Judgment

Home » Landmarks » Kesavananda Bharati vs State of Kerala (Part I)


Part-I|Part-II|Part-III|Part-VI

REPORTABLE

IN THE SUPREME COURT OF INDIA
CASE NO.: Writ Petition (civil) 135 of 1970
Kesavananda Bharati Sripadagalvaru and Ors …PETITIONER
Vs
State of Kerala and Anr …RESPONDENT
DATE OF JUDGMENT: 24/04/1973

BENCH: S.M. Sikri & A.N. Grover & A.N. Ray & D.G. Palekar & H.R. Khanna & J.M. Shelat & K.K. Mathew & K.S. Hegde & M.H. Beg & P. Jaganmohan Reddy & S.N. Dwivedi & Y.V.Chandrachud

J U D G M E N T

W.P.(C) 135 OF 1970
His Holiness Kesavananda Bharati Sripadagalvaru and Ors. …Appellants
Vs.
State of Kerala and Anr. …Respondent
Decided On: 24.04.1973

Hon’ble Judges: S.M. Sikri, C.J., A.N. Grover, A.N. Ray, D.G. Palekar, H.R. Khanna, J.M. Shelat, K.K. Mathew, K.S. Hegde M.H. Beg, P. Jaganmohan Reddy, S.N. Dwivedi and Y.V. Chandrachud, JJ.

J U D G M E N T

S.M. Sikri, C.J.

1. I propose to divide my judgment into eight parts. Part I will deal with Introduction;

Part II with interpretation of Golakhnath case; Part III with the interpretation of the original Article 368, as it existed prior to its amendment; Part IV with the validity of the Constitution (Twenty-fourth Amendment) Act; Part V with the validity of Section 2 of the Constitution (Twenty-fifth Amendment) Act; Part VI with the validity of Section 3 of the Constitution (Twenty-fifth Amendment) Act; Part VII with Constitution (Twenty- ninth Amendment) Act; and Part VIII with conclusions.

PART I-Introduction

2. All the six writ petitions involve common questions as to the validity of the Twenty- fourth, Twenty-fifth and Twenty-ninth Amendments of the Constitution. I may give a few facts in Writ petition No. 135 of 1970 to show how the question arises in this petition.

Writ Petition No. 135 of 1970 was filed by the petitioner on March 21, 1970 under Article 32 of the Constitution for enforcement of his fundamental rights under Articles 25, 26, 14, 19(1)(f) and 31 of the Constitution. He prayed that the provisions of the Kerala Land Reforms Act, 1963 (Act 1 of 1964) as amended by the Kerala Land Reforms (Amendment) Act 1969 (Act 35 of 1969) be declared unConstitutional, ultra vires and void. He further prayed for an appropriate writ or order to issue during the pendency of the petition. This Court issued rule nisi on March 25, 1970.

3. During the pendency of the writ petition, the Kerala Land Reforms (Amendment) Act 1971 (Kerala Act No. 25 of 1971) was passed which received the assent of the President on August 7, 1971. The petitioner filed an application for permission to urge additional grounds and to impugn the Constitutional validity of the Kerala Land Reforms (Amendment) Act 1971 (Kerala Act No. 25 of 1971).

4. In the meantime, the Supreme Court by its judgment dated April 26, 1971 in Kunjukutty Sahib v. State of Kerala [1972] S.C.C. 364 (Civil Appeals Nos. 143, 203-242, 274 & 309 of 1971). Judgment dated April 26, 1971 upheld the majority judgment of the Kerala High Court in V.N. Narayanan Nair v. State of Kerala A.I.R. 1971 Kerala 98 whereby certain, sections of the Act were struck down.

5. The Constitution (Twenty-fifth Amendment) Act came into force on November 5, 1971, the Constitution (Twenty-fifth Amendment) Act came into force on April 20, 1972 and the Constitution (Twenty-ninth Amendment) Act came into force on June 9, 1972.

The effect of the Twenty-ninth Amendment of the Constitution was that it inserted the following Acts in the Ninth Schedule to the Constitution:

65. The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969).

66. The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971).

6. The petitioner then moved an application for urging additional grounds and for amendment of the writ petition in order to challenge the above Constitutional amendments.

7. The Court allowed the application for urging additional grounds and for amendment of the writ petition on August 10, 1972 and issued notices to the Advocates-General to appear before this Court and take such part in the proceedings as they may be advised.

8. When the case was placed before the Constitutional bench, it referred this case to a larger bench to determine the validity of the impugned Constitutional amendments.

9. Similar orders were passed in the other writ petitions.

10. The larger bench was accordingly constituted. It was then felt that it would be necessary to decide whether I.C. Golak Nath v. State of Punjab [1967] INSC 45; [1967] 2 S.C.R. 762 was rightly decided or not. However, as I see it, the question whether Golak Nath’s [1967] INSC 45; [1967] 2 S.C.R. 762 case was rightly decided or not does not matter because the real issue is different and of much greater importance, the issue being : what is the extent of the amending power conferred by Article 368 of the Constitution, apart from Article 13(2), on Parliament ?

11. The respondents claim that Parliament can abrogate fundamental rights such as freedom of speech and expression, freedom to form associations or unions, and freedom of religion. They claim that democracy can even be replaced and one-party rule established. Indeed, short of repeal of the Constitution, any form of Government with no freedom to the citizens can be set up by Parliament by exercising its powers under Article 368.

12. On the side of the petitioners it is urged that the power of Parliament is much more limited. The petitioners say that the Constitution gave the Indian citizen freedoms which were to subsist for ever and the Constitution was drafted to free the nation from any future tyranny of the representatives of the people. It is this freedom from tyranny which, according to the petitioners, has been taken away by the impugned Article 31C which has been inserted by the Twenty-fifth Amendment. If Article 31C is valid, they say, hereafter Parliament and State Legislatures and not the Constitution, will determine how much freedom is good for the citizens.

13. These cases raise grave issues. But however grave the issues may be, the answer must depend on the interpretation of the words in Article 368, read in accordance with the principles of interpretation which are applied to the interpretation of a Constitution given by the people to themselves.

14. I must interpret Article 368 in the setting of our Constitution, in the background of our history and in the light of our aspirations and hopes, and other relevant circumstances. No other Constitution in the world is like ours. No other Constitution combines under its wings such diverse peoples, numbering now more than 550 millions, with different languages and religions and in different stages of economic development, into one nation, and no other nation is faced with such vast socio-economic problems.

15. I need hardly observe that I am not interpreting an ordinary statute, but a Constitution which apart from setting up a machinery for government, has a noble and grand vision.

The vision was put in words in the Preamble and carried out in part by conferring fundamental rights on the people. The vision was directed to be further carried out by the application of directive principles.

PART II-Interpretation of Golak Nath’s Case.

16. Before proceeding with the main task, it is necessary to ask : what was decided in I.C.

Golak Nath v. State of Punjab [1967] INSC 45; [1967] 2 S.C.R. 762 ? In order to properly appreciate that case, it is necessary first to have a look at Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar [1951] INSC 45; [1952] S.C.R. 89 and Sajjan Singh v. State of Rajasthan [1964] INSC 246; [1965] 1 S.C.R. 933.

17. The Constitution (First Amendment) Act, 1951, which inserted inter alia Articles 31A and 31B in the Constitution was the subject matter of decision in Sankari Prasad’s [1951] INSC 45; [1952] S.C.R. 89 case. The main arguments relevant to the present case which were advanced in support of the petition before this Court were summarised by Patanjali Sastri, J. as he then was, as follows:

First, the power of amending the Constitution provided for under Article 368 was conferred not on Parliament but on the two Houses of Parliament as designated body and, therefore, the provisional Parliament was not competent to exercise that power under Article 379.

Fourthly, in any case Article 368 is a complete code in itself and does not provide for any amendment being made in the bill after it has been introduced in the House. The bill in the present case having been admittedly amended in several particulars during its passage through the House, the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed in Article 368.

Fifthly, 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 Article 13(2).

X X X 18. As stated in the head note, this Court held:

The provisional Parliament is competent to exercise the power of amending the Constitution under Article 368. The fact that the said article refers to the two Houses of the Parliament and the President separately and not to the Parliament, does not lead to the inference that the body which is invested with the power to amend is not the Parliament but a different body consisting of the two Houses.

The words “all the powers conferred by the provisions of this Constitution on Parliament” in Article 379 are not confined to such powers as could be exercised by the provisional Parliament consisting of a single chamber, but are wide enough to include the power to amend the Constitution conferred by Article 368.

19. I may mention that Mr. Seervai contends that the conclusion just mentioned was wrong and that the body that amends the Constitution under Article 368 is not Parliament.

20. The Court further held:

The view that Article 368 is a complete code in itself in respect of the procedure provided by it and does not contemplate any amendment of a Bill for amendment of the Constitution after it has been introduced, and that if the Bill is amended during its passage through the House, the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed by Article 368 and would be invalid, is erroneous.

Although “law” must ordinarily include Constitutional law there is a clear demarcation between ordinary law which is made in the exercise of legislative power and Constitutional law, which is made in the exercise of constituent power. 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 the exercise of constituent power with the result that Article 13(2) does not affect amendments made under Article 368.

21. Although the decision in Sankari Prasad’s [1951] INSC 45; [1952] S.C.R. 89 case was not challenged in Sajjan Singh’s [1964] INSC 246; [1965] 1 S.C.R. 933 case, Gajendragadkar, C.J. thought it fit to give reasons for expressing full concurrence with that decision.

22. The only contention before the Court was that “since it appears that the powers prescribed by Article 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”. According to Gajendragadkar, C.J. “that raised the question about the construction of the provisions contained in Article 368 and the relation between the substantive part of Article 368 with its proviso.

23. The Chief Justice came to the conclusion that “as a matter of construction, there is no escape from the conclusion that Article 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.

24. The learned Chief Justice thought that the power to amend in the context was a very wide power and it could not be controlled’ by the literal dictionary meaning of the word “amend”. He expressed his agreement with the reasoning of Patanjali Sastri, J. regarding the applicability of Article 13(2) to Constitution Amendment Acts passed under Article 368. He further held that when Article 368 confers on Parliament the right to amend the Constitution, it can be exercised over all the provisions of the Constitution. He thought that “if the Constitution-makers had intended that any future amendment of the provisions in regard to fundamental rights should be subject to Article 13(2), they would have taken the precaution of making a clear provision in that behalf.

25. He seemed to be in agreement with the following observations of Kania, C.J. in A.K.

Gopalan v. The State of Madras [1950] INSC 14; [1950] S.C.R. 88 at p. 100:

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.

26. He was of the view that even though the relevant provisions of Part III can be justly described as the very foundation and the cornerstone of the democratic way of life ushered in this country by the Constitution, it cannot 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.

27. According to him, it was legitimate to assume that the Constitution-makers visualised that Parliament would be competent to make amendments in these rights so as to meet the challenge of the problems which may arise in the course of socio-economic progress and development of the country.

28. Hidayatullah, J., as he then was, agreed with the Chief Justice that the 17th Amendment was valid even though the procedure laid down in the proviso to Article 368 had not been followed. But he expressed his difficulty in accepting the part of the reasoning in Sankari Prasad’s [1951] INSC 45; [1952] S.C.R. 89 case.

29. He observed as follows:

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”.

30. He further observed:

The meaning of Article 13 thus depends on the sense in which the word “law” in Article 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 Article 5 of the American Federal Constitution in its immutable prohibition as long as it stands.

31. According to him “Our Preamble is more akin in nature to the American Declaration of Independence (July 4, 1776) then to the preamble to the Constittuion 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 Article 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 Article 368.

32. He further observed:

I would require stronger reason than those given in Sankari Prasad’s 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.

33. He held:

What Article 368 does is to lay down the manner of amendment and the necessary conditions for the effectiveness of the amendment….

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.

34. Mudholkar, J. although agreeing that the writ petition should be dismissed, raised various doubts and he said that he was reserving his opinion on the question whether Sankari Prasad’s case was rightly decided. He thought:

The language of Article 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 amedments which do not attract the proviso to Article 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’.

35. He observed:

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 Article 32) should be more easily capable of being abridged or restricted than any of the matters referred to in the proviso to Article 368 some of which are perhaps less vital than fundamental rights.

It is possible, as suggested by my learned brother, that Article 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.

36. Later, he observed:

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 indica of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution ? 37. He posed a further question by observing:

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 Constitution; and if the latter, would it be within the purview of Article 368 ? 38. He then stressed the prime importance of the preamble:

The Constitution indicates three modes of amendments and assuming that the provisions of Article 368 confer power on Parliament to amend the Constitution, it will still have to be considered whether as long as the preamble stands unamended, 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 Articles 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?

39. Coming now to Golak Nath’s case, the petitioner had challenged the validity of the Constitution (Seventeenth Amendment) Act, 1964 which included in the Ninth Schedule, among other acts, the Punjab Security of Land Tenures Act, 1953 (Act 10 of 1953), and the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14 of 1965.

40. It was urged before the Court that Sankari Prasad’s [1951] INSC 45; [1952] S.C.R. 89 case in which the validity of the Constitution (First Amendment) Act, 1951 and Sajjan Singh’s [1964] INSC 246; [1965] 1 S.C.R. 933 case in which the validity of the Constitution (Seventeenth Amendment) Act was in question had been wrongly decided by this Court.

41. Subba Rao, C.J. speaking for himself and 4 other judges summarised the conclusions at page 815 as follows:

The aforesaid discussion leads to the following results:

(1) The power of the Parliament to amend the Constitution is derived from Articles 245, 246 and 248 of the Constitution and not from Article 368 thereof which only deals with procedure. Amendment is a legislative process.

(2) Amendment is ‘law’ within the meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void.

(3) The Constitution (First Amendment) Act, 1951, Constitution (Fourth Amendment) Act, 1955, and the Constitution (Seventeenth Amendment) Act, 1964, abridge the scope of the fundamental rights. But, on the basis of earlier decisions of this Court, they were valid.

(4) On the application of the doctrine of ‘prospective over- ruling’, as explained by us earlier, our decision will have only prospective operation and, therefore, the said amendments will continue to be valid.

(5) We declare that the Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein.

(6) As the Constitution (Seventeenth Amendment) Act holds the field, the validity of the two impugned Acts, namely, the Punjab Security of Land Tenures Act X of 1953, and the Mysore Land Reforms Act X of 1962, as amended by Act XIV of 1965, cannot be questioned on the ground that they offend Articles 13, 14 or 31 of the Constitution.

42. It must be borne in mind that these conclusions were given in the light of the Constitution as it stood then i.e. while Article 13(2) subsisted in the Constitution. It was then not necessary to decide the ambit of Article 368 with respect to the powers of Parliament to amend Article 13(2) or to amend Article 368 itself. It is these points that have now to be decided.

43. It may further be observed that the Chief Justice refused to express an opinion on the contention that, in exercise of the power of amendment, Parliament cannot destroy the fundamental structure of the Constitution but can only modify the provision thereof within the framework of the original instrument for its better effectuation.

44. As will be seen later, the first conclusion above, does not survive for discussion any longer because it is rightly admitted on behalf of the petitioners that the Constitution (Twenty Fourth Amendment) Act, 1971, in so far as it transfers power to amend the Constitution from the residuary entry (Entry 97 List 1) or Article 248 of the Constitution to Article 368, is valid; in other words Article 368 of the Constitution as now amended by the Twenty Fourth Amendment deals not only with the procedure for amendment but also confers express power on Parliament to amend the Constitution.

45. I will also not discuss the merits of the second conclusion as the same result follows in this case even if it be assumed in favour of the respondents that an amendment of the Constitution is not law within Article 13(2) of the Constitution.

46. Hidayatullah, J. as he then was, came to the following conclusions at page 902:

(i) that the Fundamental Rights are outside the amendatory process if the amendment seeks to abridge or take away any of the rights;

(ii) that Sankari Prasad’s case (and Sajjan Singh’s case which followed it) conceded the power of amendment over Part III of the Constitution on an erroneous view of Articles 13(2) and 368.

(iii) that the First, Fourth and Seventh Amendments being part of the Constitution by acquiescence for a long time, cannot now be challenged and they contain authority for the seventeenth Amendment;

(iv) that this Court having now laid down that Fundamental Rights cannot be abridged or taken away by the exercise of amendatory process in Article 368, any further inroad into these rights as they exist today will be illegal and unConstitutional unless it complies with Part III in general and Article 13(2) in particular;

(v) that for abridging or taking away Fundamental Rights, a Constituent body will have to be convoked; and (vi) that the two impugned Acts, namely, the Punjab Security of Land Tenures Act, 1,953 (X of 1953) and the Mysore Land Reforms Act, 1961 (X of 1962) as amended by Act XIV of 1965 are valid under the Constitution not because they are included in Schedule 9 of the Constitution but because they are protected by Article 31-A, and the President’s assent.

47. I am not giving his reasons for these conclusions here because they will be examined when dealing with the arguments addressed to us on various points.

48. Wanchoo, J. as he then was, also speaking on behalf of 2 other Judges held that Sankari Prasad’s [1951] INSC 45; [1952] S.C.R. 89 case was correctly decided and the majority in Sajjan Singh’s [1964] INSC 246; [1965] 1 S.C.R. 933 case was correct in following that decision.

49. Bachawat, J. held:

(1) Article 368 not only prescribes the procedure but also gives the power of amendment;

(2) Article 368 gives the power of amending each and every provision of the Constitution and as Article 13(2) is a part of the Constitution it is within the reach of the amending power;

(3) Article 368 is not controlled by Article 13(2) and the prohibitory injunction in Article 13(2) is not attracted against the amending power;

(4) Constitutional amendment under Article 368 is not a law within the meaning of Article 13(2);

(5) The scale of value embodied in Parts III and IV is not immortal. Parts III and IV being parts of the Constitution are not immune from amendment under Article 368. Constition-makers could not have intended that the rights conferred by Part III could not be altered by giving effect to the policies of Part IV.

(6) The Preamble cannot control the unambiguous language of the articles of the Constitution.

50. Regarding the amendment of the basic features of the Constitution, he observed:

Counsel said that they could not give an exhaustive catalogue of the basic features, but sovereignty, the republican form of government, the federal structure and the fundamental rights were some of the features. The Seventeenth Amendment has not derogated from the sovereignty, the republican form of government and the federal structure, and the question whether they can be touched by amendment does not arise for decision.

For the purposes of these cases, it is sufficient to say that the fundamental rights are within the reach of the amending power.

