Topic: I. C. Golaknath vs State of Punjab - amendment is a law Article 13(2) of Constitution and if it violates any fundamental rights is void
The Supreme Court prospectively overruled its decision in Shankari Prasad and Sajjan Singh cases and held that Parliament had no power to amend part 3 of the Constitution so as to abridge or take away any of the Fundamental Rights. It also added that Article 368 merely lays down the procedure for the purpose of amendment. Further, The Court said that an amendment is a law under Article 13(2) of the Constitution of India and if it violates any fundamental right, it may be declared void.
I. C. Golaknath & Ors vs State Of Punjab & Anrs.
Equivalent citations: 1967 AIR 1643, 1967 SCR (2) 762 - Bench: Rao, K. Subba (Cj), Wanchoo, K.N, Hidayatullah, M, Shah, J.C, Sikri, S.M, Bachawat, R.S, Ramaswami, V, Shelat, J.M, Hargava, Vishishtha, Mitter, G.K. Vaidyialingam, C.A. - Date Of Judgment: 27/02/1967
Constitution of India, Arts. 13(2), 368, 245, 248, Schedule 7, List 1. Entry 97-Power to amend Constitution where resides-Whether resides in Art. 368 or in residuary power of Parliament under Art. 248 read with Entry 97 List 1- Fundamental Rights in Part III whether can be amended and abridged by the procedure in Art. 368-Law' under Art. 13(2) Whether Includes constitutional amendments-Scheme of Consitution Fundamental rights whether intended to be permanent and unamendable-Amendment whether exercise of sovereign power-Amendment whether a political matter outside the purview of courts.
Constitution Seventeenth Amendment Act,, 1964-Whether invalid for contravention of Art. 13(2).
Prospective overruling, doctrine of-Vast agrarian changes under constitutional amendments-Necessity of preserving past while protecting future decisis.
Punjab Security of Land Tenures Act, 1953 (Act 10 of 1953)- Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14 of 1965-Acts contravening fundamental rights-Whether valid.
The validity of the Punjab Security of Land Tenures Act, 1953 (Act 10 of 1953) and of the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14 of 1965 was challenged by the petitioners under Art. 32 of the Constitution. Since these Acts were included in the 9th Schedule to the Constitution by the Constitution (Seventeenth) Amendment Act, 1964, the validity of the said Amendment Act was also challenged. In this connection it was urged that Sankari Prasad's case in which the validity of the constitution (First) Amendment Act, 1951 had been upheld and Sajjan Singh's case in which the validity of the Constitution (Seventeenth) Amendment Act, 1964, had been upheld by this Court, had been wrongly decided. It was contended that Parliament had no power to amend fundamental rights in Part III of the Constitution.
HELD: Per Subba Rao, C.J., Shah, Sikri, Shelat and Vaidialingam, JJ. (Hidayatullah, J. Concurring) : Fundamental Rights cannot be abridged or taken away by the amending procedure in Ail. 368 of the Constitution. An amendment to the Constitution is 'law' within the meaning of Art. 13(2) and is therefore subject to Part III of the Constitution. Sri Sankari Prasad Singh Deo v. Union of India JUDGMENT:
Rajasthan,  1 S.C.R. 933, reversed. Per Subba, Rao, C.J., Shah, Sikri, Shelat and Vaidialingam, JJ. (i) Fundamental rights are the primordial rights necessary for the development of human personality. They are the rights which enable a
man to chalk out his own life in the manner he likes best. Our Constitution, in addition to the well-known fundamental rights, also included the rights of minorities and other backward communities in such rights. [789 E] The fundamental rights are given a transcendental position under our Constitution and are kept beyond the reach of Parliament. At the same time Parts III and IV of the Constitution constituted an integrated scheme forming a self contained code. The scheme is made so elastic that all the Directive Principles of State Policy can reasonably be enforced without taking away or-abridging the fundamental rights. While recognisingthe immutability of the fundamental rights, subject to social control the Constitution itself provides for the suspension or the modification of fundamental rights under specific circumstances, as in Arts. 33, 34 and 35. The non-obstante clause with which the last article opens makes it clear that all the other provisions of the Constitution are subject to this provision. Article 32 makes the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by the said Parts a fundamental right. Even during grave emergencies Art. 358 only suspends Art. 19 and all other rights are untouched except those specifically suspended by the President under Art. 359. [789 H; 790 D]
The Constitution has given a place of permanence to the fundamental freedoms. In giving to themselves the Constitution the people have reserved the fundamental freedoms to themselves. Art. 13 merely in-corporates that reservation. The Article is however not the source of the protection of fundamental rights but the expression of the reservation. The importance attached to the fundamental freedoms is so transcendatal that a bill enacted by a unanimous vote of all the members of both Houses is ineffective to derogate from its guaranteed exercise. It is not what Parliament regards at a given moment as conducive to the public benefit but what Part III declarer. protected, which determines the ambit of the freedom. The incapacity of Parliament therefore in exercise of its amending power to modify, restrict, or imposefundamental freedoms in Part III arises from the scheme of theConstitution and the nature of the freedoms. [792 D-F]
A. K. Gopalan v. State of Madras,  S.C.R.88, State of Madras v. Smt. Champakam Dorairajan, (1951) S.C.R. 525, Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha,  Supp. 1 S.C.R. 806 and Ujjam Bai v. State of Uttar Pradesh,  1 S.C.R. 778, referred to. If it is the duty of Parliament to enforce directive principles it is equally its duty to enforce them without infringing the fundamental rights. The verdict of Parliament on the scope of the law of social control of fundamental rights is not final but justiciable. If it were not so, the whole scheme of the Constitution would break. [815 H; 816 A-B] ,
(ii)Article 368 in terms only prescribes various steps in the matter of amendment. The article assumes the power to amend found else where. The completion of the procedural steps cannot be said to culminate in the power to amend for if that was so the Constitution makers could have stated that in the Constitution. Nor can the power be implied either from Art. 368 or from the nature of the articles sought to be amended; the doctrine of necessary implication cannot be invoked if there is an express provision. There is no necessity to imply any such power as Parliament has the plenary power to make any law including the law to amend the Constitution subject to the limitations laid down therein [793 E-G]
(iii)The power of Parliament to amend the Constitution is derived from Arts. 245, 246 and 248 read with item 97 in List I. The residuary
power of Parliament can certainly take in the power to amend the Constitution. [794 A-D]
Though a law made under Art. 245 is subject to the provisions of the Constitution it would be wrong to say that every law of amendment made under it would necessarily be inconsistent with the articles sought to be amended. It cannot reasonably be said that a law amending an article is inconsistent with it. The limitation in Art. 245 is in respect of the power to make a law and not of the content of the law made within the scope of its power. [794 E-F] An order by the President under Art. 392 cannot attract Art 368 as the amendment contemplated by the latter provisions can be initiated only by the introduction of a bill in Parliament. It cannot therefore be said that if the power of amendment is held to be a legislative power the President acting under Art. 392 can amend the Constitution in terms of Art. 368. [794 G-H]
(iv) The Constituent Assembly, it so minded, could certainly have conferred an express legislative power on Parliament to amend the Constitution by ordinary legislative process. There is, therefore, no inherent inconsistency between legislative process and the amending one. Whether in the field of a constitutional law or statutory law amendment can be brought about only by 'law'. [794 C-D]
Article 13(2), for the purpose of that Article, gives an inclusive definition of 'law'. It does not Prima facie exclude constitutional law. The process under Art. 368 itself closely resemble the legislative process. Article 368 is not a complete code in respect of the procedure of amendment. The details of procedure in respect of other bills have to be followed so far as possible in respect of a Bill under Art. 368 also, The rules made by the House of the People providing procedure for amendments lay down a procedure similar to that of other bills with the addition of certain special provisions. If amendment is intended to be Something other than law the constitutional insistence on the said legislative process is unnecessary. The imposition of further conditions is only a safeguard against the hasty action or a protection to the states but does not change the legislative character of the amendment [795 G 796 C]
Article 3 of the Constitution permits changes in States and their boundaries by a legislative process under Arts. 4 and 169 amendments in the Solution are made by 'law' but by a fiction are deemed not to be amendments for the purpose of Art. 368. This shows that amendment is law and that but for the fiction it would be an amendment within the meaning of Art, 368. [796 C-F]
Therefore amendments either under Art. 368 or under other Articles are only made by Parliament following the legislative process and are 'law' for the purpose of Art. 13(2). [798 C]
Mccawley v. The king, A.C., 691 and The Bribery Commissioner v. Pedrick Ransinghe,  2 W.L.R. 1301, referred to.
