, Constitutional amendments are required to be passed under Article 368 by a majority of the total membership of each House and by a majority of not less than two-thirds of the members of each House separately present and voting. In matters falling within the proviso, amendments are also required to be ratified by the Legislatures of not less than half of the States. Rajya Sabha, unlike the Lok Sabha, is a perpetual body, which changes one-third of its membership every two years. Members of the Rajya Sabha are elected by Legislative Assemblies of the States, that is, by those who are directly elected by the people themselves. The mode of election to Rajya Sabha constitutes to some extent an insurance against gusts and waves of public opinion.
2176. I will now proceed to consider an important branch of the petitioner's argument which, frankly, seemed to me at first sight plausible. On closer scrutiny, however, I am inclined to reject the argument. It is urged by the learned Counsel that it is immaterial whether the amending power can be found in Article 368 or in Entry 97 of List I, because wherever that power lies, its exercise is subject to inherent and implied limitations. 2177. The argument takes this form : Constitutions must of necessity be general rather than detailed and prolix, and implication must therefore play an important part in Constitutional construction. Implied limitations are those which are implicit in the scheme of the Constitution while inherent limitations are those which inhere in an authority from its very nature, character and composition. Implied limitations arise from the circumstances and historical events which led to the enactment of our Constitution, which represents the solemn balance of rights between citizens from various States of India and between various sections of the people. Most of the essential features of the Constitution are basic Human Rights, sometimes described as "Natural Rights", which correspond to the rights enumerated in the "Universal Declaration of Human Rights", to which India is a signatory. The ultimate sovereignty resides in the people and the power to alter or destory the essential features of a Constitution is an attribute of that sovereignty. In Article 368, the people are not associated at all with the amending process. The Constitution gives the power of amendment to the Parliament which is only a creature of the Constitution. If the Parliament has the power to destroy the essential features it would cease to be a creature of the Constitution, the Constitution would cease to be supreme and the Parliament would become supreme over the Constitution. The power given by the Constitution cannot be construed as authorising the destruction of other powers conferred by the same instrument. If there are no inherent limitations on the amending power of the Parliament, that power could be used to destroy the judicial power, the executive power and even the ordinary legislative power of the Parliament and the State legislatures. The Preamble to our Constitution which is most meaningful and evocative, is beyond the reach of the amending power and therefore no amendments can be introduced into the Constitution which are inconsistent with the Preamble. The Preamble walks before the Constitution and is its identity card. 2178. Counsel has made an alternative submission that assuming for purposes of argument that the power of amendment is wide enough to reach the Fundamental Rights, it cannot be exercised so as to damage the core of those rights or so as to damage or destory the essential features and the fundamental principles of the Constitution. Counsel finally urges that the history of implied and inherent limitations has been accepted by the highest courts of countries like U.S.A., Canada, Australia and Ireland. The theory is also said to have been recognised by this Court, the Federal Court and the Privy Council. 2179. In answer to these contentions, it was urged on behalf of the respondents that there is no scope for reading implied or inherent limitations on the amending power, that great uncertainty would arise in regard to the validity of Constitutional amendment if such limitations were read on the amending power, that the Preamble is a part of the Constitution and can be amended by Parliament, that there is in our Constitution no recognition of basic human or natural rights and that the consensus of world opinion is against the recognition of inherent limitations on the amending power. 2180. Before dealing with these rival contentions, I may indicate how the argument of inherent limitations was dealt with in the Golak Nath case. Subba Rao C.J. who delivered the leading majority judgment said that there was considerable force in the argument but it was unnecessary to decide it (p. 805). According to Hidayatullah J. "the whole Constitution is open to amendment. Only two dozen articles are outside the reach of Article 368. That too because the Constitution has made them fundamental." (p. 878). Wanchoo J. who delivered the leading minority judgment rejected the argument by observing : "The power to amend being a constituent power cannot in our opinion...be held subject to any implied limitations thereon on the ground that certain basic features of the Constitution cannot be amended." (p. 836). Bachawat J. observed that it was unnecessary to decide the question, as it was sufficient for the disposal of the case to say that Fundamental Rights were within the reach of the amending power (p. 906). Ramaswami J. considered and rejected the argument by observing that there was no room for an implication in the construction of Article 368 and it was unlikely that if certain basic features were intended to be unamendable, the Constitution makers would not have expressly said so in Article 368 .
2181. It is difficult to accept the argument that inherent limitations should be read into the amending power on the ground that Fundamental Rights are natural rights which inhere in every man. There is instrinsic evidence in Part III of the Constitution to show that the theory of natural rights was not recognised by our Constitution-makers. Article 13(2) speaks of rights "conferred" by Part III and enjoins the States not to make laws inconsistent therewith. Article 32 of the Constitution says that the right to move the Supreme Court for the enforcement of rights 'conferred' by Part III is guaranteed. Before the Fundamental Rights were thus conferred by the Constitution, there is no tangible evidence that these rights belonged to the Indian people. Article 19 of the Constitution restricts the grant of the seven freedoms to the citizens of India. Non-citizens were denied those rights because the conferment of some of the rights on the Indian citizens was not in recognition of the pre-existing natural rights. Article 33 confers upon the Parliament the power to determine to what extent the rights conferred by Part III should be restricted or abrogated in their application to the members of the Armed Forces. Article 359(1) empowers the President to suspend the rights "conferred" by Part III during the proclamation of an emergency. Articles 25 and 26 by their opening words show that the right to freedom of religion is not a natural right but is subject to the paramount interest of society and that there is no part of that right, however important, which cannot and in many cases has not been regulated in civilised societies. Denial to a section of the community, the right of entry to a place of worship, may be a part of religion but such denials, it is well-known, have been abrogated by the Constitution. (1958 S.C.R. 895 at 919, per Venkatarama Aiyar J.; Sri Venkataramana Devaru and Ors. v. The State of Mysore and Ors. see also Bourne v. Keane 1919 A.C. 815 at 861 per Lord Birken-head L.C.). Thus, in India, citizens and non-citizens possess and are entitled to exercise certain rights of high significance for the sole reason that they are conferred upon them by the Constitution.

