Topic: Sajjan Singh vs State of Rajasthan

Sajjan Singh vs State of Rajasthan
Equivalent citations: 1965 AIR 845, 1965 SCR (1) 933 - Bench: Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Dayal, Raghubar, Mudholkar, J.R. - Citation: 1965 Air 845 1965 Scr (1) 933 - Citator Info : R 1965 SC1636 (25), O 1967 SC1643 (12,14,23,43,44,59,61,65,75,87 RF 1972 SC 425 (7,14), RF 1973 SC1461 (9TO16,38,88,107,633,658,929,9 R 1975 SC1193 (17), RF 1975 SC2299 (649), R 1980 SC 674 (8), RF 1980 SC 845 (55,61), RF 1980 SC1789 (96), R 1981 SC 271 (33,42), RF 1983 SC1125 (7), RF 1987 SC1140 (3), RF 1989 SC1933 (24), RF 1990 SC1106 (9) - Date of Judgment: 30/10/1964

The validity of the Seventeenth Amendment was challenged in this case. The main contention before the five-judge bench of the Supreme Court was that the Seventeenth Amendment limited the jurisdiction of the High Courts and, therefore, required ratification by one-half of the States under the provisions of article 368. The court unanimously disposed of this contention, but members of the court chose to deal with a second submission, that the decision in the Shankari Prasad case should be reconsidered. The Chief Justice (Gajendragadkar C.J.) in delivering the view of the majority (Gajendragadkar C.J., Wanchoo and Raghubar Dayal JJ.) expressed their full concurrence with the decision in the earlier case. The words "amendment of this constitution" in article 368 plainly and unambiguously meant amendment of all the provisions of the Constitution; it would, therefore, be unreasonable to hold that the word "law" in article 13(2) took in Constitution Amendment Acts passed under article 368.

ACT: Constitution (Seventeenth Amendment) Act, 1964-Validity of.

HEADNOTE:
In 1951, several State legislative measures     passed     for giving effect to a policy of agrarian reform faced a serious challenge in the Courts. In order to assist the State Legislatures to give effect to the policy, Arts. 31A and 31B were added to the Constitution by     the    Constitution (First.Amendment) Act, 1951. Article 31B provided that none of the     Acts specified in the Ninth Schedule to     the Constitution shall be deemed to be void or ever to    have become    void. In 1.955, by the Constitution- (Fourth Amend ment) Act, Art. 31A was amended. Notwithstanding those amendments some legislative measures adopted by different States    for giving effect to the policy were     effectively challenged. In order to save the validity of those Acts as well as of other Acts which were likely to be struck down, Parliament enacted the Constitution (Seventeenth Amendment), Act 1964, by which Art. 31A was again amended and 44 Acts, were added to the Ninth Schedule. The petitioners in     the Writ Petitions     in Supreme Court, and interveners,    were persons     affected by one or other of those    Acts.    They contended that none of the Act by which they were affected could    be saved because the     Constitution    (Seventeenth Amendment) Act was constitutionally invalid. It was urged that : (i) Since the powers prescribed by Art. 226, which is in Chapter V, Part VI of the Constitution, were likely to be affected by Seventeenth Amendment, the special procedure laid down in the proviso to Art. 368, namely' requiring     the ratification by not less half the number of States, should be followed; (ii) The decision in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar, [1952] S.C.R.     89, which negatived such a contention when dealing with     the First Amendment, should be     reconsidered;     (iii)     The Seventeenth Amendment    Act was a legislative measure in respect of land and since Parliament had no right to make a law in respect of land, the Act was invalid and (iv) Since the Act purported to     set aside decisions of Court of competent jurisdiction, it was unconstitutional. HELD (by P. B. Gajendragadkar C. J., Wanchoo, and Raghubar Dayal JJ.) : (i) The main part of Art. 368 and its proviso must on a reasonable construction be harmonised with    each other in the sense that the scope and effect of either of them should not be allowed to be unduly reduced or enlarged. Such a     construction requires that if amendment of     the fundamental rights is to make a substantial inroad on     the High Court's powers under Art. 226, it would become necessary to consider whether the proviso to Art. 368 would cover such a case. If the effect is indirect, incidental or otherwise of an insignificant order the proviso may     not apply.     In dealing With such a question, the    test to be adopted     is to find the pith and substance of the impugned Act.    So tested it    is clear that     the    Constitution (Seventeenth Amendment) Act amends the fundamental rights solely    with the object of removing     obstacles in     the fulfilment of a socioeconomic policy. Its effect 934

on Art. 226 is incidental and insignificant. The     Act therefore falls under the substantive part of Art. 368     and does not attract the proviso. [940 D-E; 941 B-E; 944 D-F] (ii) On the contentions urged there was no justification for reconsidering Shankari Prasad case. [947 G-H] Though    the Constitution is an organic document intended to serve as a guide to the solution of changing problems     the Court should be reluctant to accede to the suggestion    that its earlier decisions should be lightheartedly reviewed     and departed from.     In such a case the     test is : Is it absolutely and essential that the question already decided should be reopened. The answer to the question would depend on the     nature     of the infirmity alleged in    the earlier decision, its    import on public good and the validity     and compelling character of the considerations urged in support of the contrary view. It is therefore relevant and material to note that if the argument urged by the petitioners    were to prevail, it would lead to the inevitable consequence that the amendments     of 1951 and 1955 and    a large number of decisions dealing with the validity of the Acts in the Ninth Schedule would be exposed to serious jeopardy.     [948 E--H; 949 A-B]

(iii)     Parliament in enacting the impugned Act was     not making    any provision of land-Legislation but was merely validating land-Legislation already passed by the State Legislatures in that behalf. [945 C]

(iv) The power conferred by Art. 368 on Parliament can be exercised both     prospectively and retrospectively. It is open to Parliament to validate laws which have been declared invalid by courts. [945 E-F]

(v) The power conferred by Art. 368, includes the power to take away the fundamental rights guaranteed by Part III. In the context of the constitution it includes the power of modification, or changing the provisions, or even     an amendment which makes the said provisions inapplicable in certain cases.    The power to amend is a very wide power     and cannot    be controlled by the literal dictionary     meaning of the word "amend". The expression    "amendment of     the Constitution" plainly and unambiguously means amendment of all the provisions of the Constitution. The words used in the proviso unambiguously indicate that the substantive part of the     Article applies to all the provisions of     the Constitution. [946 F; 947 A-B; 951 B]

The word "law" in Art. 13(2) does not include a law passed by Parliament by virtue of its constituent power to amend the Constitution. if the Constitution-makers had intended that any future amendment of the provisions in regard to fundamental rights should be subject to Art.    13(2), they would have taken the precaution of making a clear provision in that behalf. It would not be reasonable to     proceed on the basis that the fundamental rights in Part III    were intended to be finally and immutably settled and determined once for all    and were beyond the reach of     any future amendment. The Constitution-makers must have     anticipated that in dealing With the socioeconomic problems which     the legislatures may have     to face from    time to time,     the concepts of public     interest and     other     important considerations    may change and expand, and    so, it     is legitimate to assume that the Constitution-makers knew    that Parliament should be competent to make amendments in those rights so as to meet the challenge of the problems which may arise.    The fundamental rights guaranteed by Part III could not have been intended to be eternal, inviolate and beyond the reach of Art. 368 for, even if the powers to amend     the fundamental'rights were not included in the Article, Parliament ran by a suitable amendment of the Article    take those powers. [951 F-H; 954 F-H; 955 E-G]

Article     226 which confers on High Court the power to issue writs falls under the proviso to Art. 368, while Art. 32 which is itself a guaranteed fundamental right and enables a citizen to move the Supreme Court to

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issue writs, fall under the main part of the section. Parliament may     consider whether the     anamoly which     is apparent in the different modes prescribed by Art. 368     for amending Arts.     226 and 32 respectively, should not be remedied by including Part III itself in the proviso.    [956 E-G]

Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar, [1952] S.C.R. 89, followed.

A. K. Gopalan v. State of Madras, [1950] S.C.R. 88 and In re: The Delhi Laws Act, [1951] S.C.R. 747, referred to. (vi) It     is not reasonable to suggest that, since     the impugned Act amends only Arts. 31A and 31B and adds several Acts to the Ninth Schedule it does not amend the provisions of Part III but makes an independent    provision, and     so, comes within the scope of the proviso to Art. 368. If Parliament thought that instead of adopting the cumbersome process     of amending each relevant Article in Part III, it would be more appropriate to add Arts. 31A and 31B,    then what Parliament did in 1951 has afforded a valid basis     for further amendments in 1955 and in 1964. [946 B-E] (vii) The fact that the Acts have been included in     the Ninth Schedule with a view to making them valid, does    not- mean that the Legislatures which passed the Acts have    lost their competence to repeal or amend    them.    Also, if a legislature amends any provision of    any such Act,     the amended provision would not receive the protection of Art. 3 1B and     its validity will be liable to be examined on     the merits. [956 A-C]

Per Hidayatullah and Mudholkar JJ. Quaere (i) Whether     the word "law" in Art. 13(2) of the Constitution excludes an Act of Parliament amending the Constitution. [959 E-F; 968 G] (ii) Whether it is competent to Parliament to make     any amendment at all to Part III of the Constitution. [961    F-G; 968 G]

Per Mudholkar J. An amendment made by resort to the first part of Art. 368 could be struck down upon a ground such as taking    away the jurisdiction of High Courts under Art.     226 or of the Supreme Court under Art. 136 or that the effect of the amendment     is to curtail substantially, though indirectly, the jurisdiction of the High Courts under    Art. 226 or the Supreme Court under Art. 136, and recourse     had not been had    to the proviso to Art.    368. The question whether     the amendment was a colorable exercise of power by Parliament may be relevant for consideration in the latter kind of case. [969 D-F]

The attack on the Seventeenth Amendment Act was based on grounds     most of which were the same as those urged     and rejected in the earlier case of Sankari Prasad Singh Deo v. Union of India and State of Bihar, [1952] S.C.R. 89, and on some grounds which are unsubstantial. No case has therefore been made out by the petitioners either for the reconsi- deration of that decision or for striking down     the Seventeenth Amendment. [963 FG]