(v) One need not cavil at the description of amending power as a sovereign power for it is sovereign only viithin the scope of the power conferred by a particular Constitution which may expressly limit the power of amendment both substantive and procedural. If cannot therefore be said that amending power can have no limitations being a sovere4p power. 
The argument that the amending process involves political questions and is therefore outside.the scope of judicial re- view cannot also be aeCePted- It may be.Parliament seeks to amend the Constitution for political reasons but the court in denying that power will not be deciding 765
a political question; it will only be holding that Parliament has no power to armed Particular articles of the Constitution for any purpose whatsoever, be it political or otherwise. [804 E-G]
(vi) If power to abridge the fundamental rights is denied to Parliament revolution is not a necessary result. The existence of an all comprehensive power cannot prevent revolution if there is chaos in the country brought about by misrule or abuse of power. Such considerations are out of place in construing the provisions of the Constitution by a Court of law. [816 B-C]
(vii) While-ordinarily @ Court will be reluctant to reverse its previous decisions it is its duty in the constitutional field to correct itself as early as possible, for otherwise the future progress of the country and happiness of the people will be at stake. As it was clear that the decision in Sankari Prasad's case was wrong, it was pre-eminently a typical case where this Court should overrule it. The longer it held the field the greater the scope for erosion of fundamental rights. As it contained the seeds of destruction of the cherished rights of the people, the sooner it was overruled the better for the country. [816 G-H]
The Superintendent and Legal Remembrancer Stale of West Bengal v.The Corporation at Calcutta,  2 S.C.R., 170 relied on.
(viii) The Constitution (Seventeenth Amendment) Act, 1964, inasmuch as it takes away or abridges fundamental rights was beyond 'the amending power of Parliament and void because of contravention of Art. 13(2). But having regard to the history of this and earlier amendment to the Constitution, their effect on the social and economic affairs of the country and the chaotic situation that may be brought about by the sudden withdrawl at this stage of the amendments from the Constitution it was undesirable to give retroactivity of this decision. The present was therefore a fit case for the application of the doctrine of "prospective. overruling, evolved by the courts in the United States of America. [805 E; 807 E, G; 808 C-D] Great Northern Railway v. Sunburst Oil & Ref. Co. (1932) 287 U.S. 358: 77 L. Ed. 360, Chicot County Drainage v. Baxter State Bank, (1940) 308 U.S. 371, Griffin v. Illionis, (1956) 351 U.S. 12, Wolf v. Colorado, 338 U.S. 25 : 193 L. Ed. 872, Mapp v. Ohio, 367 U.S. 643 : 6 L. Ed. (2nd Edn.) 1081 and Link letter v. Walker, (1965) 381 U.S. 618, referred to.
(ix), The doctrine of "prospective overruling" is a modern doctrine suitable for a fast moving society. It does not do away with the doctrine of state decision but confines it to past transactions. While in Strict theory it may be said that the doctrine 'involves the making of law, *hat the court really does is to declare the law but refuse to give retroactivity to it. It is really a pragmatic solution reconciling the two conflicting doctrines, namely, that a court finds the law and that it does make law It finds law but restricts its operation to the future. It enables the court to bring about a smooth transition by correcting, its errors without disturbing the impact of those errors on past transactions. By the application of this doctrine the past may be preserved and the future protected. [913 A-C; 814 E- F]
Our Constitution does not expressly of by necessary implication speak against the doctrine of prospective overruling. Articles 32, 141 and 142 are designedly made comprehensive to enable the Supreme Court to declare law and to give such directions or pass such orders as are necessary to do complete justice. The expression 'declared' in Art. 141 is wider than the words 'found or made'. The law declared by the Supreme Court is the law of the land.. If so, there is no acceptable reason why
the Court, in declaring the law in supersession of the law declared by it earlier, could not restrict the operation of the law as declared to the future and save the transactions whether statutory or otherwise that were affected on the basis of the earlier law. [813 F-H]
As this Court for the first time has been called upon to apply the doctrine evolved in a different country under different circumstances, it would like to move warily in the beginning and would lay down the following propositions : (1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution; (2) it can be applied only by highest court of the country, ie. the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the Courts as it has India; (3) the scope of the retrospective operation of the law declared by the supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with- the justice of the cause or matter before it. [814 C-D] Applying the doctrine of prospective overruling in the circumstances of the present case the Court declared that this decision would not affect the validity of the Constitution (Seventeenth Amendment) Act 1964, or other amendments to the Constitution taking away or abridge the fundamental rights. It further declared that in future Parliament will have no power to amend Part III of Abe Constitution so as to take away or abridge the fundamental rights. [814 F-G]
(x) As according to the above decision the Constitution (Seventeenth Amendment) Act held the field the validity of the two impugned Acts, namely the Punjab Security of Land Tennures Act, 10 of 1953 and the Mysore Land Reforms Act, 10 of 1962, as amended by Act 14 of 1965, could, not be questioned on the ground that they offended Art 13, 14 or 31 of the Constitution. [815 E]
(xi) On the findings the following, questions did not fall to be considered :
(a) Whether in the exercise of the power of amendment the fundamental structure of the Constitution may be changed or even destroyed or whether the power is restricted to making modification within the framework of the original instrument for its better effectuation ?