Re: Kesavananda Bharati vs State Of Kerala And ors

2182 The 'natural right' theory stands, by and large repudiated today. The notion that societies and governments find their sanction on a supposed contract between independent individuals and that such a contract is the sole source of political obligation is now regarded as untenable. Calhoun and his followers have discarded this doctrine, while theorists like Story have modified it extensively. The belief is now widely held that natural rights have no other than political value. According to Burgess, "there never was, and there never can be any liberty upon this earth among human beings, outside of State organisation." According to Willoughby, natural rights do not even have a moral value in the supposed "state of nature"; they would really be equivalent to force and hence have no political significance. Thus, Natural Right thinkers had once "discovered the lost title- deeds of the human race" but it would appear that the deeds are lost once over again, perhaps never to be resurrected.
2183. The argument in regard to the Preamble is that it may be a part of the Constitution but is not a provision of the Constitution and therefore, you cannot amend the Constitution so as to destroy the Preamble. The Preamble records like a sun-beam certain glowing thoughts and concepts of history and the argument is that in its very nature it is unamendable because no present or future, however mighty, can assume the power to amend the true facts of past history. Counsel relies for a part of this submission on the decision in Beru Ban case [1960] 3 S.C.R. 250, 282. Our attention was also drawn to certain passages from the chapter on "preamble" in "commentaries on the Constitution of the United States" by Joseph Story.
2184. I find it impossible to accept the contention that the Preamble is not a provision of the Constitution. The record of the Constituent Assembly leaves no scope for this contention. It is transparent from the proceedings that the Preamble was put to vote and was actually voted upon to form a part of the Constitution. (Constituent Assembly Debates, Vol. X, pp. 429, 456). As a part and provision of the Constitution, the Preamble came into force on January 26, 1950. The view is widely accepted that the Preamble is a part of the enactment (Craies on Statute Law, 7th Ed., p. 201; Halsbury, Vol. 36, 3rd. Ed., p. 370).
2185. In considering the petitioner's argument on inherent limitations, it is well to bear in mind some of the basic principles of interpretation. Absence of an express prohibition still leaves scope for the argument that there are implied or inherent limitations on a power, but absence of an express prohibition is highly relevant for inferring that there is no implied prohibition. This is clear from the decision of the Privy Council in The Queen v. Burah 5 I.A. 178, 195. This decision was followed by this Court in State of Bombay v. Nauratan Das Jaitha Bai 1951 (2) S.C.R. 51, 81 and inSardar Inder Singh v. State of Rajasthan 1957 S.C.R. 605, 616-17. In saying this, I am not unmindful of the fact that Burah's case and the two cases which followed it, bear primarily on conditional legislation.
2186. Another principle of interpretation is that it is not open to the courts to declare an Act void on the ground that it is opposed to a 'spirit' supposed to pervade the Constitution but not manifested in words. As observed by Kania C.J. in Gopalan's case 1950 S.C.R. 88, 121, a wide assumption of power to construction is apt to place in the hands of judiciary too great and to indefinite a power, either for its own security or the protection of private rights. The argument of 'spirit' is always attractive and quite some eloquence can be infused into it. But one should remember what S.R. Das J. said in Keshav Madhav Menon's case 1951 S.C.R. 228, 231 that one must gather the spirit from the words or the language used in the Constitution. I have held that the language of Article 368 is clear and explicit. In that view, it must be given its full effect even if mischievous consequences are likely to ensue; for, judges are not concerned with the policy of law- making and "you cannot pass a covert censure against the legislature." (Vacher & Sons, Limited v. London Society of Compositors) 1913 (A.C.) 107 at 112, 117, 121. The importance of the circumstance that the language of Article 368 admits of no doubt or ambiguity is that such a language leaves no scope for implications, unless in the context of the entire instrument in which it occurs, such implications become compulsive. I am tempted to say that 'context' does not merely mean the position of a word to be construed, in the collocation of words in which it appears, but it also means the context of the times in which a fundamental instrument falls to be construed.
2187. An important rule of interpretation which, I think, has a direct bearing on the submissions of the petitioner on inherent limitations is that if the text is explicit, it is conclusive alike in what it directs and what it forbids. The consequences of a particular construction, if the text be explicit, can have no impact on the construction of a Constitutional provision (Attorney-General, Ontario v. Attorney-General, Canada) [1892] A.C. 571. As observed by Chief Justice Marshall in Providence Bank v. Alpheus Billings L. ed. 939, 957 a power may be capable of being abused but the Constitution is not intended to furnish a corrective for every abuse of power which may be committed by the government I see no warrant for the assumption that the Parliament will be disposed to out a perverse construction on the powers plainly conferred on it by the Constitution. And talking of abuse of powers, is there not the widest scope for doing so under several provisions of the Constitution ? The powers of war and peace, the powers of finance and the powers of preventive detention, are capable of the widest abuse and yet the Founding Fathers did confer those powers on the Parliament. When I look at a provision like the one contained in Article 22 of the Constitution, I feel a revolt rising within myself, but then personal predilections are out of place in the construction of a Constitutional provision. Clause (7) of Article 22 permits the Parliament to enact a law under which a person may be detained for a period longer than three months without obtaining the opinion of an Advisory Board. While enacting certain laws of Preventive Detention, the Government has shown some grace in specifying the outer limits, however, uncertain, of the period of detention though, so it seems, it is under no obligation to do so. Thus, even when the original Constitution was passed, powers capable of the gravest abuse were conferred on the Parliament, which as the petitioner's counsel says, is but a creature of the Constitution. In assessing the argument that the gravity of consequences is relevant on the interpretation of a Constitutional provision, I am reminded of the powerful dissent of Justice Holmes in Lochner v. New York 49 L. ed. 937 regarding a labour statute. The test according to the learned Judge was not whether he considered the law to be reasonable but whether other reasonable persons considered it unreasonable. In Bank of Toronto v. Lambe [1887] A.C. 575, 586 Lord Hobhous observed: "People who are trusted with the great power of making laws for property and civil rights may well be trusted to levy taxes." Trust in the elected representatives is the corner stone of a democracy. When that trust fails, everything fails. As observed by Justice Learned Hand in "the spirit of liberty" : "I often wonder, whether we do not rest our hopes too much upon Constitution, 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.
2188. Established text books on Interpretation also take the view that "where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature Craies on "Statute Law", 6th Ed., p. 66.
2189. It is thus clear that part from Constitutional limitations, no law can be struck down on the ground that it is unreasonable or unjust. That is the view which was taken by this Court in the State of Bihar v. Kameshtvar Singh 1952 S.C.R. 889, 936, 937. Mahajan J. Described the Bihar Land Reforms Act, which was under consideration in that case, as repugnant to the sense of justice of the court. In fact, the learned Judge says in his judgment that it was not seriously disputed by the Attorney-General, that the law was highly unjust and inequitous and the compensation provided therein in some cases was purely illusory. The Court, however, found itself powerless to rectify an "unjustice" perpetrated by the Constitution itself. No provision incorporated in a Constitution at the time of its original enactment can ever be struck down as unConstitutional. The same test must apply to what becomes a part of that Constitution by a subsequent amendment, provided that the conditions on which alone such amendments can be made are strictly complied with. Amendments, in this sense, pulpate with the vitality of the Constitution itself.

Re: Kesavananda Bharati vs State Of Kerala And ors

2190. The true justification of this principle is, as stated by Subba Rao J. in the Collector of Customs, Baroda v. Digvijaysinhji Spinning & Weaving Mills Ltd., [1962] 1 S.C.R. 896, 899 that a construction which will introduce uncertainty into the law must be avoided. It is conceded by the petitioner that the power to amend the Constitution is a necessary attribute of every Constitution. In fact, amendments which were made by the Constitution (First Amendment) Act, 1951 to Articles 15 and 19 were never assailed and have been conceded before us to have been properly made. It was urged by the learned Counsel that the substitution of new Clause (2) in Article 19 did not abrogate the Fundamental Rights, but on the other hand enabled the citizens at large to enjoy their fundamental freedoms more fully. This, I think, is the crux of the matter. What counsel concedes in regard to Article 19(2) as substituted by the First Amendment Act can be said to be equally true in regard to the amendments now under challenge. Their true object and purpose is to confer upon the community at large the blessings of liberty. The argument is that the Parliament may amend the provisions of Part III, but not so as to damage or destroy the core of those rights or the core of the essential principles of the Constitution. I see formidable difficulties in evolving an objective standard to determine what would constitute the core and what the peripheral layer of the essential principles of the Constitution. I consider the two to be inseparable.