The following matters however were not considered in Sankari Prasad's case and merit consideration :-

(i) Where Legislation     deals    with the amendment of a provision of the Constitution, does it cease     to be     law within the meaning of Art. 13(2) merely because it has to be passed by a special majority ? [964 B-C]

(ii) Where a challenge is made before the Court on     the ground    that no amendment to the Constitution had in    fact been made or    on the     ground that it was not a valid amendment, would it not be the duty of the Court and within its power to examine the question and to pronounce upon it since this is precisely what a Court is competent to do in regard to any other law? [964 F]

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(iii)     Is the statement in A. K. Gopalan v. State of Madras, [1950] S.C.R. 88 that the fundamental rights are the minimum     rights     reserved by the people to themselves,     and therefore unalterable, inconsistent with the statement in In re Delhi Laws Act, 1912 [1951] S.C.R. 747, that Parliament has plenary powers of legislation ? [965 D-E] (iv) Whether making a change in the basic features of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution,     and if it is the latter, would it be within the purview of    Art. 368 ? [966 H, 967 A]

(v) Upon the assumption that Parliament can amend Part     III of the     Constitution and was therefore competent to enact Arts. 31A and     31B, as also to amend     the definition of "estate", can Parliament validate a State law dealing    with land ? [968 H, 969 A]

(vi) Could Parliament    go to the extent it went when it enacted     the First Amendment and the Ninth Schedule and     now when it added     44 more agrarian laws     to it     ? Or,     was Parliament incompetent to go, beyond enacting Art. 31A in 1950, and now, beyond amending the definition of "Estate" ? [969 B-C]

JUDGMENT:

ORIGINAL JURISDICTION: Writ Petitions Nos. 31, 50, 52,     54, 81 and 82 of 1964.

Petitions under Art. 32 of the Constitution of India for the enforcement of Fundamental Rights.

R. Gopalakrishnan, for the petitioners (in W.P. Nos. 31 and

52 of     1964).

G. C.     Kasliwal, Advocate-General, State of Rajasthan, K. K.

Jain (for W.. P. No. 31 of 1964 only) and R. N. Sachthey, for the respondent (in W. P. Nos. 31 and 52 of 1964). C. K. Daphtary, Attorney-General and R. H. Dhebar, for the Union of India.

M. C.     Setalvad, J.    B. Dadachanji,     O. C.     Mathur     and Ravinder Narain, for intervener No. 1.

G. S. Pathak, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for intervener No. 2.

Dipak Dutta Chaudhuri and A. K. Nag, for the     petitioners (in W.     P. No. 50 of 1964).

B. K. Khanna and R. N. Sachthey, for the respondent (in W. P. No. 50 1964).

S. K.     Mehta, K. L. Mehta, for the petitioners (in W. P. No. 54 of 1964).

B. K. Khanna and R. N. Sachthey, for respondents Nos.1 to 3 (in     W. P. No. 54 of 1964).

R. V. S. Mani, for the petitioners (in W. P. Nos. 81 and 82 of 1964).

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C. K. Daphtary, Attorney-General, B. Sen and R. H. Dhebar, for respondent No. 1 (W. P. No. 81 of 1964). C. K. Daphtary, Attorney-General, R. K. P. Shankardass and R. H.     Dhebar, for respondent No. 1 (in W. P. No. 82 of 1964).

N. Krishnaswamy Reddy, Advocate-General, State of Madras, A. Ranganadham Chetty and A. V. Rangam, for respondent No. 2 (in W. P. Nos. 81 and 82 1964).

K. S. Chawla and R. V. S. Mani, for intervener No. 3. The Judgment of P. B. GAJENDRAGADKAR C.J., K. , N. WANCHOO and RAGHUBAR DAYAL JJ. was delivered by GAJENDRAGADKAR    C.J. M. HIDAYATULLAH and J. R. MUDHOLKAR JJ. delivered separate judgments.

Gajendragadkar C.J. These six writ petitions which have been filed under Art. 32 of the Constitution, seek to challenge the validity of the Constitution (17th Amendment) Act, 1964. The petitioners are affected by one or the other of the Acts added to the 9th Schedule by the impugned Act, and their contention is that the impugned Act being constitutionally invalid, the validity of the Acts by which they are affected cannot    be saved. Some other parties     who are similarly affected by other Acts added to the 9th Schedule by     the impugned Act, have intervened at the hearing of these writ petit ions, and they     have joined the petitioners     in contending that the impugned Act is invalid. The points raised    in the present proceedings have been     elaborately argued    before    us by Mr. Setalvad and Mr. Pathak for     the interveners and Mr. Mani for the petitioners. We have    also heard the Attorney General in reply.

The impugned Act consists of three sections.     The first section gives its short title.    Section 2(i) adds a proviso to cl.     (1) of Art. 31A after the existing proviso.    This proviso reads thus

"Provided further that where any law makes any provision for the acquisition by the State of any estate and    where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for     the State to acquire any portion of such land as is within the ceiling limit applicable to     him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides    for payment     of

compensation at a rate which shall not be less than the market value thereof".

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Section 2 (ii) substitutes the following    sub- clause for sub-cl. (a) of cl. (2) of    Art. 31A:-

"(a) the expression "estate"     shall,     in relation    to any local area, have the    same meaning as that expression or     its local equivalent has in the existing law relating to land tenures in force in that area and shall also include-

(i) any     jagir,     inam or muafi or other similar grant and in the States of Madras     and Kerala, any janmam, right;

(ii) any land held under ryotwari settlement; (iii) any     land held or let for    purposes of agriculture or for purposes ancillary thereto, including     waste land, forest land, land     for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans". Section     3 amends the 9th Schedule by adding 44     entries to it. That is the, nature of the provisions contained in     the impugned Amendment Act.

In dealing with the question about the validity of     the impugned Act,    it is necessary to consider the scope     and effect    of the     provisions contained in Art.    368 of     the Constitution, because a large part of the controversy in the present     writ petitions turns upon the decision of     the question as to what the true scope and effect of Art.     368 is. Let us read Art. 368 :

"368. An amendment of this Constitution     may be initiated only by the introduction of a Bill for     the purpose in either House of Parliament, and    when the Bill is passed in each House by    a majority of the total membership of that House and by a majority of not less     than two-thirds of the     members of that House present and voting, it shall be presented to the 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 :

Provided that if such amendment seeks to    make any change in-

(a) Article 54, Article 55,    Article     73, Article 162 or Article 241, or

(b) Chapter IV of Part V, Chapter V of    Part VI, or Chapter 1 of Part XI, or

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(c) any     of the Lists in the Seventh Schedule, or

(d) the     representation of    States     in Parliament, or

(e) the provisions of this Article,

the amendment shall also require to     be ratified by the Legislatures of not less    than one-half of the States by resolutions to    that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent".

It would, thus, appear that the broad scheme of Art. 368 is that if Parliament proposes to amend any provision of     the Constitution not enshrined in the proviso, the procedure prescribed by    the main part of the    Article     has to be followed. The Bill introduced for the purpose of making the amendment in question, has to be passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of    that House present and voting. This requirement postulates    that a bill     seeking to amend the relevant     provisions of     the Constitution should receive substantial support from members of both the Houses. That is why a two-fold requirement     has been prescribed in that behalf.     After the bill is passed as aforesaid, it has to be presented to the President for     his assent and when he gives his assent, the Constitution shall stand amended    in accordance with the terms of the bill. That is the position in regard to the amendment of     the provisions of the Constitution to which the proviso does not apply.

If Parliament intends to amend any of the provisions of     the Constitution which are covered by clauses (a) to (e) of     the proviso, there     is a further requirement which     has to be satisfied before the bill car. be presented to the President for his assent. Such a bill is required to be ratified by the Legislatures of not less than one-half of the States by Resolutions to that effect passed by them. In other words, in respect of     the Articles covered by the proviso,     the further     safeguard prescribed by the proviso is that     the intended amendment should receive the approval of     the Legislatures of not less than one-half of the States.    That means that at least half of the States constituting     the Union of India should by a majority vote, approve of     the proposed amendment.

It is obvious that the fundamental rights enshrined in    Part III are not included in the proviso, and so, if Parliament intends to amend any of the provisions contained in Articles 12 to 35 which are included in Part III, it is not necessary to take recourse to    the proviso and to satisfy     the additional requirements prescribed by it.

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Thus far, there is no difficulty. But in considering     the scope of Art. 368, it is necessary to remember that    Art. 226, which is     included in Chapter V of Part     VI of     the Constitution, is one of the constitutional provisions which fall under cl. (b) of the proviso; and so, it is clear    that if Parliament intends to amend the provisions of Art.    226, the bill proposing to make such an amendment must satisfy, the requirements of the proviso. The question which calls for our decision is : what would be the requirement about making an amendment in a constitutional provision contained in Part III,    if as a result of the said amendment,     the powers    conferred on the High Courts under Art. 226     are likely    to be affected ? The petitioners contend that since it appears that the powers prescribed by Art. 226 are likely to be affected by the intended amendment of the provisions contained in Part III the bill introduced for the purpose of making    such an amendment, must attract the proviso, and as the impugned Act has     admittedly not gone    through     the procedure prescribed by the proviso, it is invalid; and that raises the question about the construction of the provisions contained in    Art. 368 and    the relation between     the substantive part of Art. 368 with its proviso. In our     opinion, the    two parts of Art. 368     must on a reasonable construction be harmonised with each other in the sense that the scope and effect of either of them should not be allowed to be unduly reduced or enlarged. It is urged that any amendment of the fundamental rights contained in Part III would inevitably affect the powers of the    High Court,    prescribed by    Art. 226, and    as such, the    bill proposing the said amendment cannot fall under the proviso; otherwise the very object of not including Part III under the proviso would be defeated.    When the Constitution-makers did not include Part III under the proviso, it would be reasonable to    assume    that they took    the view that     the amendment of the provisions contained in Part     III was a matter    which should be dealt with by Parliament under     the substantive provisions     of Art. 368    and not under     the proviso. It    has no     doubt    been suggested     that the Constitution-makers perhaps did not anticipate     that there would be many occasions to amend the     fundamental rights guaranteed by Part M. However that may be, as a matter of construction, there is no escape from the conclusion    that Art. 368 provides for the amendment     of the provisions contained in Part III without imposing on Parliament an obligation to adopt the procedure prescribed by the proviso. It is    true that as a result     of the amendment of     the fundamental rights, the area over    which    the powers prescribed by    Art. 226 would operate may be reduced,     but apparently, the ,Constitution-makers took the view that     the diminution in the area