(b) Whether the amendment of fundamental rights is covered by the proviso to Art. 368 ? (c) To what extent can the provisions of die Constitution other than fundamental rights be amended ?
(d) To what extent can Part III be amended otherwise thin by taking away or abridging the fundamental rights ?
(e) Whether the impugned Act could be sustained under the provisions of the Constitution without the aid of Arts. 31A and 31B of the Schedule.
Obiter If necessity to abridge the fundamental rights does arise the residuary power of Parliament may be relied upon to call for a constituent bly for making a new Constitution or radically changing it. The recent Act providing for a poll in Goa, Daman and Diu was an instance of analogus exercise of such residuary power by the Parliament, [816 E-F]
Per Hidayatullah. J. : (i) The scope of the amending power under the COnstitution is not to be determined by taking an apriori view of the
omnicompetence of Art. 368. When there is conflict between that Article and Art. 13(2) juridical hermeneutics requires the Court to interpret them by combining 'them and not by destroying one with the aid of the other. No part in a Constitution is superior to another part unless the Constitution-itself says so and there is no accession of strength to any provision. by calling it a code. It is, the context of the legal provisions that illustrates the meaning of the different parts so that among them and between them there should be correspondence and harmony. [857 H-858C] (ii) It is wrong to think of the Fundamental Rights as within Parliament's giving or taking. They are secured to the people by Arts. 12, 13, 32, 136, 141,,144 and 226. The High Courts and finally this Court have been made the Judges of whether any lagislative or executive action on the part of the State, considered as comprehensively as is possible,offends the Fundamental Rights and Art. 13(2)declares that legislation which so offends is to be deemed to be void. The general words of art. 368 cannot be taken to mean that by calling an Act an Amendment of the Constitution Act a majority of total strengths and a 2/3rds majority of the members presnt and voting in each House may remove not only any of the Fundamental Rights but the whole Chapter giving them. [860 A-D; 867 FF]
(iii) In Britain there is no distinction between constitutional law and' ordinary law as to the procedure of their enactment. In our Constitution too in spite of the claim that Art. 368 is a Code Arts. 4, 11 and 169 show that the amendment of the Constitution can be by the ordinary law making procedure. By this method one of the legislative limbs in a State can be removed or created. This destroys at one stroke the claim that Art. 368 is a code and. also that any special method of amendment of the Constitution is fundamentally necessary. [861 E-G]
The only difference between constitutional law and ordinary law can, be said to arise from the fact that constitutional laws are generally amend-able under a process which in varying degrees, is more difficult or elaborate. This may give a distinct character to the law of the Constitutionbut it does not serve to distinguish it from the other laws of the land for the purpose of Art. 13(2). The Article itself does not exclude constitutional law which could have been easily done had the constitution makers. so intended. [862 B; 866 B]
An amendment to the Constitution is not made under power derived' from Arts. 245 or 248 of the Constitution read with entry 97 of List 1. The power of amendment is sui generis. [900 E]
(iv) A narrow view need not be taken of the word amendment'.. By an amendment new matter may be added, old matter removed or altered. The power of amending the Constitution is however not intended to be used for experiments or as an escape, from restrictions against undue State action enacted in the Constitution itself. Nor is the power of amendment available for the purpose of remoing express or implied restrictions against the State. [862 F; 863 B-C]
Coleman v. Milter, 307 U.S. 443 (83 L. Ed. 1385), Luther V. Borden,, 7 How. 1(12 L. Ed. 58) and Baker v. Carr, 369 U.S. 186 (7 L. Ed. 2d., 633), referred to.
The State is no doubt supreme but in the supremacy of its powers it may create impediments on its own sovereignty. There is nothing to prevent the State from placing certain matters outside the amending procedure. When this happens the ordinary procedure of amendment ceases to apply. Amendment can then only be by a freshly constituted body.. 768
To attempt to do this otherwise is to attempt revolution which is to alter the will of the people in an illegal manner. Courts can interfere to nullify the revolutionary change because there is an infraction of exiting legality. Democracy may be lost if there is no liberty based on law and law based on equality. The protection of the fundamental rights is necessary so that we may not walk in fear of democracy itself. [863 G; 864 A-C; 865 A-D] (v) In Art. 13(2) the restriction is against the State. There is a difference between the State and its agencies such as Government, Parliament, the Legislature of the States, and the local and other authorities. The State means more than any of these or all of them put together. By making the State subject to Fundamental Rights it is clearly stated in Art. 13(2) that any of the agencies acting alone or all the agencies acting together are not above the Fundamental Rights. Therefore when the- House of the People or the Council of States introduces a Bill for the abridgement of the Fundamental Rights, it ignores the injunction against it and even if the two Houses pass the Bill the injunction is next operative against the President since the expression Government of India in the General Clauses Act means the President of India. Thus the injunction in Art. 13(2) is against the whole force of the State acting either in its executive or legislative capacity. [866 E-H]
(vi) It is wrong to invoke the Directive Principles as if there is some antinomy between them and the Fundamental Rights. The Directive Principles lay down the routes of State action but such action must avoid the restrictions stated in the Fundamental Rights. It cannot be conceived that in following the Directive Principles the Fundamental Rights can be ignored. [867 G, 868 B]
(vii) Our Constitution has given a guaranteed right to the persons whose fundamental rights are affected to move the Court. The guarantee is worthless if the rights are capable of being taken away. This makes our Constitution unique and the American or other foreign precedents cannot be of much assistance. [875 H]
Hollingsworth v. Virginia, 3 Dall. 378, Leser v. Garnett, 258 U.S. 130, Dillon v. Gloss, 256 U.S. 368 and Texas v. White, 7 Wall, 700, referred to.
