(b) more than one month elapses from the date on which
the Bill is laid before the Council without the Bill being
passed by it; or
(c) the Bill is passed by the Council with amendments to
which the Legislative Assembly does not agree,
(c) the Bill is passed by the Legislative Assembly does not
agree, the Bill shall be deemed to have been passed by the
Houses of the Legislature of the State in the form in which
it was passed by the Legislative Assembly for the second
time with such amendments, if any, as have been made or
suggested by the Legislative Council and agreed to by the
81. Under Article 200 the Governor is enabled to suggest the desirability of introducing any such amendments as he may recommend in his message. Here again "amendment" has clearly a limited meaning.
82. In Article 35(b) the words used are:
Any law in force immediately before the commencement of this
Constitution...subject to the terms thereof and to any adaptations and modifications that may be made therein under Article 372, continue in force until altered or repealed or amended by Parliament.
83. Here, all the three words are used giving a comprehensive meaning. Reliance is not placed by the draftsman only on the word "amend".
84. Similar language is used in Article 372 whereby existing laws continue to be in force until "altered or repealed or amended' by a competent Legislature or other competent authority.
85. In the original Article 243(2), in conferring power on the President to make regulations for the peace and good government of the territories in part D of the First Schedule, it is stated that "any regulation so made may repeal or amend any law made by Parliament." Here, the two words together give the widest power to make regulations inconsistent with any law made by Parliament
86. In Article 252 again, the two words are joined together to give a wider power. Clause (2) of Article 252 reads:
252(2). Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State.
87. In the proviso to Article 254, which deals with the inconsistency between laws made by Parliament and laws made by the Legislatures of States, it is stated: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State;
88. In Article 320(5), "all regulations made under the proviso to Clause (3)" can be modified "whether by way of repeal or amendment" as both Houses of Parliament or the House or both Houses of the Legislature of the States may make during the session in which they are so laid.
89. I have referred to the variation in the language of the various articles dealing with the' question of amendment or repeal in detail because our Constitution was drafted very carefully and I must presume that every word was chosen carefully and should have its proper meaning. I may rely for this principle on the following observations of the United States Supreme Court in Holmes v. Jennison (10) L. ed. 579; 594 and quoted with approval in William v. United States (77) L. ed. 1372; 1380:
In expounding the Constitution of the United States, every word must have its due force, and appropriate meaning: for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added....
90. Reference was made to Section 6(2) of the Indian Independence Act, 1947, in which the last three lines read:
...and the powers of the Legislature of each Dominion include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the Dominion.
Here, the comprehensive expression "repeal or amend" gives power to have a completely new Act different from an existing act of Parliament.
91. So, there is no doubt from a perusal of these provisions that different words have been used to meet different demands. In view of the great variation of the phrases used all through the Constitution it follows that the word "amendment" must derive its colour from Article 368 and the rest of the provisions of the Constitution. There is no doubt that it is not intended that the whole Constitution could be repealed. This much is conceded by the learned Counsel for the respondents.
92. Therefore, in order to appreciate the real content of the expression "amendment of this Constitution", in Article 368 I must look at the whole structure of the Constitution. The Constitution opens with a preamble which reads:
WE THE PEOPLE OF INDIA, having solemnly resolved to constitute
India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to
all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all; FRATERNITY assuring the dignity of the individual and the unity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this Twenty-sixth day of
November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO
OURSELVES THIS CONSTITUTION.
93. This Preamble, and indeed the Constitution, was drafted in the light and direction of the Objective Resolutions adopted on January 22, 1947, which runs as follows: (1) THIS CONSTITUENT ASSEMBLY declares its firm and solemn
resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Consti-
(2) wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States, as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and
(3) wherein the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in of assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and
(4) wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and
(5) wherein shall be guaranteed and secured to all people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and (6) wherein adequate safeguards shall be provided for minorities backward and tribal areas, and depressed and other backward classes; and (7) whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilized nations, and
(8) this ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind.
94. While moving the resolution for acceptance of the Objectives Resolution, Pandit Jawaharlal Nehru said:
It seeks very feebly to tell the world of what we have thought or dreamt for so long, and what we now hope to achieve in the near future. It is in that spirit that I venture to place this Resolution before the House and it is in that spirit that I trust the House will receive it and ultimately pass it. And may I, Sir, also with all respect, suggest to you and to the House that, when the time comes for the passing of this Resolution let it be not done in the formal way by the raising of hands, but much more solemnly, by all of us standing up and thus taking this pledge anew.
95. I may here trace the history of the shaping of the Preamble because this would show that the Preamble was in conformity with the Constitution as it was finally accepted. Not only was the Constitution framed in the light of the Preamble but the Preamble was ultimately settled in the light of the Constitution. This appears from the following brief survey of the history of the framing of the Preamble extracted from the Framing of India's Constitution (A study) by B. Shiva Rao. In the earliest draft the Preamble was something formal and read : "We, the people of India, seeking to promote the common good, do hereby, through our chosen representatives, enact, adopt and give to ourselves this Constitution, (Shiva Rao's Framing of India's Constitution-A study-p. 127.).