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over which the High Courts' powers under Art. 226 operate, would not necessarily take the case under the proviso. On the other hand, if the substantive part of Art. 368 is very liberally and generously construed and it is held    that even substantial modification of the     fundamental rights which may make a very serious and substantial inroad on     the powers of the High Courts under Art. 226 can be made without invoking the proviso, it may deprive cl. (b) of the proviso of its substance. In other words, in construing both     the parts of Art.     368, the rule    of harmonious    construction requires that    if the direct effect of the amendment of fundamental rights is to make a substantial inroad on     the High Courts' powers under Art. 226, it would become neces- sary to consider whether the proviso would cover such a case or not. If the effect of the amendment made in     the fundamental rights on     the powers of the High Courts prescribed by    Art. 226, is indirect,     incidental, or is otherwise of an insignificant order, it may be that     the proviso     will not apply. The proviso would apply where     the amendment in question seeks to make any change, inter alia, in Art. 226. and the question in such a case would be : does the amendment    seek to make a change in the provisions of Art. 226 ? The answer to this question would    depend    upon the effect of the amendment made in the fundamental rights. In dealing with constitutional questions of this character, courts generally adopt a test which is described as the pith and substance    test. In Attorney-General for     Ontario v. Reciprocal Insurers and others(1), the Privy    Council     was called    upon to consider the validity     of the Reciprocal Insurance Act,     1922 (12 & 13 Geo. 5, Ont., c. 62) and s. 508c which had been added to the Criminal Code of Canada by ss. 7 & 8 Geo. 5, c. 29 Dom. Mr. Justice Duff, who spoke for the Privy Council, observed that in an enquiry like     the one with which the Privy Council was concerned in that case, "it has been formally laid down in judgments of this Board, that in such an inquiry the Courts must ascertain the 'true nature and character' of the enactment : Citizens' Insurance Co. v. Parsons(1); its 'pith and substance' : Union Colliery Co. v. Bryden(3); and it    is the     result of    this investigation,    not the form alone, which the    statute     may have assumed under the hand of the draughtsman, that    will determine within which of the categories of subject matters mentioned in ss. 91 and 92 the legislation falls; and     for this purpose the legislation must be 'scrutinised in     its entirety' "Great West Saddlery Co. v. The King" (4). It is not

(1) [1924] A.C. 328.

(2) [1881] 7 App. Cas 96.

(3) [1899] A.C. 580.

(4) [1921] 2 A.C. 91, 117.

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necessary to    multiply authorities in support of     the proposition that in considering     the constitutional validity of the impugned Act, it would be relevant to inquire    what the pith and substance of the impugned Act is.     This legal position can be taken to be established by the decisions of this Court which have consistently     adopted the    view expressed by Justice Duff, to which we have just referred. What then is the pith and substance of the impugned Act ? For answering this question, it would be necessary to recall very briefly the history of Articles 31A and 31B. Articles 31A and 3 1    B were     added    to the     Constitution    with retrospective effect by S. 4 of the    Constitution (First Amendment) Act, 1951.    It is a matter of general knowledge that it became necessary to add these two provisions in     the Constitution, because    it was     realised that     legislative measures adopted by certain States for giving effect to     the policy of agrarian reform which was accepted by the party in power, had to face a serious challenge in the courts of     law on the ground that they contravened the fundamental rights guaranteed to the citizens by Part III.     These measures     had been passed in Bihar, Uttar Pradesh and Madhya Pradesh,     and their validity was impeached in the High Courts in the    said three States.     The High Court of Patna held that     the relevant Bihar legislation was unconstitutional, whilst     the High Courts at Allahabad and Nagpur upheld the validity of the corresponding legislative     measures passed in Uttar Pradesh     and Madhya Pradesh respectively. [See Kameshwar v. State of Bihar(1) and Surya Pal v. U. P. Government(1).     The parties     aggrieved by these respective decisions had filed appeals     by special leave before the Supreme Court. At     the same time, petitions had also been preferred     before     the Supreme     Court    under Art. 32 by certain other zamindars, seeking     the determination of the same issues.     It was at this stage that Parliament thought it necessary to avoid the delay which would necessarily have been involved in     the final decision of the disputes pending before    the Supreme Court,    and introduced     the relevant amendments in     the Constitution by adding Articles 31A and 31B. 'Mat was     the first step taken by Parliament to assist the     process of legislation to bring about agrarian reform by     introducing Articles 31A and 31B.

The second step in the same direction was taken by Parlia- ment in 1955    by amending Art. 31A by the    Constitution (Fourth Amendment) Act, 1955. The object of this amendment was to widen the scope of agrarian reform and to confer on the legislative measures adopted in that behalf immunity from a possible attack

(1) A.I.R. 1951 Pat. 91.

(2) A.I.R. 1951 AU. 674.

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that they contravened the fundamental rights of citizens. In other words, this amendment protected the     legislative measures in respect of certain other items of agrarian     and social    welfare legislation, which affected the     proprietary rights    of certain citizens.     That is how    the second amendment was    made by Parliament. At the time when     the first amendment was made, Art. 31B expressly provided    that none of the Acts and Regulations specified    in the     9th Schedule, nor any of the provisions thereof, shall be deemed to be void or ever to have become void on the    ground    that they were inconsistent with or took away or abridged any of the rights conferred    by Part III,    and it added    that notwithstanding     any judgment, decree or order of any Court or tribunal to the contrary, each of the said Acts     and Regulations shall subject to the power of any competent legislature to repeal or amend, continue in force. At    this time, 19 Acts were listed in Schedule 9, and they were thus effectively validated.    One more Act was added to this    list by the     Amendment Act of 1955, so that as a result of     the second amendment, the Schedule contained 20 Acts which    were validated.

It appears that notwithstanding these amendments, certain other legislative measures adopted by different States     for the purpose of giving effect to the agrarian policy of     the party in power, were effectively challenged. For instance, in Karimbil Kunhikoman v. State of Kerala(1), the validity of the     Kerala     Agrarian Relations Act (IV, of 1961)     was challenged by writ petitions filed under Art. 32, and as a result of the majority decision of this Court, the whole Act was struck down. This decision was pronounced on December 5, 1961.

In A. P. Krishnaswami Naidu, etc. v. The State of Madras (2 the constitutionality of the Madras Land Reforms (Fixation of Ceiling on Land) Act (No. 58 of 1961) was put in issue, and by     the decision of this Court pronounced on March 9, 1964, it was declared that the whole Act was invalid. It appears     that the Rajasthan Tenancy Act HI of 1955 and     the Maharashtra Agricultural Lands (Ceiling and Holdings) Act 27 of 1961 have    been similarly     declared invalid, and in consequence, Parliament thought it necessary     to make a further amendment in Art. 31B so as to save the validity of these Acts which had been struck down and of other similar Acts which were likely to be struck down, if     challenged. With that object in view, the impugned Act hasenpfeffer     s.3 by which 44 Acts have been added to Schedule     9. If     the impugned Act is held to be valid and the amendment made (1) [1962] Supp. 1 S.C.R. 829.

(2) [1964]7 S.C.R. 82

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in the Schedule is found to be effective, these 44    Acts would have to be treated as valid.

Thus,    it would be seen that the genesis of the amendments made by Parliament in 1951 by adding Articles 31A and 31B to the Constitution, clearly is to    assist     the State Legislatures in this country to give effect to the economic policy in which the party in power passionately believes to bring about much needed agrarian reform. It is with     the same object that the second amendment was made by Parliament in 1955, and    as we    have just indicated,    the object underlying the amendment made by the impugned Act is    also the same. Parliament desires that agrarian reform in a broad and comprehensive sense must be     introduced in     the interests of a very large section of Indian citizens who live in villages and whose     financial prospects     are integrally connected    with the pursuit of progressive agrarian policy. Thus, if the pith and substance test is applied to the amendment made by the impugned Act, it would be clear that Parliament is seeking to amend     fundamental rights solely    with the object of removing any possible obstacle in the fulfilment of the socioeconomic policy in which the party in power believes. If that    be so,     the effect    of the amendment on the area over which the    High Courts' powers prescribed by Art. 226 operate, is incidental and in     the present case can be described     as of     an insignificant order. The impugned Act does not purport to change the provisions of Art. 226 and it cannot be said even to have that effect directly or in any appreciable measure. That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained. It is an     Act the object of which is to amend the relevant    Articles in Part III which confer fundamental rights on citizens and as such it falls under the substantive part of Art. 368     and does not attract the provisions of cl. (b) of the proviso. If the     effect     of the amendment made    in the     fundamental rights on Art. 226 is direct and not incidental and is of a very significant order, different considerations may perhaps arise.     But in the present case, there is no    occasion to entertain or weigh the said considerations. Therefore     the main contention raised by    the petitioners and     the interveners against the validity of the impugned Act must be rejected.

Then,    it is urged that the true purpose and object of     the impugned Act is to legislate,in respect of land,     and legislation in respect of land falls within the jurisdiction of the State Legislatures under Entry 18 of List II.     The argument is that since the State Legislatures alone can make laws in respect of land, Parliament had no right to pass the impugned Act. This argument is

945

based    on the assumption that the impugned Act purports to be, and in fact is, a piece of land legislation. The    same argument is placed before us in another form.    It is urged that the scheme of Articles 245 and 246 of the    Constitution clearly shows that Parliament has no right to make a law in respect of land, and since the impugned Act is a legislative measure in relation to land, it is invalid. This argument, in our     opinion, is misconceived. In     dealing with    this argument, again, the pith and substance test is relevant. What the impugned Act purports to do is not to make any land legislation but to protect and validate the     legislative measures in respect of agrarian reforms passed by     the different State Legislatures in the country by granting them immunity from attack based on the plea that they contravene fundamental rights. Parliament, in enacting the impugned Act, was not making any provisions of land legislation.     It was merely validating land legislations already passed by the State Legislatures in that behalf.