2191. Counsel painted a lurid picture of the consequences which will ensue if a wide and untrammelled power is conceded to the Parliament to amend the Constitution. These consequences do not scare me. It is true that our confidence in the men of our choice cannot completely silence our fears for the safety of our rights. But in a democratic policy, people have the right to decide what they want and they can only express their will through their elected representatives in the hope and belief that the trust will not be abused. Trustees are not unknown to have committed breaches of trust but no one for that reason has abolished the institution of Trusts. Can we adopt a presidential system of government in place of the parliamentary system? Can we become a monarchial or theocratic State ? Shall we permit the Parliament to first destroy the essential features of the Constitution and then amend the amending power itself so to as provide that in future no amendment shall be made except by a 99 per cent majority? Can the Parliament extend its term from 5 to 50 years and create a legislative monopoly in its favour ? These are the questions which counsel has asked. My answer is simple. History records that in times of stress, such extreme steps have been taken both by the people and by the Parliament. In 1640, when England was invaded by Scots, Charles the I was obliged to recall Parliament to raise money for the war. The 'Short' Parliament insisted on airing its grievances before voting the money and was dismissed. Charles had to summon a new Parliament immediately, and this 'Long' Parliament lasting until 1660, set out to make personal government by a monarch impossible. The true sanction against such political crimes lies in the hearts and minds of men. It is there that the liberty is insured. I therefore say to myself not in a mood of desperation, not in a mood of helplessness, not cynically but in the true spirit of a democrat: If the people acting through the Parliament want to put the Crown of a King on a head they like, or if you please, on a head they dislike, (for uneasy lies the head that wears a Crown), let them have that liberty. If and when they realise the disaster brought by them upon themselves, they will snatch the Crown and scatter its jewels to the winds. As I say this, I am reminded of a famous saying of Justice Holmes: "About seventy-five years ago, I learnt that I was not God. And so, when the people...want to do something I can't find anything in the Constitution expressly forbidding them to do, I say, whether I like it or not : 'God-dammit, let 'em do it

2192. No name is mentioned with greater honour in the history of American democracy than that of Thomas Jefferson. He was the central figure in the early development of American democracy, and on his death he was politically canonized. Jefferson said in regard to the necessity of a wide amending power that "The earth belongs in usufruct to the living; the dead have neither powers nor rights over it." "If one generation could hind another, the dead and not the living would rule. Since conditions change and men change, there must be opportunity for corresponding change in political institutions, and also for a renewal of the principle of government by consent of the governed." According to President Wilson, "a Constitution must of necessity be a vehicle of life; that its substance is the thought and habit of the nation and as such it must grow and develop as the life of the nation changes.

2193. In support of his argument on implied limitations, learned Counsel for the petitioner drew our attention to certain decisions on the theory of immunity of instrumentalities : The means and instrumentalities of the State Governments should be left free and unimpaired. Our Court rejected this theory in State of West Bengal v. Union of India [1964] 1 S.C.R. 394, 407. Sinha C.J. observed that the argument presented before the Court was : "a resucitation of the new exploded doctrine of the immunity of instrumentalities which originating from the observations of Marshall C.J. in Mc. Culloch v. Maryland has been decisively rejected by the Privy Council...and has been practically given up even in the United States." The doctrine originally arose out of supposed existence of an implied prohibition that the Federal and State Governments being sovereign and independent must each be free from the control of the other. Dr. Wynes observes in his book : "Legislative, Executive and Judicial Powers in Australia (4th Edition)" that the doctrine has undergone considerable change in the United States and its progressive retreat is traced by Dixon J. in the Essendon Corporation case [1947] 74 C.L.R. 1, p. 19. In that case, after tracing the history of the doctrine since its enunciation by Chief Justice Marshall, Dixon J. says : "I think that the abandonment by the Supreme Court of the United States of the old doctrine may be fairly said to be now complete. 2194. A large number of cases bearing on inherent or implied limitations were cited to us from U.S.A. Canada, Australia, South-Africa and Ceylon. Having considered those cases carefully, I find it difficult to say that the theory of implied or inherent limitations has received a wide recognition. In McCawley v. R. [1920] A.C. 691, 28 C.L.R. 106 the dissenting judgment of Isaacs and Rich JJ. in the Australian High Court was upheld by the Privy Council, except in regard to a matter which is here not relevant. The judgment of the two learned Judges which received high praise from the Privy Council (p. 112 of Commonwealth Law Reports), shows that implications in limitation of power ought not to be imported from general concepts but only from express or necessarily implied limitations. It also shows that in granting powers to colonial legislatures, the British Parliament, as far back as 1865, refused to place on such powers limitations of vague character. The decision of the Privy Council in Bribery Commissioner v. Ranasinghe 1965 A.C. 172 was discussed before us in great details by both the sides. The matter arose under the Constitution of Ceylon, of which the material provisions bear a near parallel to our Constitution, a fact which, with respect, was not noticed in the judgment of the leading" majority in the Golak Nath case. It was not argued by the respondents in Ranasinghe's case that any provision of the Ceylonese Constitution was unamendable. It is also necessary to remember that the appeal did not raise any question regarding the religious rights protected by Section 29(2) and (3) of the Ceylonese Constitution. It is clear that counsel for the respondents there stated (p. 187), that there was no limitation on the power of amendment except the procedure prescribed by Section 29(4), and that even that limitation could be removed by an amendment complying with Section 29(4). The Privy Council affirmed this position (page 198) and took the widest view of the amending power. A narrower view was in fact not argued.

2195. From out of the decisions of the American Supreme Court, it would be sufficient to notice three : Rhode Island v. Palmer 64 L. ed. 946; U.S. v. Sprague 75 L. ed. 640 and Schneiderman v. U.S.A. 87 L. ed. 1796.

2196. In the Rhode Island case, the leading majority judgment gave no reasons but only a summary statement of its conclusions. The learned Advocate-General of Maharashtra has, however, supplied to us the full briefs filed by the various counsel therein. The briefs show that the 18th amendment regarding "Prohibition of Intoxicating Liquors" (which was repealed subsequently by the 21st Amendment) was challenged on the ground, inter alia, that there were implied and inherent limitations on the power of amendment under Article V of the American Constitution. These arguments were not accepted by the Supreme Court, as is implicit in its decision. The court upheld the Amendment. 2197. We were supplied with a copy of the judgment of the District Court of New Jersey in Sprague's case. The District Court declared the 18th Amendment void on the ground that there were inherent limitations on the amending power in that, the power had to conform to "theories of political science, sociology, economics etc." The judgment of the Supreme Court shows that not even an attempt was made to support the judgment of the District Court on the ground of inherent limitations. The appeal was fought and lost by Sprague on entirely different grounds, namely : whether 'amendment' means 'improvement'; whether the 10th Amendment had an impact on Article 5 of the U.S. Constitution and whether the alternative of ratification by Convention or Legislatures showed that the method of Convention was essential for valid ratification when the amendment affected the rights of the people. Obviously, the Supreme Court saw no merit in the theoretical limitations which the District Court had accepted for, in a matter of such grave importance, it would not have reversed the District Court judgment if it could be upheld on the ground on which it was founded.

2198. In Schneiderman's case, action was taken by the Government to cancel the appellant's naturalisation certificate on the ground that at the time of applying for naturalisation, he was and still continued to be a communist and thereby he had misrepresented that he was "attached to the principles of the Constitution of the United States".