96. After the plan of June 3, 1947, which led to the decision to partition the country and to set up two independent Dominions of India and Pakistan, on June 8, 1947, a joint sub- committee of the Union Constitution and Provincial Constitution Committees, took note that the objective resolution would require amendment in view of the latest announcement of the British Government The' announcement of June 3 had made it clear that full independence, in the form of Dominion Status, would be conferred on India as from August 15, 1947. After examining the implications of partition the sub-committee thought that the question of making changes in the Objectives Resolution could appropriately be considered only when effect had actually been given to the June 3 Plan.(Special Sub-Committee minutes June 9, 1947. Later on July 12, 1947, the special sub-committee again postponed consideration of the matter. Select Documents II, 20(ii), p. 617. (Shiva Rao's-Framing of India's Constitution-A study-(p. 127 footnote). The Union Constitution Committee provisionally accepted the Preamble as drafted by B.N. Rao and reproduced it in its report of July 4, 1947 without any change, with the tacit recognition at that stage that the Preamble would be finally based on the Objectives Resolution. In a statement circulated to members of the Assembly on July 18, 1947 Pandit Jawaharlal Nehru inter alia, observed that the Preamble was covered more or less by the Objectives Resolution which it was intended to incorporate in the final Constitution subject to some modification on account of the political changes resulting from partition. Three days later, moving the report of the Union Constitution Committee for the consideration of the Assembly, he suggested that it was not necessary at that stage to consider the draft of the Preamble since the Assembly stood by the basic principles laid down in the Objectives Resolution and these could be incorporated in the Preamble in the light of the changed situation(Shiva Rao's-Framing of India's Constitution-A study- pp. 127-128 (also see footnote 1 p. 128). The suggestion was accepted by the Assembly and further consideration of the Preamble was held over.
97. We need not consider the intermediate drafts, but in the meantime the declaration (See Constituent Assembly Debates, Vol. 8, page 2) was adopted at the end of April, 1949 by the Government of the various Commonwealth countries and the resolution was ratified by Constituent Assembly on May 17; 1949 after two days' debate.
98. In the meantime the process of merger and integration of Indian States had been completed and Sardar Vallabhbhai Patel was able to tell the Constituent Assembly on October 12, 1949, that the new Constitution was "not an alliance between democracies and dynasties, but a real union of the Indian people, built on the basic concept of the sovereignty of the people(Shiva Rao's-Framing of India's Constitution-A study-pp. 130- 132).
99. The draft Preamble was considered by the Assembly on October 17, 1949. Shiva Rao observes that "the object of putting the Preamble last, the President of the Assembly explained, was to see that it was in conformity with the Constitution as accepted. "Once the transfer of power had taken place the question of British Parliament's subsequent approval which was visualised in the British Cabinet Commission's original plan of May 1946 could no longer arise. The sovereign character of the Constituent Assembly thus became automatic with the rapid march of events without any controversy, and the words in the Preamble "give to ourselves this Constitution" became appropriate. The Preamble was adopted by the Assembly without any alteration. Subsequently the words and figure "this twenty-sixth day of November 1949" were introduced in the last paragraph to indicate the date on which the Constitution was finally adopted by the Constituent Assembly.
100. Regarding the use which can be made of the preamble in interpreting an ordinary statute, there is no doubt that it cannot be used to modify the language if the language of the enactment is plain and clear. If the language is not plain and clear, then the preamble may have effect either to extend or restrict the language used in the body of an enactment. "If the language of the enactment is capable of more than one meaning then that one is to be preferred which comes nearest to the purpose and scope of the preamble." (see Tbibhuban Parkash Nayyar v. The Union of India)  2 S.C.R. 732-
101. We are, however, not concerned with the interpretation of an ordinary statute. As Sir Alladi Krishnaswami, a most eminent lawyer said, "so far as the Preamble is concerned, though in an ordinary statute we do not attach any importance to the Preamble, all importance has' to be attached to the Preamble in a Constitutional statute". (Constituent Assembly Debates Vol. 10, p. 417). Our Preamble outlines the objectives of the whole Constitution. It expresses "what we had thought or dreamt for so long.
102. In re. Berubari Union and Exchange of Enclaves  3 S.C.R. 250, 281-82 this was said about the Preamble:
There is no doubt that the declaration made by the people of India in exercise of their sovereign will in the preamble to the Constitution is, in the words of Story, "a key to open the mind of the makers" which may show the general purposes for which they made the several provisions in the Constitution; but nevertheless the preamble is not a part of the Constitution, and, as Willoughby has observed about the" preamble to the American Constitution, "it has never been regarded as the source of any substantive power conferred on the Government of the United States or any of its departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted".
What is true about the power is equally true about the prohibitions and limitations.
103. Wanchoo, J. in Golaknath v. Punjab  2 S.C.R. 762; 838 and 914 relied on Berubari's case and said:
on a parity of reasoning we are of opinion that the preamble cannot prohibit or control in any way or impose any implied prohibitions or limitations on the power to amend the Constitution contained in Article
104. Bachawat, J. in this case observed:
Moreover the preamble cannot control the unambiguous language of the articles of the Constitution, see Wynes, Legislative Executive and Judicial powers in Australia, third edition pp. 694-5; in Re. Berubari Union & Exchange of Enclaves.  3 S.C.R. 250, 281-82.