It is also urged that inasmuch as the impugned Act purports in substance to set    aside the decisions of courts of competent jurisdiction by which some of the Acts added to the Ninth Schedule have been declared to be invalid, it is unconstitutional. We see no substance in this argument. It is hardly necessary to emphasize that legislative power to make laws in respect of areas entrusted to the legislative jurisdiction of different legislative bodies, can     be exercised both     prospectively    and retrospectively.     The constituent power conferred by Art. 368 on the Parliament can also be exercised    both    prospectively     and retrospectively. On several occasions, legislatures think it necessary to validate laws which have been declared to be invalid by Courts of competent jurisdiction and in so doing, they have necessarily to provide for the intended validation to take effect notwithstanding any judgment, decree or order passed by a court of competent jurisdiction to the contrary. Therefore, it would be idle to contend fiat by     making     the amendment retrospective, the     impugned Act    has become constitutionally invalid.

It has also been contended before us that in deciding     the question as to whether the impugned Act falls under     the proviso, we should take into account the operative words in the proviso. The proviso takes in cases where the amendment sought    to be made by the relevant bill seeks to make     any change    in any of the Articles specified in clauses (a) to (e) of the proviso, and it is urged that on a fair reading of clauses (b) and (c), it would follow that the impugned Act purports to do nothing else but to seek to amend     the provisions contained in Art. 226. It is not 946

easy to appreciate the strength or validity of    this argument. This argument is really based on the assumption that the legislative mechanism adopted by the Parliament in passing     the impugned Act introduces this infirmity.     The argument obviously assumes that it would have been open to Parliament to    make appropriate changes in the different Articles of Part III, such as Articles 14 and 19, and if such a course had been adopted, the impugned Act would    have been constitutionally valid. But inasmuch as the impugned Act purports to amend only Arts. 31A and 31B and seeks to add several Acts to the Ninth Schedule, it does not amend any of     the provisions in Part III,     but is making an independent provision, and that, it is said, must take     the case within the scope of the proviso. It is clear that what the impugned Act purports to do is to amend Art. 3 1 A,     and Article 3 1 A itself is included in Part III. If Parliament thought     that instead of adopting the cumbersome process of amending each relevant Article in Part III, it would be more appropriate to     add Articles 3 1 A and 3 1 B, and on    that basis, it passed the material provisions of the Constitution (First Amendment) Act, it would not be reasonable to suggest that this method brings the amendment within the proviso. What the Parliament did in 1951, has afforded a valid basis for further amendments made in 1955 and now in 1964.     It would be clear that though the arguments which have    been urged before us in the present proceedings have been put in different forms, basically. they involve the consideration of the main question whether the' impugned Act falls within the scope of the proviso or not; and the answer to    this question, in our opinion, has to be against the petitioners by the application of the doctrine of pith and substance. Then,    it is    urged that the power to amend, which is conferred by Art. 368, does not include the power to    take away the fundamental rights guaranteed by Part III.     The contention is that the result of the material provisions of the impugned Act is to take away a    citizen's right to challenge the    validity of the Acts added to the Ninth Schedule, and that means that in respect of the said Acts, the relevant fundamental rights of the citizens are taken away.    We do    not think there is any     substance in    this argument. it is true that the dictionary meaning of the word -"amend" is to ,correct a fault or reform;    but in     the context, reliance on the dictionary meaning of the word is singularly inappropriate. because what Art. 368 authorises to be    done is the amendment of the     provisions of     the Constitution. It is well-known that the amendment of a     law may in a proper case include the deletion of any one or more of the provisions of the law and substitution in their 947

place    of new provisions. Similarly, an amendment of     the Constitution which is     the subject matter of the power conferred by Art. 368, may include modification or change of the provisions     or even an amendment which makes the    said provisions inapplicable in certain cases. The power to amend in the context is a very wide power and it cannot be controlled by    the literal dictionary meaning of the word "amend".

The question about the validity of the Constitution (First Amendment) Act     has been considered by this Court in     Sri Sankari     Prasad     Singh Deo v. Union of India and State of Bihar(1). In that case, the validity of the said Amendment Act was challenged on several grounds.     One of the grounds was that the newly inserted Articles 31A and 31B sought to make changes in Articles 132 and 136 in Chapter IV of Part V and Art. 226 in Chapter V of Part VI 'and so, they required ratification under cl. (b) of the proviso to Art. 368.    This contention was rejected by this Court.    Patanjali Sastri J., as he then was, who spoke for the unanimous Court, observed that the said Articles "did not either in terms or in effect seek to make any change in Art. 226 or in Articles 132     and 136", and he added that it was not correct to say that     the powers of the High Courts under Art. 226 to issue writs     for the enforcement of any of the rights conferred by Part HI or of this Court     under Articles 132 and 136 to entertain appeals from orders, issuing or refusing to issue such writs were in any way affected. In the opinion of the Court, the_ said powers remained just the same as they were before; only a certain class of cases had been excluded from the purview of Part Ill. The fact that the courts could not exercise their powers in respect of the said class of cases, did     not show that the powers of the courts were curtailed in any way or to    any extent. It only meant that certain area of in which the said powers could have been exercised, had    been withdrawn. Similarly, the argument that the amendments were invalid     because they related to legislation in     respect of land, was also rejected on the ground     that the impugned Articles 31A and 31B were essentially     amendments of     the Constitution which Parliament alone had the power to make. It would thus appear that in substance the points urged before us in the present proceedings are really concluded by the decision of this Court in Sankari Prasad's case(1).     It was, however,    urged before us during the course of     the hearing of these writ petitions that we should reconsider the matter and review our earlier decision     in Sankari Prasad's case.    It is true that the Con-

(1) [1952] S.C.R. 89.

Supp.1/65-

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stitution does not place any restriction on our powers to review our earlier decisions or even to depart from them and there can be    no doubt that in matters relating to     the decision of constitutional points which have a     significant impact    on the fundamental rights of citizens, we would be prepared to review our earlier decisions in the interest of public good. The doctrine of stare decisis may not strictly apply in this context and no one can dispute the position that the said doctrine should not be pemiitted to perpetuate erroneous decisions pronounced by this Court to the detri- ment of general welfare. Even so, the normal principle that judgments pronounced by this Court would be final, cannot be ignored     and unless considerations of     a substantial     and compelling character make it necessary to do so, we should be slow to doubt ,,the correctness of previous decisions or to depart from them.

It is     universally recognised that in regard    to a large number    of constitutional problems which are brought before this Court for its decision, complex and difficult questions arise and on many of such questions, two views are possible. Therefore, if one View has been taken by this    Court after mature deliberation, the fact that another Bench is inclined to take a different view may not justify the Court in reconsidering the earlier decision or in departing from     it. The problem of construing constitutional provisions cannot be reasonably     solved merely by adopting     a literal construction of the words used in the relevant     provisions. The Constitution is an organic document and it is intended to serve as a guide to the solution of changing problems which the Court may    have to     face from time to time. Naturally, in a progressive and dynamic society the shape and appearance of these problems are bound to    change    with the inevitable consequence that the relevant words used in the Constitution may     also chance their meaning     and significance.    That is what makes the task of dealing    with constitutional    problems dynamic rather than static.    Even so, the Court     should     be reluctant    to accede to     the suggestion that its     earlier ,decisions     should     be lightheartedly    reviewed and departed from.' In such a    case the test should be : is it absolutely necessary     and essential that the question already decided should be     re- opened    ? The answer to this question would depend on the nature of the infirmity alleged in the earlier decision, its impact    on public good, and the validity and compelling character of the considerations urged in support of     the -contrary view.     If the said decision has been followed in a large number of cases, that again is a factor ,which must be taken into account.

Re: Sajjan Singh vs State of Rajasthan

In the     present case,     if the arguments urged by     the petitioners

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were    to prevail, it would     lead to the     inevitable consequence that the amendments made in the Constitution both in 1951 and 1955 would be rendered invalid and a large number    of decisions dealing with the validity of the    Acts included in the Ninth Schedule which have been pronounced by different High Courts ever since the decision of this Court in Sankari Prasad's(1) case was declared, would also be exposed to serious jeopardy. These are consideration, which are both relevant and material in dealing with the    plea urged    by the     petitioners before us in the present proceedings that Sankari Prasad's case should be     re- considered. In view of the said plea, however, we    have deliberately chosen to deal     with the merits of     the contentions before referring to the decision itself. In our opinion, the plea made by the petitioners for reconsidering Sankari     Prasad's case is wholly unjustified and must be rejected.

In this connection,    we would like to refer     to another aspect    of the matter.     As we have already indicated,     the principal point which has been urged before us in these proceedings is, that the impugned Act is invalid for     the reason    that before presenting it to the President for     his assent, the procedure prescribed by the proviso to Art.     368 has not been followed, though the Act was one which    fell within the scope of the proviso. In other words, it was not disputed before us that Art. 368 empowers Parliament to amend any provision of the Constitution, including     the provisions in respect of the fundamental rights enshrined in Part M. The main contention was that in amending the relevant provisions of the Constitution, the procedure prescribed by the proviso should have been followed. But it appears that in Sankari Prasad's case, another argument     was urged before this Court in challenging the validity of     the Constitution (First Amendment) Act,    and since we     are expressing our concurrence with the said decisions, we think it is necessary to refer to the said argument and deal    with it, even though this aspect of the matter has not been urged before us in the present proceedings.

In Sankari Prasad's case, it was contended that though It may be open to Parliament to amend the provisions in respect of the     fundamental rights contained     in Part III,     the amendment, if made In that behalf, would have to be tested in the light of the provisions contained in Art. 13(2) of the Constitution. The argument was that the law to which Art. 13(2) applies, would include a law passed by Parliament by virtue of its constituent power to    amend'     the Constitution, and so, its validity will have to be tested by Art. 13(2) itself. It will be recalled that     Art. 13(2) prohibits

(1) [1952] S.C.R. 89.