It is not that Fundamental Rights are not subject to any change or modification. The Constitution permits a curtailment of the exercise of most of the Fundamental Rights by stating the limits of that curtailment. It permits the Fundamental Rights to be controlled but prohibits their erasure. [878 B]
(viii) Parliament today is not the constituent body as the constituent 'assembly was but a constituted body which must bear true allegiance to the Constitution as by law established. To change the Fundamental Part of the individuals liberty is a usurpation of the constituent functions because they have been placed outside the scope of the power of the constituted Parliament. [870 B-D] Our Constitution like some others has kept certain matters outside the amendatory process so that the their representatives. In Art. 35 obstante clause. They exclude Article under the proviso. It is therefore a great error to think of Art. 368 as a code or as omnicompetent. [901 C-E; 902 A-B]
Garnishee case, 46 C.L.R. 155, referred to. Article 368 cannot directly be amended by Parliament to confer power on itself over the fundamental rights, It would be against Art. 13(2). Parliament cannot do indirectly what it cannot do directly. [878 H]
(ix) If it is desired to abridge the Fundamental Rights the legal method is that the State must reproduce the power which it has chosen to put under restraint. Parliament must amend Art. 368 to convoke another constituent assembly, pass a law under item 97 of the List 1 of Schedule 7 to call a constituent assembly, and then that assembly may be able to abridge or take away the fundamental rights. Any other method must be regarded as revolutionary. [878 D-E; 879 B] (x) The various amendments that have been made by Parliament in Arts. 15, 16 and 19 did not abridge fundamental rights and were therefore valid. [879 C, 883 B] (xi) Our Constitution accepted the theory that Right of Property is a fundamental right though perhaps it was an error to do so if socialisation was desired. It treated property rights as inviolable except through law for public good and on payment of compensation. However the various amendments have significantly changed the position. As a result of them, except for land within the prescribed ceiling, all other land can be acquired or rights therein extinguished or modified without compensation and no challenge to the law can be made under Arts. 14, 19 or 31 of the Constitution. [887 B; 888 B-C; 896 F-G] As there is apprehension that the erosion of the right to property may be practised against other fundamental rights it is necessary to call a halt. An attempt to abridge or take away Fundamental Rights by a constituted Parliament even through an amendment of the Constitution can I declared void. This Court has the power and the jurisdiction to do so. The opposite view expressed in Sajjan Singh's case was wrong.. [898 B-C]
(xii) The First, Fourth and Seventh amendments of the Constitution, cannot now be challenged because of long acquiescence. It is good sense and sound policy for the courts to decline to take up an amendment for consideration after a considerable lapse of time when it was not challenged before or was sustained on an earlier occasion after challenge. [893 O, H 1902 D-E]
Lesser v. Garnett, 258 U.S. 130 (1922), referred to. (xiii) In the Seventeenth Amendment, the extension of the definition of 'estate' to include ryotwari and agricultural lands is an inroad into the Fundamental Rights but it cannot be questioned in view, of the existence of Art. 3 1A(1) (a) whose validity cannot now be challenged. The new definition of estate introduced by the amendment is beyond the reach of the Courts not because it is not law but because it is "law" and fills within that word in Art. 31(1) (2) (2A) and Art. 3 1-A(1). [899 C-G]
The third section of the Act is however invalid. It adds 44 State Acts to the ninth schedule. The Schedule is being used to give advance protection to-legislation which is known or apprehended to derogate,from the Fundamental Rights. The power under Art. 368 was not meant to give protection to State statute-, which offend the Constitution. The intent here is to silence the courts and not to amend the Constitution. [900 A-D]
(xiv) The two impugned Acts namely the Punjab Security of Land Tenures Act, 1953 and the Mysore Land Reforms Act, 1962 as amended are valid under the Constitution not because they are included in Schedule 9 of the Constitution but because they are protected by Art. 3 1-A and the President's assent. [902 G-H]
Per Wanchoo, Bachawat, Ramaswami, Bhargava and Mitter, JJ. (dissenting): Article 368 carries the power to amend all parts of the Constitution including the fundamental rights in Part III of the Constitution. An amendment is not 'law' for the purpose of Art. 13(2) and cannot be tested under that Article.
Sri Sankari Prasad Singh Deo v. Union of India,  S.C.R. 89 and Sajjan Singh v. State of Rajasthan,  1 S.C.R. 933, reaffirmed.
Per Wanchoo, Bhargava and Mitter, JJ.-(i) The Constitution provides a separate part headed 'Amendment of the Constitution' and Art. 368 is the only article in that Part. There can therefore, be no doubt that the power to amend the Constitution must be contained in Art. 368. If there was any doubt in the matter it is resolved by the words, namely, "the Constitution shall stand amended in accordance with the terms of the bill". These words can only mean that the power is there to amend ,the Constitution after the procedure has been followed. [826 A-D]
(ii) While there is a whole part devoted to the amendment of the Constitution there is no specific mention of the amendment of the Constitution in Art. 248 or in any entry of List 1. It would in the circumstances 'be more appropriate to read the power in Art. 368 than in Art. 248 read with item 97 of List I. [826 H-827 A]
The original intention of the Constitution makers was to give residuary power to the States. The mere fact that during the passage of the Constitution by the Constituent Assembly residuary power was finally vested in the Union would not therefore mean that it includes the power to amend the Constitution. Moreover residuary power cannot be used to change the fundamental law of the Constitution because all legislation is under Art. 245 "subject to the provisions of this Constitution". [827 B, H]
Mere accident of similarity of procedure provided in Art. 368 to that provided for ordinary legislation cannot obliterate the basic difference 'between constitutional law and ordinary law. It is the quality and nature of what is done under Art. 368 and not its similarity to other procedure that should be stressed. What emerges after the procedure in Art. 368 has been followed is not ordinary law but fundamental law. [829 D; 830 C-D]
(iii) The procedure under the proviso to Art. III cannot apply to a 'bill to amend the Constitution. If the President refused to, give his assent to such a bill-, the proposed amendment falls. In this respect at any rate the procedure under Art. 368 differs from, the ordinary legislative process. [831 B-E]
(iv) The word 'law' has been avoided apparently with great care in Art.368. What emerges after the procedure has been followed is not an Act but the Constitution stands amended. After that the courts can only see whether the procedure in Art. 368 was followed. If it has been followed there is no question of testing the amendment of the Constitution On the avail of fundamental rights or in any other way as in the case of ordinary legislation. [832 A-G]
(v) To say that 'amendment' in law only means a change which results in improvement would make amendment impossible for what is improvement is a matter of opinion. [834 B] It may be open to doubt whether the power of amendment contained in Art. 368 goes to the extent of completely abrogating the present Constitution and substituting I it by an entirely new one. But short of that the power to amend includes the power to add any provision to the Constitution to alter any provision and substitute any other provision in its place or to delete any provision. [834 F-G] The seventeenth amendment is merely in exercise of the power of amendment as indicated above and cannot be struck down on the ground that it goes beyond the power conferred by Parliament to amend the Constitution by Art. 368. [834 H] (vi) There is no express limitation on power of amendment in Art. 368 and no limitation can or should be implied therein. If the Constitution makers intended certain basic provisions in the Constitution, and Part III in particular, to be not amendable there is no reason why it was not so stated in Art. 3 68. The acceptance of the principle that them is an implied bar to amendment of basic features of the Constitution would lead to the position that any amendment to any article would be liable to challenge before the courts on the ground that it amounted to amendment of a basic feature. Constituent power like that in Art 368 can only be subject to express limitations so far as the substance of the amendments is concerned. [835 A; 836 D, G] (vii) For interpreting Art. 369 it is not permissible to read the speeches made in the Constituent Assembly. Historical facts namely what was accepted or what was not accepted or what was avoided in the Constituent Assembly can be looked into; but in connection with Art. 368 no help can be got from the historical material available. [838 C] Administrator General, of Bengal v. Prem Lal Mullick, (1895) XXII I.A- 107, Baxter v. Commissioner of Taxation, (1907) 4 C.I.R. 1087, A. K. Gopalan v. State of Madras  S.C.R. 88 and The Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan,  1 S.C.R. 491, referred to. (viii) The preamble to the Constitution cannot prohibit or control in any way or impose any implied restrictions or limitations on the power to amend the Constitution contained in Aft. 368. [838 H]
In re the Berubari Union and Exchange of Enclaves,  3 S.C.R. 250, referred to.