2199. Schneiderman won his appeal in the Supreme Court, the main foundation of the judgment being that the fundamental principles of Constitution were open to amendment by a lawful process.

2200. Leading Constitutional writers have taken the view that the American Supreme Court has not ever accepted the argument that there are implied or inherent limitations on the amending power contained in Article 5. Edward S. Corwin, who was invited by the Legislative Reference Service, Library of Congress, U.S.A., to write on the American Constitution, says after considering the challenges made to the 18th and 19th Amendments on the ground of inherent limitations : "brushing aside these arguments as unworthy of serious attention, the Supreme Court held both amendments valid Constitution of the United States of America prepared by Edward S. Corwin, 1953, p.

712.". According to Thomas M. Cooley, there is no limit to the power of amendment beyond the one contained in Article 5, that no State shall be deprived of its equal suffrage in the Senate without its consent. The author says that this, at any rate, is the result of the decision of the so-called National Prohibition Cases (which include the Rhode Island case). The decision, according to Cooley, 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 The General Principles of Constitutional Law in the U.S.A. by Thomas M. Cooley, 4th Edn., pp. 46-47. According to Henry Rottschaefer, it was contended on several occasions that the power of amending the Federal Constitution was subject to express or implied limitations, "but the Supreme Court has thus far rejected every such claim Handbook of American Constitutional Law by Henry Rottschaefer, pp. 8-10".

2201. In regard to the Canadian cases, it would, I think, be enough to say that none of the cases cited by the petitioner concerns the exercise of the power to amend the Constitution. They are cases on the legislative competence of the provincial legislatures in regard to individual freedoms or in regard to criminal matters. The issue in most of these cases was whether the provincial legislature had transgressed on the Dominion field in exercise of its powers under Section 92 of the British North America Act, 1867. The Canadian Bill of Rights, 1960, makes the rights incorporated in the Bill defeasible by an express declaration that an Act of Parliament shall operate notwithstanding the Bill of Rights. At least six different views have been propounded in Canada on the fundamental importance of these rights. According to Schmeiser, the Supreme Court of Canada has not given judicial approval to any of these views. "It should also be noted that the fundamental problem is not whether Parliament or the Legislatures may give us our basic freedoms but rather which one may interfere with them or take they away Civil Liberties in Canada by Schmeiser, p. 13". I do not think therefore, that any useful purpose will be served by spending time on Hess's case (4, D.L.R. 199); Saumur's case (4, D.L.R. 641); Switzman's case (7, D.L.R. (2nd) 337); or Chabot's case (12, D.L.R. (2nd) 796), which were cited before us.

2202. The view that there are implied limitations found from Sections 17 and 50 of the British North America Act was invoked by Duff C.J. in the Alberta Press Case [1938] S.C.R. 100, 146 (Canada) and by three learned Judges in the Saumur Case. It is, however, important that while denying legislative competence to the province of Alberta Duff C.J. was willing to grant the jurisdiction to the Parliament to legislate for the protection of this right.

Re: Kesavananda Bharati vs State Of Kerala And ors

2203. The petitioner has relied strongly upon the decision in Attorney-General of Nova Scotia v. Attorney-General of Canada [1951] S.C.R. 31 (Canada) but the true ratio of that decision is that neither the federal nor the provincial bodies possess any portion of the powers respectively vested in the other and they cannot receive those powers by delegation. The decision in Chabot v. School Commissioners [1947] 12 D.L.R. (No. 2) 796 is of the Quebec Court of Appeal, in which Casey J. observed that the religious rights find their existence in the very nature of man; they cannot be taken away. This view has not been shared by any judge of the Supreme Court and would appear to be in conflict with the decision in Henry Briks & Sons v. Montreal [1955] S.C.R. 799 (Canada)(3). 2204. I do not think that any useful purpose will be served by discussing the large number of decisions of other foreign courts cited before us. As it is often said, a Constitution is a living organism and there can be no doubt that a Constitution is evolved to suit the history and genius of the nation. Therefore, I will only make a brief reference to a few important decisions.

2205. Ryan's [1935] Irish Reports 170 case created a near sensation and was thought to cover the important points arising before us. The High Court of Ireland upheld the amendment made by the Oireachtas, by deleting Article 47 of the Constitution which contained the provision for referendum, and which also incorporated an amendment in Article 50. This latter article conferred power on the Oireachtas to make amendments to the Constitution within the terms of the Scheduled Treaty. An amendment made after the expiration of a period of 8 years from the promulgation of the Constitution was required to be submitted to a referendum of the people. The period of 8 years was enlarged by the amendment into 16 years. The High Court of Ireland upheld the amendment and so did the Supreme Court, by a majority of 2 to 1. Kennedy C.J. delivered a dissenting judgment striking down the amendment on the ground that there were implied limitations on the power of amendment An important point of distinction between our Constitution and the Irish Constitution is that whereas Article 50 did not contain any power to amend that article itself, Article 368 of our Constitution confers an express power by Clause (e) of the Proviso to amend that article. The reasoning of the learned Chief Justice therefore loses relevance in the present case. I might mention that in Moore v. Attorney General for the Irish State [1935] A.C. 484 in which a Constitutional amendment made in 1933 was challenged, it was conceded before the Privy Council that the amendment which was under fire in Ryan's case was validly made. The Privy Council added to the concession the weight of its own opinion by saying that the concession was made 'rightly'. 2206. Several Australian decisions were relied upon by the petitioner but I will refer to the one which was cited by the petitioner's counsel during the course of his reply; Taylor v. Attorney General of Queens-land 23 C.L.R. 457. The observations of Isaacs J. on which the learned Counsel relies seem to me to have been made in the context of the provisions of the Colonial Laws Validity Act. The real meaning of those observations is that when power is granted to a colonial legislature to alter the Constitution, it must be assumed that the power did no comprehend the right to eliminate the Crown as a part of the colonial legislature. It may be mentioned that well-known Constitutional writers A.P. Canaway, K.C. : "The Safety Valve of the Commonwealth Constitution", Australian Law Journal, Vol. 12, (1938-39), p. 108 at 109; W. Anstey Wynes : "Legislative, Executive and Judicial Powers in Australia", 4th Edn., Chapter XVII, p. 507 have expressed the view that all the provisions of the Australian Constitution, including Article 128 itself which confers power to amend the Constitution, are within the power of amendment. This view has been taken even though Article 128 does not confer express power to amend that article itself.

2207. While winding up this discussion of authorities, it is necessary to refer to the decision of the Privy Council in Livange v. the Queen (1967) 1 A.C. 259 in which it was held that the powers of the Ceylon legislature could not be cut down by reference to vague and uncertain expressions like 'fundamental principles of British law'. 2208. It must follow from what precedes that The Constitution (Twenty-fourth Amendment) Act, 1971 is valid. I have taken the view that Constitutional amendments made under Article 368 fell outside the purview of Article 13(2). Section 2 of the 24th Amendment Act reiterates this position by adding a new Clause (4) in Article 13 : "(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368." I have also taken the view that the old Article 368 not only prescribed the procedure for amendment of the Constitution but conferred the power of amendment. That position is made clear by Section 3 of the 24th Amendment which substitutes by Clause (a) a fully expressive marginal heading to Article 368. I have held that the power of amendment conferred by Article 368 was wide and untrammelled. Further, that Constitutional amendments are made in the exercise of constituent power and not in the exercise of ordinary law-making power. That position is reiterated by Clause (b) of Section 3. Clause (c) of Section 3 makes it obligatory for the President to give his assent to the bill for a Constitutional amendment. Rightly no arguments have been addressed on this innovation. Finally, Clause (d) of Section 3 of the 24th Amendment excludes the application of Article 13 to an amendment made under Article 368. As indicated in this judgment that was the correct interpretation of Articles 13 and 368. 2209. The Constitution (Twenty-fourth Amendment) Act, 1971, thus, merely clarifies what was the true law and must therefore be held valid.