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the State from making any law which, takes away or abridges the rights conferred by Part III, and provides that any     law made in contravention of clause (2) shall, to the extent of the contravention, be void. In other words, it was urged before    this Court in Sankari     Prasad's(1) case that in considering the question as to the validity of the relevant provisions of    the Constitution (First Amendment) Act, it would be open to the party challenging the validity of     the said Act to urge that in so far as     the Amendment     Act abridges or takes away the    fundamental rights of     the citizens, it is void. This argument was, however, rejected by this Court on the ground that the word "law" used in Art. 13 "must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power    with the result. that Art. 13 (2) does not affect amendments made under Art. 368".

It is significant that Patanjali Sastri J. as he then    was, who spoke for     the Court, described     as attractive     the argument about the applicability of Art.    13 (2)     to Constitution Amendment Acts passed under Art. 368, examined it closely, and ultimately rejected it. It was noticed in the judgment that certain constitutions make certain rights "eternal and inviolate", and     by way of illustration, reference was made to Art. 11 of the Japanese    Constitution and Art. 5 of the American.Federal Constitution. It     was also noticed that the word "law" in its literal sense,     may include     constitutional     law, but it was pointed out    that "there is a clear demarcation between ordinary law, which is made in exercise of legislative power,     and constitutional law which is made in exercise of constituent power".     The scheme    of the relevant provisions of the Constitution     was then examined,     and ultimately, the    Court reached     the conclusion that though both Articles 13 and 368 are widely phrased, the harmonious rule of construction requires    that the word "law" in Art. 13 should be taken to    exclude     law made in exercise of the constituent power.

In our opinion, this conclusion is right, and as we     are expressing our full concurrence with the decision in Sankari Prasad's(1) case, we think it is necessary to indicate     our reasons     for agreeing with the conclusion of the Court on this point, even though the coffectness of this conclusion has not been    questioned before us    in the     course     of arguments. If we had felt a real difficulty in accepting this part of    the conclusion, we would have seriously considered the question as to whether the matter should     not be referred to a larger Bench for a further examination of the problem.

(1) [1952] S.CR. 89.

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The first point which falls to be considered on this aspect of the matter is the construction of Art. 368 itself.    Part XX which contains only Art. 368 is described     as a    Part dealing with the Amendment of the Constitution; and Art. 368 which    prescribes the     procedure for     amendment of     the Constitution, begins by saying that an amendment of    this Constitution may be initiated in the manner there indicated. In our opinion, the expression "amendment of     the Constitution plainly and unambiguously means amendment of all the provisions of the Constitution.     It would, we think, be unreasonable to suggest that what Art. 368    provides is only the mechanics of the procedure    to be followed in amending the     Constitution    without     indicating which provisions of    the Constitution can be amended and which cannot.     Such a restrictive construction of the     substantive part of Art. 368 would be clearly untenable. Besides,     the words used in the proviso unambiguously indicate that     the substantive part of    the article applies to all     the provisions of the Constitution.     It is on that basic assump- tion that the proviso prescribes a specific procedure in respect     of the amendment of    the articles mentioned in clauses     (a) to (e)    thereof. Therefore, we feel     no hesitation in    holding     that when Art. 368    confers     on Parliament the right to amend the Constitution the power in question can be exercised over all the provisions of     the Constitution. How the power should be exercised, has to be determined by reference to the question as to    whether     the proposed amendment falls under the substantive part of    Art. 368, or attracts the provisions of the proviso. It is true that Art. 13(2) refers to any law    in general, and literally construed, the word "law" may take in a     law made in exercise of the constituent    power conferred on Parliament; but having regard to the fact that a specific, unqualified and unambiguous power to amend the    Constitution is conferred on Parliament, it would be unreasonable to hold that the word "law" in Art. 13 (2) takes in    Constitution Amendment Acts passed under Art. 368. If the Constitution- makers    had intended that any future amendment of     the provisions in regard to fundamental rights should be subject to Art. 13 (2), they would have taken     the precaution of making a clear provision in that behalf. Besides, it seems to us, very unlikely that while conferring the power on Parliament to amend the Constitution, it was the intention of the Constitutionmakers to exclude from that comprehensive power fundamental rights altogether. There is no doubt that if the     word "law" used in Art. 13(2) includes a law in relation to the amendment of the

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Constitution,    fundamental rights can never be abridged or taken away, because as soon as it is shown that the effect of the     amendment is to take away or    abridge     fundamental rights, that portion of the law would be void under Art. 13 (2). We have no doubt that such a position could not    have been intended by the Constitution-makers when they included Art. 368 in the Constitution. In construing the word "law" occurring in Art. 13(2), it may be relevant to bear in    mind that, in the words of Kania C.J. in A. K. Gopalan v.     The State of Madras(1), "the inclusion of article 13 (1) and (2) in the     Constitution appears to be a    matter    of abundant caution. Even in their absence, if any of the     fundamental rights was infringed by any legislative enactment, the Court has always the power to declare the enactment, to the extent it transgresses the limits, invalid".

The importance and significance of the fundamental rights must obviously     be recognised     and in that sense,     the guarantee to    the citizens contained in the relevant provisions of Part III, can justly be described as the    very foundation and the comer-stone of the democratic way of life ushered in this country by the Constitution. But can it be said that the fundamental rights guaranteed to the citizens are eternal and inviolate in the sense that they can never be abridged or amended? It is true that in the case of A. K. Gopalan(1) Patanjali Sastri, as he then was, expressed the view that "there can be no doubt that the people of India have, in exercise of their sovereign will as expressed in the Preamble, adopted the democratic ideal which assures to the     citizen the dignity of the individual and other cherished human values as a means to the full evolution     and expression of    his personality, and in     delegating to     the legislature, the executive     and the judiciary     the irrespective powers in the    Constitution. reserved     to themselves certain fundamental rights, so-called, I apprehend, because they have been retained by the people and made paramount to the delegated powers, as in the American model" (p. 198). This hypothesis may, prima facie, tend to show that the right to amend these fundamental rights vested not in Parliament, but in the people of India themselves. But it is significant that when the same learned Judge     had occasion to consider this question more elaborately in In re The Delhi Laws Act, 1912, (1) etc. he has    emphatically expressed the view that it is established beyond doubt    that the Indian Legislature, when     acting     within     the limits circumscribing    its legislative power, has and was intended to have

(1) [1950] S.C.R. 88, at p. 100.

(2) [1951] S.C.R. 747, at pp. 883-84.

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plenary of legislation as large and of the same nature as those of the British Parliament itself and no constitutional limitation on    the delegation of legislative    power to a subordinate unit is to be found in the Indian Councils    Act, 1861, or the    Government of    India Act, 1935, or     the Constitution of 1950. The suggestion that the legislatures, including the Parliament, are the delegate of the people of India in whom sovereignty vests, was rejected by the learned Judge when he     observed that    "the maxim 'delegates     ten protest     delegate' is not part of the Constitutional law of India and has no more force than a political precept to be acted upon by     legislatures in the    discharge of their function of making laws, and the courts cannot strike    down an Act     of Parliament as unconstitutional merely because Parliament decides in a particular instance to entrust     its legislative power to another in whom it has confidence     or, in other words, to exercise such power through its appointed instrumentality, however repugnant such entrustment may be to the     democratic process.    What may be regarded, as politically undesirable is constitutionally competent".     It would thus appear that so far as our Constitution is concerned, it    would not be possible     to deal with     the question about the powers of Parliament to amend     the Constitution under Art. 368 on any theoretical     concept of political science that sovereignty vests in the people     and the be     statures are merely the delegate of the people. Whether     or not Parliament has the power to amend     the Constitution must depend solely Upon the question as to whether     the said power is included    in Art. 368.     The question about the reasonableness,    or expediency     or desirability of the amendments in question from a political point of view would be irrelevant in construing the words of Art. 3 6 8.

Incidentally,    we may     also refer to    the fact that     the Constitutionmakers had taken the precaution to indicate that some amendments should not be treated as amendments of     the Constitution for the purpose     of Art. 368.     Take,     for instance Art. 4(2) which deals with law made by virtue of Art. 4(1). Art. 4(2) provides that no such law shall be deemed    to be    an amendment of     the Constitution for     the purposes of Art. 368. Similarly, Art. 169(3) provides    that any law in respect of the    amendment of the existing legislative apparatus    by the     abolition or    creation of Legislative Councils in State-,; shall not be deemed to be an amendment of the Constitution for the purposes of    Art.

368. In other words, laws falling within the     purview of Articles 4(2) and 169(3) need not be passed subject to     the restrictions imposed by 'Art. 368, even though. in effect they may amount to the amendment of the relevant provisions of the Constitution. If the Constitution-makers took the 954

precaution of making this specific provision to exclude the applicability of Art. 368 to certain amendments, it would be reasonable to assume that they would have made     a specific provision if they had intended that the fundamental rights guaranteed by Part HI should be completely outside the scope of Art. 368.

Apart    from the fact that the words used in Art. 368     are clear and unambiguous in support of the view that we     are taking, on principle also it appears unreasonable to suggest that the Constitution-makers     wanted     to provide    that fundamental rights guaranteed by the    Constitution should never be touched by way of amendment. It must not be forgotten that the fundamental rights guaranteed, by    Art. 19, for instance, are not absolute; the scheme of    this article     itself indicates that the fundamental rights guaranteed by subclauses (a) to (g) of clause (1), can be validly     regulated in the light of the provisions contained in clauses (2) to (6) of Art. 19. In other words, the broad scheme of Art. 19 is two-fold; the fundamental rights of the citizens are of paramount importance, but even the    said fundamental rights can be regulated to serve the interests of the     general public or other objects mentioned respec- tively    in clauses (2) to (6), and that means that     for specified purposes indicated in these     clauses, even     the paramountcy of     fundamental rights has to yield to    some regulation as    contemplated by the said clauses. It is hardly    necessary to emphasise that the purposes for which fundamental rights can be regulated which are specified in clauses     (2) to (6), could not have been assumed by     the Constitution-makers to be static and incapable of expansion. The Constitution-makers must    have anticipated that     in dealing     with socioeconomic problems which the    legislatures may have to face from time to time, the concepts of public interest and other important considerations which are     the basis of clauses (2) to (6), may change and may even expand; and so, it is legitimate to assume that the Constitution- makers    know that Parliament should be     competent to    make amendments in these rights so as to meet the challenge of the problems which may arise in the course of spcio-economic progress and development of the country. That is why we think that even on principle, it would not be reasonable to proceed     on the basis that the fundamental rights enshrined in Part III were intended to     be finally and immutably settled     and determined once for all and were     beyond     the reach of any future amendment.