51. Ramaswami, J., held:

(1) The amending power under Article 368 is sui generis;

(2) “Law” in Article 13(2) cannot be construed so as to include “Law”

made by Parliament under Articles 4, 169, 392, 5th Schedule Part D and 6th Schedule Para 21.

(3) The expression “fundamental rights” does not lift the fundamental rights above the Constitution itself;

(4) Both the power to amend and the procedure to amend are enacted in Article 368.

(5) There were no implied limitations on the amending power and all articles of the Constitution were amendable either under the proviso of Article 368 or under the main part of the article.

(6) The Federal structure is not an essential part of our Constitution.

(7) The power of amendment is in point of quality an adjunct of sovereignty. If so, it does not admit of any limitations.

52. In brief 6 Judges held that in view of Article 13(2) Fundamental Rights could not be abridged or taken away. Five Judges held that Article 13(2) was inapplicable to Acts amending the Constitution.

PART III-Interpretation of Article 368

53. Let me now proceed to interpret Article 368. Article 368, as originally enacted, read as follows:

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 I of Part XI, or (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 specified in Parts A and B of the First Schedule by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

54. It will be noticed that Article 368 is contained in a separate part and the heading is “Amendment of the Constitution”, but the marginal note reads “Procedure for amendment of the Constitution”.

55. The expression “amendment of the Constitution” is not defined or expanded in any manner, although in other parts of the Constitution, the word “Amend” or “Amendment”

has, as will be pointed out later, been expanded. In some parts they have clearly a narrow meaning.. The proviso throws some light on the problem. First, it uses the expression “if such amendment seeks to make any change in”; it does not add the words “change of “, or omit “in”, and say “seeks to change” instead of the expression “seeks to make any change in”.

56. The articles which are included in the proviso may be now considered. Part V, Chapter I, deals with “the Executive”. Article 52, provides that there shall be a President of India, and Article 53 vests the executive power of the Union in the President and provides how it shall be exercised. These two articles are not mentioned in the proviso to Article 368 but Articles 54 and 55 are mentioned.

57. Article 54 provides:

54. The President shall be elected by the members of an electoral college consisting of- (a) the elected members of both Houses of Parliament; and (b) the elected members of the Legislative Assemblies of the States.

58. Article 55 prescribes the manner of election of the President.

59. Why were Articles 52 and 53 not mentioned in the proviso to Article 368 if the intention was that the States would have a say as to the federal structure of the country? One of the inferences that can be drawn is that the Constitution-makers never contemplated, or imagined that Article 52 will be altered and there shall not be a President of India. In other words they did not contemplate a monarchy being set up in India or there being no President.

60. Another article which has been included in the proviso to Article 368 is Article 73 which deals with the extent of executive powers of the Union. As far as the Vice- President is concerned, the States have been given no say whether there shall be a Vice- President or not; about the method of his election, etc. But what is remarkable is that when we come to Part VI of the Constitution, which deals with the “States”, the only provision which is mentioned in the proviso to Article 368 is Article 162 which deals with the extent of executive power of States. The appointment of a Governor, conditions of service of a Governor, and the Constitution and functions of the Council of Ministers, and other provisions regarding the Ministers and the conduct of government business are not mentioned at all in the proviso to Article 368. Another article which is mentioned in Clause (a) of the proviso to Article 368 is Article 241 which originally dealt with High Courts for States in Part C of the First Schedule.

61. Chapter IV of Part V of the Constitution which deals with the Union Judiciary, and Chapter V of Part VI which deals with the High Courts in the State are included in the proviso to Article 368 but it is extra-ordinary that Chapter VI of Part VI which deals with subordinate Judiciary is not mentioned in Clause (b). Chapter I of Part XI is included and this deals with the Legislative Relations between the Union and the States, but Chapter II of Part XI which deals with Administrative Relations between the Union and the States, and various other matters in which the States would be interested are not included.

Provisions relating to services under the State and Trade and Commerce are also not included in the proviso.

62. This analysis of the provisions contained in Clauses (a) and (b) of the proviso to Article 368 shows that the reason for including certain articles and excluding certain other from the proviso was not that all articles dealing with the federal structure or the status of the States had been selected for inclusion in the proviso.

63. Clause (c) of the proviso mentions the Lists in the Seventh Schedule, Clause (d) mentions the representation of States in Parliament, and Clause (e) the provisions of Article 368 itself. The provisions of Sub-clauses (c), (d) and (e) can rightly be said to involve the federal structure and the rights of the States.

64. What again is remarkable is that the fundamental rights are not included in the proviso at all. Were not the States interested in the fundamental rights of their people ? The omission may perhaps be understandable because of the express provision of Article 13(2) which provided that States shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this clause shall to the extent of the contravention be void, assuming for the present that Article 13(2) operates on Constitutional amendments.

65. In construing the expression “amendment of this Constitution I must look at the whole scheme of the Constitution. It is not right to construe words in vacuum and then insert the meaning into an article. Lord Greene observed in Bidie v. General Accident, Fire and Life Assurance Corporation [1948] 2 All E.R. 995, 998:

The first thing one has to do, I venture to think, in construing words in a section of an Act of Parliament is not to take those words in vacuo, so to speak, and attribute to them what is sometimes called their natural or ordinary meaning. Few words in the English language have a natural or ordinary meaning in the sense that they must be so read that their meaning is entirely independent of their context. The method of construing statutes that I prefer is not to take particular words and attribute to them a sort of prima facie meaning which you may have to displace or modify. It is to read the statute as a whole and ask oneself the question: “In this state, in this context, relating to this subject-matter, what is the true meaning of that word ?

66. I respectfully adopt the reasoning of Lord Greene in construing the expression “the amendment of the Constitution.

67. Lord Greene is not alone in this approach. In Bourne v. Norwich Crematorium [1967] 2 All E.R. 576, 578 it is observed:

English words derive colour from those which surround them. Sentences are not mere collections of words to be taken out of the sentence defined separately by reference to the “dictionary or decided cases, and then put back again into the sentence with the meaning which you have assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language.

68. Holmes, J. in Towne v. Eigner [1918] USSC 6; 245 U.S. 418; 425 : 62 L. ed. 372; 376 had the same thought. He observed:

A word is not crystal, transparent and unchanged; it is the skin of living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used.

69. What Holmes J. said is particularly true of the word “Amendment” or “Amend”.

70. I may also refer to the observation of Gwyer C.J. and Lord Wright:

A grant of the power in general terms, standing by itself, would no doubt be construed in the wider sense; but it may be qualified by other express provisions in the same enactment, by the implications of the context, and even by the considerations arising out of what appears to be the general scheme of the Act”. (Per Gwyer C.J.-The Central Provinces and Berar Act, 1939 F.C.R. 18 at 42.) The question, then, is one of construction and in the ultimate resort must be determined upon tht actual words used, read not in vacuo but as occurring in a single complex instrument, in which one part may throw light on another. The Constitution has been described as the federal compact, and the construction must hold a balance between all its parts”.

(Per Lord Wright-James v. Commonwealth of Australia 1936 A.C. 578 at 613).

71. In the Constitution the word “amendment” or “amend” has been used in various places to mean different things. In some articles, the word “amendment” in the context has a wide meaning and in another context it has a narrow meaning. In Article 107, which deals with legislative procedure, Clause (2) provides that “subject to the provisions of Articles 108 and 109, a Bill shall not be deemed to have been passed by the House of Parliament unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses.” It is quite clear that the word “amendment” in this article has a narrow meaning. Similarly, in Article 111 of the Constitution, whereby the President is enabled to send a message requesting the Houses to consider the desirability of introducing amendments, the “amendments” has a narrow meaning.

72. The opening of Article 4(1) reads:

4(1) Any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law….

Here the word “amendment” has a narrower meaning. “Law” under Articles 3 and 4 must “conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise…is not the power to over-ride the Constitutional scheme. No state can, therefore, be formed, admitted or set up by law under Article 4 by the Parliament which has no effective legislative, executive and judicial organs”. (Per Shah J.-Mangal Singh v. Union of India [1966] INSC 251; [1967] 2 S.C.R. 109 at 112.

(Emphasis supplied) 73. Article 169(2) reads:

Any law referred to in Clause (1) shall contain such provisions for the amendment of this Constitution as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions as Parliament may deem necessary.

Here also the word “amendment” has a narrow meaning.

74. Para 7 of Part D, Fifth Schedule, which deals with amendment of the schedule, reads:

7. Amendment of the Schedule.-(1) Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shall be construed as a reference to such schedule as so amended.

Here the word “amend” has been expanded by using the expression “by way of addition, variation or repeal”, but even here, it seems to me, the amendments will have to be in line with the whole Constitution. Similarly, under para 21 of the Sixth Schedule,. which repeats the phraseology of para 7 of the Fifth Schedule, it seems to me, the amendments will have to be in line with the Constitution.

75. I may mention that in the case of the amendments which may be made in exercise of the powers under Article 4, Article 169, para 7 of the Fifth Schedule, and para 21 of the Sixth Schedule, it has been expressly stated in these provisions that they shall not be deemed to be amendments of the Constitution for the purposes of Article 368.

76. It is also important to note that the Constituent Assembly which adopted Article 368 on September 17, 1949, had earlier on August 18, 1949, substituted the following section in place of the old Section 291 in the Government of India Act, 1935:

291. Power of the Governor-General to amend certain provisions of the Act and orders made thereunder- (1) The Governor-General may at any time by order make such amendments as he considers necessary whether by way of addition, modification or repeal, in the provisions of this Act or of any order made thereunder in relation to any Provincial Legislature with respect to any of the following matters, that is to say- (a) the composition of the Chamber or Chambers of the Legislature;

(b) the delimitation of territorial constituencies for the purpose of elections under this Act.

* * * * * Here, the word “amendment” has been expanded. It may be that there really is no expansion because every amendment may involve addition, variation or repeal of part of a provision.

77. According to Mr. Seervai, the power of amendment given by Article 4, read with Articles 2 and 3, Article 169, Fifth Schedule and Sixth Schedule, is a limited power limited to certain provisions of the Constitution, while the power under Article 368 is not limited. It is true every provision is prima facie amendable under Article 368 but this does not solve the problem before us.

78. I may mention that an attempt was made to expand the word “amend” in Article 368 by proposing an amendment that “by way of variation, addition, or repeal” be added but the amendment was rejected.

79. Again, in Article 196(2), the word “amendment” has been used in a limited sense.

Article 196(2) reads:

196(2). Subject to the provisions of Articles 197 and 198, a Bill shall not be deemed to have been passed by the Houses of the Legislature of a State having a Legislative Council unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses.

80. Similar meaning may be given to the word “amendment” in Article 197(2), which reads:

197(2). If after a Bill has been so passed for the second time by the Legislative Assembly and transmitted to the Legislative Council- (a) the Bill is rejected by the Council; or (b) more than one month elapses from the date on which the Bill is laid before the Council without the Bill being passed by it; or (c) the Bill is passed by the Council with amendments to which the Legislative Assembly does not agree, (c) the Bill is passed by the Legislative Assembly does not agree, the Bill shall be deemed to have been passed by the Houses of the Legislature of the State in the form in which it was passed by the Legislative Assembly for the second time with such amendments, if any, as have been made or suggested by the Legislative Council and agreed to by the Legislative Assembly.

81. Under Article 200 the Governor is enabled to suggest the desirability of introducing any such amendments as he may recommend in his message. Here again “amendment”

has clearly a limited meaning.

82. In Article 35(b) the words used are:

Any law in force immediately before the commencement of this Constitution…subject to the terms thereof and to any adaptations and modifications that may be made therein under Article 372, continue in force until altered or repealed or amended by Parliament.

83. Here, all the three words are used giving a comprehensive meaning. Reliance is not placed by the draftsman only on the word “amend”.

84. Similar language is used in Article 372 whereby existing laws continue to be in force until “altered or repealed or amended’ by a competent Legislature or other competent authority.

85. In the original Article 243(2), in conferring power on the President to make regulations for the peace and good government of the territories in part D of the First Schedule, it is stated that “any regulation so made may repeal or amend any law made by Parliament.” Here, the two words together give the widest power to make regulations inconsistent with any law made by Parliament

86. In Article 252 again, the two words are joined together to give a wider power. Clause (2) of Article 252 reads:

252(2). Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State.

87. In the proviso to Article 254, which deals with the inconsistency between laws made by Parliament and laws made by the Legislatures of States, it is stated:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State;

88. In Article 320(5), “all regulations made under the proviso to Clause (3)” can be modified “whether by way of repeal or amendment” as both Houses of Parliament or the House or both Houses of the Legislature of the States may make during the session in which they are so laid.

89. I have referred to the variation in the language of the various articles dealing with the’ question of amendment or repeal in detail because our Constitution was drafted very carefully and I must presume that every word was chosen carefully and should have its proper meaning. I may rely for this principle on the following observations of the United States Supreme Court in Holmes v. Jennison (10) L. ed. 579; 594 and quoted with approval in William v. United States (77) L. ed. 1372; 1380:

In expounding the Constitution of the United States, every word must have its due force, and appropriate meaning: for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added….

90. Reference was made to Section 6(2) of the Indian Independence Act, 1947, in which the last three lines read:

…and the powers of the Legislature of each Dominion include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the Dominion.

Here, the comprehensive expression “repeal or amend” gives power to have a completely new Act different from an existing act of Parliament.

91. So, there is no doubt from a perusal of these provisions that different words have been used to meet different demands. In view of the great variation of the phrases used all through the Constitution it follows that the word “amendment” must derive its colour from Article 368 and the rest of the provisions of the Constitution. There is no doubt that it is not intended that the whole Constitution could be repealed. This much is conceded by the learned Counsel for the respondents.

92. Therefore, in order to appreciate the real content of the expression “amendment of this Constitution”, in Article 368 I must look at the whole structure of the Constitution.

The Constitution opens with a preamble which reads:

WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all;

FRATERNITY assuring the dignity of the individual and the unity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this Twenty-sixth day of

November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO

OURSELVES THIS CONSTITUTION.

93. This Preamble, and indeed the Constitution, was drafted in the light and direction of the Objective Resolutions adopted on January 22, 1947, which runs as follows:

(1) THIS CONSTITUENT ASSEMBLY declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Consti- (2) wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States, as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and (3) wherein the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in of assigned to the Union, or as are inherent or implied in the Union or resulting therefrom;

and (4) wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people;

and (5) wherein shall be guaranteed and secured to all people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and (6) wherein adequate safeguards shall be provided for minorities backward and tribal areas, and depressed and other backward classes; and (7) whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilized nations, and (8) this ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind.

94. While moving the resolution for acceptance of the Objectives Resolution, Pandit Jawaharlal Nehru said:

It seeks very feebly to tell the world of what we have thought or dreamt for so long, and what we now hope to achieve in the near future. It is in that spirit that I venture to place this Resolution before the House and it is in that spirit that I trust the House will receive it and ultimately pass it.

And may I, Sir, also with all respect, suggest to you and to the House that, when the time comes for the passing of this Resolution let it be not done in the formal way by the raising of hands, but much more solemnly, by all of us standing up and thus taking this pledge anew.

95. I may here trace the history of the shaping of the Preamble because this would show that the Preamble was in conformity with the Constitution as it was finally accepted. Not only was the Constitution framed in the light of the Preamble but the Preamble was ultimately settled in the light of the Constitution. This appears from the following brief survey of the history of the framing of the Preamble extracted from the Framing of India’s Constitution (A study) by B. Shiva Rao. In the earliest draft the Preamble was something formal and read : “We, the people of India, seeking to promote the common good, do hereby, through our chosen representatives, enact, adopt and give to ourselves this Constitution, (Shiva Rao’s Framing of India’s Constitution-A study-p. 127.).

96. After the plan of June 3, 1947, which led to the decision to partition the country and to set up two independent Dominions of India and Pakistan, on June 8, 1947, a joint sub- committee of the Union Constitution and Provincial Constitution Committees, took note that the objective resolution would require amendment in view of the latest announcement of the British Government The’ announcement of June 3 had made it clear that full independence, in the form of Dominion Status, would be conferred on India as from August 15, 1947. After examining the implications of partition the sub-committee thought that the question of making changes in the Objectives Resolution could appropriately be considered only when effect had actually been given to the June 3 Plan.(Special Sub-Committee minutes June 9, 1947. Later on July 12, 1947, the special sub-committee again postponed consideration of the matter. Select Documents II, 20(ii), p. 617. (Shiva Rao’s-Framing of India’s Constitution-A study-(p. 127 footnote). The Union Constitution Committee provisionally accepted the Preamble as drafted by B.N.

Rao and reproduced it in its report of July 4, 1947 without any change, with the tacit recognition at that stage that the Preamble would be finally based on the Objectives Resolution. In a statement circulated to members of the Assembly on July 18, 1947 Pandit Jawaharlal Nehru inter alia, observed that the Preamble was covered more or less by the Objectives Resolution which it was intended to incorporate in the final Constitution subject to some modification on account of the political changes resulting from partition. Three days later, moving the report of the Union Constitution Committee for the consideration of the Assembly, he suggested that it was not necessary at that stage to consider the draft of the Preamble since the Assembly stood by the basic principles laid down in the Objectives Resolution and these could be incorporated in the Preamble in the light of the changed situation(Shiva Rao’s-Framing of India’s Constitution-A study- pp. 127-128 (also see footnote 1 p. 128). The suggestion was accepted by the Assembly and further consideration of the Preamble was held over.

97. We need not consider the intermediate drafts, but in the meantime the declaration (See Constituent Assembly Debates, Vol. 8, page 2) was adopted at the end of April, 1949 by the Government of the various Commonwealth countries and the resolution was ratified by Constituent Assembly on May 17; 1949 after two days’ debate.

98. In the meantime the process of merger and integration of Indian States had been completed and Sardar Vallabhbhai Patel was able to tell the Constituent Assembly on October 12, 1949, that the new Constitution was “not an alliance between democracies and dynasties, but a real union of the Indian people, built on the basic concept of the sovereignty of the people(Shiva Rao’s-Framing of India’s Constitution-A study-pp. 130- 132).

99. The draft Preamble was considered by the Assembly on October 17, 1949. Shiva Rao observes that “the object of putting the Preamble last, the President of the Assembly explained, was to see that it was in conformity with the Constitution as accepted. “Once the transfer of power had taken place the question of British Parliament’s subsequent approval which was visualised in the British Cabinet Commission’s original plan of May 1946 could no longer arise. The sovereign character of the Constituent Assembly thus became automatic with the rapid march of events without any controversy, and the words in the Preamble “give to ourselves this Constitution” became appropriate. The Preamble was adopted by the Assembly without any alteration. Subsequently the words and figure “this twenty-sixth day of November 1949” were introduced in the last paragraph to indicate the date on which the Constitution was finally adopted by the Constituent Assembly.