The Twenty-Fifth Amendment

2210. The Constitution (Twenty-Fifth Amendment) Act, 1971, which came into force on April 20, 1972 consists of two effective sections : Sections 2 and 3. Section 2(a) substitutes a new Clause (2) for the original Clause (2) of Article 31 of the Constitution. Under the original Article 31(2), no property could be acquired for a public purpose under any law unless it provided for compensation for the property taken possession of or acquired and either fixed the amount of the compensation, or specified the principles on which, and the manner in which, the compensation was to be determined and given. In the State of West Bengal v. Bela Banerjee [1954] S.C.R. 558, a unanimous Bench presided over by Patanjali Sastri C.J. held that the principles of compensation must ensure the payment of a just equivalent of what the owner was deprived of. The Constitution (Fourth Amendment) Act was passed on April 27, 1955 in order to meet that decision. By the Fourth Amendment, an addition was made to Article 31(2) providing that "...no such law shall be called in question in any court on the ground that the compensation provided by the law is not adequate." The effect of the amendment was considered by this Court in P. Vajravelu Mudaliar v. Deputy Collector [1965] 1 S.C.R.

614. The Madras Legislature had passed an Act providing for the acquisition of lands for housing schemes and had laid down principles for fixing compensation different from those prescribed in the Land Acquisition Act, 1894. Delivering the judgment of the Court, Subba Rao J. held that the fact that Parliament used the same expressions, 'compensation' and 'principles' as were found in Article 31 before its Amendment, was a clear indication that it accepted the meaning given by this Court to those expressions in Bela Banerjee's case. The Legislature, therefore, had to provide for a just equivalent of what the owner was deprived of or specify the principles for the purpose of ascertaining the just equivalent. The new clause added by the Fourth Amendment, excluding the jurisdiction of the Court to consider the adequacy of compensation, was interpreted to mean that neither the principles prescribing the 'just equivalent' nor the 'just equivalent' could be questioned by the court on the ground of the inadequacy of the compensation fixed or arrived at by the working of the principles. By applying this test, the Court upheld the principles of compensation fixed under the Madras Act as not contravening Article 31(2). The Act, however, was struck down under Article 14 on the ground that full compensation had still to be paid under a parallel Law : The Land Acquisition Act. 2211. In Union v. Metal Corporation, [1967] 1 S.C.R. 255 a Bench of two Judges consisting of Subba Rao C.J. and Shelat J. held that the law of acquisition in order to justify itself had to provide for the payment of a 'just equivalent' or lay down principles which will lead to that result. It is only if the principles laid down are relevant to the fixation of compensation and are not arbitrary that the adequacy of the resultant product could not be questioned in a court of law. It is evident that this decision marked a departure from the judgment in Vajravelu's case.

2212. In the State of Gujarat v. Shantilal Mangaldas [1969] 3 S.C.R. 341 Shah J. speaking for himself and three other learned Judges expressed his disagreement with the observations of Subba Rao C.J. in the Metal Corporation's case and expressly over-ruled that decision. It was held that if the quantum of compensation was not liable to be challenged on the ground that it was not a just equivalent, the principles specified for determination of compensation could also not be challenged on the plea that the compensation determined by the application of those principles was not a just equivalent. The learned Judge observed that this did not, however, mean that something fixed or determined by the application of specified principles which is illusory or can in no sense be regarded as compensation must be upheld by the Courts, for, to do so, would be to grant a charter of arbitraries, and permit a device to defeat the Constitutional guarantee. Principles could, therefore, be challenged on the ground that they were irrelevant to the determination of compensation, but not on the ground that what was awarded as a result of the application of those principles was not just or fair compensation. 2213. In R.C. Cooper v. Union [1970] 3 S.C.R. 530, (the Bank Nationalisation case), the judgment in Shantilal Mangaldas's case, was in substance overruled by a Bench of 11 Judges by a majority of 10 to 1. The majority referred to the meaning of compensation as an equivalent of the property expropriated. It was held that if the statute in providing for compensation devised a scheme for payment of compensation in the form of bonds and the present value of what was determined to be given was thereby substantially reduced, the statute impired the guarantee of compensation.

2214. This chain of decisions on the construction of Articles 31(2) introduced uncertainty in law and defeated to a large extent the clearly expressed intention of the amended Article 31(2) that a law providing for compensation shall not be called in question in any court on the ground that the compensation provided by it was not adequate. Shah J. in Shantilal Mangaldas [1969] S.C.R. 341 at 362, 363 case had observed with reference to the decision in Bela Banerjee's case and Subodh Gopal's [1954] S.C.R. 587 case that those decisions had raised more problems than they solved and that they placed serious obstacles in giving effect to the Directive Principles of State Policy incorporated in Article 39. Subba Rao J. had also observed in Vajravelu's [1965] 1 S.C.R. 614, 626 case that if the intention of the Parliament was to enable the legislature to make a law without providing for compensation it would have used other expressions like, 'price', 'consideration', etc. This is what the Parliament has now done partially by substituting the word 'amount' for the word 'compensation' in the new Article 31(2). 2215. The provision in the newly added Clause 2B of Article 31 that nothing in Article 19(1)(f) shall affect any law referred to in Article 31(2) has been obviously incorporated because the Bank Nationalisation case overruled a long line of authorities which had consistently taken the view that Article 19(1)(f) and Article 31(2) were mutually exclusive so far as acquisition and requisition were concerned [See for example Gopalan's case, 1950 S.C.R. 88; Chiranjit Lal Choudhury's case, 1950 S.C.R. 869 at 919; Sitabati Devi's case, (1967) 2 S.C.R. 949; Shantilal Mangaldas's case, 1969 S.C.R. 341; and H.N. Rao's case, 1969(2) S.C.R. 392].