(ix) The word 'law' in Art. 13(1) does not include. any law in the nature of a constitutional.provision for no such law remained in view of Art. 395 which provided that "the Indian Independence Act, 1947 and the Government of India Act, 1935, together with all enactments amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed. There is no reason why if the word 'law' in Art. 13(1) relating to past laws does not include any constitutional provision the- word 'law' in cl. (2) would take in an amount of the Constitution for it would be reasonable to read the word in the same sense in both the clauses. [839 D-F] Article 13 (2) when it talks of the State making any law, refers to the law made under the provisions contained in Ch. 1 of Part XI of the Constitution beginning with Art. 245. It can have no reference to the
Constituent power of amendment under Art. 368. For it is somewhat contradictory that in Art. 368 power should have been given to amend any provision of the Constitution without any limitations but indirectly that power should be limited by using words of doubtful import in Art. 13(25.[841 C]
The power conferred by the words of Art. 368 being unfettered, inconsistency between. that power and the provision in Art. 13(2) must be avoided. Therefore in keeping with the unfettered power in Art. 368 the word 'law' in Art. 13(2) must be read as meaning law passed under the ordinary legislative power and not a constitutional amendment. The words in Art. 13(2) are not specific and clear enough to be regarded as an express limitation on Art.
368. [842 G-H]
(x) Merely because there was some indirect effect on Art. 226 it was not necessary that the Seventeenth Amendment should have been ratified under the proviso to Art. 368. Art. 245 had not also been directly affected by the said Act and no ratification %-as required on this ground either. [843 G-H; 846 C]
(xi) The laws added to the Ninth Schedule by the Seventeenth Amendment Act had already been passed by the State Legislatures and it was their constitutional infirmity, if any, which was being cured by the device adopted in Art. 31B read with the Ninth Schedule, the amendment being only of the relevant provisions of Part III which were compendiously put in one place in Art. 31B. Parliament could alone do it under Art. 368 and there was no necessity for any ratification under the proviso, for amendment of Part HI is not entrenched in the proviso. [847 E]
In curing the infirmity of the said laws Parliament was not encroaching on the exclusive legislative powers of the States because only Partiament could card the infirmity. For the same reason the fact that the laws in question were State laws did. not make ratification obligatory.. [847 G] A limited meaning cannot be given to Art, 368 because of the possibility of abuse of the power. The check is not in the courts but in the people who plect members of Parliament. [848 F]
The power of amendment contained in a written federal constitution is a safety valve which to a large extent provides for stable growth and makes violent revolution more or less unnecessary. The fact that in the last sixteen years a large number of amendments , could be made and have been made is due to the accident that one party has been returned by electors in sufficient strength to be able to command Special majorities which are required in Art. 368, not only at the Centre but in all the States. But that is no ground for limiting the clear words of Art. 368. [850 C- D, E]
(xii)Though the period for which Sankari Prasad's case has stood unchallenged is not long, the effects which have followed on the passing of State laws on the faith of that decision, are so overwhelming that the decision should not be disturbed otherwise chaos will follow. This is the fittest possible case in which the principle of stare decisis should be applied [851 G]
Keshav Mills: Company, Ltd V Commissioner of Income- tax, 2 S.C.R. 908, referred to.
(xii)The doctrine of prospective overruling cannot be accepted in this country. The doctrine accepted here is that courts declare law and that a declaration made by a court is the law of the land and takes effect 773
from the date the law came into force. It would be undesirable to give up that doctrine and supersede it with the doctrine of prospective overruling. [852,D-F] Moreover a law contravening Art. 13(2) is void ab initio as held by this Court in Deep Chand's case and Mahendra Lal Jaini's case. In the face of these decisions it is impowible to apply the doctrine of prospective overruling to ordinary laws. If constitutional law is to be treated as ordinary law the same principle applies. If however it is not treated as 'law' under Art. 13(2) then there is no necessity of applying the principle of prospective overruling for in that case the amendment under Art. 368 does not have to be tested under Art. 13(2). [852 G-H; 853 B]
Deep Chand v. St ate of Uttar Pradesh,  Supp. 2 S.C.R. 8 and Mahendra, Lal Jaini v. State of Uttar Pradesh,  Supp. 1 S.C.R. 912, referred to.