Let us illustrate this point by reference to some of     the provisions of the Constitution (First Amendment) Act,    1951 itself.     By this Act, Articles 15, 19 and 31 were amended. One has merely to

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recall     the purpose for which it became necessary to amend Articles 15 and 19 to be satisfied     that the changing character of the problems posed by the words used in     the respective articles could not have been effectively     met unless    amendment in the relevant provisions was effected; and yet, if the argument that the fundamental     rights     are beyond the reach of Art. 368 were valid, an these amendments would be constitutionally impermissible. That, we think is not the true    purport and effect of Art. 368. We    are, therefore, satisfied that this Court was right in rejecting the said argument in the case of Sankari Prasad(1). This question can be considered from another point of view. The argument that the fundamental rights guaranteed by    Part in are eternal, inviolate, and beyond the reach of Art. 368, is based on two assumptions. The first assumption is    that on a fair and reasonable construction of Art. 368, the power to amend the    fundamental rights cannot be    held to be included within the    constituent powers conferred     on Parliament by the said Article.     We have already held that a fair and reasonable construction of    Art. 368 does     not justify     this assumption. The other assumption     which    this argument makes, and must of necessity make, is that if     the power to amend the fundamental rights is not    included in Art. 368 as it stands, it cannot ever be included within its purview; because unless it is assumed     that the relevant power can never be included in Art.     368, it would be unrealistic to     propound the theory that the     fundamental rights    are eternal, inviolate, and not within the reach of any subsequent constitutional amendment. It is clear    that Art. 368 itself can be amended by Parliament, though cl. (e) of the proviso requires that before amending Art. 368,     the safeguards prescribed by the proviso must be satisfied.     In other words, even if the powers to amend the     fundamental rights    were not included in Art. 368, Parliament can, by a suitable amendment of Art. 368, take those powers. Thus, the second assumption underlying the    argument about     the immutable character of the fundamental rights is also     not well founded.

There    is one more point to which we would like to refer. In the     case of Sankari Prasad(1) this Court has observed that the question whether the latter part of Art. 31B is too widely    expressed, was not argued before it, and so, it     did not express any opinion upon it.    This question    has, however, been argued before us, and so, we would like to make it clear that the effect of the last clause in Art. 31B is to leave it open to the respective legislatures to repeal (1) [1952] S.C.R. 89.

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or amend the Acts which have been included in the Ninth Schedule. In other words, the fact that the said Acts    have been included in the Ninth Schedule with a view to make them valid, does not mean that the legislatures in question which passed    the said Acts have lost their competence to repeal them or to amend them.    That is one consequence of the    said provision. The other inevitable quince of the    said provision is that if     a legislature    amends    any of     the provisions contained in any of the said Acts,    the amended provision would not receive the protection of Art. 31B     and its validity may be liable to be examined on the merits. Before     we part with this matter, we would like to observe that Parliament may consider     whether it would not be expedient and reasonable to include the provisions of    Part III in     the proviso to Art. 368. It is not easy to appreciate why the Constitution-makers did not include     the said provisions in the proviso when Art. 368 was adopted. In In re : the Berubari Union and Exchange of    Enclaves(1), this Court had pointed out that amendment of Art. 1 of     the Constitution consequent upon the cession of any part of     the territory of India in favour of a foreign State, does     not attract the safeguard prescribed by the proviso to Art. 368, because     neither Art. 1 nor Art. 3 is included in the    list of entrenched provisions of the Constitution enumerated in the proviso; and it was observed that it was not for    this Court to enquire or    consider whether it would not be appropriate to     include the said two    articles under     the proviso, and that it was a matter for Parliament to consider and decide. Similarly, it seems somewhat anomalous that any amendment of the provisions contained in Art.     226 should fall under the proviso but, not an amendment of Art.     32. Article     226 confers on High Courts the power to issue certain     writs, while Art. 32, which itself is a guaranteed fundamental right, enables a citizen to move this Court     for similar writs.    Parliament may consider whether the anomaly which is apparent in the different modes prescribed by    Art. 368 for amending Articles 226 and 32 respectively, should not be remedied by including Part HI itself in the proviso. If that is done, difficult questions as to    whether     the amendment made in the provisions of Part III substantially, directly and materially affects the jurisdiction and powers of the High Courts under Art. 226 may be easily avoided. In the result, we    hold that the     impugned Act     is constitutionality valid. The petitions, accordingly,    fail and are dismissed. There will be no order as to costs. (1) [1960] 3 S.C.R. 250.

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Hidayatullah J. I have had the privilege of    reading     the judgment just    delivered by my lord the Chief Justice. I agree,    with him that there is no force in the contention that the 17th Amendment required for its valid enactment the special     procedure, laid down in the proviso to     Art.,    368. It would, of course, have, been necessary if the amendment had sought to make a change in Art. 226. This     eventuality cannot    be said to have arisen. Article 226 remains unchanged after the amendment.    The proviso comes into    play only when the article is directly changed or its ambit as such is sought to be changed. What the 17th amendment    does is to enlarge the meaning of the word 'estate' in Art.    31-A and' to give protection to some Acts passed by the State Legislatures by including them in the Ninth Schedule under the shield of     Art. 31 B. These Acts promoted agrarian reform and but for the inclusion in the Ninth Schedule    they might be assailed by the provisions of Articles 14, 19 or 31 of the     Constitution.     Some of the    Acts were in    fact successfully assailed but the amendment makes them effective and invulnerable to the three articles notwithstanding    Art. 13 of the Constitution. In Sri Sankari Prasad's(1)    case when the Constitution (First Amendment) Act was passed     and Articles 3 I-A and 31-B and Ninth Schedule were     introduced, the effect of that amendment on Art. 226 was considered     and it was held that the Amendment had not the effect visualised by the proviso to Art. 368. The reasoning in that case on this point applies mutatis mutandis to the 17th Amendment. I find, however, some difficulty in accepting a part of     the reasoning in Sankari Prasad's case and my purpose in writing a separate judgment is to say that I decide    the present cases without, the assistance of that reasoning. I shall briefly     indicate what     that reasoning is and    why I    have doubts.     In Sankari Prasad's case it was contended that by Art. 13(2) the Fundamental Rights in Part    III of     the Constitution were put     beyond the reach of Art. 368     and outside     the power of amendment conferred on Parliament by Art. 368. This argument was considered "attractive',     but was rejected because of certain "important considerations" which it was held pointed "to the opposite conclusion".     Two reasons     alone appear to have weighed with this Court.     The first is that as constitutional law is distinguishable    from other municipal laws and as there is no "clear     indication" to be    found that the Fundamental Rights are "immune    from constitutional     amendment", only the     invasion of     the Fundamental Rights by laws other than constitutional laws (1) [1952] S.C.R. 89.

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must be the subject of the prohibition in Art. 13 (2).    Art. 13 may to be quoted at this stage :

"13. 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 inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

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

(3) In    this article,    unless    the context otherwise requires,-

(a) "law" includes any Ordinance, order, bye-law,     rule,     regulation, notification, custom or usage having in the territory of India the force of law;

(b)

It is true that there is no complete definition of the    word "law" in the    article     but it is significant that the definition does not     seek to exclude constitutional amendments which it would have been easy to indicate in     the definition by adding "but shall not include an amendment of the Constitution". The meaning is    also sought to be enlarged not curtailed.     The meaning of Art. 13 thus depends on the sense in which the word "law" in Art. 13(2) is to be understood. If an amendment can be said to fall within     the term "law", the Fundamental Rights become "eternal     and inviolate" to     borrow the language     of the Japanese Constitution. Article 13 is then on par with Art. 5 of     the American Federal Constitution in its immutable     prohibition as- long as it stands.    But the restricted meaning given to the word "law" prevents this to be held. There is a priori reasoning without consideration of the text of the articles in Part M. The Articles use the language of permanency. I am of opinion that there are indications in the Constitution which needed to be considered and I shall mention some of them later as illustrations.

The next reason was that Art. 368 was    "perfectly general" and allowed amendment of "the Constitution,    without     any exception whatsoever"    and therefore Art. 13 (2) did     not cover a constitutional ;amendment. It was observed in    this connection that if it was con-

959

sidered necessary to     save Fundamental Rights a clear proviso     in Art. 368 would have conveyed this intention without any doubt. To my mind the easiest and most obvious way was to say that the word "law" in Art.    13 did     not include     an amendment of the Constitution. It    was finally concluded as follows :-

"In    short,    we have here     two

articles each of which is widely phrased,     but conflicts     in its operation with     the other. Harmonious construction    requires that     one should be read as controlled and qualified by the other.    Having regard     to     the

considerations adverted to above, we are of opinion that in the context of     article 13 'law' must be taken to mean     rules     or regulations made     in exercise of ordinary legislative power and not amendments to     the Constitution made in exercise of     constituent power, with the result that article 1. 3     (2) does not affect amendments made under article

368."

At the hearing reliance was not placed on Art. 13 (2)     but emphasis was laid on the amendment of Art. 226. Mr. R. V. S. Mani did,    however, refer to the     provision for     the suspension of    Fundamental Rights as showing    that unless suspended in an emergency, Part III must stand unchanged and he referred to Art. 32(4). For the disposal of these cases I indicate my view that on, the arguments before us I    must hold that as decided in Sankari Prasad's(1) case Art. 226 is not sought to be changed by the 17th Amendment.     But I    make it clear that I must not be understood' to have subscribed to the     view that the word "law" in Art. 13(2) does     not control constitutional amendments. I reserve my opinion on that case for I apprehend that it depends on how wide is the word "law" in that Article. The prohibition in    that article may have to be read in the light of declarations in the various articles in Part III to find out     the proper meaning. Though I do not express a final opinion I give a few examples. Take for instance Art. 32. It reads : "32. Remedies for enforcement of rights.

(1) The     right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred    by this Part     is guaranteed.

(2) The     Supreme Court shall have power to issue directions or orders or writs

in the

nature    of habeas    corpus,     mandamus,

prohibition, quo     warranto and     certiorari, whichever may be appropriate, for the--

(1) [1952] S.C.R. 89.