105. With respect, the Court was wrong in holding, as has been shown above, that the Preamble is not a part of the Constitution unless the court was thinking of the distinction between the Constitution Statute and the Constitution, mentioned by Mr. Palkhivala. It was expressly voted to be a part of the Constitution. Further, with respect, no authority has been referred before us to establish the proposition that "what is true about the powers is equally true about the prohibitions and limitations." As I will show later, even from the preamble limitations have been derived in some cases.
106. It is urged in the written submission of Mr. Palkhivala that there is a distinction between the Indian Constitution Statute and the Constitution of India. He urges as follows:
This Constitution is the Constitution which follows the Preamble. It starts with Article 1 and ended originally with the Eighth Schedule and now ends with the Ninth Schedule after the First Amendment Act, 1951. The way the Preamble is drafted leaves no doubt that what follows, or is annexed to, the Preamble, is the Constitution of India.
107. He has also urged that the Preamble came into force on November 26, 1949 alongwith Articles 5, 6, 7 etc. as provided in Article 394 because Articles 5, 6, 7 and the other Articles mentioned therein could hardly come into force without the enacting clause mentioned in the Preamble having come into force. He says that the Preamble is a part of the Constitution statute and not a part of the Constitution but precedes it. There is something to be said for his contention but, in my view, it is not necessary to base my decision on this distinction as it is not necessary to decide in the present case whether Article 368 enables Parliament to amend the Preamble. Parliament has not as yet chosen to amend the Preamble.
108. The Preamble was used by this Court as an aid to construction in Behram Khurshed Pasikaka v. The State of Bombay  1 S.C.R. 613 at p. 653. After referring to Part III, Mahajan, C.J., observed:
We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefits, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of Constitutional policy.
109. Similarly in In re. The Kerala Education Bill  S.C.R. 995, 1018-1019 1957, Das C.J. while considering the validity of the Kerala Education Bill 1957 observed: In order to appreciate the true meaning, import and implications of the provisions of the Bill which are said to have given rise to doubts, it will be necessary to refer first to certain provisions of the Constitution which may have a bearing upon the questions under consideration and then to the actual provision of the Bill. The inspiring and nobly expressed preamble to our Constitution records the solemn resolve of the people of India to constitute.... (He then sets out the Preamble). Nothing provokes and stimulates thought and expression in people more than education. It is education that clarifies our belief and faith and helps to strengthen our spirit of worship. To implement and fortify these supreme purposes set forth in the preamble, Part III of our Constitution has provided for us certain fundamental rights.
110. In Sajjan Singh v. State of Rajasthan  1 S.C.R. 933; 968 Mudholkar, J. after assuming that the Preamble is not a part of the Constitution, observed: While considering this question it would be of relevance to bear in mind that the preamble is not of the common run such as is to be found in an Act of a legislature. It has the stamp of deep deliberation and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it?
111. Quick and Garran in their "Annotated Constitution of the Australian Commonwealth (1901 p. 283) "adopted the following sentence from Lord Thring's "Practical Legislation, p. 36":
A preamble may be used for other reasons to limit the scope of certain expressions or to explain facts or introduce definitions.
112. Thornton on "Legislative Drafting"-p. 137-opines that "construction of the preamble may have effect either to extend or to restrict general language used in the body of an enactment.
113. In Attorney-General v. Prince Ernest Augustus of Hanover  A.C. 436, 460 the House of Lords considered the effect of the preamble on the interpretation of Princes Sophia Naturalization Act; 1705. It was held that "as a matter of construction of the Act, there was nothing in the Act or its preamble, interpreted in the light of the earlier relevant statutes...capable of controlling and limiting the plain and ordinary meaning of the material words of the enacting provisions and that the class of lineal descendants "born or hereafter to be born" meant the class of such descendants in all degrees without any limit as to time." The House of Lords further held that "looking at the Act from the point of view of 1705 there was no such manifest absurdity in this construction as would entitle the court to reject it.
114. Mr. Seervai referred to the passage from the speech of Lord Normand, at p. 467. The passage is lengthy but I may quote these sentences:
It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail. If they admit of only one construction, that construction will receive effect even if it is inconsistent with the preamble, but if the enacting words are capable of either of the constructions offered by the parties, the construction which fits the preamble may be preferred.
115. Viscount Simonds put the matter at page 463, thus:
On the one hand, the proposition can be accepted that "it is a settled rule that the preamble cannot be made use of to control the enactments themselves where they are expressed in clear and unambiguous terms". I quote the words of Chitty L.J., which were cordially approved by Lord Davey in Powell v. Kempton Park Racecourse Co. Ltd. (1889) A.C. 143,
185. On the other hand it must often be difficult to say that any terms are clear and unambiguous until they have been studied in their context
116. This case shows that if on reading Article 368 in the context of the Constitution I find the word "Amendment" ambiguous I can refer to the Preamble to find which construction would fit in with the Preamble.