Per Bachawat J.-(i) Article 368 not only prescribes the procedure but also gives the power of amendment. It is because the power to amend is given by the article that by following its procedure the Constitution stands amended. The proviso is enacted on the assumption that the several articles mentioned in it are amendable; but for the proviso they would have been amendable under the main part. There is no other provision in the Constitution under which these articles' can be amended. [904 D]
Articles 4, 169, Fifth Schedule Part D and Sixth Schedule Para 21 empower the Parliament to make amendments to certain parts of the Constitution by law, and by, express provision such law is deemed not to be amendment for the purpose of Art. 368. All other provisions of the Constitution can be amended by recourse to Art. 368 only. No other article confers the power of amending the Constitution. [904E-F] (ii) The power to amend the Constitution cannot be said to reside in Art. 248 and List 1, item 97 because if amendment could be made by ordinary legislative process Art. 368 would be meaningless. Under the residual power the Parliament has no competence to make any law with respect to any matter enumerated in Lists II and III of the 7th Schedule, but under Art. 368 even Lists 11 and III can be amended. Moreover a law passed by residual power is passed by virtue of Art. 245 and must be subject to the provisions of the Constitution so that it cannot derogate from the Constitution or amend it. Such a law would be void. [905 C- P]
(iii) Article 368 gives the power of amending 'this Constitution'. This Constitution means every part of the Constitution including Part ITT and Art. 13(2). Thus Art. 13(2) is also within the reach of the amending power. Instead of controlling Art. 368 it is controlled by that Article. [906 C-D; H]
(iv) The contention that a constitutional amendment under Art. 368 is a law within the meaning of Art. 13 must be rejected. The distinction between the Constitution and law is so fundamental that the Constitution is not regarded as a law or a legislative act. The Constitution mean-, the Constitution as amended. An amendment made in conformity with Art. 368 is a part of the Constitution and is likewise not law. Save as expressly provided in Arts. 4, 169 Fifth Schedule Part D and Sixth Schedule para 21 no law can amend the Constitution and a law which purports to make such an amendment is void. It is for this reason that Art. 368 avoids all reference to law making by the Parliament. There 3 Sup. CI./67-4
are. also material differences between the ordinary law making procedure and the procedure under the Article. [907 B-F; 908 D-H]
If a constitutional amendment creating a new fundamental rights and incorporating it in Part III were a law, it would not be open to the Parliament by a subsequent amendment to abrogate the new fundamental right for such an amendment would be repugnant to Part 111. But the conclusion is absurd for the body which enacted the right can surely take it away by the same process. [909 E]
Marbury v. Madison, (1803) 1 Cranch 137 :2 L.Ed. 60 and Riley v. Carter, 88 A.L.R. 1008, referred to. (v) There is no conflict between Arts. 13(2) and 368. The two articles operate in different fields, the former in the field of law, the latter in that of constitutional amendment. [910 B]
(vi) The non-obstante clause in Art. 35 does not show that the article is not amendable. The non-obstante clause is to be found also in, Arts. 258(1). 364, 369, 370 and 371A. No one has suggested that these articles are not amendable. [910 D]
(vii) The words 'fundamental' used in regard to rights in Part III and the word guaranteed in Art. 32 do not mean that the said rights cannot be amended. The constitution is never at rest; it changes with the progress of time. The scale of values in Parts III and IV is not immortal and these Parts being parts of the Constitution are not immune from amendment under Art. 368. [910 F-G]
The impugned amendments to be Constitution were made to meet the situations created by decisions of this Court and to carry out urgent agrarian reforms. If it is held that the rights, conferred by Part III cannot be abridged or taken away by constitutional amendments, all these amendments would be invalid. The Constitution makers could not have intended that the ' rights conferred by Part III could not be altered for' giving effect to the policy of Part. IV. Nor was it intended that defects in Part III could not be cured or that possible errors in judicial interpretations of Part III could not be rectified by constitutional amendments. [913 D-E]
(viii) It cannot be said that the people in exercise of their sovereign power have placed the fundamental rights beyond the reach of the amending power. The people acting through the Constituent Assembly reserved for themselves certain rights and liberties and ordained that they shalt not be curtailed by ordinary legislation. But the people by the same Constitution also authorised the Parliament to make amendments to the Constitution. In exercise of the amending power the Parliament has ample authority to, abridge or take away the fundamental rights under Part III [915 B-C] Merely because of possibility of abuse, the power cannot be denied. [916 H]
Webb v. Outrim,  A.C. 81 and amalgamated Society of Engineers'. The Adelaide Steamship Company Limited & Ors. 28 C.L.R. 129, referred to.
(ix) The main part of Art. 368 gives the power to amend or make changes in the Constitution. A change is not necessarily an improvement. Normally the change is made with the object of making an improvement but the experiment may fail to achieve the purpose. [916 A]
Livermore v. E. G. Waite, 102 Cal. 113-25 L.R.A. 312 and National Prohibition case. 253 U.S. 350, referred to. 77 5
(x) The best exposition of the Constitution is that which it has received from contemporaneous judicial decisions and enactments. No one in Parliament doubted the proposition that fundamental rights could be amended, when the First Amendment Act of 1951 was passed. The concept of amendability was upheld in S. Krishnan & Ors. v. State of Madras  S.C.R. 621 decided in 1951,'in Sankari Prasad decided in 1952 and Sajjan Singh decided in 1964. [918 C-D] (xi) There is no provision in the Constitution for calling a convention for its revision or far submission of any proposal for amendment to the referendum. [918 G] (xii) The impugned amendments affected Arts. 226 and 245 only indirectly and did not require ratification under the proviso to Art. 168. [919 D-H]
In validating the impugned laws Parliament was not encroaching on-.the State List. It was only validating the said laws and such constitutional validating was within its competence. [920 C-E]
(xiii) The abolition of Zamindari was a necessary reform. It is the First Constitution Amendment Act that made this reform possible., No legal argument' can restore the outmoded feudal Zamindari system.What has been done cannot be undone. The battle for the put is lost. [921 B-C] If the First Fourth, Sixteenth & Seventeenth Amendments Acts are void they do not legally exist from their inception. They cannot be, valid from 1951 to 1967 and invalid thereafter. To say that they were valid in the past and Will be invalid in the future is to amend the.Constitution. Such a naked power of amendment is not given to the Judges and therefore the doctrine of prospective overruling cannot be, adopted. [921 D-E]
It is not possible to say that the First and Fourth Amendments though originally valid have now been validated by acquiescence. If they infringe Art. 13(2) they were void from their inception. If these ammendments are validated by acquiescence the Seventeenth Amendment is equally validated. [921 F; 922 B]
(xv) The contention that Dr. Ambedkar did not regard the fundamental rights as amendable is not supported by the speeches in the' Constituent Assembly. [922 C-D] Per Ramaswami J.(i) In a written Constitution the amendment of the Constitution is a substantive constituent act which, is made in the exercise of the sovereign power through a predesigned procedure unconnected with ordinary legislation. The amending power in Art. 368 is hence sui generis and cannot be compared to the law making power of Parliament pursuant to Art. 246 read with Lists II and Ill. It follows that the expression 'law' in Art. 13(2) cannot be construed as including an amendment of the Constitution which is achieved by Parliament in exercise of its sovereign constituent power but must mean law made by Parliament in its legislative capacity under Art. 246 read 'with I List I and III of the 7th Schedule. It is also clear on the same line of reasoning that law in Art. 13(2) cannot be construed so as to include "law' made by Parliament under Arts. 4, 169, 392, 5th Schedule Part 1 and 6th Schedule para 21. The amending power of Parliament exercised under these Articles stands on the same pedestal as the constitutional amend ment made under Art. 368 so far as Art. 13(2) is concerned. [930 H 931 E]
(ii) The language of Art. 368 is perfectly general and empowers Parliament to amend the Constitution without any exception whatsoever.
The use of the word 'fundamental' to describe the rights in Part III and the word 'guaranteed' in Art. 32 cannot lift the fundamental rights above the Constitution itself [931 F, H]
(iii) It is unreasonable to suggest that what Art. 368 provides is only the mechanics of the procedure for amendment and not the power to amend. The significant fact that a separate part has been devoted in the Constitution for "amendment of the constitution" and there is only one Article in that Part shows that both the power and the procedure to amend are enacted in Art. 368. Again the words "the Constitution shall stand amended in accordance with the terms of the Bill" in Art. 368 clearly contemplate and provide for the power to amend after the requisite procedure has been followed. [932 C-E]
(iv) The power of constitutional amendment cannot fall within Arts. 246 and 248 read with item 97 of List I because it is illogical and a contradiction in terms to say that the amending power can be exercised "subject to the provisions of the Constitution" as the power under these articles must be. [933 B]
(v) There is no room for an implication in the construction ofArt. 368. If the Constitution makers wanted certain basic features to be unamendable they would have said so. [933 G-H]
State of West Bengal v. Union of India,  1 S.C.R. 371 and In re The Berubari Union and Exchange of Enclaves  3 S.C.R. 250, referred to.