2216. Learned Counsel appearing for the petitioner mounted a severe attack on the Twenty-Fifth Amendment, particularly on the provisions of Article 31C. He contends that Article 31C subverts seven essential features of the Constitution, and destroys ten Fundamental Rights, which are vital for the survival of democracy, the rule of law and integrity and unity of the Republic. Seven of these Fundamental Rights, according to the counsel are unconnected with property rights. The argument continues that Article 31C destroys the supremacy of the Constitution by giving a blank charter to Parliament and to all the State Legislatures to defy and ignore the Constitution; it subordinates the Fundamenal Rights to Directive Principles of State Policy, destroying thereby one of the foundations of the Constitution; it virtually abrogate the "manner and form" of amendment laid down in Article 368 by empowering the State Legislatures and the Parliament to take away important Fundamental Rights by an ordinary law passed by a simple majority; that it destroys by conclusiveness of the declaration the salient safeguard of judicial review and the right of enforcement of Fundamental Rights; and that, it enables the Legislatures, under the guise of giving effect to the Directive Principles, to take steps calculated to affect the position of religious, regional, linguistic, cultural and other minorities. Counsel complaints that the article abrogates not only the most cherished rights to personal liberty and freedom of speech but it also abrogates the right to equality before the law, which is the basic principle of Republicanism. By enacting Article 31C, the Parliament has resorted to the strange procedure of maintaining the Fundamental Rights unamended, but authorising the enactment of laws which are void as offending those rights, by validating them by a legal fiction that they shall not be deemed to be void. Today, Article 31 permits the enactment of laws in abrogation of Articles 14, 19 and 31, but what guarantee is there that tomorrow all the precious freedom will not be excepted from the range of laws passed under that article? Learned Counsel wound up his massive criticism against Article 31C by saying that the article is a monstrous outrage on the Constitution and its whole object and purpose is to legalise despotism. 2217. Having given a most anxious consideration to these arguments, I have come to the conclusion that though Article 31C is pregnant with possible mischief, it cannot, by the application of any of the well-recognised judicial tests be declared unConstitutional. 2218. For a proper understanding of the provisions of Article 31C, one must in the first place appreciate the full meaning and significance of Article 39(b) and (c) of the Constitution. Article 39 appears in Part IV of the Constitution, which lays down the Directive Principles of State Policy. The idea of Directive Principles was taken from Eire, which in turn had borrowed it from the Constitution of Republican Spain. These preceding examples, as said by Sir Ivor Jennings Some Characteristics of the Indian Constitution, 1953, 30-32, are significant because they came from countries whose peoples are predominantly Roman Catholic, "and the Roman Catholics are provided by their Church not only with a faith but also with a philosophy". On matters of faith and philosophy-social or political-there always is a wide divergence of views and in fact Republican Spain witnessed a war on the heels of the enactment of its Constitution and in Eire, de Valera was openly accused of smuggling into the Constitution the pet policies of his own party. Articles 38 and 39 of our Constitution are principally based on Article 45 of the Constitution of Eire, which derives its authority from the Papal Bulls. Article 39 provides by Clause (b) that the State shall, in particular, direct its policy towards securing-"that the ownership and control of the material resources of the community are so distributed as best to subserve the common good". Clause (c) of the article enjoins the State to direct its policy towards securing-"that the operation of the economic system does not result in the concentration of wealth and means of production to common detriment." Article 31C has been introduced by the 25th Amendment in order to achieve the purpose set out in Article 39(b) and (c).

2219. I have stated in the earlier part of my judgment] that the Constitution accords a place of pride to Fundamental Rights and a place of permanence to the Directive Principles. I stand by what I have said. The Preamble of our Constitution recites that the aim of the Constitution is to constitute India into a Sovereign Democratic Republic and to secure to "all its citizens", Justice-social, economic and political-liberty and equality. Fundamental Rights which are conferred and guaranteed by Part III of the Constitution undoubtedly constitute the ark of the Constitution and without them a man's reach will not exceed his grasp. But it cannot be overstressed that, the Directive Principles of State Policy are fundamental in the governance of the country. What is fundamental in the governance of the country cannot surely be less significant than what is fundamental in the life of an individual. That one is justiciable and the other not may show the intrinsic difficulties in making the latter enforceable through legal processes but that distinction does not bear on their relative importance. An equal right of men and women to an adequate means of livelihood; the right to obtain humane conditions of work ensuring a decent standard of life and full enjoyment of leisure; and raising the level of health and nutrition are not matters for compliance with the Writ of a Court. As I look at the provisions of Parts III and IV, I feel no doubt that the basic object of conferring freedoms on individuals is the ultimate achievement of the ideals sec out in Part IV. A circumspect use of the freedoms guaranteed by Part III is bound to subserve the common good but voluntary submission to restraints is a philosopher's dream. Therefore, Article 37 enjoins the State to apply the Directive Principles in making laws. The freedom of a few have then to be abridged in order to ensure the freedom of all. It is in this sense that Parts III and IV, as said by Granwille Austin The Indian Constitution-Cornerstone of a Nation, Edn. 1966, together constitute "the conscience of the Constitution". The Nation stands to- day at the cross-roads of history and exchanging the time-honoured place of the phrase, may I say that the Directive Principles of State Policy should not be permitted to become "a mere rope of sand". If the State fails to create conditions in which the Fundamental freedoms could be enjoyed by all, the freedom of the few will be at the mercy of the many and then all freedoms will vanish. In order, therefore, to preserve their freedom, the privileged few must part with a portion of it.

2220. Turning first to the new Article 31(2), the substitution of the neutral expression "amount" for "compensation" still binds the Legislature to give to the owner a sum of money in cash or otherwise. The Legislature may either lay down principles for the determination of the amount or may itself fix the amount. There is, however, intrinsic evidence in Article 31(2) that it does not empower the State to confiscate or expropriate property. Not only does Article 31(2) not authorise the legislature to fix "such amount as it deems fit", "in accordance with such principles as it considers relevant", but it enjoins the legislature by express words either to fix an "amount" for being paid to the owner or to lay down "principles" for determining the amount to be paid to him. If it was desired to authorise the legislature to pass expropriatory laws under Article 31(2), nothing would have been easier for the Constituent Body than to provide that the State shall have the right to acquire property for a public purpose without payment of any kind or description. The obligation to pay an "amount" does not connote the power not to pay any amount at all. The alternative obligation to evolve principles for determining the amount also shows that there is no choice not to pay. The choice open to the Legislature is that the amount may directly be fixed by and under the law itself or alternatively, the law may fix principles in accordance with which the amount will be determined. The amount may, of course, be paid in cash or otherwise.

2221. The specific obligation to pay an "amount" and in the alternative the use of the word "principles" for determination of that amount must mean that the amount fixed or determined to be paid cannot be illusory. If the right to property still finds a place in the Constitution, you cannot mock at the man and ridicule his right. You cannot tell him; "I will take your fortune for a farthing".

2222. But this is subject to an important, a very important, qualification. The amount fixed for being paid to the owner is wholly beyond the pale of a challenge that it is inadequate. The concept of adequacy is directly co-related to the market value of the property and therefore such value cannot constitute an element of that challenge. By the same test and for similar reasons, the principles evolved for determining the amount cannot be questioned on the ground that by application of those principles the amount determined to be paid is inadequate, in the sense that it bears no reasonable relationship with the market value of the property. Thus the question whether the amount or the principles are within the permissible Constitutional limits must be determined without regard to the consideration whether they bear, a reasonable relationship with the market value of the property. They may not bear a reasonable relationship and yet they may be valid. But to say that an amount does not bear reasonable relationship with the market value is a different thing from saying that it bears no such relationship at all, none whatsoever. In the latter case the payment becomes illusory and may come within the ambit of permissible challenge.

2223. It is unnecessary to pursue this matter further because we are really concerned with the Constitutionality of the Amendment and not with the validity of a law passed under Article 31(2). If and when such a law comes before this Court it may become necessary to consider the matter closely. As at present advised, I am inclined to the view which as I have said is unnecessary to discuss fully, that though it is not open to the court to question a law under Article 31(2) on the ground that the amount fixed or determined is not adequate, courts would have the power to question such a law if the amount fixed thereunder is illusory; if the principles, if any are stated, for determining the amount are wholly irrelevant for fixation of the amount; if the power of compulsory acquisition or requisition is exercised for a collateral purpose; if the law offends Constitutional safeguards other than the one contained in Article 19(1)(f); or, if the law is in the nature of a fraud on the Constitution. I would only like to add, by way of explanation, that if the fixation of an amount is shown to depend upon principles bearing on social good it may not be possible to say that the principles are irrelevant.