117. In State of Victoria v. The Commonwealth 45 A.L.J. 251 which is discussed in detail later, a number of Judges refer to the federal structure of the Constitution. It is in the preamble of the Commonwealth of Australia Constitution Act, 1902 that 'one indissoluble Federal Commonwealth' is mentioned.
118. There is a sharp conflict of opinion in Australia respecting the question whether an amendment can be made which would be inconsistent with the Preamble of the Constitution Act referring to the "indissoluble" character and the sections which refer to the "Federal" nature of the Constitution. After referring to this conflict, Wynes(Wynes Legislative, Executive and Judicial Powers in Australia, Fourth Edn. p. 506). observes: Apart from the rule which excludes the preamble generally from
consideration in statutory interpretation, it is clear that, when all is said and done, the preamble at the most is, only a recital of the intention which the Act' seeks to effect; and it is a recital of a present (i.e., as in 1900) intention. But in any event the insertion of an express reference to amendment in the Constitution itself must surely operate as a qualification upon the mere recital of the reasons for its creation.
119. I am not called upon to say which view is correct but it does show that in Australia, there is a sharp conflict of opinion as to whether the Preamble can control the amending power.
120. Story in his Commentaries on the Constitution of the United States states : [(1883) Vol. 1]
It (Preamble) is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; for if they are dear and unambiguous, there seems little room for interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention express in the preamble.
There does not seem any reason why, in a fundamental law or Constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble. And accordingly we find, that it has been constantly referred to by statesmen and jurists to aid them in the exposition of its provisions.
121. Story further states at page 447-448:
And the uniform doctrine of the highest judicial authority has accordingly been, that it was the act of the people, and not of the states; and that it bound the latter, as subordinate to the people. "Let us turn," said Mr. Chief Justice Jay, "to the Constitution. The people therein declare, that their design in establishing it comprehended six objects: (1) To form a more perfect union; (2) to establish justice; (3) to insure domestic tranquillity; (4) to provide for the common defence; (5) to promote the general welfare; (6) to secure the blessings of liberty to themselves and their posterity. It would," he added, "be pleasing and useful to consider and trace the relations, which each of these objects bears to the others; and to show, that, collectively, they comprise every thing requisite, with the blessing of Divine Providence, to render a people prosperous and happy." In Hunter v. Martin (1 Wheat. R. 305, 324), the Supreme Court say, (as we have seen) "the Constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by the people of the "United States;" and language still more expressive will be found used on other solemn occasions.
122. "The Supreme Court of United States (borrowing some of the language of the Preamble to the Federal Constitution) has appropriately stated that the people of the United States erected their Constitutions or forms of government to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence". (American Jurisprudence, 2d. Vol. 16 p. 184).
123. In the United States the Declaration of Independence is sometimes referred to in determining Constitutional questions. It is stated in American Jurisprudence (2d. 16. p. 189):
While statements of principles contained in the Declaration of
Independence do not have the force of organic law and therefore cannot be made the basis of judicial decision as to the limits of rights and duties, yet: it has been said that it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence, and the courts sometimes refer to the Declaration in determining Constitutional questions.
124. It seems to me that the Preamble of our Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble.
125. Now I may briefly describe the scheme of the Constitution. Part I of the Constitution deals with "the Union and its Territory". As originally enacted, Article 1 read as follows:
1. India, that is Bharat, shall be a Union of States.
2. The States and the territories thereof shall be the States and their territories specified in Parts A, B and C of the First Schedule.
3. The territory of India shall comprise-
(a) the territories of the States;
(b) the territories specified in Part D of the First Schedule;
(c) such other territories as may be acquired.
126. Article 2 enabled Parliament to admit into the Union, or establish, new States on such terras and conditions as it thinks fit. Article 3 and 4 dealt with the formation of new States and alteration of areas, boundaries or names of existing States.
127. Part II dealt with "Citizenship". The heading of Part III is "Fundamental Rights". It first describes the expression "the State" to include "the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India." (Article 12), Article 13 provides that laws inconsistent with or in derogation of the fundamental rights shall be void. This applies to existing laws as well as laws made after the coming into force of the Constitution. For the time being I assume that in Article 13(2) the word "law" includes Constitutional amendment.
128. The fundamental rights conferred by the Constitution include right to equality before the law, (Article 14), prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, (Article 15), equality of opportunity in matters of public employment, (Article 16), right to freedom of speech and expression, to assemble peaceably and without arms, to form association or unions, to move freely throughout the territory of India, to reside and settle in any part of the territory of India, to acquire, hold and dispose of property; and to practice any profession or to carry on any occupation, trade or business. (Article 19). Reasonable restrictions can be imposed on the rights under Article 19 in respect of various matters.
129. Article 20 protects a person from being convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence or to be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It further provides that no person shall be prosecuted and punished for the same offence more than once, and no person accused of any offence shall be compelled to be a witness against himself.
130. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law.
131. Article 22 gives further protection against arrest and detention in certain cases. Article 22(1) provides that "no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice." Article 22(2) provides that "every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate".