The concepts of liberty and equality are changing and dynamic and hence the notion of permanency or immutability cannot be attached to any of the fundamental rights. The adjustment between freedom and compulsion, between the rights of individuals and the social interest and welfare must necessarily be a matter for changing needs and conditions. The proper approach is therefore to look upon the fundamental rights of the individual as conditioned by social responsibility, by the necessities of the society, by the balancing of interests and not as pre-ordained and untouchable private rights. [934 E-935 C]
(vi) It must not be forgotten that neither the rights in Art. 31 nor those in Art. 19 are absolute. The purposes for which fundamental rights can be regulated which are specified in cls. (2) to (6) could not have been assumed by the Constitution makers to be static and incapable of expansion. It cannot be assumed that the Constitution makers intended to forge a political strait-jacket for generations to come. Today at a time when absolutes are discredited, it must not be too readily assumed that there are basic features of the Constitution which shackle the amending power and which take precedence over the general welfare of nation and the need for agrarian and social reform. [936 B-937 C]
(vii) In construing Art. 368 it is essential to remember the nature and subject matter of that Article and to interpret it subjectae materies. The power of amendment is in point of quality an adjunct of sovereignty. It is in truth the exercise of the highest sovereign power in the State. if the amending power is an adjunct of sovereignty it does not admit of any limitations. [937 D] (viii) If the fundamental rights are unamendable and if Art. 368 does not include any such power it follows that the amendment of, say, Art. 31 by insertions of Arts. 31A and 31B can only be made by a violent revolution. It is doubtful if the proceedings of a new Constituent Assembly that may be called will have any legal validity for if the 777
Constitution provides its own method of amendment, any other method will be unconstitutional and void. [490 A-B] George S. Hawke v. Harvey C. Smith, 64 L.Ed. 871 and Feigenspan v. Bodine, 264 Fed. 186, referred to. (ix) It is not permissible in the first place to assume that in a matter of constitutional amendment there will be abuse of power and then utilise it as a test for finding out the scope of the amending power. In the last analysis political machinery and artificial limitations will not protect the people from themselves. [941 F-G]
State of West Bengal v. Union of India,  1 S.C.R. 371 and American Federation of Labour v. American Sash & Door Co. 335 U.S. 538, referred to.
(x) What the impugned Act purports to do is not to make any and legislation but to protect and validate the legislative measure passed by different State legislatures. This was within the legislative competence of Parliament. [942 F] Leser v. Garnett, 258 U.S. 130, National Prohibition Cases. 253 U.S. 350 and United States v. Sprague, 282 U.S. 716, referred to.
Articles 226 and 245. were not directly affected by the impugned Act and therefore no ratification by the State Legislatures was necessary. [942 D-H; 945 D] A. K. Gopalan v. State of Madras,  S.C.R. 88, Ram Singh & Ors. v. State of Delhi & Anr.,  S.C.R. 451, Express Newspapers (Pvt.) Ltd. v. Union of India,  S.C.R. 12, Atiabari Tea Co. Ltd. v. State of Assam,  1 S.C.R. 809 and Naresh Shridhar Mirajkar v. State of Maharashtra  3 S.C.R. 744, referred to. (xi) Even on the assumption that the impugned Act is unconstitutional the principle of stare decisis must be applied to the present case and the plea made by the petitioners for reconsideration of Sankari Prasad's case and Sajjan Singh's case must be rejected. [948 D-E] On the landings it was not necessary to express an opinion on the doctrine of prospective overruling of legislation. [948 G-H]
ORIGINAL JURISDICTION: Writ Petition No. 153 of 1966. (Under Article 32 of the Constitution of India for enforcement of the Fundamental Rights)
Writ Petition No. 202 of 1966.
(Under Article 32 of the Constitution of India for enforce- ment of the Fundamental Rights)
Writ Petition No. 205 of 1966.
(Under Article 32 of the Constitution of India for enforcement of the Fundamental Rights)
In Writ Petition No. 153 of 1966.
R. V. S. Mani, S. K, Mehta and K. L. Mehta, for the petitioners.
Niren,De, Additional Solicitor-General of India,and R. N. Sachthey, for the Respondents.
Niren De, Additional Solicitor-General of India,G.Rajagopal, and R. H. Dhebar,for Intervener Ng. 1.
S. D. Banerjee, Advocate-General for the State of West Bengal,
B. Sen and P. K. Bose,for Intervener No.2. Lal Narain Sinha, Advocate-General for the State of Bihar, Bajrang Saha, M. M. Gajadhar, K. M. K. Nair, D. P. Singh, M. K. Ramamurthi, R. K. Garg, S. C.. Agarwala and G. D. Gupta, for Intervener No. 3.
Mohan Kumaramangalam., Advocate-General for the State of Madras, B. Ramamurthi and A. V. Rangam, for Intervener No. V. D. Mahajan and R. H. Dhebar, for Intervener No., 5. K. L. Mishra, Advocate-General for the State of Uttar Pradesh, and O. P. Rana, for Intervener No., 6. V. A. Seyid Muhamad, Advocate-General for the State of Kerala, B. R. L. Iyengar, A. G. Pudissery, for Intervener No. 7.
Naunit Lal, for Intervener No. 8.
K. B. Mehta, for Intervener No. 9.
P. Ram Reddy and T. V. R. Tatachari, for Intervener No.
M. C. Stealvad, B. R. L. Iyengar and R. H. Dhebar, for Inter-vener No. 11.
R. Thiagarajan, for Intervener No. 12.
D. N. Mukherjee, for Interveners Nos. 13 and 19 to 21. E. Udayairatnam, S. S. Dalal and D. D. Sharma, for Inter- veners Nos. 14 and 15.
R. K Garg, D.. P. Singh, M. K. Ramamurthi, S. C. Agarwala, G. D. Gupta and K. M. K. Nair' for Intervener No. 16. 'K. Parasaran and K. R. Chaudhuri, for Intervener No. 17. Basudev Prasad, K. Parasaran and K. R. Chaudhuri, for Intervener No. 18.
Basudev-Prasad, K. Rajendra Chaudhuri, K. R. Chaudhuri and S. N. Prasad, for Interveners Nos. 22 to 24. 779
in Writ Petition No. 202 of 1966.
M.K. Nambyar, K. B. Jinaraja Hegde, N. A., Subramaniam, Bhuvanesh Kumari, O. C. Mathur, J. B. Dadachanji and Ravin- der Narain, for the Petitioner.