100. Regarding the use which can be made of the preamble in interpreting an ordinary statute, there is no doubt that it cannot be used to modify the language if the language of the enactment is plain and clear. If the language is not plain and clear, then the preamble may have effect either to extend or restrict the language used in the body of an enactment. “If the language of the enactment is capable of more than one meaning then that one is to be preferred which comes nearest to the purpose and scope of the preamble.” (see Tbibhuban Parkash Nayyar v. The Union of India) [1969] INSC 278; [1970] 2 S.C.R. 732- 737.

101. We are, however, not concerned with the interpretation of an ordinary statute. As Sir Alladi Krishnaswami, a most eminent lawyer said, “so far as the Preamble is concerned, though in an ordinary statute we do not attach any importance to the Preamble, all importance has’ to be attached to the Preamble in a Constitutional statute”. (Constituent Assembly Debates Vol. 10, p. 417). Our Preamble outlines the objectives of the whole Constitution. It expresses “what we had thought or dreamt for so long.

102. In re. Berubari Union and Exchange of Enclaves [1960] 3 S.C.R. 250, 281-82 this was said about the Preamble:

There is no doubt that the declaration made by the people of India in exercise of their sovereign will in the preamble to the Constitution is, in the words of Story, “a key to open the mind of the makers” which may show the general purposes for which they made the several provisions in the Constitution; but nevertheless the preamble is not a part of the Constitution, and, as Willoughby has observed about the” preamble to the American Constitution, “it has never been regarded as the source of any substantive power conferred on the Government of the United States or any of its departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted”.

What is true about the power is equally true about the prohibitions and limitations.

103. Wanchoo, J. in Golaknath v. Punjab [1967] INSC 45; [1967] 2 S.C.R. 762; 838 and 914 relied on Berubari’s case and said:

on a parity of reasoning we are of opinion that the preamble cannot prohibit or control in any way or impose any implied prohibitions or limitations on the power to amend the Constitution contained in Article 368.

104. Bachawat, J. in this case observed:

Moreover the preamble cannot control the unambiguous language of the articles of the Constitution, see Wynes, Legislative Executive and Judicial powers in Australia, third edition pp. 694-5; in Re. Berubari Union &

Exchange of Enclaves. [1960] 3 S.C.R. 250, 281-82.

105. With respect, the Court was wrong in holding, as has been shown above, that the Preamble is not a part of the Constitution unless the court was thinking of the distinction between the Constitution Statute and the Constitution, mentioned by Mr. Palkhivala. It was expressly voted to be a part of the Constitution. Further, with respect, no authority has been referred before us to establish the proposition that “what is true about the powers is equally true about the prohibitions and limitations.” As I will show later, even from the preamble limitations have been derived in some cases.

106. It is urged in the written submission of Mr. Palkhivala that there is a distinction between the Indian Constitution Statute and the Constitution of India. He urges as follows:

This Constitution is the Constitution which follows the Preamble. It starts with Article 1 and ended originally with the Eighth Schedule and now ends with the Ninth Schedule after the First Amendment Act, 1951. The way the Preamble is drafted leaves no doubt that what follows, or is annexed to, the Preamble, is the Constitution of India.

107. He has also urged that the Preamble came into force on November 26, 1949 alongwith Articles 5, 6, 7 etc. as provided in Article 394 because Articles 5, 6, 7 and the other Articles mentioned therein could hardly come into force without the enacting clause mentioned in the Preamble having come into force. He says that the Preamble is a part of the Constitution statute and not a part of the Constitution but precedes it. There is something to be said for his contention but, in my view, it is not necessary to base my decision on this distinction as it is not necessary to decide in the present case whether Article 368 enables Parliament to amend the Preamble. Parliament has not as yet chosen to amend the Preamble.

108. The Preamble was used by this Court as an aid to construction in Behram Khurshed Pasikaka v. The State of Bombay [1955] 1 S.C.R. 613 at p. 653. After referring to Part III, Mahajan, C.J., observed:

We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefits, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of Constitutional policy.

109. Similarly in In re. The Kerala Education Bill [1959] S.C.R. 995, 1018-1019 1957, Das C.J. while considering the validity of the Kerala Education Bill 1957 observed:

In order to appreciate the true meaning, import and implications of the provisions of the Bill which are said to have given rise to doubts, it will be necessary to refer first to certain provisions of the Constitution which may have a bearing upon the questions under consideration and then to the actual provision of the Bill. The inspiring and nobly expressed preamble to our Constitution records the solemn resolve of the people of India to constitute…. (He then sets out the Preamble). Nothing provokes and stimulates thought and expression in people more than education. It is education that clarifies our belief and faith and helps to strengthen our spirit of worship. To implement and fortify these supreme purposes set forth in the preamble, Part III of our Constitution has provided for us certain fundamental rights.

110. In Sajjan Singh v. State of Rajasthan [1964] INSC 246; [1965] 1 S.C.R. 933; 968 Mudholkar, J. after assuming that the Preamble is not a part of the Constitution, observed:

While considering this question it would be of relevance to bear in mind that the preamble is not of the common run such as is to be found in an Act of a legislature. It has the stamp of deep deliberation and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it? 111. Quick and Garran in their “Annotated Constitution of the Australian Commonwealth (1901 p. 283) “adopted the following sentence from Lord Thring’s “Practical Legislation, p. 36”:

A preamble may be used for other reasons to limit the scope of certain expressions or to explain facts or introduce definitions.

112. Thornton on “Legislative Drafting”-p. 137-opines that “construction of the preamble may have effect either to extend or to restrict general language used in the body of an enactment.

113. In Attorney-General v. Prince Ernest Augustus of Hanover [1957] A.C. 436, 460 the House of Lords considered the effect of the preamble on the interpretation of Princes Sophia Naturalization Act; 1705. It was held that “as a matter of construction of the Act, there was nothing in the Act or its preamble, interpreted in the light of the earlier relevant statutes…capable of controlling and limiting the plain and ordinary meaning of the material words of the enacting provisions and that the class of lineal descendants “born or hereafter to be born” meant the class of such descendants in all degrees without any limit as to time.” The House of Lords further held that “looking at the Act from the point of view of 1705 there was no such manifest absurdity in this construction as would entitle the court to reject it.

114. Mr. Seervai referred to the passage from the speech of Lord Normand, at p. 467. The passage is lengthy but I may quote these sentences:

It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail. If they admit of only one construction, that construction will receive effect even if it is inconsistent with the preamble, but if the enacting words are capable of either of the constructions offered by the parties, the construction which fits the preamble may be preferred.

115. Viscount Simonds put the matter at page 463, thus:

On the one hand, the proposition can be accepted that “it is a settled rule that the preamble cannot be made use of to control the enactments themselves where they are expressed in clear and unambiguous terms”. I quote the words of Chitty L.J., which were cordially approved by Lord Davey in Powell v. Kempton Park Racecourse Co. Ltd. (1889) A.C. 143, 185. On the other hand it must often be difficult to say that any terms are clear and unambiguous until they have been studied in their context 116. This case shows that if on reading Article 368 in the context of the Constitution I find the word “Amendment” ambiguous I can refer to the Preamble to find which construction would fit in with the Preamble.

117. In State of Victoria v. The Commonwealth 45 A.L.J. 251 which is discussed in detail later, a number of Judges refer to the federal structure of the Constitution. It is in the preamble of the Commonwealth of Australia Constitution Act, 1902 that ‘one indissoluble Federal Commonwealth’ is mentioned.

118. There is a sharp conflict of opinion in Australia respecting the question whether an amendment can be made which would be inconsistent with the Preamble of the Constitution Act referring to the “indissoluble” character and the sections which refer to the “Federal” nature of the Constitution. After referring to this conflict, Wynes(Wynes Legislative, Executive and Judicial Powers in Australia, Fourth Edn. p. 506). observes:

Apart from the rule which excludes the preamble generally from consideration in statutory interpretation, it is clear that, when all is said and done, the preamble at the most is, only a recital of the intention which the Act’ seeks to effect; and it is a recital of a present (i.e., as in 1900) intention. But in any event the insertion of an express reference to amendment in the Constitution itself must surely operate as a qualification upon the mere recital of the reasons for its creation.

119. I am not called upon to say which view is correct but it does show that in Australia, there is a sharp conflict of opinion as to whether the Preamble can control the amending power.

120. Story in his Commentaries on the Constitution of the United States states : [(1883) Vol. 1] It (Preamble) is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; for if they are dear and unambiguous, there seems little room for interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention express in the preamble.

There does not seem any reason why, in a fundamental law or Constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble. And accordingly we find, that it has been constantly referred to by statesmen and jurists to aid them in the exposition of its provisions.

121. Story further states at page 447-448:

And the uniform doctrine of the highest judicial authority has accordingly been, that it was the act of the people, and not of the states; and that it bound the latter, as subordinate to the people. “Let us turn,” said Mr. Chief Justice Jay, “to the Constitution. The people therein declare, that their design in establishing it comprehended six objects: (1) To form a more perfect union; (2) to establish justice; (3) to insure domestic tranquillity;

(4) to provide for the common defence; (5) to promote the general welfare;

(6) to secure the blessings of liberty to themselves and their posterity. It would,” he added, “be pleasing and useful to consider and trace the relations, which each of these objects bears to the others; and to show, that, collectively, they comprise every thing requisite, with the blessing of Divine Providence, to render a people prosperous and happy.” In Hunter v.

Martin (1 Wheat. R. 305, 324), the Supreme Court say, (as we have seen) “the Constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by the people of the “United States;” and language still more expressive will be found used on other solemn occasions.

122. “The Supreme Court of United States (borrowing some of the language of the Preamble to the Federal Constitution) has appropriately stated that the people of the United States erected their Constitutions or forms of government to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence”. (American Jurisprudence, 2d. Vol. 16 p. 184).

123. In the United States the Declaration of Independence is sometimes referred to in determining Constitutional questions. It is stated in American Jurisprudence (2d. 16. p.

189):

While statements of principles contained in the Declaration of Independence do not have the force of organic law and therefore cannot be made the basis of judicial decision as to the limits of rights and duties, yet:

it has been said that it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence, and the courts sometimes refer to the Declaration in determining Constitutional questions.

124. It seems to me that the Preamble of our Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble.

125. Now I may briefly describe the scheme of the Constitution. Part I of the Constitution deals with “the Union and its Territory”. As originally enacted, Article 1 read as follows:

1. India, that is Bharat, shall be a Union of States.

2. The States and the territories thereof shall be the States and their territories specified in Parts A, B and C of the First Schedule.

3. The territory of India shall comprise- (a) the territories of the States;

(b) the territories specified in Part D of the First Schedule;

and (c) such other territories as may be acquired.

126. Article 2 enabled Parliament to admit into the Union, or establish, new States on such terras and conditions as it thinks fit. Article 3 and 4 dealt with the formation of new States and alteration of areas, boundaries or names of existing States.

127. Part II dealt with “Citizenship”. The heading of Part III is “Fundamental Rights”. It first describes the expression “the State” to include “the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

(Article 12), Article 13 provides that laws inconsistent with or in derogation of the fundamental rights shall be void. This applies to existing laws as well as laws made after the coming into force of the Constitution. For the time being I assume that in Article 13(2) the word “law” includes Constitutional amendment.

128. The fundamental rights conferred by the Constitution include right to equality before the law, (Article 14), prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, (Article 15), equality of opportunity in matters of public employment, (Article 16), right to freedom of speech and expression, to assemble peaceably and without arms, to form association or unions, to move freely throughout the territory of India, to reside and settle in any part of the territory of India, to acquire, hold and dispose of property; and to practice any profession or to carry on any occupation, trade or business. (Article 19). Reasonable restrictions can be imposed on the rights under Article 19 in respect of various matters.

129. Article 20 protects a person from being convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence or to be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It further provides that no person shall be prosecuted and punished for the same offence more than once, and no person accused of any offence shall be compelled to be a witness against himself.

130. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law.

131. Article 22 gives further protection against arrest and detention in certain cases.

Article 22(1) provides that “no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”

Article 22(2) provides that “every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate”.

132. Article 22(4) deals with Preventive Detention. Article 23 prohibits traffic in human beings and other similar forms of forced labour. Article 24 provides that “no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.

133. Articles 25, 26, 27 and 28 deal with the freedom of religion. Article 25(1) provides that “subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.” Article 26 enables every religious denomination or section thereof, subject to public order, morality and health, to establish and manage institutions for religious and, charitable purposes; to manage their own affairs in matters of religion, to own and acquire movable and immovable property, and to administer such property in accordance with law. Article 27 enables presons to resist payment of any taxes the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. Article 28 deals with freedom as to attendance at religious instruction or religious worship in certain educational institutions.

134. Article 29(1) gives protection to minorities and provides that “any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.” Article 29(2) provides that “no person shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

135. Article 30 gives further rights to minorities whether based on religion or language to establish and administer educational institutions of their choice. Article 30(2) prohibits the State from discriminating against any educational institution, in granting aid to educational institutions, on the ground that it is under the management of a minority, whether based on religion or language.

136. As will be shown later the inclusion of special rights for minorities has great significance. They were clearly intended to be inalienable.

137. The right to property comes last and is dealt with the Article 31. As originally enacted, it dealt with the right to property and prevented deprivation of property save by authority of law, and then provided for compulsory acquisition for public purposes on payment of compensation. It had three significant provisions, which show the intention of the Constitution-makers regarding property rights. The first is Article 31(4). This provision was intended to protect legislation dealing with agrarian reforms. The second provision, Article 31(5)(a), was designed to protect existing legislation dealing with compulsory acquisition. Some acts, saved by this provision did not provide for payment of full compensation e.g. U.P. Town Improvement Act, 1919. The third provision Article 31(6) provided a protective umbrella to similar laws enacted not more than eighteen months before the commencement of the Constitution.

138. The fundamental rights were considered of such importance that right was given to an aggrieved person to move the highest court of the land, i.e., the Supreme Court, by appropriate proceedings for the enforcement of the rights conferred by this part, and this right was guaranteed. Article 32(2) confers very wide powers on the Supreme Court, to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. Article 32(4) further provides that “the right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

139. Article 33 enables Parliament by law to “determine to what extent any of the rights conferred by this Part shall, in their application to the members of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

140. This articles shows the care with which, the circumstances in which, fundamental rights can be restricted or abrogated were contemplated and precisely described.

141. Article 34 enables Parliament, by law, to indemnify any person in the service of the Union, or of a State or any other person in connection with acts done while martial law was in force in a particular area.

142. Part IV of the Constitution contains directive principles of State policy. Article 37 specifically provides that “the provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.” This clearly shows, and it has also been laid down by this Court, that these provisions are not justiciable and cannot be enforced by any Court. The Courts could not, for instance, issue a mandamus directing the State to provide adequate means of livelihood to every citizen, or that the ownership and control of the material resources of the community be so distributed as best to subserve the common good, or that there should be equal pay for equal work for both men and women.

143. Some of the directive principles are of great fundamental importance in the governance of the country. But the question is not whether they are important; the question is whether they override the fundamental rights. In other words, ran Parliament abrogate the fundamental rights in order to give effect to some of the directive principles ? 144. I may now briefly notice the directive principles mentioned in Part IV. Article 38 provides that “the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.” Now, this directive is compatible with the fundamental rights because surely the object of many of the fundamental rights is to ensure that there shall be justice, social, economic and political, in the country. Article 39, which gives particular directions to the State, reads thus:

39. The State shall, in particular, direct its policy towards securing- (a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

(f) that childhood and youth are protected against exploitation and against moral and material abandonment.

145. Article 40 deals with the organisation of village panchayats. Articles 41 deals with the right to work, to education and to public assistance in certain cases. Article 42 directs that the State shall make provisions for securing just and humane conditions of work and for maternity relief. Article 43 direct that “the State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or cooperative basis in rural areas.

146. Article 44 enjoins that the “State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Desirable as it is, the Government has not been able to take any effective steps towards the realisation of this goal. Obviously no Court can compel the Government to lay down a uniform civil code even though it is essentially desirable in the interest of the integrity, and unity of the country.

147. Article 45 directs that “the State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free compulsory education for all children until they complete the age of fourteen years.” This again is a very desirable directive. Although the Government has not been able to fulfil it completely, it cannot be compelled by any court of law to provide such education.

148. Article 46 supplements the directive given above and enjoins the State to promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation.

149. Article 47 lays down as one of the duties of the State to raise the standard of living and to improve public health, and to bring about prohibition. Article 48 directs the State to endeavour to organise agriculture and animal husbandry on modern and scientific lines, and in particular, to take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milch and draught cattle.

150. Article 49 deals with protection of monuments and places and objects of national importance. Article 50 directs that the State shall take steps to separate the judiciary from the executive in the public services of the State. This objective has been, to a large extent, carried out without infringing the fundamental rights.

151. In his preliminary note on the fundamental Rights, Sir B.N. Rau, dealing with the directive principles, observed:

The principles set forth in this Part are intended for the general guidance of the appropriate Legislatures and Government in India (hereinafter referred to collectively as ‘the State’). The application of these principles in legislation and administration shall be the care of the State and shall not be cognizable by any Court.

152. After setting out certain directive principles, he observed:

It is obvious that none of the above provisions is suitable for enforcement by the courts. They are really in the nature of moral precepts for the authorities of the State. Although it may be contended that the Constitution is not the proper place for moral precepts, nevertheless Constitutional declaration of policy of this kind are now becoming increasingly frequent. (See the Introduction to the I.L.O. publication Constitutional Provisions concerning Social and Economic Policy, Montreal, 1944). They have at least an educative value. (pages 33-34- Shiva Rao : Framing of Indian Constitution : Doc. Vol. II).

Then he referred to the genesis of the various articles mentioned in the preliminary note.

153. One must pause and ask the question as to why did the Constituent. Assembly resist the persistent efforts of Shri B.N. Rau to make fundamental rights subject to the directive principles. The answer seems plain enough : The Constituent Assembly deliberately decided not to do so.

154. Sir Alladi Krishnaswami Ayyar, in his note dated March 14, 1947, observed:

A distinction has necessarily to be drawn between rights which are justiciable and rights which are merely intended as a guide and directive objectives to state policy.