132. Article 22(4) deals with Preventive Detention. Article 23 prohibits traffic in human beings and other similar forms of forced labour. Article 24 provides that "no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
133. Articles 25, 26, 27 and 28 deal with the freedom of religion. Article 25(1) provides that "subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion." Article 26 enables every religious denomination or section thereof, subject to public order, morality and health, to establish and manage institutions for religious and, charitable purposes; to manage their own affairs in matters of religion, to own and acquire movable and immovable property, and to administer such property in accordance with law. Article 27 enables presons to resist payment of any taxes the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. Article 28 deals with freedom as to attendance at religious instruction or religious worship in certain educational institutions.
134. Article 29(1) gives protection to minorities and provides that "any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same." Article 29(2) provides that "no person shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
135. Article 30 gives further rights to minorities whether based on religion or language to establish and administer educational institutions of their choice. Article 30(2) prohibits the State from discriminating against any educational institution, in granting aid to educational institutions, on the ground that it is under the management of a minority, whether based on religion or language.
136. As will be shown later the inclusion of special rights for minorities has great significance. They were clearly intended to be inalienable.
137. The right to property comes last and is dealt with the Article 31. As originally enacted, it dealt with the right to property and prevented deprivation of property save by authority of law, and then provided for compulsory acquisition for public purposes on payment of compensation. It had three significant provisions, which show the intention of the Constitution-makers regarding property rights. The first is Article 31(4). This provision was intended to protect legislation dealing with agrarian reforms. The second provision, Article 31(5)(a), was designed to protect existing legislation dealing with compulsory acquisition. Some acts, saved by this provision did not provide for payment of full compensation e.g. U.P. Town Improvement Act, 1919. The third provision Article 31(6) provided a protective umbrella to similar laws enacted not more than eighteen months before the commencement of the Constitution.
138. The fundamental rights were considered of such importance that right was given to an aggrieved person to move the highest court of the land, i.e., the Supreme Court, by appropriate proceedings for the enforcement of the rights conferred by this part, and this right was guaranteed. Article 32(2) confers very wide powers on the Supreme Court, to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. Article 32(4) further provides that "the right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
139. Article 33 enables Parliament by law to "determine to what extent any of the rights conferred by this Part shall, in their application to the members of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.
140. This articles shows the care with which, the circumstances in which, fundamental rights can be restricted or abrogated were contemplated and precisely described.
141. Article 34 enables Parliament, by law, to indemnify any person in the service of the Union, or of a State or any other person in connection with acts done while martial law was in force in a particular area.
142. Part IV of the Constitution contains directive principles of State policy. Article 37 specifically provides that "the provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws." This clearly shows, and it has also been laid down by this Court, that these provisions are not justiciable and cannot be enforced by any Court. The Courts could not, for instance, issue a mandamus directing the State to provide adequate means of livelihood to every citizen, or that the ownership and control of the material resources of the community be so distributed as best to subserve the common good, or that there should be equal pay for equal work for both men and women.
143. Some of the directive principles are of great fundamental importance in the governance of the country. But the question is not whether they are important; the question is whether they override the fundamental rights. In other words, ran Parliament abrogate the fundamental rights in order to give effect to some of the directive principles ?
144. I may now briefly notice the directive principles mentioned in Part IV. Article 38 provides that "the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life." Now, this directive is compatible with the fundamental rights because surely the object of many of the fundamental rights is to ensure that there shall be justice, social, economic and political, in the country. Article 39, which gives particular directions to the State, reads thus:
39. The State shall, in particular, direct its policy towards securing- (a) that the citizens, men and women equally, have the right
to an adequate means of livelihood;
(b) that the ownership and control of the material resources
of the community are so distributed as best to subserve the
(c) that the operation of the economic system does not
result in the concentration of wealth and means of
production to the common detriment;
(d) that there is equal pay for equal work for both men and
(e) that the health and strength of workers, men and
women, and the tender age of children are not abused and
that citizens are not forced by economic necessity to enter
avocations unsuited to their age or strength;
(f) that childhood and youth are protected against
exploitation and against moral and material abandonment.
145. Article 40 deals with the organisation of village panchayats. Articles 41 deals with the right to work, to education and to public assistance in certain cases. Article 42 directs that the State shall make provisions for securing just and humane conditions of work and for maternity relief. Article 43 direct that "the State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or cooperative basis in rural areas.
146. Article 44 enjoins that the "State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." Desirable as it is, the Government has not been able to take any effective steps towards the realisation of this goal. Obviously no Court can compel the Government to lay down a uniform civil code even though it is essentially desirable in the interest of the integrity, and unity of the country.
147. Article 45 directs that "the State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free compulsory education for all children until they complete the age of fourteen years." This again is a very desirable directive. Although the Government has not been able to fulfil it completely, it cannot be compelled by any court of law to provide such education.
148. Article 46 supplements the directive given above and enjoins the State to promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation.
149. Article 47 lays down as one of the duties of the State to raise the standard of living and to improve public health, and to bring about prohibition. Article 48 directs the State to endeavour to organise agriculture and animal husbandry on modern and scientific lines, and in particular, to take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milch and draught cattle.
150. Article 49 deals with protection of monuments and places and objects of national importance. Article 50 directs that the State shall take steps to separate the judiciary from the executive in the public services of the State. This objective has been, to a large extent, carried out without infringing the fundamental rights.