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enforcement of any of the rights conferred by this, Part.

(3) Without prejudice     to the powers conferred on the Supreme Court by clauses     (1) and (2), Parliament may by law    empower     any other court to    exercise within the local limits of its jurisdiction all or any of     the powers exercisable by the Supreme Court under clause (2).

(4) The     right    guaranteed by this article shall not be suspended except as otherwise provided for by the Constitution."

It is prima facie at least, reasonable to think that if cls. (1) and (4) of this Article were included    in Part XX (Amendment of    the Constitution) that would have made     the guarantee absolute against any amendment. It is a matter for consideration whether this guarantee is any the    less because     the article.is in another Part ? The first clause assures     a guaranteed remedy.    That guarantee     is equally against legislative and executive actions. Part III is     fun of declarations of what the legislature can do and what it cannot do. The guarantee covers all those actions which are not open to the legislature and the executive. If it be held that the     guarantee is    inviolable would not     the guarantee of the remedy make the rights 'equally protected ? Another provision, namely, the Preamble of the Constitution is equally vital to our body politic. In In re :     The Berubart Union and Exchange of Enclaves(1) it is held    that although the preamble     is the key to the mind of     the Constitution-makers, it does not form part of     the Constitution.    Perhaps, in one sense, it does not but, in another sense, it does.     Our preamble is more akin in nature to the American Declaration of Independence (July 4, 1776) than to the preamble to the Constitution of     the United States.     It does not make any grant of power but it gives a direction and purpose to the Constitution which is reflected in Parts III and IV. Is it to be imagined that a two-thirds majority of the two Houses at any time is all that is necessary to alter it without even consulting the States ? It is not even included in the, proviso to Art. 368 and it is difficult to think that as it has not the protection of the proviso it must be within the main part of Art. 368. Again,    Art. 13 (1) rendered void the laws in force in     the territory of India which conflicted with Part III. Can it be said that Art. 13 may be repealed retrospectively and all those statutes

(1) [1960] 3 S.C.R. 250.

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brought     back to life ? Because of successive amendments we have seen many faces of Art. 31-A. It is for consideration whether Art. 13 was not intended to streamline all existing and future laws to the basic requirements of Part 111.     Or is the     door left open for reversing    the policy of     our Constitution from time to time by legislating with a bigger majority at    any given time not     directly but     by constitutional    amendments ? It is possible to justify    such amendments with the aid of the provisos in Art. 19 which permit    the making of laws restricting the freedoms but     not by ignoring Art. 13 and relying solely on Art. 368. I am aware that in A. K. Gopalan v. State of Madras(1) Kania C.J. said

the inclusion of article 13(1) and (2) in     the Constitution appears to be a matter of abun- dant caution. Even in their absence, if     any of the fundamental rights was infringed by any legislative enactment, the Court     has always the power to declare the enactment, to     the extent it transgresses the limits invalid." The observation is not clear in its meaning. There was     un- doubtedly a great purpose which this article achieves.     It is probable that far from belittling the importance of    Art. 13 the learned Chief Justice meant rather to emphasize     the importance and the commanding position of Fundamental Rights in that even without Art. 13 they would have the same effect on other laws. To hold that Art. 13 is framed merely by way of abundant caution, and serves no additional or intrinsic function of its own, might, by analogy persuade us to     say the same of Art. 32 ( 1 ) because this Court would do     its duty under Art. 32(2) even in the absence of the guarantee. I would require stronger reasons than those given in Sankari Prasad's (2)    case to make    me accept the     view    that Fundamental Rights were not really fundamental but    were intended to be within the powers of amendment in common with the other parts of the Constitution and without     the concurrence of     the States. No doubt Art. 19     by clauses numbered 2 to 6 allows a curtailment of rights in the public interest. This shows that Part III is not static. It as change    and progress but at the same time it preserves     the individual rights. There is hardly any measure of reform which cannot be introduced reasonably, the guarantee of individual liberty notwithstanding.    Even the agrarian reforms     could have been partly carried out without Article 31 -A and 31-B but they would have cost

(1) [1950] S.CR. 88 at p. 100.     (2) [1954] S.C.R. 89. 962

more to the public exchequer.     The rights of    society     are made paramount     and they are placed above those of     the individual. This is as it should be.    But restricting     the Fundamental Rights by resort to cls. 2 to 6 of Art. 19 is one thing and removing the rights from the Constitution or debilitating them by an amendment is quite another. This is the implication of Sankari Prasad's case. It is true    that such things would never be, but one is concerned to know if such a doing would be possible.

It may be said that the words of Art. 368 are quite explicit. Art. 368 does not give power to     amend "any provision" of the Constitution. At least the article    does not say so.     Analysed by    the accepted canons     of interpretation    it is found to lay down the manner of     the amendment of "this Constitution" but by "this Constitution" it does not mean each individual article wherever found     and whatever its language and spirit. The Constitution itself indicates in some places a contrary intention expressly (See Articles 4, 169 and the former Art. 240) and in some others by implication (See Art. 1 1).    What Art. 368 does is to lay down the manner of amendment and the necessary conditions for the effectiveness     of the amendment. The contrast between the opening part and the proviso does not show    that what is outside the proviso is necessarily within the powers of amendment. The proviso merely puts outside the exclusive Power of Parliament to amend those provisions 'on which     our federal     structure rests. It makes it incumbent that a majority of the States should also agree. The proviso    also preserves the structure of the higher judiciary so vital to a written Constitution and to a Democracy such as ours'     But the article no where says that the preamble and every single article of the Constitution can be amended by two-thirds majority despite any permanency in the language and despite any historical fact or sentiment.

The Constitution gives so many assurances in Part III    that it would be difficult to think that they were the    play things of a special majority. To hold this would mean prima facie that the most solemn parts of our Constitution stand on the     same footing as any other provision and even on a less firm ground than one on which the articles mentioned in the proviso stand. The anamoly that Art. 226 should be somewhat protected but not Art. 32 must give us pause. Article     32 does not erect a shield against private conduct but against state conduct including the legislatures    (See Art. 12). Can the legislature take away this shield ? Perhaps     by adopting a literal construction of Art. 368     one can say that. But I am not inclined to play a    grammarian's role.    As at present advised I can only say that the power to make amendments ought not

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ordinarily to     be a     means    of escape from absolute constitutional restrictions.

For these reasons though I agree with the order proposed, I would not like to be understood to have expressed a final opinion on the aspect of the case outlined above. Mudholkar J. I have seen the judgments of my Lord the Chief Justice and my brother Hidayatullah J. and I agree that the, Writ Petitions should be dismissed.

Of the various contentions raised in Sankari Prasad Singh De& v.     Union of India and State of Bihar(1) in which     the Constitution (First Amendment) Act, 1951 was challenged before this Court only two would be relevant in the context of the Constitution (Seventeenth Amendment) Act, 1964. They are : (a) whether the Amendment Act in so far as it purports to take away or abridge the rights conferred by Part III of the Constitution falls within the prohibition of Art. 13(2) and (b) whether Arts. 31A and 31B seek to make     changes in Arts. 132, 136 or 226 or in any of the Lists in the Seventh Schedule and, therefore, the requirements of the proviso to Art. 368 had to be satisfied.    Both these contentions    were negatived by this Court. The first contention has not    been raised    in the arguments before us and the attack on     the Seventeenth Amendment    Act was based only on     the second contention. Most of the grounds which learned counsel urged before us were the same as those urged in the earlier case. Some additional arguments were also urged before us but, as my Lord the Chief Justice has pointed out, they     are unsubstantial.     An attempt was made by Mr. Mani, learned counsel     for the petitioners, to persuade us to reconsider the decision in the earlier case with regard to the second contention. As, however, no case was made out by him     for reconsideration of that decision we intimated to him that we do not. propose to reconsider it.

Since my Lord the Chief Justice in his judgment has dealt with the first contention also and expressed the view    that the previous decision is right I think it necessary to    say, partly     for the reasonsstated by my learned brother Hidayatullah J. and partly for some other reasons, that I would reserve my opinion on this question and that I do     not regard    what this Court has held in that case as the    last word.

It seems to me that in taking the view that the word "law" occurring in Art. 13 (2) of    the Constitution does     not include an amend-

(1) [1952] S.C.R. 89.

L2Sup./65-18

964

ment to the Constitution this Court has not borne in    mind some important considerations which would be relevant     for the purpose. The language of Art. 368 is plain enough to show that the action of Parliament in amending     the Constitution is a legislative act like one in    exercise of its normal legislative power, The only difference in respect of an    amendment of the Constitution     is that the    Bill amending the Constitution has to be passed by a special majority (here I have in mind only those amendments which do not attract the proviso to Art. 368). The result of a legislative action of a legislature cannot be     other    than 'law' and, therefore, it seems to me that the fact that     the legislation deals with the amendment of a provision of     the Constitution would not make its result ,any    the less a 'law'.     Article 3 6 8 does not say that when Parliament makes an amendment to the Constitution it assumes a different capacity, that of     a constituent     body.     As suggested by my learned brother Hidayatullah J. it is    open to doubt whether this Article confers any such     power    upon Parliament. But even assuming that it does, it can only be regarded as an additional legislative power. Then again while the Constitution as originally framed     can -only be interpreted by a court of law and the validity of no provision therein can be challenged the same cannot be said of an amendment to the Constitution. For an amendment to be treated as a part of the Constitution it must in    fact and in law have become a part of the Constitution. Whether it has become a part of the Constitution- is thus a question open to judicial review. It is obvious that an amendment must comply with the requirements of the Constitution     and should    not transgress     any of its provisions. Where, therefore, a challenge is made before the Court on     the ground    that no amendment had in fact been made or on the ground    that it was 'not a valid amendment it will be    both the duty of the Court as well as be and within its power to examine     the question and to pronounce upon it. This is precisely what a Court is competent to do in regard to     any other law, the validity of which is impugned 'before it. Neither of these matters appears to have been considered in Sankari     Prasad's case(") and I think that they do merit consideration.