155. It is impossible to equate the directive principles with fundamental rights though it cannot be denied that they are very important. But to say that the directive principles give a directive to take away fundamental rights in order to achieve what is directed by the directive principles seems to me a contradiction in terms.

156. I may here mention that while our fundamental rights and directive principles were being fashioned and approved of by the Constituent Assembly, on December 10, 1948 the General Assembly of the United Nations adopted a Universal Declaration of Human Rights. The Declaration may not be a legally binding instrument but it shows how India understood the nature of Human Rights. I may here quote only the Preamble:

Whereas recognition of the inherent dignity of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

(emphasis supplied) 157. Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.

158. Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.

159. Whereas it is essential to promote the development of friendly relations between nations.

160. Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom.

161. Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.

162. Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge 163. In the Preamble to the International Covenant on Economic and Social and Cultural Rights 1966, inalienability of rights is indicated in the first Para as follows:

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

164. Do rights remain inalienable if they can be amended out of existence ? The Preamble Articles 1, 55, 56, 62, 68 and 76 of the United Nations Charter had provided the basis for the elaboration in the Universal Declaration of Human Rights. Although there is a sharp conflict of opinion whether respect for human dignity and fundamental human rights is obligatory under the Charter (see Oppenheim’s International Law; 8th ed. Vol. 1, pp. 740-41; footnote 3), it seems to me that, in view of Article 51 of the directive principles, this Court must interpret language of the Constitution, if not intractable, which is after all a municipal law, in the light of the United Nations Charter and the solemn declaration subscribed to by India. Article 51 reads:

51. The State shall endeavour to- (a) promote international peace and security;

(b) maintain just and honourable relations between nations;

(c) foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and (d) encourage settlement of international disputes by arbitration.

165. As observed by Lord Denning in Corocraft v. Pan American Airways (1969) 1 All E.R. 82; 87 “it is the duty of these courts to construe our Legislation so as to be in conformity with international law and not in conflict with it.” (See also Oppenheim supra, pp. 45-46; American Jurisprudence 2nd, Vol. 45, p. 351).

166. Part V Chapter I, deals with the Executive; Chapter II with Parliament-conduct or its business, qualification of its members, legislation procedure etc. Article 83 provides that:

83. (1) The Council of States shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.

(2) The House of the People unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the House: …

Under the proviso this period can be extended while a Proclamation of Emergency is in operation for a period not exceeding in any case beyond a period of six months after the Proclamation has ceased to operate. It was provided in Article 85(1) before its amendment by the Constitution (First Amendment) Act 1951 that the House of Parliament shall be summoned to meet twice at least in every year, and six months shall not intervene between their last sittings in one session and the date appointed for their first sitting in the next session.

167. Article 123 gives power to the President to promulgate ordinances during recess of Parliament Chapter IV deals with Union Judiciary.

168. Part VI, as originally enacted dealt with the States in Part A of the First Schedule-the Executive, the State Legislatures and the High Courts. Article 174 deals with the summoning of the House of Legislature and its provisions are similar to that of Article

85. Article 213 confers legislative powers on the Governor during the recess of State Legislature by promulgating ordinances.

169. Part XI deals with the relation between the Union and the States; Chapter I regulating legislative relations and Chapter II administrative relations.

170. Part XII deals with Finance, Property, Contracts and Suits. We need only notice Article 265 which provides that “no tax shall be levied or collected except by authority of law”.

171. Part XIII deals with Trade, Commerce and Intercourse within the Territory of India.

Subject to the provisions of this Chapter, trade, commerce and intercourse throughout the territory of India shall be free (Article 301).

172. Part XIV deals with Services under the Union and the States. Part XVI contains special provisions relating to certain classes-the Scheduled Castes, the Scheduled Tribes etc. It reserved seats in the House of the People for these classes. Article 331 enables the President to nominate not more than two members of the Anglo-Indian community if it is not adequately represented in the House of the People. Article 332 deals with the reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States. In Article 334 it is provided that the above mentioned reservation of seats and special representation to certain classes shall cease on the expiry of a period of ten years from the commencement of this Constitution. Article 335 deals with claims of scheduled castles and scheduled tribes to services and posts. Article 336 makes special provisions for Anglo-Indian community in certain services, and Article 337 makes special provisions in respect of educational grants for the benefit of Anglo- Indian community. Article 338 provides for the creation of a Special Officer for Scheduled Castes, Scheduled Tribes, etc. to be appointed by the President, and prescribes his duties. Article 340 enables the President to appoint a Commission to investigate the conditions of socially and educationally backward classes within the territory of India which shall present a report and make recommendations on steps that should be taken to remove difficulties and improve their condition. Article 341 enables the President to specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State. Similarly, Article 342 provides that the President may specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall be deemed to be Scheduled Tribes in relation to that State.

173. Part XVII deals with Official Language, and Part XVIII with Emergency Provisions.

Article 352 is important. It reads:

352.(1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect.

174. Article 353 describes the effect of the Proclamation of Emergency. The effect is that the executive power of the Union shall be extended to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised, and the Parliament gets the power to make laws with respect to any matter including the power to make laws conferring powers and imposing duties, etc., notwithstanding that it is one which is not enumerated in the Union List. Article 354 enables the President by order to make exceptions and modifications in the provisions of Article 268 to 279. Under Article 355 it is the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. Article 356 contains provisions in case of failure of Constitutional machinery in a State.

175. Article 358 provides for suspension of the provisions of Article 19 during Emergency. It reads:

358. While a Proclamation of Emergency is in operation, nothing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.

176. Article 359 is most important for our purpose. It provides that:

359. (1) Where a Proclamation of Emergency is in operation the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.

(2) An order made as aforesaid may extend to the whole or any part of the territory of India.

(3) Every order made under Clause (1) shall, as soon as maybe after it is made be laid before each House of Parliament.

177. These two articles, namely Article 358 and Article 359 show that the Constitution makers contemplated that fundamental rights might impede the State in meeting an emergency, and it was accordingly provided that Article 19 shall not operate for a limited time, and so also Article 32 and Article 226 if the President so declares by order. If it was the design that fundamental rights might be abrogated surely they would have expressly provided it somewhere.

178. I may here notice an argument that the enactment of Articles 358 and 359 showed that the fundamental rights were not treated as inalienable rights. I am unable to infer this deduction from these articles. In an emergency every citizen is liable to be subjected to extraordinary restrictions.

179. I may here notice some relevant facts which constitute the background of the process of drafting the Constitution. The British Parliament knowing the complexities of the structure of the Indian people expressly provided in Section 6(6) of the Indian Independence Act, 1947, that “the powers referred to in Sub-section (1) of this section extends to the making of laws limiting for the future the powers of the legislature of the Dominion.” Sub-section (1) of Section 6 reads:

The legislature of each of the new Dominions shall have full power to make laws for that Dominion, including laws having extraterritorial operation.

That Section 6(1) included making provision as to the Constitution of the Dominion is made clear by Section 8(1) which provided : “In the case of each of the new Dominions, the powers of legislature of the Dominion shall for the purpose of making provision as to the Constitution of the Dominion be exercisable in the first instance by the Constituent Assembly of that Dominion, and references in this Act to the legislature of the Dominion shall be construed accordingly.

(Emphasis supplied).

180. These provisions of the Indian Independence Act amply demonstrate that when the Constituent Assembly started functioning, it knew, if it acted under the Indian Independence Act, that it could limit the powers of the future Dominion Parliaments.

181. No similar provisions exists in any of the Independence Acts in respect of other countries, enacted by the British Parliament, e.g., Ceylon Independence Act, 1947, Ghana Independence Act, 1957, Federation of Malaya Independence Act, 1957, Nigeria Independence Act, 1960, Sierra Leone Independence Act, 1961, Tanganyika Independence Act, 1961, Southern Rhodesia Act, 1965, Jamaica Independence Act, 1962.

182. I may mention that the aforesaid provisions in the Indian Independence Act were enacted in line with the Cabinet Statement dated May 16, 1947 and the position of the Congress Party. Para 20(See : Shiva Rao-The Framing of India’s Constitution, Vol. I, p.

216) of the Statement by the Cabinet Mission provided:

The Advisory Committee on the rights of citizens, minorities, and tribal and excluded areas should contain full representation of the interests affected, and their function will be to report to the Union Constituent Assembly upon the list of Fundamental Rights, the clauses for the protection of minorities, and a scheme for the administration of the tribal and excluded areas, and to advise whether these rights should be incorporated in the Provincial, Group, or Union Constitution.

183. In clarifying this statement Sir Stafford Cripps at a Press Conference dated May 16, 1946 stated:

But in order to give these minorities and particularly the smaller minorities like the Indian Christians and the Anglo-Indians and also the tribal representatives a better opportunity of influencing minority provisions, we have made provision for the setting up by the Constitution-making body of an influential advisory Commission which will take the initiative in the preparation of the list of fundamental rights, the minority protection clauses and the proposals for the administration of tribal and excluded areas. This Commission will make its recommendations to the Constitutionmaking body and will also suggest at which stage or stages in the Constitution these provisions should be inserted, that is whether in the Union, Group or Provincial Constitutions or in any two or more of them.

(P. 224, Supra).

184. In the letter dated May 20, 1946, from Maulana Abul Kalam Azad to the Secretary of State, it is stated:

The principal point, however, is, as stated above, that we look upon this Constituent Assembly as a sovereign body which can decide as it chooses in regard to any matter before it and can give effect to its decisions. The only limitation, we recognise is that in regard to certain major communal issues the decision should be by a majority of each of the two major communities. (P. 251, Supra).

185. In his reply dated May 22, 1946, the Secretary of State observed:

When the Constituent Assembly has completed its labours, His Majesty’s Government will recommend to Parliament such action as may be necessary for the cession of sovereignty to the Indian people, subject only to two provisos which are mentioned in the statement and which are not, we believe, controversial, namely, adequate provision for the protection of minorities and willingness to conclude a treaty to cover matters arising out of the transfer of power.

(Emphasis supplied) 186. In the Explanatory statement dated May 22, 1946, it was again reiterated as follows:

When the Constituent Assembly has completed its labours, His Majesty’s Government will recommend to Parliament such action as may be necessary for the cession of sovereignty to the Indian people, subject only to two matters which are mentioned in the statement and which, we believe are not controversial, namely, adequate provision for the protection of the minorities (paragraph 20 of the statement) and willingness to conclude a treaty with His Majesty’s Government to cover matters arising out of the transfer of power (paragraph 22 of the statement) (P. 258, Supra).

(Emphasis supplied) 187. In pursuance of the above, a resolution for the setting up of an Advisory Committee on fundamental rights was moved by Govind Ballabh Pant in the Constituent Assembly on January 24, 1947. He laid special importance on the issue of minorities. The Advisory Committee met on February 27, 1947 to constitute various sub-committees including the Minorities Sub-Committee. The Sub-Committee on Minorities met later the same day. A questionnaire was drafted to enquire about political, economic, religious, educational and cultural safeguards. In other words all these safeguards were considered.

188. Divergent views were expressed, and the Minorities Sub-Committee met on April 17, 18 and 19, 1947 to consider this important matter. At these meetings the sub- committee considered the interim proposals of the fundamental rights Sub-Committee in so far as these had a bearing on minority rights. These discussions covered such important matters as the prohibition of discrimination on grounds of race, religion, caste, etc.; the abolition of untouchability and the mandatory requirements that the enforcement of any disability arising out of untouchability should be made an offence punishable according to law; freedom to profess, practise and propagate one’s religion; the right to establish and maintain institutions for religious and charitable purposes; the right to be governed by one’s personal, law; the right to use one’s mother-tongue and establish denominational communal or language schools etc.

189. Having dealt with the question of fundamental rights for minorities, the Minorities Sub-Committee met again on July 21, 1947, to consider the political safeguards for minorities and their presentation in the public services.

190. In forwarding the report of the Advisory Committee on the subject of Minority Rights, Sardar Vallabhbhai Patel, in his report dated August 8, 1947, said:

…It should be treated as supplementary to the one forwarded to you with my letter No. CA/24/Com./47, dated the 23rd April 1947 and dealt with by the Assembly during the April session. That report dealt with justiciable fundamental rights; these rights, whether applicable to all citizens generally or to members of minority communities in particular offer a most valuable safeguard for minorities over a comprehensive field of social life. The present report deals with what may broadly be described as political safeguards of minorities and covers the following points:

(i) Representation in Legislature; joint versus separate electorates; and weightage.

(ii) Reservation of seats for minorities in Cabinets.

(iii) Reservation for minorities in the public services.

(iv) Administrative machinery to ensure protection of minority rights.

191. Sardar Patel, while moving the report for consideration on August 27, 1947, said:

You will remember that we passed the Fundamental Rights Committee’s Report which was sent by the Advisory Committee; the major part of those rights has been disposed of and accepted by this House. They cover a very wide range of the rights of minorities which give them ample protection; and yet there are certain political safeguards which have got to be specifically considered. An attempt has been made in this report to enumerate those safeguards which are matters of common knowledge, such as representation in legislatures, that is, joint versus separate electorate.

(Emphasis supplied) 192. The above proceedings show that the minorities were particularly concerned with the fundamental rights which were the subject-matter of discussion by the Fundamental Rights Committee.

193. The above brief summary of the work of the Advisory Committee and the Minorities Sub-Committee shows that no one ever contemplated that fundamental rights appertaining to the minorities would be liable to be abrogated by an amendment of the Constitution. The same is true about the proceedings in the Constituent Assembly. There is no hint anywhere that abrogation of minorities rights was ever in the contemplation of the important members of the Constituent Assembly. It seems to me that in the context of the British Plan, the setting up of Minorities Sub-Committee, the Advisory Committee and the proceedings of these Committees, as well as the proceedings in the Constituent Assembly mentioned above, it is impossible to read the expression “Amendment of the Constitution” as empowering Parliament to abrogate the rights of minorities.

194. Both sides relied on the speeches made in the Constituent Assembly. It is, however, a sound rule of construction that speeches made by members of a legislature in the course of debates relating to the enactment of a statute cannot be used as aids for interpreting any of provisions of the statute. The same rule has been applied to the provisions of this Constitution by this Court in State of Travancore-Cochin and Ors. v. Bombay Co. Ltd.

[1952] INSC 42; [1952] S.C.R. 1112, 1121 Shastri, C.J., speaking for the Court observed:

‘It remains only to point out that the use made by the learned Judges below of the speeches made by the Members of the Constituent Assembly in the course of the debates on the draft Constitution is unwarranted. That this form of extrinsic aid to the interpretation of statutes is not admissible has been generally accepted in England, and the same rule has been observed in the construction of Indian statutes-see Administrator-General of Bengal v. Prem Nath Mallick [1895] 22 I.A. 107-118. The reason behind the rule was explained by one of us in Gopalan’s [1950] INSC 14; [1950] S.C.R. 88 case thus:

A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord, or, as it is more tersely put in an American case- Those who did not speak may not have agreed with those who did and those who spoke might differ from each other- United States v. Trans-Missouri Freight Association.

This rule of exclusion has not always been adhered to in America, and sometimes distinction is made between using such material to ascertain the purpose of a statute and using it for ascertaining its meaning. It would seem that the rule is adopted in Canada and Australia-see Craies on Statute Law, 5th Ed. p. 122.

195. In Golak Nath’s [1967] INSC 45; [1967] 2 S.C.R. 762; 792; 922 case, Subba Rao, C.J., referred to certain portions of the speeches made by Pandit Nehru and Dr. Ambedkar but he made it clear at p. 792 that he referred to these speeches “not with a view to interpret the provisions of Article 368, which we propose to do on its own terms, but only to notice the transcendental character given to the fundamental rights by two of the important architects of the Constitution.” Bachawat, J., at p. 922 observed:

Before concluding this judgment I must refer to some of the speeches made by the members of the Constituent Assembly in the course of debates on the draft Constitution. These speeches cannot be used as aids for interpreting the Constitution-see State of Travancore Cochin and Ors.

v. Bombay Co. Ltd. [1952] INSC 42; [1952] S.C.R. 1112. Accordingly I do not rely on them as aids to construction. But I propose to refer to them, as Shri A.K.

Sen relied heavily on the speeches of Dr. B.R. Ambedkar. According to him, the speeches of Dr. Ambedkar show that he did not regard the fundamental rights as amendable. This contention is not supported by the speeches….

196. In H.H. Maharajadhiraja Madhav Rao v. Union of India [1970] INSC 253; [1971] 3 S.C.R. 9 Shah, J., in the course of the judgment made a brief reference to what was said by the Minister of Home Affairs, who was in charge of the States, when he moved for the adoption of Article 291. He referred to this portion of the speech for the purpose of showing the historical background and the circumstances which necessitated giving certain guarantees to the former rulers.

197. It is true that Mitter, J., in the dissenting judgment, at p. 121, used the debates for the purposes of interpreting Article 363 but he did not discuss the point whether it is permissible to do so or not.

198. In Union of India v. H.S. Dhillon, [1971] INSC 292; [1972] 2 S.C.R. 33 I, on behalf of the majority, before referring to the speeches observed at p. 58 that “we are, however, glad to find from the following extracts from the debates that our interpretation accords with what was intended.” There is no harm in finding confirmation of one’s interpretation in debates but it is quite a different thing to interpret the provisions of the Constitution in the light of the debates.

199. There is an additional reason for not referring to debates for the purpose of interpretation. The Constitution, as far as most of the Indian States were concerned, came into operation only because of the acceptance by the Ruler or Rajpramukh. This is borne out by the following extract from the statement of Sardar Vallabhbhai Patel in the Constituent Assembly on October 12, 1949 (C.A.D. Vol. X, pp. 161-3):

Unfortunately we have no properly constituted Legislatures in the rest of the States (apart from Mysore, Saurashtra and Travancore and Cochin Union) nor will it be possible to have Legislatures constituted in them before the Constitution of India emerges in its final form. We have, therefore, no option but to make the Constitution operative in these States on the basis of its acceptance by the Ruler of the Rajpramukh, as the case may be, who will no doubt consult his Council of Ministers.

200. In accordance with this statement, declarations were issued by the Rulers or Rajpramukhs accepting the Constitution.

201. It seems to me that when a Ruler or Rajpramukh or the people of the State accepted the Constitution of India in its final form, he did not accept it subject to the speeches made during the Constituent Assembly debates. The speeches can, in my view, be relied on only in order to see if the course of the progress of a particular provision or provisions throws any light on the historical background or shows that a common understanding or agreement was arrived at between certain sections of the people. (See In re. The Regulation and Control of Aeronautics in Canada) [1932] A.C. 54 at p. 70.