H. R. Gokhale, B. P.. G. K. Achar, K. H. Dhebar, R. N. Sachthey and S. P. Nayyar, for Respondent No. 1. Niren De, Additional Solicitor-General, N. S. Bindra and R. N. Sachthey, for Respondent No. 2.
A. K. Sen, F. S. Nariman, M. L. Bhakte, S. I. Thakere, J. B.
Dadachanji, O. C. Mathur and Ravinder Narain, for Intervener No. 1.
N. A. Palkhiwala, F. S. Nariman, M. L. Bhakte, D. M. Popat,0. P. Malhotra, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for Intervener No. 2.
D. M., Parulekar B. Dutta, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for Intervener No. 3. In Writ Petition No. 205 of 1966.
M. K. Nambyar, K. B. Jinaraja Hegde, N. A. Subramaniam, Bhuvanesh Kumari, O. C. Mathur, J. B. Dadachanji and Ravin- der Narain, for the Petitioner.
H. R. Gokhale, B. R. G. K. Achar, R. H. Dhebar and S. P. Nayyar, for Respondent No. 1.
S. G. Patwardhan, D. M. Parulekar, B. Dutta, S. K. Dhelika,
1. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the Intervener.
The Judgment Of SUBBA RAO, C.J., SHAH, SIKRI, SHELAT and VAIDIALINGAM, JJ. was delivered by SUBBA RAO, C.I. According to this Judgment-(i) the power to amend the Constitution is not to be found in Art. 368 but in Arts. 245, 246 and 248 read with Entry 97 of List 1; (ii) the amending power can. not be used to abridge or take away the fundamental rights guaranteed in Part III of the Constitution; (iii) a law amending the Constitution is "Law" within the meaning of Art. 13(2) and (iv). the First, Fourth and Seventeenth Amendments though they abridged fundamental rights were valid in the past on the basis of earlier decisions of this Court and continue to be valid for the future. On the application of the doctrine of "prospective over-ruling", as enunciated in the judgment, the decision will have only prospective operation and Parliament will have no power to abridge or take away Fundamental Rights from the date of the judgment.
The Judgment of WANCHOO, BHARGAVA and MITTER, JJ. was delivered by WANCHOO, J. According to this Judgment (i) the 780
power of amending the Constitution resides in Art. 368 and not in Arts. 245, 246 and 248, read with EntrY 97 of List 1; (ii) there, are no restrictions on the power if the procedure in Art. 368 is followed and all the Parts of the Constitution including Part III, can be amended, (iii) an amendment of the Constitution is not "'law" under Art. 13(2); and (iv) the doctrine of "prospective overruling" cannot be applied in India.
HIDAYATULLAH, J. delivered a separate judgment agreeing with SUBBA RAo, CJ. on the following two points: (i) that the power to amend the Constitution cannot be used to abridge or take away fundamental rights; and (ii) that a law amending the Constitution is "law" under Art. 13 (2). He agrees With WANCHOO, J. that the power to amend does not reside in Arts. 245 and 248 read wish Entry 97 of List 1.
Art. 368, according to him, is sui generis and procedural and the procedure when correctly followed, results in an amendment. He does not rely on the doctrine of "prospective overruling". As regards the First, Fourth and Seventh Amendments, these having long enured and been acquiesced in, he does not treat the question of their validity as being before him. As regards the Seventeenth Amendment he finds sufficient support for it in the Constitution as amended by the First, Fourth and Seventh Amendments and holds that the new definition of "estate", introduced by the Amendment, though it is "law" under Art. 13 (2) and is an inroad into fundamental rights, is beyond the reach of the courts because it falls within the word "law" in Arts. 31 (1), (2), 2A and 31A(1). He, however, declares section 3 of the Seventeenth Amendment Act ultra vires the amending process as an illegitimate exercise of the amending power. [BACHAWAT and RAMASWAMI, JJ. delivered separate judgments concurring with WANCHOO, J.]
Subbarao, C.J. These three writ petitions raise the important question of the validity of the Constitution (Seventeenth Amendment) Act, 1964.
Writ Petition No. 153 of 1966, is filed by the petitioners therein against the State of Punjab and the Financial Commissioner, Punjab. The petitioners are the son, daughter and granddaughters of one Henry Golak Nath, who died on July 30, 1953. The Financial Commissioner, in revision against the order made by the Additional Commissioner, Jullundur Division, held by an order dated January 22, 1962 that an area of 418 standard acres and 9-1/4 units was surplus in the hands of the petitioners under the provisions of the Punjab Security of Land Tenures Act X of 1953, read with s. 10-B thereof. The petitioners, alleging that the relevant provisions of the said Act where under the said area was 781
declared surplus were void on the ground that they infringed their rights under cls. (f) and (g) of Art. 19 and Art. 14 of the Constitution, filed a writ in this Court under Art. 32 of the Constitution for a direction that the Constitution (First Amendment) Act 1951, Constitution (Fourth Amendment) Act, 1955, Constitution (Seventeenth Amendment) Act, 1964, insofar as they affected their fundamental rights were unconstitutional and inoperative and for a direction that s. 10-B of the said Act X of 1953 was void as violative of Arts. 14 and 19 (1) (f) and (g) of the Constitution. Writ Petitions Nos. 202 and 203 of 1966 were filed by different petitioners under Art. 32 of the Constitution for a declaration that the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14 of 1965, which fixed ceilings on land holdings and conferred ownership of surplus lands on tenants infringed Arts. 14, 19 and 31 of the Constitution and, therefore, was unconstitutional and void. The States of Punjab and Mysore, inter alia, contended that the said Acts were saved from attack on the ground that they infringed the fundamental rights of the petitioners by reason of the Constitution (Seventeenth Amendment) Act, 1964, which, by amending Art. 31-A of the Constitution and including the said two Arts in the 9th Schedule thereto, had placed them beyond attack.
In Writ Petition No. 153 of 1966, 7 parties intervened. In Writ Petition No. 202 of 1966 one party intervened. In addition, in the first petition, notice was given to the Advocates General of various States. A11 the learned counsel appearing for the parties, the Advocates General appearing for the States and the learned counsel for the interveners have, placed their respective viewpoints exhaustively before us. We are indebted to all of them for their thorough preparation and clear exposition of the difficult questions of law that were raised in the said petitions.
At the outset it would be convenient to place briefly the respective contentions under different heads : (1) The Constitution is intended to be permanent and, therefore, it cannot be amended in a way which would injure, maim or destroy its indestructible character. (2) The word "amendment" implies such an addition or change within the lines of the original instrument as will effect an improvement or better carry out the purpose for which it was framed and it cannot be so construed as to enable the Parliament to destroy the permanent character of the Constitution. (3) The fundamental rights are a part of the basic structure of the Constitution and, therefore, the said power can be exercised only to preserve rather than destroy the essence of those rights. (4) The limits on the power to amend are implied in Art. 368, for the