My Lord the Chief Justice has observed that though in A. K. Gopalan v. The State of Madras (2) Patanjali Sastri J.,     (as he then 'was) has said that fundamental rights are those rights    which the people have reserved for themselves    that learned Judge has emphati-

(1) [1952] S.C.R. 89.

(2) [1950] S.C.R. St.

965

cally stated in In re The Delhi Laws     Act, 1912(1)    that Parliament, acting within the limits    of its legislative power, has plenary powers of legislation which are as large and which are of the same nature as those of    the British Parliament and rejected the suggestion that, Parliament is the. delegate of the people in whom the sovereignty rests. But does it follow that the learned Judge has departed    from his earlier view ? No reference was made by him in. Sankari Prasad's case (2) to his observations though they needed to be explained.     In the Delhi     Laws Act case(1) he     has undoubtedly said that Parliament enjoys plenary powers of legislation.    That Parliament has plenary powers     of legislation within the circumscribed limits of     its legislative power and cannot be regarded as a    delegate of the people c while exercising its legislative powers is a well accepted    position. The fact, however, remains    that unlike    the British Parliament our Parliament,     like every other organ of the State, can function only     within     the limits    of the powers which the Constitution has conferred upon it. This would also be so when, in the exercise of its legislative power, it makes an amendment to the Constitution or to any of its provisions. It would, therefore, appear that the earlier observation of Patanjali Sastri J., cannot be regarded as inconsistent with what he has said in     the Delhi Laws Act case(1). At any rate, this is an aspect of the matter    which    requires further consideration, particularly because the same learned Judge has not adverted to those observations in Sankari Prasad's case (2). It is true that by virtue of S. 8 of the Indian Independence    Act, 1947 it was upon the Constituent Assembly which framed     the Constitution and not     upon the people of India-that sovereignty devolved after the withdrawal of    the British power.    But both the "Objectives Resolution" adopted by     the Constituent Assembly on January 22, 1947 and the Preamble to the Constitution show that this sovereign body     framed     the Constitution in the name of the people of India and by virtue     of the powers derived from them. In     the circumstances it would have    to be considered whether Patanjali Sastri J.,    was not right in saying that     the fundamental rights are the minimum rights reserved by     the people to themselves and they are, therefore, unalterable. It is true that the Constitution does not directly prohibit the amendment of Part III. But it would indeed be strange that rights which are considered to be fundamental and which include     one which is guaranteed by the     Constitution (vide Art. 32) should be more easily capable of being abridged or restricted than any of the matters referred     to in     the proviso to Art. 368 some of which

(1) [1951] S.C.R. 747.

(2) [1952] S.C.R. 89.

966

are perhaps less vital than fundamental rights. It is possible, as suggested by my learned brother, that Art.     368 merely    lays down the procedure to be followed for amending the Constitution and does not confer a power to amend     the Constitution which, I think, has to be ascertained from     the provision sought to be amended or other relevant provisions or the preamble. The argument that if fundamental rights are regarded as unchangeable it will     hamper     legislation which the changing needs of a dynamic society may call     for in future is weighty enough and merits consideration. It is possible that there may be an answer. The rights enumerated in Art. 19(1) can be subjected to reasonable    restrictions under cls. (2) to (6) of Art. 19 and the other     fundamental rights-or at least many of them- can perhaps be adapted to meet the needs of a changing society with the aid of     the directive principles.    For, Art. 37, the second Article in Part IV which deals with 'Directive Principles of States Policy', imposes a duty on    the State to    apply those directive principles in making laws. These principles     are also fundamental in the governance of the country and     the provisions of     Part III of    the Constitution must     be interpreted harmoniously with those principles. This is also an aspect of the matter which requires consideration. We may     also have to bear in mind the fact that ours is a written     Constitution.    The Constituent Assembly which     was the repository     of sovereignty could well have created a sovereign Parliament on the British model. But instead it enacted     a written Constitution, created three organs of State,    made the union executive responsible to Parliament and the State executives to the State legislatures; erected a federal structure and distributed     legislative power between     Parliament and the State legislatures; recognised certain rights     as fundamental and provided     for their enforcement; prescribed forms of oaths of     office     or affirmations which require those who subscribe to them to owe true allegiance to the Constitution and further require the members of the Union Judiciary    and of     the higher judiciary in the States, to uphold the Constitution. Above all, it formulated a solemn and dignified preamble which appears     to be     an epitome of the basic features of     the Constitution. Can it not be said that these are indicate of the intention    of the     Constituent Assembly    to give a permanency to the basic features of the Constitution ? It is    also a matter for consideration whether making a change    in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the

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Constitution; and if the latter, would it be     within     the purview of Art. 368 ?

The Constitution has enjoined on every member of Parliament before    entering upon his office to take an oath or make an affirmation to the effect that he will bear true faith     and allegiance to    the Constitution. On the other     hand under Art. 368 a procedure     is prescribed     for amending     the Constitution.    If upon a literal interpretation of    this provision an amendment even of the basic features of     the Constitution would be possible it will be a question     for consideration as to how to harmonise the duty of allegiance to the Constitution with the power to make an amendment to it. Could the two be harmonised by    excluding from     the procedure for amendment, alteration of a basic feature of the Constitution ? It would be of interest to mention    that the Supreme Court of Pakistan has, in     Mr. Fazlul Quader Chowdhry v. Mr. Mohd.    Abdul Haque(1) held that franchise and form of government are    fundamental features of a Constitution and the power conferred upon the President by the Constitution of Pakistan to remove difficulties does not extend    to making an alteration in a fundamental feature of the Constitution. For striking down the action of     the President under, what he calls     'sub-constitutional power' Cornelius C.J., relied on the Judges' oath of office. After quoting     the following passage from Cooley's Constitutional Limitations:

"For the constitution of the State is higher in authority than any law, direction, or order made by anybody or any officer assuming to act under it, since such body or officer    must exercise    a delegated authority, and one    that must necessarily be subservient to     the instrument by which the delegation is made. In any case of conflict the fundamental     law must govern, and the act in conflict with it must be treated as of no legal validity."

the learned Chief Justice observed

"To decide upon the question of constitutional validity in relation to an act of a statutory authority, how-highso-ever, is a    duty devolving ordinarily upon the superior Courts by virtue of their office, and in the absence of any bar either express or implied which stands in the way of that duty being performed in respect of the Order here in question it is a responsibility which cannot be avoided." (p. 506)

(1) 1963 P.L.D. 486.

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The observations and the passage from Cooley,    quoted    here for convenience support what I have said earlier regarding the power of the Courts to pronounce upon the    validity of amendments to the Constitution.

The Constitution indicates three modes of amendments     and assuming that    the provisions of Art. 368 confer power on Parliament to amend the Constitution, it will still have to be considered whether     as long as the preamble stands unmended, that power can be exercised with respect to any of the basic features of the Constitution.

To illustrate    my point, as long as the words 'sovereign democratic republic' are there, could the Constitution be amended     so as     to depart from the    democratic form of Government or    its republic character ? If that cannot be done, then, as long as the words "Justice, social economic and political etc.,"    are there could any of     the rights enumerated in Arts. 14, to 19, 21, 25, 31 and 32 be taken away ? If they cannot, it will be for consideration whether they can be modified.

It has been said, no doubt, that the preamble is not a    part of our     Constitution.     But, I think, that    if upon a comparison of the preamble with the broad features of     the Constitution it would appear that the preamble is an epitome of those features or, to put it differently if these features are an amplification or concretisation of     the concepts set out in    the preamble it may    have to be considered whether the preamble is not a part of     the Constitution.    While considering this question it would be of relevance to bear in mind that the preamble is not of the common    run such as is to be found in an Act of a legislature. It has the stamp of deep deliberation and is marked    by precision.     Would this not suggest that     the framers of the Constitution attached special significance to it ?

In view of these considerations and those mentioned by my learned brother Hidayatullah J. I feel reluctant to express a definite opinion on the question whether the word 'law' in Art. 13 (2) of the Constitution excludes    an Act     of Parliament amending the Constitution and also whether it is competent to Parliament to make any amendment at all to Part III of the Constitution.

In so far as the second contention is concerned I generally agree with what my Lord the Chief Justice has said but would only like to add this : Upon the assumption that Parliament can amend Part III of the Constitution and was, therefore, competent to enact therein Articles 31A and 31B as also to amend the definition of 'estate', the question still remains whether it could validate a State

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law dealing with land.    I take it that only that legislature has power to validate a law which has the power to enact that law. Since the agrarian laws included in the Ninth Schedule and sought to be protected by Art. 31B could     not have been enacted by Parliament, would it be right to     say that Parliament could validate them ? If Parliament could amend Part III it could, indeed, remove the impediment in the way of the State.    Legislatures by enacting Art. 3 1A and amending the definition of 'estate.     But could it go to the extent it went when it enacted the First Amendment     Act and the Ninth Schedule and has now added 44 more agrarian laws to it ?     Or was it incompetent to it to go beyond enacting Art.    31A in 1950 and now beyond amending     the definition of    estate ? This, however, does not appear to have been considered in Sankari Prasad's case(1) nor     was such an argument advanced before us in this case. I am only mentioning this to make It clear that even in so far as     the second    contention is concerned I base my decision on     the narrow ground that upon the arguments advanced before us no case has been made out for striking down the     Seventeenth Amendment.

As indicated in the judgment of my Lord the Chief Justice an amendment made by resort to the first part of Art. 368 could be struck down upon    a ground such as taking away     the jurisdiction of the High Courts under Art. 226 or of    this Court    under    Art. 13 6 without complying     with     the requirements of the proviso. To this I would like to     add that if the    effect    of an    amendment is    to curtail substantially,    though indirectly, the jurisdiction of    High Courts    under AA. 226 or of this Court under Art. 136     and recourse has not been had to the proviso to Art. 368     the question whether the amendment was a colorable exercise of power by Parliament will be relevant for consideration. Before    I part with this case I wish to make it     clear    that what I have said in this judgment is not an expression of my final opinion but only an expression of certain doubts which have assailed     me regarding    a question of paramount importance to the citizens of our country : to know whether the basic features of the Constitution under which we    live and to which we owe allegiance are to endure for all time-or at least for     the foreseeable future-or whether the yard no more enduring than the implemental     and subordinate provisions of the Constitution. Petitions dismissed.