202. In this connection reference was made to Article 305 of the draft Constitution which provided that notwithstanding anything contained in Article 304 of the Constitution, the provisions of the Constitution relating to the reservation of seats for the Muslims etc., shall not be amended during the period of ten years from the commencement of the Constitution. Although this draft Article 305 has no counterpart in our Constitution, it was sought to be urged that this showed that every provision of the Constitution was liable to be amended. I have come to the conclusion that every provision is liable to be amended subject to certain limitations and this argument does not affect my conclusion as to implied limitations.

203. A very important decision of the Judicial Committee of the Privy Council in The Bribery Commissioner v. Pedrick Ranasinghe [1964] UKPC 1; [1965] A.C. 172 throws considerable light on the topic under discussion. The import of this decision was not realised by this Court in Golak Nath’s [1967] INSC 45; [1967] 2 S.C.R. 762 case. Indeed, it is not referred to by the minority in its judgments, and Subba Rao, C.J., makes only a passing reference to it. In order to fully appreciate the decision of the Privy Council it is necessary to set out the relevant provisions of the Ceylon Independence Order in Council, 1947, hereinafter referred to as the Ceylon Constitution.

204. Part III of the Ceylon Constitution deals with “Legislature”. Section 7 provides that “there shall be a Parliament of the Island which shall consist of His Majesty, and two Chambers to be known respectively as the Senate and the House of Representatives.

205. Section 18 deals with voting. It reads:

18. Save as otherwise provided in Sub-section (4) of Section 29, any question proposed for decision by either Chamber shall be determined by a majority of votes of the Senators or Members, as the case may be, present and voting. The President or Speaker or other person presiding shall not vote in the first instance but shall have and exercise a casting vote in the event of an equality of votes.

206. Section 29 deals with the power of Parliament to make laws. It reads:

29(1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island.

(2) No such law shall- (a) prohibit or restrict the free exercise of any religion, or (b) make persons of any community or religion liable to disabilities or restrictions to which persons or other communities or religions are not made liable; or (c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions; or (d) alter the Constitution of any religious body except with the consent of the governing authority of that body. So, however, that in any case where a religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body.

Provided, however, that the preceding provisions of this subsection shall not apply to any law making provision for, relating to, or connected with the, election of Members of the House of Representatives, to represent persons registered as citizens of Ceylon under the Indian &

Pakistani Residents (Citizenship Act).

This proviso shall cease to have effect on a date to be fixed by the Governor-General by Proclamation published in the Gazette.

(3) Any law made in contravention of Sub-section (2) of this section shall, to the extent of such contravention, be void.

(4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island:

Provided that no Bill for the amendment or repeal of any of the Provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than twothirds of the whole number of members of the House (including those not present).

Every certificate of the Speaker under this sub-section shall be conclusive for all purposes and shall not be questioned in any court of law.

207. According to Mr. Palkhivala, Section 29(1) corresponds to Articles 245 and 246, and Section 29(4) corresponds to Article 368 of our Constitution, and Sections 29(2) and 29(3) correspond to Article 13(2) of our Constitution, read with fundamental rights.

208. The question which arose before the Judicial Committee of the Privy Council was whether Section 41 of the Bribery Amendment Act, 1958 contravened Section 29(4) of the Ceylon Constitution, and was consequently invalid. The question arose out of the following facts. The respondent, Ranasinghe, was prosecuted for a bribery offence before the Bribery Tribunal created by the Bribery Amendment Act, 1958. The Tribunal sentenced him to a term of imprisonment and fine. The Supreme Court on appeal declared the conviction and orders made against him null and inoperative on the ground that the persons composing the Tribunal were not validly appointed to the Tribunal.

209. Section 52 of the Ceylon Constitution provided for the appointment of the Chief Justice and Puisne Judges of the Supreme Court. Section 53 dealt with the setting up of the Judicial Service Commission, consisting of the Chief Justice, a Judge of the Supreme Court, and one other person who shall be, or shall have been, a Judge of the Supreme Court. It further provided that no person shall be appointed as, or shall remain, a member of the Judicial Service Commission, if he is Senator or a Member of Parliament. Section 55 provided for the appointment of other Judicial Officers. Section 55(1) reads:

55. (1) The appointment, transfer, dismissal and disciplinary control of judicial officers is hereby vested in the Judicial Service Commission.

210. The Judicial Committee deduced from these provisions thus:

Thus there is secured a freedom from political control, and it is a punishable offence to attempt directly or indirectly to influence any decision of the Commission (Section 56).

211. The Judicial Committee then described the position of the Bribery Tribunal as follows:

A bribery tribunal, of which there may be any number, is composed of three members selected from a panel (Section 42). The panel is composed of not more than 15 persons who are appointed by the Governor-General on the advice of the Minister of Justice (Section 41). The members of the panel are paid remuneration (Section 45).

212. The Judicial Committee held that the members of the Tribunal held judicial office and were judicial officers within Section 55 of the Ceylon Constitution. They found that there was a plain conflict between Section 55 of the Constitution and Section 41 of the Bribery Amendment Act under which the panel was appointed.

213. Then the Judicial Committee examined the effect of this conflict. After setting out Section 18, Section 29(1) and Section 29(2)(a), the Judicial Committee observed:

There follow (b), (c) and (d), which set out further entrenched religious and racial matters, which shall not be the subject of legislation. They represent the solemn balance of rights, between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution;

and these are, therefore unalterable under the Constitution.

(Emphasis supplied) 214. After making these observations, the Judicial Committee set out Sub-sections (3) and (4) of Section 29 of the Ceylon Constitution. The observations, which I have set out above, are strongly relied on by Mr. Palkhivala in support of his argument that Part III similarly entrenched various religious and racial and other matters and these represented solemn balance of rights between the citizens of India, the fundamental conditions on which inter se they accepted the Constitution of India and these are, therefore, unalterable under the Constitution of India.

215. Mr. Seervai, in reply, submitted that the word “entrenched” meant nothing else that than these provisions were subject to be amended only by the procedure prescribed in Section 29(4) of the Ceylon Constitution. But I am unable to accept this interpretation because in that sense other provisions of the Constitution were equally entrenched because no provision of the Ceylon Constitution could be amended without following the procedure laid down in Section 29(4).

216. The interpretation urged by Mr. Palkhivala dervies support in the manner the Judicial Committee distinguished McCawley’s [1920] A.C. 691 case (McCawley v.

King). I may set out here the observations of the Judicial Committee regarding McCawley’s case. They observed:

It is possible now to state summarily what is the essential difference between the McCawley case and this case. There the legislature, having full power to make laws by a majority, except upon one subject that was not in question, passed a law which conflicted with one of the existing terms of its Constitution Act. It was held that this was valid legislation, since it must be treated as pro tanto an alteration of the Constitution, which was neither fundamental in the sense of being beyond change nor so constructed as to require any special legislative process to pass upon the topic dealt with.

(Emphasis supplied) 217. It is rightly urged that the expression “which was neither fundamental in the sense of being beyond change” has reference to Section 29(2) of the Ceylon Constitution. I have no doubt that the Judicial Committee held that the provisions of Section 29(2) in the Ceylon Constitution were unamendable. I may mention that Prof. S A de Smith in reviewing the book “Reflections on the Constitution and the Constituent Assembly.

(Ceylon’s Constitution) “by L.J.M. Cooray, reads the obiter dicta in Bribery Commissioner v. Ranasinghe [1964] UKPC 1; [1965] A.C. 172, 193-194 indicating that certain provisions of the Constitution were unalterable by the prescribed amending procedure.

218. It may be that these observations are obiter but these deserve our careful consideration, coming as they do from the Judicial Committee.

219. Why did the Judicial Committee say that the provisions of Section 29(2) were “unalterable under the Constitution” or “fundamental in the sense of being beyond change” ? There is nothing in the language of Section 29(4) to indicate any limitations on the power of the Ceylon Parliament. It could “amend or repeal” any provision of the Constitution, which included Section 29(2) and Section 29(4) itself. The reason could only be an implied limitation on the power to amend under Section 29(4) deducible from “the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution”. Unless there was implied a limitation on the exercise of the amending power under Section 29(4), Section 29(4) could itself be amended to make it clear that Section 29(2) is amendable.

220. This case furnishes an exact example where implied limitations on the power to amend the Constitution have been inferred by no less a body than the Judicial Committee of the Privy Council.

221. Mr. Seervai relied on the portion within brackets of the following passage at pp.

197-198:

These passages show clearly that the Board in McCawley’s case took the view which commends itself to the Board in the present case, that (a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its powers to make law.

This restriction exists independently of the question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the Constitution is “uncontrolled,” as the Board held the Constitution of Queensland to be. Such a Constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides that if the terms of those provisions are compiled with and the alteration or amendment may include the change or abolition of those very provisions.) But the proposition which is not acceptable is that a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process. And this is the proposition which is in reality involved in the argument.

222. The portion, not within brackets, which has been omitted in Mr. Seervai’s written submissions, clearly shows that the Judicial Committee in this passage was not dealing with the amendment of Section 29(2) of the Ceylon Constitution and had understood McCawley’s [1920] A.C. 691 case as not being concerned with the question of the amendment of a provision like Section 29(2) of the Ceylon Constitution. This passage only means that a legislature cannot disregard the procedural conditions imposed on it by the constituent instrument prescribing a particular majority but may amend them if the constituent instrument gives that power.

223. The next passage, a part of which I have already extracted, which deals with the difference between McCawley’s case and Ranasinghe’s [1964] UKPC 1; [1965] A.C. 172, 193-194 case shows that the Judicial Committee in the passage relied on was dealing with the procedural part of Section 29(4) of Ceylon Constitution. It reads:

It is possible now to state summarily what is the essential difference between the McCawley case and this case. There the legislature having full power to make laws by a majority, except upon one subject that was not in question, passed a law which conflicted with one of the existing terms of the Constitution Act. It was held that this was valid legislation, since it must be treated as pro tanto an alteration of the Constitution, which was neither fundamental in the sense of being beyond change nor so constructed as to require any special legislative process to pass upon the topic dealt with. In the present case, on the other hand, the legislature has purported to pass a law which being in conflict with Section 55 of the Order in Council, must be treated, if it is to be valid, as an implied alteration of the Constitutional provisions about the appointment of judicial officers. Since such alterations, even if express, can only be made by laws which comply with the special legislative procedure laid down in Section 29(4), the Ceylon legislature has not got the general power to legislate so as to amend its Constitution by ordinary majority resolutions, such as the Queensland legislature was found to have under Section 2 of its Constitution Act, but is rather in the position, for effecting such amendments, that that legislature was held to be in by virtue of its Section 9, namely, compelled to operate a special procedure in order to achieve the desired result.

224. I may mention that the Judicial Committee while interpreting the British North America Act, 1867 had also kept in mind the preservation of the rights of minorities for they say In re The Regulation and Control of Aeronautics in Canada: [1933] A.C. 54 at p.

70 “inasmuch as the Act (British North America Act) embodies a compromise under which the original Provinces agreed to federate, it is important to keep in mind that the preservation of the rights of minorities was a conditioin on which such minorities entered into the federation, and the foundation upon which the whole structure was subsequently erected. The process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction of the Provisions of Sections 91 and 92 should impose a new and different contract upon the federating bodies.

225. The words of the Judicial Committee in Ranasinghe’s case, are apposite and pregnant. “They represent the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution and these are, therefore unalterable under the Constitution.” It is true that the Judicial Committee in the context of minorities and religious rights in Ceylon used the word “unalterable”. But the India context is slightly different. The guarantee of fundamental rights extends to numerous rights and it could not have been intended that all of them would remain completely unalterable even if Article 1.3(2) of the Constitution be taken to include Constitutional amendments. A more reasonable inference to be drawn from the whole scheme of the Constitution is that some other meaning of “Amendment” is most appropriate. This conclusion is also reinforced by the concession of the Attorney-General and Mr. Seervai that the whole Constitution cannot be abrogated or repealed and a new one substituted. In other words, the expression “Amendment of this Constitution” does not include a revision of the whole Constitution. If this is true-I say that the concession was rightly made-then which is that meaning of the word “Amendment” that is most appropriate and fits in with the while scheme of the Constitution. In my view that meaning would be appropriate which would enable the country to achieve a social and economic revolution without destroying the democratic structure of the Constitution and the basic inalienable rights guaranteed in Part III and without going outside the contours delineated in the Preamble.

226. I come to the same conclusion by another line of reasoning. In a written Constitution it is rarely that everything is said expressly. Powers and limitations are implied from necessity or the scheme of the Constitution. I will mention a few instances approved by the Judicial Committee and this Court and other Courts. I may first consider the doctrine that enables Parliament to have power to deal with ancillary and subsidiary matters, which strictly do not fall within the legislative entry with respect to which legislation is being undertaken.

227. Lefroy in “A short Treatise on Canadian Constitutional Law” (page 94), puts the matter thus:

But when it is (Dominion Parliament) is legislating upon the enumerated Dominion subject-matters of Section 91 of the Federation Act, it is held that the Imperial Parliament, by necessary implication, intended to confer on it legislative power to interfere with, deal with, and encroach upon, matters otherwise assigned to the provincial legislatures under Section 92, so far as a general law relating to those subjects may affect them, as it may also do to the extent of such ancillary provisions as may be required to prevent the scheme of such a law from being defeated. The Privy Council has established and illustrated this in many decisions.

228. This acts as a corresponding limitation on the legislative power of the Provincial or State legislatures.

229. This Court has in numerous decisions implied similar powers. (See Orient Paper Mills v. State of Orissa [1961] INSC 117; [1962] 1. S.C.R. 549; Burmah Construction Co. v. State of Orissa [1962] 1 Supp. S.C.R. 242; Navnit Lal Javeri v. Appellate Assistant Commissioner A.I.R.

1965 S.C. 1375; to mention a few).

230. It often happens that what has been implied by courts in one Constitution is expressly conferred in another Constitution. For instance, in the Constitution of the United States, Clause 18 of Section 8 expressly grants incidental powers:

The Congress shall have power…to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

231. It would not be legitimate to argue from the above express provision in the United States Constitution that if the Constitution-makers wanted to give such powers to the Parliament of India they would have expressly conferred incidental powers.

232. Story says that Clause 18 imports no more than would remit from necessary implication (see pp. 112 and 113, Vol. 3) if it had not been expressly inserted.

233. In Ram Jawaya Kapur v. State of Punjab [1955] 2 S.C.R. 225; 236-37 this Court implied that “the President has thus been made a formal or Constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The same provisions obtain in regard to the Government of States; the Governor or the Rajpramukh….

234. In Sanjeevi Naidu v. State of Madras [1970] 1 S.C.C. 443 Hedge, J., held that the Governor was essentially a Constitutional head and the administration of State was run by the Council of Ministers.

235. Both these cases were followed by another Constitution bench in U.N.R. Rao v.

Smt. Indira Gandhi [1971] INSC 82; [1971] 2 S.C.C. 63.

236. This conclusion constitutes an implied limitation on the powers of the President and the GovernOrs. The Court further implied in Ram Jawaya Kapur’s [1955] 2 S.C.R. 225;

236-37 case that the Government could without specific legislative sanction carry on trade and business.

237. To save time we did not hear Mr. Seervai on the last 3 cases just cited. I have mentioned them only to give another example.

238. It may be noted that what was implied regarding carrying on trade was made an express provision in the Constitution by the Constitution (Seventh Amendment) Act, 1956, when a new Article 298 was substituted. The Federal Court and the Supreme Court of India have recognised and applied this principle in other cases:

(i) “A grant of the power in general terms standing by itself would no doubt be construed in the wider sense; but it may be qualified by other express provisions in the same enactment, by the implications of the context, and even by considerations arising out of what appears to be the general scheme of the Act.” (Per Gwyer C.J. The C.J. & Berar Act-1939 F.C.R. 18 at 42).

(ii) Before its amendment in 1955, Article 31(2) was read as containing an implied limitation that the State could acquire only for a public purpose (the Fourth Amendment expressly enacted this limitation in 1955).

(a) “One limitation imposed upon acquisition or taking possession of private property which is implied in the clause is that such taking must be for public purpose”. (Per Mukherjea J. Chiranjitlal Chowdhuri v. Union of India [1950] INSC 38; 1950 SCR 869 at 902), (b) “The existence of a ‘public purpose’ is undoubtedly an implied condition of the exercise of compulsory powers of acquisition by the State….” (Per Mahajan J. State of Bihar v. Makarajadhiraja of Darbhanga 1952 SCR 889 at 934).

(iii) The Supreme Court has laid down that there is an implied limitation on legislative power: the Legislature cannot delegate the essentials of the legislative functions.

…the legislature cannot part with its essential legislative function which consists in declaring its policy and making it a binding rule of conduct…the limits of the powers of delegation in India would therefore have to be ascertained as a matter of construction from the provisions of the Constitution itself and as I have said the right of delegation may be implied in the exercise of legislative power only to the extent that it is necessary to make the exercise of the power effective and complete. (Per Mukherjea J. in re The Delhi Laws Act-\95\SCR 747 at 984-5).

The same implied limitation on the Legislature, in the field of delegation, has been invoked and applied in:

Raj Narain Singh v. Patna Administration 1955(1) SCR 290. Hari Shankar Bagla v. State of Madhya Pradesh 1955(1) SCR 380.

Vasantilal Sanjanwala v. State of Bombay 1961(1) SCR 341. The Municipal Corporation of Delhi v. Birla Cotton Mills 1968(3) SCR 251.

Garewal v. State of Punjab 1959 Supp. (1) SCR 792.

(iv) On the power confered by Articles 3 and 4 of the Constitution to form a new State and amend the Constitution for that purpose limitation has been implied that the new State must- conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise…is not the power to over-ride the Constitutional scheme. No State can therefore be formed, admitted or set up by law under Article 4 by the Parliament which has no effective legislative, executive and judicial organs. (Per Shah J.-Mangal Singh v. Union of India 1967(2) SCR 109 at 112.

(Emphasis supplied) 239. It would have been unnecessary to refer to more authorities but for the fact that it was strenuously urged that there could not be any implied limitations resulting from the scheme of the Constitution.