2224. As regards the new Article 31(2B) I see no substance in the submission of the petitioner that the exclusion of challenge under Article 19(1)(f) to a law passed under Article 31(2) is bad as being in violation of the principles of natural justice. I have stated earlier that Constitutional amendments partake of the vitality of the Constitution itself, provided they are within the limits imposed by the Constitution. The exclusion of a challenge under Article 19(1)(f) in regard to a law passed under Article 31(2) cannot therefore be deemed unConstitutional. Besides, there is no reason to suppose that the legislature will act so arbitrarily as to authorise the acquisition or requisitioning of property without so much as complying with the rules of natural justice. Social good does not require that a man be condemned unheard.

2225. Article 31C presents a gordian knot. King Gordius of Phrygia had tied a knot which an oracle said would be undone only by the future master of Asia. Alexander the Great, failing to untie the knot, cut it with his sword. Such a quick and summary solutions of knotty problems is, alas, not open to a Judge. The article reads thus: 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.

2226. A misconception regarding the ambit of this article may first be removed. The article protects only "law" and not an executive action. The term 'law' is used in Article 13(3) in a wider sense, so as to include an Ordinance, order, bye-law, etc., but that definition is limited to the purposes of Article 13. Article 31C cannot therefore be said to violate the provisions of Article 31(1) under which no person can be deprived of his property save by authority of law. It is, however, not to be denied that the word 'law' in Article 31C may include all incidents and aspects of law-making. 2227. In order properly to understand the scope of Article 31C, it would be necessary to refer to the history of the allied provisions of the Constitution. Prior to the 4th Constitutional Amendment which came into force on April 27, 1915, Articles 31A and 31B which were introduced by the First Amendment Act, 1951 excluded wholly the provisions of Part III in regard to laws providing for the acquisition of any estate or of any rights therein. The reason of the rule was that the rights of society are paramount and must be placed above those of the individual.

2228. The language of Article 31C makes it clear that only such laws will receive its protection as are for giving effect to the policy of the State towards securing the principles specified in Article 39(b) or (c). Under Clause (b) the State has to direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. Under Clause (e) the State has to take steps towards securing that the operation of the economic systems does not result in the concentration of wealth and means of production to the common detriment. Apart from the declaration contained in the latter part of Article 31B it seems to me transparent that the nexus between a law passed under Article 31C and the objective set out in Article 39(b) and (c) is a condition precedent to the applicability of Article 31C. The declaration cannot be utilised as a cloak to protect laws bearing no relationship with the objective mentioned in the two clauses of Article 39. 2229. The objectives set out in Part IV of the Constitution were not limited in their application to agrarian reform. The 4th and 17th Amendments extended the basic principle underlying the First Amendment by introducing changes in Articles 31 and 31A and the Twenty-Fifth Amendment has taken one step further by extending the principle to a vaster field. Article 31C will operate substantially in the same way as Article 31A has operated in the agrarian sphere. In fact Article 31C is a logical extention of the principles underlying Article 31(4) and (6) and Article 31A.

2230. I find it difficult to accept the argument, so strongly pressed upon us, that Article 31C delegates the amending power to State Legislatures and empowers them to make amendments to the Constitution without complying with the form and manner prescribed by Article 368. I am also unable to appreciate that the article empowers the Parliament likewise. The true nature and character of Article 31C is that it identifies a class of legislation and exempts it from the operation of Articles 14, 19 and 31. Articles 31(4) and (6) identified laws in reference to the period of their enactment. Articles 31(2) and 31A identified the legislative field with reference to the subject-matter of the law. Articles 15(4) and 33 identified laws with reference to the objective of the legislation. In this process no delegation of amending power is involved. Thus, these various provisions, like Article 31C, create a field exempt from the operation of some of the Fundamental Rights. The field of legislation is not created by Article 31C. The power to legislate exists apart from and indepedently of it. What the article achieves is to create an immunity against the operation of the specified Fundamental Rights in a pre-existing field of legislation. In principle, I see no distinction between Article 31C on the one hand and Articles 15(4), 31(4), 31(5)(b)(ii), and 31(6) on the other. I may also call attention to Article 31A introduced by the First Amendment Act, 1951 under which "Notwithstanding anything contained in Article 13", no law providing for matters mentioned in Clauses (a) to (e) "shall be deemed to be void on the ground that it is inconsistent or takes away or abridges any of the rights conferred by Articles 14, 19 or

31. The fact that the five clauses of Article 31A referred to the subject-matter of the legislation whereas Article 31C refers to laws in relation to their object does not, in my opinion, make any difference in principle.

2231. The argument that Article 31C permits a blatant violation of the form and manner prescribed by Article 368 overlooks that the article took birth after a full and complete compliance with the form and manner spoken of in Article 368. Besides, implicit in the right to amend Article 368 is the power, by complying with the form and manner of Article 368, to authorise any other body to make the desired amendments to Constitutional provisions. The leading majority judgment in Golak Nath case and Hidayatullah J. thought of a somewhat similar expedient in suggesting that a Constituent Assembly could be convoked for abridging the Fundamental Rights. I do not see any distinction in principle between creating an authority like the Constituent Assembly with powers to amend the Constitution and authorising some other named authority or authorities to exercise the same power. This aspect of the matter does not, however, arise for further consideration, because Article 31C does not delegate the power to amend. 2232. The latter part of Article 31C presents to me no difficulty: "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." Clearly, this does not exclude the jurisdiction of the court to determine whether the law is for giving effect to the policy of the State towards securing the principles specified in Article 39(b) or (c). Laws passed under Article 31C, can, in my opinion, be upheld only, and only if, there is a direct and reasonable nexus between the law and the Directive Policy of the State expressed in Article 39(b) or (c). The law cannot be called in question on the ground that it does not give effect to such policy but I suppose no court can ever take upon itself the task of finding out whether a Jaw in fact gives effect to its true policy. If such a latitude were open to the Judges, laws of Prohibition and Gambling should have lost their place on the statute booklong since.

2233. In my opinion, therefore, Section 3 of the Twenty-Fifth Amendment, which introduces Article 31C, is valid.

THE CONSTITUTION (TWENTY-NINTH AMENDMENT)

ACT, 1972.

2234. In regard to the inclusion of the two Kerala Acts, (Act 33 of 1969 and Act 25 of 1971) in the Ninth Schedule by the Twenty-Ninth Amendment, it is urged by the petitioner's counsel that if the provisions of the two Acts do not fall within the terms of 31A(1)(a), the Acts will not get the protection of Article 31B. 2235. The validity of Article 31B has been accepted in a series of decisions of this Court and I suppose it is too late in the day to re-open that question; nor indeed did the learned Counsel for the petitioner challenge the validity of that article. In State of Bihar v. Kameshwar Singh [1952] S.C.R. 889, a similar contention was considered and rejected by Patanjali Sastri C.J., who spoke for the Court. The same view was reiterated in Visweshwar Rao v. The State of Madhya Pradesh [1952] S.C.R. 1020 by Mahajan J. The argument fell to be considered once again in N.B. Jeejeebhoy v. Assistant Collector, Thana, Prant, Thana [1965] 1 S.C.R. 636, but Subba Rao J. confirmed the view taken in the earlier cases. These cases have consistently held that the opening words of Article 31B: "without prejudice to the generality of the provisions contained in Article 31A" only indicate that the Acts and Regulations specified in the Ninth Schedule would obtain immunity even if they did not attract Article 31A. If every Act in the Ninth Schedule has to be covered by Article 31A, Article 31B would become redundant. Article 31B was, therefore, held not to be governed by Article 31A. The Twenty-Ninth Amendment must, accordingly be held to be valid.