151. In his preliminary note on the fundamental Rights, Sir B.N. Rau, dealing with the directive principles, observed:
The principles set forth in this Part are intended for the general guidance of the appropriate Legislatures and Government in India (hereinafter referred to collectively as 'the State'). The application of these principles in legislation and administration shall be the care of the State and shall not be cognizable by any Court.
152. After setting out certain directive principles, he observed: It is obvious that none of the above provisions is suitable for enforcement by the courts. They are really in the nature of moral precepts for the authorities of the State. Although it may be contended that the Constitution is not the proper place for moral precepts, nevertheless Constitutional declaration of policy of this kind are now becoming increasingly frequent. (See the Introduction to the I.L.O. publication Constitutional Provisions concerning Social and Economic Policy, Montreal, 1944). They have at least an educative value. (pages 33-34- Shiva Rao : Framing of Indian Constitution : Doc. Vol. II).
Then he referred to the genesis of the various articles mentioned in the preliminary note.
153. One must pause and ask the question as to why did the Constituent. Assembly resist the persistent efforts of Shri B.N. Rau to make fundamental rights subject to the directive principles. The answer seems plain enough : The Constituent Assembly deliberately decided not to do so.
154. Sir Alladi Krishnaswami Ayyar, in his note dated March 14, 1947, observed: A distinction has necessarily to be drawn between rights which are justiciable and rights which are merely intended as a guide and directive objectives to state policy.
155. It is impossible to equate the directive principles with fundamental rights though it cannot be denied that they are very important. But to say that the directive principles give a directive to take away fundamental rights in order to achieve what is directed by the directive principles seems to me a contradiction in terms.
156. I may here mention that while our fundamental rights and directive principles were being fashioned and approved of by the Constituent Assembly, on December 10, 1948 the General Assembly of the United Nations adopted a Universal Declaration of Human Rights. The Declaration may not be a legally binding instrument but it shows how India understood the nature of Human Rights. I may here quote only the Preamble: Whereas recognition of the inherent dignity of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.
157. Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.
158. Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.
159. Whereas it is essential to promote the development of friendly relations between nations.
160. Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom.
161. Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.
162. Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge
163. In the Preamble to the International Covenant on Economic and Social and Cultural Rights 1966, inalienability of rights is indicated in the first Para as follows: Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.
164. Do rights remain inalienable if they can be amended out of existence ? The Preamble Articles 1, 55, 56, 62, 68 and 76 of the United Nations Charter had provided the basis for the elaboration in the Universal Declaration of Human Rights. Although there is a sharp conflict of opinion whether respect for human dignity and fundamental human rights is obligatory under the Charter (see Oppenheim's International Law; 8th ed. Vol. 1, pp. 740-41; footnote 3), it seems to me that, in view of Article 51 of the directive principles, this Court must interpret language of the Constitution, if not intractable, which is after all a municipal law, in the light of the United Nations Charter and the solemn declaration subscribed to by India. Article 51 reads:
51. The State shall endeavour to-
(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty
obligations in the dealings of organised peoples with one
(d) encourage settlement of international disputes by
165. As observed by Lord Denning in Corocraft v. Pan American Airways (1969) 1 All E.R. 82; 87 "it is the duty of these courts to construe our Legislation so as to be in conformity with international law and not in conflict with it." (See also Oppenheim supra, pp. 45-46; American Jurisprudence 2nd, Vol. 45, p. 351).
166. Part V Chapter I, deals with the Executive; Chapter II with Parliament-conduct or its business, qualification of its members, legislation procedure etc. Article 83 provides that:
83. (1) The Council of States shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.
(2) The House of the People unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the House: ...
Under the proviso this period can be extended while a Proclamation of Emergency is in operation for a period not exceeding in any case beyond a period of six months after the Proclamation has ceased to operate. It was provided in Article 85(1) before its amendment by the Constitution (First Amendment) Act 1951 that the House of Parliament shall be summoned to meet twice at least in every year, and six months shall not intervene between their last sittings in one session and the date appointed for their first sitting in the next session.
167. Article 123 gives power to the President to promulgate ordinances during recess of Parliament Chapter IV deals with Union Judiciary.
168. Part VI, as originally enacted dealt with the States in Part A of the First Schedule-the Executive, the State Legislatures and the High Courts. Article 174 deals with the summoning of the House of Legislature and its provisions are similar to that of Article
85. Article 213 confers legislative powers on the Governor during the recess of State Legislature by promulgating ordinances.
169. Part XI deals with the relation between the Union and the States; Chapter I regulating legislative relations and Chapter II administrative relations.
170. Part XII deals with Finance, Property, Contracts and Suits. We need only notice Article 265 which provides that "no tax shall be levied or collected except by authority of law".
171. Part XIII deals with Trade, Commerce and Intercourse within the Territory of India. Subject to the provisions of this Chapter, trade, commerce and intercourse throughout the territory of India shall be free (Article 301).