240. Before referring to a recent decision of the Australian High Court, observations in certain earlier cases may be reproduced here:

Since the Engineers” case (1920-28 CLR 129) a notion seems to have gained currency that in interpreting the Constitution no implications can be made. Such a method of construction would defeat the intention of any instrument, but of all instruments, a written Constitution seems the last to which it could be applied. I do not think that the judgment of the majority of the court in the Engineers’ case meant to propound such a doctrine” (Per Dixon J. West v. Commissioner of Taxation (New South Wales)-56 CLR 657 at 681-2).

Some implications are necessary from the structure of the Constitution itself, but it is inevitable also, I should think, that these implications can only be defined by a gradual process of judicial decision” (Per Starke J., South Australia v. Commonwealth [1942] HCA 14; 65 CLR 373, 447.

(Emphasis supplied) The Federal character of the Australian Constitution carries implications of its own…. Therefore it is beyond the power of either to abolish or destroy the other”. (Per Starke J. Melbourne Corporation v.

Commonwealth [1947] HCA 26; 74 CLR 31 at 70).

(Emphasis supplied) The Federal system itself is the foundation of the restraint upon the use of the power to control the State…Restraints to be implied against any exercise of power by Commonwealth against State and State against Commonwealth calculated to destroy or detract from the independent exercise of the functions of the one or the other….” (Per Dixon J.- Melbourne Corporation v. Commonwealth [1947] HCA 26; 74 CLR 31 at 81-2).

241. I may now refer to State of Victoria v. The Commonwealth [1971] 45 A.L.R.J. 251;

252; 253 which discusses the question of implications to be drawn from a Constitution like the Australian Constitution which is contained in the Commonwealth Act. It gives the latest view of that Court on the subject.

242. The point at issue was whether the Commonwealth Parliament, in the exercise of its power under Section 51(ii) of the Constitution (subject to the Constitution, to make laws with respect to taxation, but so as not to discriminate between States or parts of States) may include the Crown in right of a State in the operation of a law imposing a tax or providing for the assessment of a tax.

243. Another point at issue was the status of the Commonwealth and the States under the Constitution, and the extent to which the Commonwealth Parliament may pass laws binding on the States, considered generally and historically, and with particular reference to the question whether there is any implied limitation on Commonwealth legislative power. It is the discussion on the latter question that is relevant to the present case.

244. There was difference of opinion among the Judges. Chief Justice Barwick held as follows:

The basic principles of construction of the Constitution were definitively enunciated by the Court in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. [1920] HCA 54; (1920), 28 C.L.R. 129 (the Engineers’ case) Lord Selborne’s language in Reg. v. Burah (1878) 3 App. Cas. 889 at pp. 904- 905, was accepted and applied as was that of Earl Loreburn in Attorney- General for Ontario v. Attorney-General for Canada (1912) A.C. at 583.

245. According to the Chief Justice, the Court in Engineeres’ case unequivocally rejected the doctrine that there was an “implied prohibition” in the Constitution against the exercise in relation to a State of a legislative power of the Commonwealth once ascertained in accordance with the ordinary rules of construction, a doctrine which had theretofore been entertained and sought to be founded upon some supposed necessity of “protection”, as it were, “against the aggression of some outside and possibly hostile body”. The Court emphasized that if protection against an abuse of power were needed, it must be provided by the electorate and not by the judiciary. ‘The one clear line of judicial inquiry as to the meaning of the Constitution must be to read it naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the statute law which preceded it and then lucet ipsa per see.

246. Now this is the judgment which is relied on by Mr. Seervai and the learned Attorney General. On the other hand, reliance is placed by Mr. Palkhivala on Menzies J’s judgment:

Does the fact that the Constitution is “federal” carry with it implications limiting the law-making powers of the Parliament of the Commonwealth with regard to the States ? To this question I have no doubt, both on principle and on authority, that an affirmative answer must be given. A Constitution providing for an indissoluble federal Commonwealth must protect both Commonwealth and States. The States are not outside the Constitution. They are States of the Commonwealth; Section 106. Accordingly, although the Constitution does, clearly enough, subject the States to laws made by the Parliament, it does so with some limitation.

247. After making these observations, the learned Judge examined authorities and he found support in Malbourne Corporation v. The Commonwealth [1947] HCA 26; [1947] 74 C.L.R. 31, He then examined various other cases in support of the above principles.

248. The other passages relied on by the petitioners from the judgments of the other learned Judges on the Bench in that case are as follows:

Windeyar, J.

In each case an implication means that something not expressed is to be understood. But in the one case, this involves an addition to what is expressed : in the other it explains, perhaps limits, the effect of what is expressed. It is in the latter sense that in my view of the matter, implications have a place in the interpretation of the Constitution : and I consider it is the sense that Dixon J. intended when in Australian National Airways Pty. Ltd. v. The Commonwealth [1945] HCA 41; (1945) 71 C.L.R. 29, he said (at p. 85) : “We should avoid pedantic and narrow constructions in dealing with an instrument of government and I do not see why we should be fearful about making implications”. His Honour, when Chief Justice, repeated this observation in Lamshed v. Lake [1958] HCA 14; (1958) 99 C.L.R. 132 at p.

144. I said in Spratt v. Hermes [1965] HCA 66; (1965) 114 C.L.R. 226, at p. 272, that it is well to remember it. I still think so. The only emendation that I would venture is that I would prefer not to say “making implications”, because our avowed task is simply the revealing or uncovering of implications that are already there.

In Malbourne Corporation v. The Commonwealth [1947] HCA 26; (1947) 74 C.L.R. 31, Starke J. said (at p. 70) : “The federal character of the Australian Constitution carries implications of its own….

* * * * * 249. “The position that I take is this : The several subject matters with respect to which the Commonwealth is empowered by the Constitution to make laws for the peace, order and good government of the Conmmon-wealth are not to be narrowed or limited by implications. Their scope and amplitude depend simply on the words by which they are expressed. But implications arising from the existence of the States as parts of the Commonwealth and as constituents of the federation may restrict the manner in which the Parliament can lawfully exercise its power to make laws with respect to a particular subject-matter. These implications, or perhaps it were better to say underlying assumptions of the Constitution, relate to the use of a power not to the inherent nature of the subject matter of the law. Of course whether or not a law promotes peace, order and good government is for the Parliament, not for a court, to decide. But a law although it be with respect to a designated subject matter, cannot be for the peace, order and good government of the Commonwealth if it be directed to the States to prevent their carrying out their functions as parts of the Commonwealth….

* * * * * Gibbs, J.

The ordinary principles of statutory construction do not preclude the making of implications when these are necessary to give effect to the intention of the legislature as revealed in the statute as a whole. The intention of the Imperial legislature in enacting the Constitution Act was to give effect to the wish of the Australian people to join in a federal union and the purpose of the Constitution was to establish a federal, and not a unitary, system for the government of Australia and accordingly to provide for the distribution of the powers of government between the Commonwealth and the States who were to be the constituent members of the federation. In some respects the Commonwealth was placed in a position of supremacy, as the national interest required, but it would be inconsistent with the very basis of the federation that the Commonwealth’s powers should extend to reduce the States to such a position of subordination that their very existence, or at least their capacity to function effectually as independent units, would be dependent upon the manner in which the Commonwealth exercised its powers, rather than on the legal limits of the powers themselves. Thus, the purpose of the Constitution, and the scheme by which it is intended to be given effect, necessarily give rise to implications as to the manner in which the Commonwealth and the States respectively may exercise their powers, vis-a-vis each other….

250. Wynes(Wynes Legislative, Executive and Judicial Power in Australia, Fourth Edn.

p. 503) in discussing the amendment of the Constitutions of the States of Australia sums up the position thus. I may refer only to the propositions which are relevant to our case.

(1) Every State legislature has by virtue of Section 5 full powers of amendment of any provision respecting its Constitution powers and procedures.

(2) But it cannot (semble) alter its “representative” character.

(3) The “Constitution” of a Legislature means its composition, form or nature of the House or Houses, and excludes any reference to the Crown.

* * * * * (6) No Colonial Legislature can forever abrogate its power of amendment and thereby render its Constitution absolutely immutable. A law purporting to effect this object would be void under Section 2 of the Act as being repugnant to Section 5 thereof.

251. For proposition (2) above, reference is made in the footnote to Taylor v. The Attorney-General of Queensland. [1917] HCA 45; 23 C.L.R. 457 The relevant passages which bear out the second proposition are:

I take the Constitution of a legislature, as the term is here used, to mean the composition, form or nature of the House of Legislature where there is only one House, or of either House if the legislative body consists of two Houses. Probably the power does not extend to authorize the elimination of the reprsentative character of the legislature within the meaning of the Act. (p. 468 per-Barton J.).

I read the words “Constitution of such legislature” as including the change from a unicameral to a bicameral system, or the reverse. Probably the “representative” character of the legislature is-a basic condition of the power relied on, and is preserved by the word “such,” but, that being maintained, I can see no reason for cutting down the plain natural meaning of the words in question so as to exclude the power of a self-governing community to say that for State purposes one House is sufficient as its organ of legislation.” (p. 474 per-Issacs J.).

(For proposition No. 3, see Taylor v. The Attorney-General of Queensland [1917] HCA 45; 23 C.L.R. 457 and Clayton v. Heffron.) [1960] HCA 92; [1960] 105 C.L.R. 214; 251.

252. Then dealing with the Commonwealth Constitution, he states:

Another suggested limitation is based upon the distinction between the covering sections of the Constitution Act and the Constitution itself; it is admitted on all sides that Section 128 does not permit of any amendment to those sections. (And in this respect the Statute of Westminster does not confer any new power of amendment-indeed it is expressly provided that nothing in the statute shall be deemed to confer any power to repeal or alter the Constitution of the Constitution Act otherwise than accordance with existing law.) In virtue of their character of Imperial enactments the covering sections of the Constitution are alterable only by the Imperial Parliament itself. The question is, admitting this principle, how far does the Constitution Act operate as a limitation upon the amending power ? It has been suggested that any amendment which would be inconsistent with the preamble of the Act referring to the ‘indissoluble’ character and the sections which refer to the “Federal” nature of the Constitution, would be invalid. There has been much conflict of opinion respecting this matter;

the view here taken is that the preamble in no wise effects the power of alteration.

253. In view of this conflict, no assistance can be derived from academic writing.

254. The case of The Attorney General of Nova Scotia and The Attorney General of Canada and Lord Nelson Hotel Company Limited [1951] S.C.R.-Canada-31 furnishes another example where limitations were implied. The Legislature of the Province of Nova Scotia contemplated passing an act respecting the delegation of jurisdiction of the Parliament of Canada to the Legislature of Nova Scotia and vice versa. The question arose whether, if enacted, the bill would be constiutionally valid since it contemplated delegation by Parliament of powers, exclusively vested in it by Section 91 of the British North America Act to the Legislature of Nova Scotia, and delegation by that Legislature of powers, exclusively vested in Provincial Legislature under Section 92 of the Act, to Parliament.

255. The decision of the Court is summarised in the headnote as follows:

The Parliament of Canada and each Provincial Legislature is a sovereign body within the sphere, possessed of exclusive jurisdiction to legislate with regard to the subject matters assigned to it under Section 91 or Section 92, as the case may be. Neither is capable therefore of delegating to the other the powers with which it has been vested nor of the receiving from the other the powers with which the other has been vested.

256. The Chief Justice observed:

The Constitution of Canada does not belong either to Parliament, or to the Legislatures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled. It is part of that protection that Parliament can legislate only on the subject matters referred to it by Section 91 and that each Province can legislate exclusively on the subject matters referred to it by Section 92.

257. He further observed:

Under the scheme of the British North America Act there were to be, in the words of Lord Atkin in The Labour Conventions Reference (1937) A.C. 326)”, “Water-tight compartments which are an essential part of the original structure.

258. He distinguished the cases of In re Gray [1918] 57 Can. S.C.R. 150 and The Chemical Reference [1943] S.C.R. 1-Canada by observing that delegations such as were dealt with in these cases were “delegations to a body subordinate to Parliament and were of a character different from the delegation meant by the Bill now submitted to the Court.

259. Kerwin, J., referred to the reasons of their Lordships in In Re The Initiative and Referendum [1919] A.C. 935 Act as instructive. After referring to the actual decision of that case, he referred to the observations of Lord Haldane, which I have set out later while dealing with the Initiative & Referendum case and then held:

The British North America Act divides legislative jurisdiction between the Parliament of Canada and the Legislatures of the Provinces and there is no way in which these bodies may agree to a different division.

260. Taschereau, J., observed:

It is a well settled proposition of law that jurisdiction cannot be conferred by consent None of these bodies can be vested directly or indirectly with powers which have been denied them by the B.N.A. Act, and which therefore are not within their Constitutional jurisdiction.

261. He referred to a number of authorities which’ held that neither the Dominion nor the Province can delegate to each other powers they do not expressly possess under the British North America Act. He distinguished cases like Hodge v. The Queen (1883) 9, App. Cas. 117. In Re Gray, (57) Can. S.C.R. 150. Shannon v. Lower Mainland Dairy Products Board, [1938] A.C. 708 and Chemicals Reference [1943] S.C.R. 1-Canada by observing:

In all these cases of delegation, the authority delegated its powers to subordinate Boards for the purpose of carrying legislative enactments into operation.

262. Justice Rand emphasized that delegation implies subordination and subordination implies duty.

263. Justice Fauteux, as he then was, first referred to the following observations of Lord Atkin in Attorney General for Canada v. Attorney General for Ontario [1937] A.C. 326, 351:

No one can doubt that this distribution (of powers) is one of the most essential conditions, probably the most essential condition, in the inter- provincial compact to which the British North America Act gives effect.

264. He then observed:

In the result, each of the provinces, enjoying up to the time of the union, within their respective areas, and quoad one another, an independent, exclusive and over-all legislative authority, surrender to and charged the Parliament of Canada with the responsibility and authority to make laws with respect to what was then considered as matters of common interest to the whole country and retained and undertook to be charged with the responsibility and authority to make laws with respect to local matters in their respective sections. This is the system of government by which the Fathers of Confederation intended-and their intentions were implemented in the Act-to “protect the diversified interests of the several provinces and secure the efficiency, harmony and permanency in the working of the union.

265. In the case just referred to, the Supreme Court of Canada implied a limitation on the power of Parliament and the Legislatures of the Provinces to delegate legislative power to the other although there was no express limitation, in terms, in Sections 91 and 92 of the Canadian Constitution. This case also brings out the point that delegation of law makng power can only be to a subordinate body. Apply the ratio of this decision to the present case, it cannot be said that the State Legislatures or Parliament acting in its ordinary legislative capacity, are subordinate bodies to Parliament acting under Article 368 of the Constitution. Therefore it is impermissible for Parliament under Article 368 to delegate its functions of amending the Constitution to either the State legislatures or to its ordinary legislative capacity. But I will refer to this aspect in greater detail later when I refer to the case In re the Initiative and Referendum Act.

266. In Canada some of the Judges have implied that freedom of speech and freedom of the Press cannot be abrogated by Parliament or Provincial legislatures from the words in the Preamble to the Canadian Constitution i.e. “with a Constitution similar in principle to that of the United Kingdom.” Some of these observations are:

Although it is not necessary, of course, to determine this question for the purposes of the present appeal, the Canadian Constitution being declared to be similar in principle to that of the United Kingdom, I am also of opinion that as our Constitutional Act now stands, Parliament itself could not abrogate this right of discussion and debate.” (Per Abbot J. Switzmen v. Elbling 1957-Can. S.C. 285 at 328).

I conclude further that the opening paragraph of the preamble to the B.N.A. Act 1867 which provided for a ‘Constitution similar in principle to that of the United Kingdom’, thereby adopted the same Constitutional principles and hence Section 1025A is contrary to the Canadian Constitution, and beyond the competence of Parliament or any provincial legislature to enact so long as our Constitution remains in its present from of a Constitutional democracy.” (Per O’Halloran J.A.-Rex v. Hess 1949 4 D.L.R. 199 at 208).

In Re Alberta Legislation, (1938) 2 D.L.R. 81, S.C.R. 100, Sir Lyman P.

Dutt C.J.C. deals with this matter. The proposed legislation did not attempt to prevent discussion of affairs in newspapers but rather to compel the publication of statements as to the true and exact objects of Governmental policy and as to the difficulties of achieving them. Quoting the words of Lord Wright M.R. in James v. Commonwealth of Australia, (1936) A.C. 578 at p. 627 freedom of discussion means “‘freedom governed by law'” he says at p. 107 D.L.R., p. 133 S.C.R. : “It is axiomatic that the practice of this right of free public discussion of public affairs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary institutions.

He deduces authority to protect it from the principle that the “powers requisite for the preservation of the Constitution arise by a necessary implication of the Confederation Act as a whole.” (Per Rand J.-Samur v.

City of Quebec (1953) 4 D.L.R. 641 at 671).

(Emphasis supplied) 267. It is, however, noteworthy that the Solicitor-General appearing on behalf of the Union of India conceded that implications can arise from a Constitution, but said that no implication necessarily arises out of the provisions of Article 368.

268. I may now refer to another decision of the Judicial Committee in Liyange’s case, [1967] 1 A.C. 259 which was relied on by Mr. Seervai to show that an amendment of the Constitution cannot be held to be void on the ground of repugnancy to some vague ground of inconsistency with the preamble.

269. The Parliament of Ceylon effected various modifications of the Criminal Procedure Code by the Criminal Law (Special Provisions) Act, 1962. The appellants were convicted by the Supreme Court of Ceylon for various offences like conspiring to wage war against the Queen, etc.

270. The two relevant arguments were:

The first is that the Ceylon Parliament is limited by an inability to pass legislation which is contrary to fundamental principles of justice. The 1962 Acts, it is said, are contrary to such principles in that they not only are directed against individuals but also ex post facto create crimes and punishment, and destroy fair safeguards by which those individuals would otherwise be protected.

The appellants’ second contention is that the 1962 Acts offended against the Constitution in that they amounted to a direction to convict the appellants or to a legislative plan to secure the conviction and severe punishment of the appellants and thus constituted an unjustifiable assumption of judicial power by the legislature, or an interference with judicial power, which is outside the legislature’s competence and is inconsistent with the severance of power between legislature, executive, and judiciary which the Constitution ordains.

271. Mr. Seervai relies on the answer to the first contention. According to Mr. Seervai, the answer shows that constituent power is different from legislative power and when constituent power is given, it is exhaustive leaving nothing uncovered.