2236. Debates of the Constituent Assembly and of the First Provisional Parliament were extensively read out to us during the course of arguments. I read the speeches with interest, but in my opinion, the debates are not admissible as aids to construction of Constitutional provisions. In Gopalan's case [1950] 1 S.C.R. 88, 110, Kania C.J., following the decisions in The Municipal Council of Sydney v. The Commonwealth [1904] 1 Com. L.R. 208 and United States v. Wong Kim Ark [169] U.S. 649, 699, observed that while it is not proper to take into consideration the individual opinions of Members of Parliament to construe the meaning of a particular clause, a reference to the debates may be permitted when a question is raised whether a certain phrase or expression was up for consideration at all or not. According to Mukherjea J. (p. 274), the debates of the Constituent Assembly are of doubtful value as an aid to discover the meaning of the words in a Constitution. The learned Judge said that a resort can be had to the debates with great caution and only when latent ambiguities are to be resolved. A similar view was expressed by this Court in State of Travancore, Cochin and Anr. v. Bombay Co. Limited [1952] S.C.R. 113. In the Golak Golak Nath case, Subba Rao C.J. clarified that he had not referred to the speeches made in the Constituent Assembly for the purpose of interpreting the provisions of Article 368. Bachawat J. also took the same view.

2237. It was urged by the learned Advocate-General of Maharashtra that there is a noticeable change in the attitude of this Court to parliamentary debates since the decision in Gopalan's case and that the most pronounced trend manifested itself first in Golak Nath's case and then decisively in the Privy Purse case [1971] 3 S.C.R. 9, 83. The practice followed in the Privy Purse case is said to have been adopted both by the majority and the minority in Union of India v. H.S. Dillon [1971] 2 S.C.R., 779, 784, 829-30.

2238. I am unable to agree that any reliance was placed in the Privy Purse case or in Dillon's case on parliamentary speeches, for the purpose of interpreting the legal provisions. Shah J., in the Privy Purse case, referred to the speech of Sardar Vallabhbhai Patel in order to show the circumstances in which certain guarantees were given to the former Rulers. The Advocate-General is right that Mitter J. made use of a speech for construing Article 363, but that was done without discussing the question as regards the admissibility of the speech. In Dillon's case, it is clear from the judgment of the learned Chief Justice, that no use was made of the speeches in the Constituent Assembly for construing any legal provision. In fact, the learned Chief Justice observed that he was glad to find from the debates that the interpretation which he and two his colleagues had put on the legal provision accorded with what was intended.

2239. It is hazardous to rely upon parliamentary debates as aids to statutory construction. Different speakers have different motives and the system of 'Party Whip' leaves no warrant for assuming that those who voted but did not speak were of identical persuasion. That assumption may be difficult to make even in regard to those who speak. The safest course is to gather the intention of the legislature from language it uses. Therefore, parliamentary proceedings can be used only for a limited purpose as explained in Gopalan's case.

2240. Before summarising my conclusions, let me say that it is with the greatest deference and not without hesitation that I have decided to differ from the eminent Judges who constituted the majority in the Golak Nath case. Two of them still adorn this Bench and to them as to the other learned Brothers of this Bench with whom it has not been possible to agree, I say that it has been no pleasure to differ from them, after being with some of them for a part of the time, on a part of the case. Their concern for common weal, I guess, is no less than mine and so let me express the hope that this long debate and these long opinions will serve to secure at least one blessing-the welfare of the common man. We are all conscious that this vast country has vast problems and it is not easy to realise the dream of the Father of the Nation to wipe every tear from every eye. But, if despite the large powers now conceded to the Parliament, the social objectives are going to be a dustbin of sentiments, then woe betide those in whom the country has placed such massive faith.

2241. My conclusions are briefly these:

2242. The decision of the leading majority in the Golak Nath case that the then Article 368 of the Constitution merely prescribed the procedure for amendment of the Constitution and that the power of amendment had to be traced to Entry 97 of List I, Schedule VII read with Articles 245, 246 and 248 is not correct. 2243. The decision of the leading majority and of Hidayatullah J. that there is no distinction between an ordinary law and a law amending the Constitution is incorrect. Article 13(2) took in only ordinary laws, not amendments to the Constitution effected under Article 368.

2244. The decision of the leading majority and of Hidayatullah J. that Parliament had no power to amend the Constitution so as to abrogate or take away Fundamental Rights is incorrect.

2245. The power of amendment of the Constitution conferred by the then Article 368 was wide and unfettered. It reached every part and provision of the Constitution. 2246. Preamble is a part of the Constitution and is not outside the reach of the amending power under Article 368.

2247. There are no inherent limitations on the amending power in the sense that the Amending Body lacks the power to make amendments so as to damage or destroy the essential features or the fundamental principles of the Constitution. 2248. The 24th Amendment only declares the true legal position as it obtained before that Amendment and is valid.

2249. Section 2(a) and Section 2(b) of the 25th Amendment are valid. Though courts have no power to question a law described in Article 31(2) substituted by Section 2(a) of the Amendment Act, OP the ground that the amount fixed or determined for compulsory acquisition or requisition is not adequate or that the whole or any part of such amount is to be given otherwise than in cash, courts have the power to question such a law if (i) the amount fixed is illusory; or (ii) if the principles, if any are stated, for determining the amount are wholly irrelevant for fixation of the amount; or (iii) if the power of compulsory acquisition or requisition is exercised for a collateral purpose; or (iv) if the law of compulsory acquisition or requisition offends the principles of Constitution other than the one which is expressly excepted under Article 31(2B) introduced by Section 2(b) of the 25th Amendment Act - namely Article 19(1)(f); or (v) if the law is in the nature of a fraud on the Constitution.

2250. Section 3 of the 25th Amendment which introduced Article 31C into the Constitution is valid. In spite, however, of the purported conclusiveness of the declaration therein mentioned, the Court has the power and the jurisdiction to ascertain whether the law is for giving effect to the policy of the State towards securing the principles specified in Article 39(b) or (c). If there is no direct and reasonable nexus between such a law and the provisions of Article 39(b) or (c), the law will not, as stated in Article 31C, receive immunity from a challenge under Articles 14, 19 or 31.

2251. The 29th Amendment Act is valid. The two Kerala Acts mentioned therein, having been included in the Ninth Schedule, are entitled to the protection of Article 31B of the Constitution.

2252. I would direct each party to bear its own costs.

2253. As I am coming to the close of my judgment, drafts of judgments of several of my esteemed colleagues are trickling in. As I look at them, I hear a faint whiser of Lord Dunedin. And then I thought : I began this judgment by saying that I wanted to avoid writing a separate judgment of my own. Are first thoughts best? ORDER

2263. The Constitution Bench will determine the validity of the Constitution (Twenty- sixth Amendment) Act, 1971 in accordance with law.

2264. The cases are remitted to the Constitution Bench for disposal in accordance with law. There will be no order as to costs incurred upto this stage.