172. Part XIV deals with Services under the Union and the States. Part XVI contains special provisions relating to certain classes-the Scheduled Castes, the Scheduled Tribes etc. It reserved seats in the House of the People for these classes. Article 331 enables the President to nominate not more than two members of the Anglo-Indian community if it is not adequately represented in the House of the People. Article 332 deals with the reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States. In Article 334 it is provided that the above mentioned reservation of seats and special representation to certain classes shall cease on the expiry of a period of ten years from the commencement of this Constitution. Article 335 deals with claims of scheduled castles and scheduled tribes to services and posts. Article 336 makes special provisions for Anglo-Indian community in certain services, and Article 337 makes special provisions in respect of educational grants for the benefit of Anglo- Indian community. Article 338 provides for the creation of a Special Officer for Scheduled Castes, Scheduled Tribes, etc. to be appointed by the President, and prescribes his duties. Article 340 enables the President to appoint a Commission to investigate the conditions of socially and educationally backward classes within the territory of India which shall present a report and make recommendations on steps that should be taken to remove difficulties and improve their condition. Article 341 enables the President to specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State. Similarly, Article 342 provides that the President may specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall be deemed to be Scheduled Tribes in relation to that State.
173. Part XVII deals with Official Language, and Part XVIII with Emergency Provisions. Article 352 is important. It reads:
352.(1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect.
174. Article 353 describes the effect of the Proclamation of Emergency. The effect is that the executive power of the Union shall be extended to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised, and the Parliament gets the power to make laws with respect to any matter including the power to make laws conferring powers and imposing duties, etc., notwithstanding that it is one which is not enumerated in the Union List. Article 354 enables the President by order to make exceptions and modifications in the provisions of Article 268 to 279. Under Article 355 it is the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. Article 356 contains provisions in case of failure of Constitutional machinery in a State.
175. Article 358 provides for suspension of the provisions of Article 19 during Emergency. It reads:
358. While a Proclamation of Emergency is in operation, nothing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.
176. Article 359 is most important for our purpose. It provides that:
359. (1) Where a Proclamation of Emergency is in operation the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.
(2) An order made as aforesaid may extend to the whole or any part of the territory of India.
(3) Every order made under Clause (1) shall, as soon as maybe after it is made be laid before each House of Parliament.
177. These two articles, namely Article 358 and Article 359 show that the Constitution makers contemplated that fundamental rights might impede the State in meeting an emergency, and it was accordingly provided that Article 19 shall not operate for a limited time, and so also Article 32 and Article 226 if the President so declares by order. If it was the design that fundamental rights might be abrogated surely they would have expressly provided it somewhere.
178. I may here notice an argument that the enactment of Articles 358 and 359 showed that the fundamental rights were not treated as inalienable rights. I am unable to infer this deduction from these articles. In an emergency every citizen is liable to be subjected to extraordinary restrictions.
179. I may here notice some relevant facts which constitute the background of the process of drafting the Constitution. The British Parliament knowing the complexities of the structure of the Indian people expressly provided in Section 6(6) of the Indian Independence Act, 1947, that "the powers referred to in Sub-section (1) of this section extends to the making of laws limiting for the future the powers of the legislature of the Dominion." Sub-section (1) of Section 6 reads:
The legislature of each of the new Dominions shall have full power to make laws for that Dominion, including laws having extraterritorial operation.
That Section 6(1) included making provision as to the Constitution of the Dominion is made clear by Section 8(1) which provided : "In the case of each of the new Dominions, the powers of legislature of the Dominion shall for the purpose of making provision as to the Constitution of the Dominion be exercisable in the first instance by the Constituent Assembly of that Dominion, and references in this Act to the legislature of the Dominion shall be construed accordingly.
180. These provisions of the Indian Independence Act amply demonstrate that when the Constituent Assembly started functioning, it knew, if it acted under the Indian Independence Act, that it could limit the powers of the future Dominion Parliaments.
181. No similar provisions exists in any of the Independence Acts in respect of other countries, enacted by the British Parliament, e.g., Ceylon Independence Act, 1947, Ghana Independence Act, 1957, Federation of Malaya Independence Act, 1957, Nigeria Independence Act, 1960, Sierra Leone Independence Act, 1961, Tanganyika Independence Act, 1961, Southern Rhodesia Act, 1965, Jamaica Independence Act, 1962.
182. I may mention that the aforesaid provisions in the Indian Independence Act were enacted in line with the Cabinet Statement dated May 16, 1947 and the position of the Congress Party. Para 20(See : Shiva Rao-The Framing of India's Constitution, Vol. I, p. 216) of the Statement by the Cabinet Mission provided:
The Advisory Committee on the rights of citizens, minorities, and tribal and excluded areas should contain full representation of the interests affected, and their function will be to report to the Union Constituent Assembly upon the list of Fundamental Rights, the clauses for the protection of minorities, and a scheme for the administration of the tribal and excluded areas, and to advise whether these rights should be incorporated in the Provincial, Group, or Union Constitution.