272. The Judicial Committee after referring to passages from “The Sovereignty of the British Dominions” by Prof. Keith, and “The Statutes of Westminster and Dominion Status” by K.C. Wheare, observed at page 284:

Their Lordships cannot accept the view that the legislature while removing the fetter of repugnance to English law, left in existence a fetter of repugnance to some vague unspecified law of natural justice. The terms of the Colonial Laws Validity Act and especially the words “but not otherwise” in Section 2 make it clear that Parliament was intending to deal with the whole question of repugnancy….

273. The Judicial Committee referred to the Ceylon Independence Act, 1947, and …the Legislative Power of Ceylon and observed:

These liberating provisions thus incorporated and enlarged the enabling terms of the Act of 1865, and it is clear that the joint effect of the Order in Council of 1946 and the Act of 1947 was intended to and did have the result of giving to the Ceylon Parliament the full legislative powers of a sovereign independent State (see Ibralebbe v. The Queen (1964) A.C. 900) 274. Mr. Seervai sought to argue from this that similarly the amending power of Parliament under Article 368 has no limitations and cannot be limited by some vague doctrine of repugnancy to natural and inalienable rights and the Preamble. We are unable to appreciate that any analogy exists between Mr. Palkhivala’s argument and the argument of Mr. Gratien. Mr. Palkhivala relies on the Preamble and the scheme of the Constitution to interpret Article 368 and limit its operation within the contours of the Preamble. The Preamble of the Constitution of India does not seem to prescribe any vague doctrines like the law of natural justice even if the latter, contrary to many decisions of our Court, be considered vague.

275. The case, however, furnishes another instance where implied limitations were inferred. After referring to the provisions dealing with “judicature” and the Judges, the Board observed:

These provisions manifest an intention to secure in the judiciary a freedom from political, legislative and executive control. They are wholly appropriate in a Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature. The Constitution’s silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century, in the hands of the judicature. It is not consistent with any intention that hence-forth it should pass to or be shared by, the executive or the legislature.

276. The Judicial Committee was of the view that there “exists a separate power in the judicature which under the Constitution as it stands cannot be usurped or infringed by the executive or the legislature.” The Judicial Committee cut down the plain words of Section 29(1) thus:

277. “Section 29(1) of the Constitution says:

Subject to the provisions of this Order Parliament shall have power to make laws for the peace order and good government of the Island”. These words have habitually been construed in their fullest scope. Section 29(4) provides that Parliament may amend the Constitution on a two-thirds majority with a certificate of the Speaker. Their Lordships however cannot read the words of Section 29(1) as entitling Parliament to pass legislation which usurps the judicial power of the judicature-e.g., by passing an Act of attainder against some person or instructing a judge to bring in a verdict of guilty against someone who is being tried-if in law such usurpation would otherwise be contrary to the Constitution.

278. In conclusion the Judicial Committee held that there was interference with the functions of the judiciary and it was not only the likely but the intended effect of the impugned enactments, and that was fatal to their validity.

279. Their Lordships uttered a warning which must always be borne in dealing with Constitutional cases : “what is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution.” This was in reply to the argument that the Legislature had no such general intention to absorb judicial powers and it had pased the legislation because it was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. According to their Lordships that consideration was irrelevant and gave no validity to acts which infringed the Constitution.

280. McCawley v. The King [1920] A.C. 691 was strongly relied on by Mr. Seervai. The case was on appeal from the decision of the High Court of Australia, reported in [1918] ArgusLawRp 83; 26 C.L.R. 9. Apart from the questions of interpretation of Sub-section (6), Section 6, of the Industrial Arbitration Act, 1916 and the construction of the Commission which was issued, the main question that was debated before the High Court and the Board was whether the Legislature of Queensland could amend a provision of the Constitution of Queensland without enacting a legislative enactment directly amending the Constitution.

The respondents before the Board had contended as follows:

But an alteration to be valid must be made by direct legislative enactment.

The Constitution can be altered but cannot be disregarded. So long as it subsists it is the test of the validity of legislation. The High Court of Australia so decided in Cooper’s case [1907] HCA 27; [1907] 4 C.L.R. 1304.

281. The appellants, on the other hand, had contended that “the Legislature of Queensland has power, by ordinary enactment passed by both houses and assented to by the Governor in the name of the Crown, to alter the Constitution of Queensland, including the judicial institutions of the State, and the tenure of the judges…. All the laws applying to Queensland which it is competent to the Queensland Legislature to alter can be altered in the same manner by ordinary enactment.

282. There was difference of opinion in the High Court. Griffith, C.J., was of the opinion that the Parliament of Queensland could not merely by enacting a law inconsistent with the Constitution Act of 1867 overrule its provisions, although it might be proper formality pass an Act which expressly altered or repealed it. Isaacs and Rich JJ., with whom the Board found themselves in almost complete agreement, held to the contrary.

The Board, in dealing with the question, first referred to the “distinction between Constitutions the terms of which may be modified or repealled with no other formality than is necessary in the case of other legislation, and Constitutions which can only be altered with some special formality, and in some cases by a specially convened assembly.

283. Then Lord Birkenhead, L.C., observed at page 704:

Many different terms have been employed in the text-books to distinguish these two constrasted forms of Constitution. Their special qualities may perhaps be exhibited as clearly by calling the one a controlled and the other an uncontrolled Constitution as by any other nomenclature. Nor is a Constitution debarred from being reckoned as an uncontrolled Constitution because it is not, like the British Constitution, constituted by historic development but finds its genesis in an originating document which may contain some conditions which cannot be altered except by the power which gave it birth. It is of the greatest importance to notice that where the Constitution is uncontrolled the consequences of its freedom admit of no qualification whatever. The doctrine is carried to every proper consequence with logical and inexorable precision, Thus when one of the learned Judges in the Court below said that, according to the appellant, the Constitution could be ignored as if it were a Dog Act, he was in effect merely expressing his opinion that the Constitution was, in fact, controlled. If it were uncontrolled, it would be an elementary commonplace that in the eye of the law the legislative document or documents which defined it occupied precisely the same position as a Dog Act or any other Act, however humble its subject-matter.

284. Then, the Judicial Committee proceeded to deal with the Constitution of Queensland and held that it was an uncontrolled Constitution. Later, their Lordships observed:

It was not the policy of the Imperial Legislature, at any relevant period, to shackle or control in the manner suggested the legislative powers of the nascent Australian Legislatures. Consistently with the genius of the British people what was given was given completely, and unequivocally, in the belief fully justified by the event, that these young communities would successfully work out their own Constitutional salvation.

285. Mr. Seervai sought to deduce the following propositions from this case:

Firstly-(1) Unless there is a special procedure prescribed for amending any part of the Constitution, the Constitution was uncontrolled and could be amended by an Act in the manner prescribed for enacting ordinary laws, and therefore, a subsequent law inconsistent with the Constitution would pro tanto repeal the Constitution;

Secondly-(2) A Constitution largely or generally uncontrolled may contain one or more provisions which prescribe a different procedure for amending them than is prescribed for amending an ordinary law, in which case an ordinary law cannot amend them and the procedure must be strictly followed if the amendment is to be effected;

Thirdly-(3) Implications of limitation of power ought not be imported from general concepts but only from express or necessarily implied limitations (i.e. implied limitation without which a Constitution cannot be worked); and Fourthly-(4) The British Parliament in granting the colonial legislatures power of legislation as far back as 1865-Section 2-refused to put limitations of vague character, like general principles of law, but limited those limitations to objective standards like statutes and provisions of any Act of Parliament or order or regulation made under the Acts of Parliament.

286. I agree that the first and the second propositions are deducible from McCawley’s case but I am unable_to agree with the learned Counsel that the third proposition enunciated by him emerges from the case. The only implied limitation which was urged by the learned Counsel for the respondents was that the Queensland legislature should first directly amend the Constitution and then pass an act which would otherwise have been inconsistent if the Constitution had not been amended. It appears from the judgment of Isaac, J., and the Board that two South Australia Judges had earlier held that the legislation must be “with the object of altering the Constitution of the legislature”. Lord Selborne, when Sir Roundell Palmer, and Sir Robert Collier expressed dissent from their view and recommended the enactment of a statute like the Colonial Laws Validity Act, 1865.

287. The fourth proposition states a fact. The fact that British Parliament in 1865 refused to put so called vague limitations does not assist us in deciding whether there cannot be implied limitations on the amending power under Article 368.

288. I shall examine a little later more cases in which limitations on lawmaking power have been implied both in Australia, U.S.A., and in Canada. McCawley’s case is authority only for the proposition that if the Constitution is uncontrolled then it is not necessary for the legislature to pass an act labelling it as an amendment of the Constitution; it can amend the Constitution like any other act.

289. Attorney-General for New South Wales v. Trethowan [1932] UKPC 1; [1932] A.C. 526 was concerned really with the interpretation of Section 5 of the Colonial Laws Validity Act, 1865, and its impact on the powers of the legislature of the New South Wales. The Constitution Act, 1902, as amended in 1929, had inserted Section 7A, the relevant part of which reads as follows:

7A.-(1) The Legislative Council shall not be abolished nor, subject to the provisions of Sub-section 6 of this section, shall its Constitution or powers be altered except in the manner provided in this section. (2) A Bill for any purpose within Sub-section 1 of this section shall not be presented to the Governor for His Majesty’s assent until the Bill has been approved by the electors in accordance with this section. (5) If a majority of the electors voting approve the Bill, it shall be presented to the Governor for His Majesty’s assent. (6) The provisions of this section shall extend to any Bill for the repeal or amendment of this section, but shall not apply to any Bill for the repeal or amendment of any of the following sections of this Act, namely, Sections 13, 14, 15, 18, 19, 20, 21 and 22.

290. Towards the end of 1930 two bills were passed by both Houses of the New South Wales legislature. The first Bill enacted that Section 7A above referred to was repealed, and the second Bill enacted by Clause 2, Sub-section 1. “The Legislative Council of New South Wales is abolished.

291. The contentions advanced before the Judicial Committee were:

The appellants urge : (1) That the King, with the advice and consent of the Legislative Council and the Legislative Assembly, had full power to enact a Bill repealing Section 7A.

(2) That Sub-section 6 of Section 7A of the Constitution Act is void, because : (a) The New South Wales Legislature has no power to shackle or control its successors, the New South Wales Constitution being in substance an uncontrolled “Constitution”; (b) It is repugnant to Section 4 of the Constitution Statute of 1855; (c) It is repugnant to Section 5 of the Colonial Laws Validity Act, 1865.

For the respondents it was contended : (1) That Section 7A was a valid amendment of the Constitution of New South Wales, validly enacted in the manner prescribed, and was legally binding in New South Wales.

(2) That the legislature of New South Wales was given by Imperial statutes plenary power to alter the Constitution, powers and procedure of such legislature.

(3) That when once the legislature had altered either the Constitution or powers and procedure, then the Constitution and powers and procedure as they previously existed ceased to exist, and were replaced by the new Constitution and powers.

(4) That the only possible limitations of this plenary power were : (a) it must be exercised according to the manner and form prescribed by any Imperial or colonial law, and (b) the legislature must continue a representative legislature according to the definition of the Colonial Laws Validity Act, 1865.

(5) That the addition of Section 7A to the Constitution had the effect of :

(a) making the legislative body consist thereafter of the King, the Legislative Council, the Assembly and the people for the purpose of the Constitutional enactments therein described, or (b) imposing a manner and form of legislation in reference to these Constitutional enactments which thereafter became binding ton the legislature by virtue of the colonial Laws Validity Act, 1865, until repealed in the manner and mode prescribed.

(6) That the power of altering the Constitution conferred by Section 4 of the Constitution Statute, 1855, must be read subject to the Colonial Laws Validity Act, 1865, and that in particular the limitation as to manner and form prescribed by the 1865 Act must be governed by subsequent amendments to the Constitution, whether purporting to be made in the earlier Act or not.

292. The Judicial Committee considered the meaning and effect of Section 5 of the Act of 1865, read in conjunction with Section 4 of the Constitution Statute. It is necessary to bear in mind the relevant part of Section 5 which reads as follows:

Section 5. Every colonial legislature…and every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the Constitution, powers, and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council, or colonial law, for the time being in force in the said colony.

293. The Judicial Committee interpreted Section 5 as follows:

Reading the section as a whole, it gives to the legislatures of New South Wales certain powers, subject to this, that in respect of certain laws they can only become effectual provided they have been passed in such manner and form as may from time to time be required by any Act still on the statute book. Beyond that, the words “manner and form” are amply wide enough to cover an enactment providing that a Bill is to be submitted to the electors and that unless and until a majority of the electors voting approve the Bill it shall not be presented to the Governor for His Majesty’s assent.

294. The Judicial Committee first raised the question : “could that Bill, a repealing Bill, after its passage through both chambers, be lawfully presented for the Royal assent without having first received the approval of the electors in the prescribed manner ?”, and answered it thus:

In their Lordships’ opinion, the Bill could not lawfully be so presented.

The proviso in the second sentence of Section 5 of the Act of 1865 states a condition which must be fulfilled before the legislature can validly exercise its power to make the kind of laws which are referred to in that sentence. In order that Section 7A may be repealed (in other words, in order that that particular law “respecting the Constitution, powers and procedure” of the legislature may be validly made) the law for that purpose must have been passed in the manner required by Section 7A, a colonial law for the time being in force in New South Wales.

295. This case has no direct relevance to any of the points raised before us. There is no doubt that in the case before us, the impugned Constitutional amendments have been passed according to the form and manner prescribed by Article 368 of our Constitution. It is, however, noteworthy that in contention No. (4), mentioned above, it was urged that notwithstanding the plenary powers conferred on the Legislature a possible limitation was that the legislature must continue a representative legislature according to the definition of the Colonial Laws Validity Act 1865. This is another illustration of a limitation implied on amending power.

296. I may also refer to some of the instances of implied limitations which have been judicially accepted in the United States. It would suffice if I refer to Cooley on Constitutional Limitations and Constitution of the United States of America edited by Corwin (1952).

297. After mentioning express limitations, imposed by the Constitution upon the Federal power to tax, Cooley on ‘Constitutional Limitations’ (page 989) states:

…but there are some others which are implied, and which under the complex system of American government have the effect to exempt some subjects otherwise taxable from the scope and reach, according to circumstances, of either the Federal power to tax or the power of the several States. One of the implied limitations is that which precludes the States from taxing the agencies whereby the general government performs its functions. The reason is that, if they possessed this authority, it would be within their power to impose taxation to an extent that might cripple, if not wholly defeat, the operations of the national authority within its proper and Constitutional sphere of action.

298. Then he cites the passage from the Chief Justice Marshall in McCullock v.

Maryland. 4 L. ed. 579; 607.

299. In “Constitution by the United States of America” by Corwin (1952)-page 728-729 it is stated:

Five years after the decision in McCullock v. Maryland that a State may not tax an instrumentality of the Federal Government, the Court was asked to and did re-examine the entire question in Osborn v. Bank of the United States. In that case counsel for the State of Ohio, whose attempt to tax the Bank was challenged, put forward the arguments of great importance. In the first place it was “contended, that, admitting Congress to possess the power, this exemption ought to have been expressly assented in the act of incorporation; and not being expressed, ought not to be implied by the Court.” To which Marshall replied that : “It is no unusual thing for an act of Congress to imply, without expressing, this very exemption from state control, which is said to be so objectionable in this instance. Secondly the appellants relied greatly on the distinction between the bank and the public institutions, such as the mint or the post-office. The agents in those offices are, it is said, officers of Government, * * * Not so the directors of the bank. The connection of the government with the bank, is likened to that with contractOrs.” Marshall accepted this analogy, but not to the advantage of the appellants. He simply indicated that all contractors who dealt with the Government were entitled to immunity from taxation upon such transactions. Thus not only was the decision of McCullock v.

Maryland reaffirmed but the foundation was laid for the vast expansion of the principle of immunity that was to follow in the succeeding decades.

300. We need not examine the exact extent of the doctrine at the present day in the United States because the only purpose in citing these instances is to refute the argument of the respondents that there cannot be anything like implied limitations.

301. The position is given at p. 731, as it existed in 1952, when the book was written.

Corwin sums up the position broadly at p. 736:

Broadly speaking, the immunity which remains is limited to activities of the Government itself, and to that which is explicitly created by statute, e.g. that granted to federal securities and to fiscal institutions chartered by Congress. But the term, activities, will be broadly construed.

302. Regarding the taxation of States, Cooley says at pp. 995-997:

If the States cannot tax the means by which the national government performs its functions, neither, on the other hand and for the same reasons, can the latter tax the agencies of the State governments. “The same supreme power which established the departments of the general government determined that the local governments should also exist for their own purposes, and made it impossible to protect the people in their common interest without them. Each of these several agencies is confined to its own sphere, and all are strictly subordinate to the Constitution which limits them, and independent of other agencies, except as thereby made dependent There is nothing in the Constitution of the United States which can be made to admit of any interference by Congress with the secure existence of any State authority within its lawful bounds. And any such interference by the indirect means of taxation is quite as much beyond the power of the national legislature as if the interference were direct and extreme. It has, therefore, been held that the law of Congress requiring judicial process to be stamped could not Constitutionally be applied to the process of the State courts; since otherwise Congress might impose such restrictions upon the State courts as would put and end to their effective action, and be equivalent practically to abolishing them altogether. And a similar ruling has been made in other analogous cases. But “the exemption of State agencies and instrumentalities from national taxation is limited to those which are of a strictly governmental character, and does not extend to those which are used by the State in the carrying on of an ordinary private business.

303. I may mention that what has been implied in the United States is the subject-matter of express provisions under our Constitution (see Articles 285, 287, 288 and 289).

304. It was urged before us that none of these cases dealt with implied limitations on the amending power. It seems to me that four cases are directly in point. I have referred already to:

1. The Bribery Commissioner v. Pedrick Ranasinghe [1964] UKPC 1; [1965] A.C. 172.

2. Mongol Singh v. Union of India [1967] 3 S.C.R. 109-112.

3. Taylor v. The Attorney-General of Queensland [1917] HCA 45; 23 C.L.R. 457 and I will be discussing shortly In re The Initiative and Referendum Act [1919] A.C.

935.

305. What is the necessary implication from all the provisions of the Constitution ? 306. It seems to me that reading the Preamble, the fundamental importance of the freedom of the individual, indeed its inalienability, and the importance of the economic, social and political justice mentioned in the Preamble, the importance of directive principles, the non-inclusion in Article 368 of provisions like Articles 52, 53 and various other provisions to which reference has already been made an irresistible conclusion emerges that it was not the intention to use the word “amendment” in the widest sense.