183. In clarifying this statement Sir Stafford Cripps at a Press Conference dated May 16, 1946 stated:
But in order to give these minorities and particularly the smaller minorities like the Indian Christians and the Anglo-Indians and also the tribal representatives a better opportunity of influencing minority provisions, we have made provision for the setting up by the Constitution-making body of an influential advisory Commission which will take the initiative in the preparation of the list of fundamental rights, the minority protection clauses and the proposals for the administration of tribal and excluded areas. This Commission will make its recommendations to the
Constitutionmaking body and will also suggest at which stage or stages in the Constitution these provisions should be inserted, that is whether in the Union, Group or Provincial Constitutions or in any two or more of them. (P. 224, Supra).
184. In the letter dated May 20, 1946, from Maulana Abul Kalam Azad to the Secretary of State, it is stated:
The principal point, however, is, as stated above, that we look upon this Constituent Assembly as a sovereign body which can decide as it chooses in regard to any matter before it and can give effect to its decisions. The only limitation, we recognise is that in regard to certain major communal issues the decision should be by a majority of each of the two major communities. (P. 251, Supra).
185. In his reply dated May 22, 1946, the Secretary of State observed: When the Constituent Assembly has completed its labours, His Majesty's Government will recommend to Parliament such action as may be
necessary for the cession of sovereignty to the Indian people, subject only to two provisos which are mentioned in the statement and which are not, we believe, controversial, namely, adequate provision for the protection of minorities and willingness to conclude a treaty to cover matters arising out of the transfer of power.
186. In the Explanatory statement dated May 22, 1946, it was again reiterated as follows: When the Constituent Assembly has completed its labours, His Majesty's Government will recommend to Parliament such action as may be
necessary for the cession of sovereignty to the Indian people, subject only to two matters which are mentioned in the statement and which, we believe are not controversial, namely, adequate provision for the protection of the minorities (paragraph 20 of the statement) and willingness to conclude a treaty with His Majesty's Government to cover matters arising out of the transfer of power (paragraph 22 of the statement) (P. 258, Supra).
187. In pursuance of the above, a resolution for the setting up of an Advisory Committee on fundamental rights was moved by Govind Ballabh Pant in the Constituent Assembly on January 24, 1947. He laid special importance on the issue of minorities. The Advisory Committee met on February 27, 1947 to constitute various sub-committees including the Minorities Sub-Committee. The Sub-Committee on Minorities met later the same day. A questionnaire was drafted to enquire about political, economic, religious, educational and cultural safeguards. In other words all these safeguards were considered.
188. Divergent views were expressed, and the Minorities Sub-Committee met on April 17, 18 and 19, 1947 to consider this important matter. At these meetings the sub- committee considered the interim proposals of the fundamental rights Sub-Committee in so far as these had a bearing on minority rights. These discussions covered such important matters as the prohibition of discrimination on grounds of race, religion, caste, etc.; the abolition of untouchability and the mandatory requirements that the enforcement of any disability arising out of untouchability should be made an offence punishable according to law; freedom to profess, practise and propagate one's religion; the right to establish and maintain institutions for religious and charitable purposes; the right to be governed by one's personal, law; the right to use one's mother-tongue and establish denominational communal or language schools etc.
189. Having dealt with the question of fundamental rights for minorities, the Minorities Sub-Committee met again on July 21, 1947, to consider the political safeguards for minorities and their presentation in the public services.
190. In forwarding the report of the Advisory Committee on the subject of Minority Rights, Sardar Vallabhbhai Patel, in his report dated August 8, 1947, said: ...It should be treated as supplementary to the one forwarded to you with my letter No. CA/24/Com./47, dated the 23rd April 1947 and dealt with by the Assembly during the April session. That report dealt with justiciable fundamental rights; these rights, whether applicable to all citizens generally or to members of minority communities in particular offer a most valuable safeguard for minorities over a comprehensive field of social life. The present report deals with what may broadly be described as political safeguards of minorities and covers the following points: (i) Representation in Legislature; joint versus separate
electorates; and weightage.
(ii) Reservation of seats for minorities in Cabinets.
(iii) Reservation for minorities in the public services.
(iv) Administrative machinery to ensure protection of
191. Sardar Patel, while moving the report for consideration on August 27, 1947, said: You will remember that we passed the Fundamental Rights Committee's Report which was sent by the Advisory Committee; the major part of those rights has been disposed of and accepted by this House. They cover a very wide range of the rights of minorities which give them ample protection; and yet there are certain political safeguards which have got to be specifically considered. An attempt has been made in this report to enumerate those safeguards which are matters of common knowledge, such as representation in legislatures, that is, joint versus separate electorate.
192. The above proceedings show that the minorities were particularly concerned with the fundamental rights which were the subject-matter of discussion by the Fundamental Rights Committee.
193. The above brief summary of the work of the Advisory Committee and the Minorities Sub-Committee shows that no one ever contemplated that fundamental rights appertaining to the minorities would be liable to be abrogated by an amendment of the Constitution. The same is true about the proceedings in the Constituent Assembly. There is no hint anywhere that abrogation of minorities rights was ever in the contemplation of the important members of the Constituent Assembly. It seems to me that in the context of the British Plan, the setting up of Minorities Sub-Committee, the Advisory Committee and the proceedings of these Committees, as well as the proceedings in the Constituent Assembly mentioned above, it is impossible to read the expression "Amendment of the Constitution" as empowering Parliament to abrogate the rights of minorities.