307. It was the common understanding that fundamental rights would remain in substance as they are and they would not be amended out of existence. It seems also to have been a common understanding that the fundamental features of the Constitution, namely, secularism, democracy and the freedom of the individual would always subsist in the welfare state.

308. In view of the above reasons, a necessary implication arises that there are implied limitations on the power of Parliament that the expression “amendment of this Constitution” has consequently a limited meaning in our Constitution and not the meaning suggested by the respondents.

309. This conclusion is reinforced if I consider the consequences of the contentions of both sides. The respondents, who appeal fervently to democratic principles, urge that there is ho limit to the powers of Parliament to amend the Constitution. Article 368 can itself be amended to make the Constitution completely flexible or extremely rigid and unamendable. If this is so, a political party with a two-third majority in Parliament for a few years could so amend the Constitution as to debar any other party from functioning, establish totalitarianism, enslave the people, and after having effected these purposes make the Constitution unamcndable or extremely rigid. This would no doubt invite extra- Constitutional revolution. Therefore, the appeal by the respondents to democratic principles and the necessity of having absolute amending power to prevent a revolution to buttress their contention is rather fruitless, because if their contention is accepted the very democratic principles, which they appeal to, would disappear and a revolution would also become a possibility.

310. However, if the meaning I have suggested is accepted a social and economic revolution can gradually take place while preserving the freedom and dignity of every citizen.

311. For the aforesaid reasons, I am driven to the conclusion that the expression “amendment of this Constitution” in Article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive Principles.

Applied to fundamental rights, it would mean that, while fundamental rights cannot be abrogated reasonable abridgements of fundamental rights can be effected in the public interest.

312. It is of course for Parliament to decide whether an amendment is necessary. The Courts will not be concerned with wisdom of the amendment.

313. If this meaning is given it would enable Parliament to adjust fundamental rights in order to secure what the Directive Principles direct to be accomplished, while maintaining the freedom and dignity of every citizen.

314. It is urged by Mr. Seervai that we would be laying down a very unsatisfactory test which it would be difficult for the Parliament to comprehend and follow. He said that the Constitution-makers had discarded the concept of “due process” in order to have something certain, and they substituted the words “by authority of law” in Article 21. I am unable to see what bearing the dropping of the words “due process” has on this question. The Constitution itself has used words like “reasonable restrictions” in Article 19 which do not bear an exact meaning, and which cannot be defined with precision to fit in all cases that may come before the courts; it would depend upon the facts of each case whether the restrictions imposed by the Legislature are reasonable or not. Further, as Lord Reid observed in Ridge v. Baldwin [1963] UKHL 2; [1964] A.C. 40; 64-65:

In modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. The idea of negligence is equally insusceptible of exact definition, but what a reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligence in particular circumstances are equally capable of serving as tests in law, and natural justice as it has been interpreted in the courts is much more definite than that.

(emphasis supplied) 315. It seems to me that the concept of amendment within the contours of the Preamble and the Constitution cannot be said to be a vague and unsatisfactory idea which Parliamentarians and the public would not be able to understand.

316. The learned Attorney-General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same. The basic structure may be said to consist of the following features:

(1) Supremacy of the Constitution;

(2) Republican and Democratic form of Government.

(3) Secular character of the Constitution;

(4) Separation of powers between the Legislature, the executive and the judiciary;

(5) Federal character of the Constitution.

317. The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.

318. The above foundation and the above basic features are easily discernible not only from the preamble but the whole scheme of the Constitution, which I have already discussed.

319. In connection with the question of abrogation of fundamental rights, Mr. Seervai boldly asserted that there was no such thing as natural or inalienable rights because the scheme of Part III itself shows that non-citizens have not been given all the fundamental freedoms; for example, Article 19 speaks of only citizens. He says that if there were natural rights, why is it that they were not conferred on non-citizens. The answer seems to be that they are natural rights but our country does not think it expedient to confer these fundamental rights, mentioned in Article 19, on non-citizens. Other rights have been conferred on non-citizens because the Constitution-makers thought that it would not be detrimental to the interests of the country to do so.

320. He then said that even as far as citizens are concerned, there is power to modify those rights under Article 33 of the Constitution, which enables Parliament to modify rights in their application to the Armed Forces. This power has been reserved in order to maintain discipline among the armed forces, which is essential for the security of the country. But it does not mean that the rights cease to be natural or human rights. He then said that similarly Article 34 restricts fundamental rights while martial law is in force in any area. This again is a case where the security of the country is the main consideration.

Citizens have to undergo many restrictions in the interest of the country.

321. He then pointed out Articles 358 and 359 where certain rights are suspended during Emergency. These provisions are again based on the security of the country.

322. He also relied on the words “rights conferred” in Article 13(2) and “enforcement of any rights conferred by this Part” to show that they were not natural or inalienable and could not have been claimed by them. There is no question of the sovereign people claiming them from an outside agency. The people acting through the Constituent Assembly desired that the rights mentioned in Part III shall be guaranteed and, therefore, Part III was enacted. In the context ‘conferred’ does not mean that some superior power had granted these rights. It is very much like a King bestowing the title of ‘His Imperial Majesty on himself.

323. I am unable to hold that these provisions show that some rights are not natural or inalienable rights. As a matter of fact, India was a party to the Universal Declaration of Rights which I have already referred to and that Declaration describes some fundamenal rights as inalienable.

324. Various decisions of this Court describe fundamental rights as ‘natural rights’ or ‘human rights’. Some of these decisions are extracted bellow.

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 their respective 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.” (Per Patanjali Sastri, J., in Gopalan v. State of Madras [1950] INSC 14; [1950] S.C.R. 88; 198 199).

(emphasis supplied) (ii) “That article (Article 19) enumerates certain freedoms under the caption “right to freedom” and deals with those great and basic rights which are recognised and guaranteed as the natural rights inherent in the status of a citizen of a free country.” (Per Patanjali Sastri, C.J., in State of West Bengal v. Subodh Gopal Bose [1953] INSC 85; [1954] S.C.R. 587; 596).

(emphasis supplied) I have no doubt that the framers of our Constitution drew the same distinction and classed the natural rights or capacity of a citizen ‘to acquire, hold and dispose of property’ with other natural rights and freedoms inherent in the status of a free citizen and embodied them in Article 19(1)….

(emphasis supplied) For all these reasons, I am of opinion that under the scheme of the Constitution, all those broad and basic freedoms inherent in the status of a citizen as a free man are embodied and protected from invasion by the State under Clause (1) of Article 19….

(emphasis supplied) (iii) “The people, however, regard certain rights as paramount, because they embrace liberty of action to the individual in matters of private life, social intercourse and share in the Government of the country and other spheres. The people who vested the three limbs of Government with their power and authority, at the same time kept back these rights of citizens and also sometimes of noncitizens, and made them inviolable except under certain conditions. The rights thus kept back are placed in Part III of the Constitution, which is headed ‘Fundamental Rights’, and the conditions under which these rights can be abridged are also indicated in that Part.”

(Per Hidayatullah J., in Ujjambai v. State of U.P. [1963] 1 S.C.R. 778;

926-7)).

(emphasis supplied) The High Court of Allahabad has described them as follows:

(iv) “…man has certain natural or inalienable rights and that it is the function of the State, in order that human liberty might be preserved and human personality developed, to give recognition and free play to those rights…

Suffice it to say that they represent a trend in the democratic thought of our age.” (Motilal v. State of U.P. I.L.R. [1951] 1 All. 269; 387-8.).

(emphasis supplied) 325. Mr. Seervai relied on the observations of S.K. Das, J., in Basheshar Nath v. C.I.T.

[1959] Supp. (1) S.C.R. 528; 605:

I am of the view that the doctrine of ‘natural rights’ affords nothing but a foundation of shifting sand for building up a thesis that the doctrine of waiver does not apply to the rights guaranteed in Part III of our Constitution.

326. I must point out that the learned Judge was expressing the minority opinion that there could be a waiver of fundamental rights in certain circumstances. Das, C.J., and Kapur, J., held that there could be no waiver of fundamental rights founded on Article 14 of the Constitution, while Bhagwati and Subba Rao, JJ. held that there could be no waiver not only of fundamental rights enshrined in Article 14 but also of any other fundamental rights guaranteed by Part III of the Constitution.

327. Article 14 has been described variously as follows:

(1) “as the basic principle of republicanism” (per Patanjali Sastri C.J. in State of West Bengal v. Anwar Ali Sarkar [1952] INSC 1; [1952] S.C.R. 284, 293.) (2) “as a principle of republicanism” (per Mahajan, J., Ibid. p. 313) (3) “as founded on a sound public policy recognised and valued in all civilized States” (per Das C.J., : Basheshar Nath v. C.I.T. [1959] Supp. (1) S.C.R. 528, 551.) (4) “as a necessary corollary to the high concept of the rule of law” (per Subba Rao, C.J., in Satwant Singh v. Passport Officer [1967] 3 S.C.R.

525; 542.) (5) “as a vital principle of republican institutions” (American Jurisprudence, Vol. 16, 2d. p. 731, Article 391) 328. How would this test be operative vis-a-vis the Constitutional amendments made hitherto ? It seems to me that the amendments made by the Constitution (First Amendment) Act, 1951, in Articles 15 and 19, and insertion of Article 31A (apart from the question whether there was delegation of the power to amend the Constitution, and apart from the question as to abrogation), and the amendment made by the Constitution (Fourth Amendment) Act in Article 31(2), would be within the amending power of Parliament under Article 368.

329. Reference may be made to Mohd. Maqbool Damnoo v. State of Jammu and Kashmir [1972] INSC 8; [1972] 1 S.C.C. 536; 546 where this Court repelled the argument of the learned Counsel that the amendments made to Sections 26 and 27 of the Constitution of Jammu and Kashmir were bad because they destroyed the structure of the Constitution. The arguments of the learned Counsel was that fundamentals of the Jammu and Kashmir State Constitution had been destroyed. This argument was refuted in the following words:

But the passage cited by him can hardly be availed of by him for the reason that the amendment impugned by him, in the light of what we have already stated about the nature of the explanation to Article 370 of our Constitution, does not bring about any alteration either in the framework or the fundamentals of the Jammu and Kashmir Constitution. The State Governor still continues to be the head of the Government aided by a council of ministers and the only change affected is in his designation and the mode of his appointment. It is not as if the State Government, by such a change, is made irresponsible to the State Legislature, or its fundamental character as a responsible Government is altered. Just as a change in the designation of the head of that Government was earlier brought about by the introduction of the office of Sadar-i-Riyasat, so too a change had been brought about in his designation from that of Sadar-i-Riyasat to the Governor. That was necessitated by reason of the Governor having been substituted in place of Sadar-i-Riyasat. There is no question of such a change being one in the character of that Government from a democratic to a non-democratic system.

330. Before parting with this topic I may deal with some other arguments addressed to us.

Mr. Seervai devoted a considerable time in expounding principles of construction of statutes, including the Constitution. I do not think it is necessary to review the decisions relating to the principles of interpretation of legislative entries in Article 245 and Article 246 of the Constitution. The Federal Court and this Court in this connection have followed the principles enunciated by the Judicial Committee in interpreting Sections 91 and 92 of the Canadian Constitution. I have no quarrel with these propositions but I am unable to see that these propositions have any bearing on the interpretation of Article 368. The fact that legislative entries are given wide interpretation has no relevance to the interpretation of Article 368. The second set of cases referred to deal with the question whether it is legitimate to consider consequences of a particular construction.

331. He referred to Vacher & Sons v. London Society of Compositors [1912] UKHL 3; [1913] A.C. 107;

117-118. This decision does not support him in the proposition that consequences of a particular construction cannot be considered, for Lord Machaghten observed at p. 117:

Now it is “the universal rule,” as Lord Nensleydale observed in Grey v.

Pearson [1857] EngR 335; [1857] 6 H.L.C. 61; 106 that in construing statutes, as in construing all other written instruments “the grammatical and ordinary”

sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further.

332. Then he observed at p. 118:

In the absence of a preamble there can, I think, be only two cases in which it is permissible to depart from the ordinary and natural sense of the words of an enactment. It must be shown either that the words taken in their natural sense lead to some absurdity or that there is some other clause in the body of the Act inconsistent with, or repugnant to, the enactment in question construed in the ordinary sense of the language in which it is expressed.

333. Lord Atkinson observed at pp. 121-122:

It is no doubt well established that, in construing the words of a statute susceptible of more than one meaning, it is legitimate to consider the consequences which would result from any particular construction for, as there are many things which the Legislature is presumed not to have intended to bring about, a construction which would not lead to any one of these things should be preferred to one which would lead to one or more of them. But, as Lord Halsbury laid down in Cooke v. Charles A. Vogsler Co. [1901] A.C. 102 at p. 107, a Court of Law has nothing to do with the reasonableness or unreasonableness of a provision of a statute, except so far as it may help it in interpreting what the Legislature has said. If the language of a statute be plain, admitting of only one meaning, the Legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it should lead to absurd or mischievous results. If the language of this; sub-section be not controlled by some of the other provisions of the statute, it must, since its language is plain and unambiguous, be enforced, and your Lordship’s House sitting judicially is not concerned with the question whether the policy it embodies is wise or unwise, or whether it leads to consequences just or unjust, beneficial or mischievous.

334. The next case referred to is Bank of Toronto v. Lambe [1887] 12 A.C. 575; 586., but this case, is explained in Attorney-General for Alberta v. Attorney-General for Canada [1939] A.C. 117; 132; 133. The Judicial Committee first observed:

It was rightly contended on behalf of the appellant that the Supreme Court and the Board have no concern with the wisdom of the Legislature whose Bill is attacked; and it was urged that it would be a dangerous precedent to allow the views of members of the Court as to the serious consequences of excessive taxation on banks to lead to a conclusion that the Bill is ultra vires. Their Lordships do not agree that this argument should prevail in a case where the taxation in a practical business sense is prohibitive.

335. Then their Lordships made the following observations on the decision of the Judicial Committee in Bank of Toronto v. Lambe [1887] 12 A.C. 575; 586:

That case seems to have occasioned a difficulty in the minds of some of the learned Judges in the Supreme Court. It must, however, be borne in mind that the Quebec Act in that case was attacked on two specific grounds, first, that the tax was not “taxation with the Province,” and secondly, that the tax was not a “direct tax.” It was never suggested, and there seems to have been no ground for suggesting, that the Act was by its effect calculated to encroach upon the classes of matters exclusively within the Dominion powers. Nor, on the other hand, was there any contention, however faint or tentative, that the purpose of the Act was anything other than the legitimate one of raising a revenue for Provincial needs…. It was never laid down by the Board that if such a use was attempted to be made of the Provincial power as materially to interfere with the Dominion power, the action of the province would be infra vires.

336. This case further shows that serious consequences can be taken into consideration.

337. I agree with the observations of Lord Esher in Queen v. Judge of City of London Court, [1892] 1 Q.B. 273-290 cited by him. These observations are:

If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the legislature has committed an absurdity. In my opinion the rule has always been this-if the words or an Act admit of two interpretations, then they are not clear; and if one interpretation leads to an absurdity, and the other does not, the Court will conclude that the legislature did not intend to lead to an absurdity, and will adopt the other interpretation.

338. He then relied on the observations of Lord Greene, M.R., in Grundt v. Great Boulder Proprietary Mines Ltd. [1948] 1 Ch. 145; 159:

There is one rule, I think, which is very clear-and this brings me back to where I started, the doctrine of absurdity-that although the absurdity or the non-absurdity of one conclusion as compared with another may be of assistance, and very often is of assistance, to the court in choosing between two possible meanings of ambiguous words, it is a doctrine which has to be applied with great care, remembering that judges may be fallible in this question of an absurdity, and in any event must not be applied so as to result in twisting language into a meaning which it cannot bear; it is a doctrine which must not be relied upon and must not be used to re-write the language in a way different from that in which it was originally framed.

Earlier, he had said at p. 158:

“Absurdity” I cannot help thinking, like public policy, is a very unruly horse…

339. As I read Lord Greene, what he meant to say was that “absurdity” was an unruly horse, but it can be of assistance, and very often is of assistance, in choosing between two possible meanings of ambiguous words, and this is exactly the use which this Court is entitled to make of the consequences which I have already mentioned.

340. Mr. Seervai referred to State of Punjab v. Ajaib Singh [1952] INSC 57; [1953] S.C.R. 254, 264. Das, J., observed:

We are in agreement with learned Counsel to this extent only that if the language of the article is plain and unambiguous and admits of only one meaning then the duty of the court is to adopt that meaning irrespective of the inconvenience that such a construction may produce. If however two constructions are possible, then the court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well established provisions of existing law nugatory.

341. He also referred to the following passage in Collector of Customs, Baroda v.

Digvijaysinghi Spinning & Weaving Mills Ltd. [1962] 1 S.C.R. 896-899:

It is one of the well established rules of construction that “if the words of a statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature.” It is equally well settled principle of construction that “Where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty.

342. What he urged before us, relying on the last two cases just referred to, was that if we construed the word “amendment” in its narrow sense, then there would be uncertainty, friction and confusion in the working of the system, and we should therefore avoid the narrow sense.

343. If Parliament has power to pass the impugned amendment acts, there is no doubt that I have no right to question the wisdom of the policy of Parliament. But if the net result of my interpretation is to prevent Parliament from abrogating the fundamental rights, and the basic features outlined above, I am unable to appreciate that any uncertainty, friction or confusion will nesessarily result.

344. He also drew our attention to the following observations of Hegde, J. in Budhan Singh v. Nabi Bux [1969] INSC 193; [1970] 2 S.C.R. 10; 15-16:

Before considering the meaning of the word “held”, it is necessary to mention that it is proper to assume that the law-makers who are the representatives of the people enact laws which the society considers as honest, fair and equitable. The object of every legislation is to advance public welfare. In other words, as observed by Crawford in his book on Statutory Construction the entire legislative process is influenced by considerations of justice and reason. Justice and reason constitute the great general legislative intent in every piece of legislation. Consequently where the suggested construction operates harshly, ridiculously or in any other manner contrary to prevailing conceptions of justice and reason, in most instances, it would seem that the apparent or suggested meaning of the statute, was not the one intended by the law-makers. In the absence of some other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe that it represents the legislative intent.

345. I am unable to appreciate how these observations assist the respondents. If anything, these observations are against them for when I come to the question of interpretation of the 25th amendment I may well approach the interpretation keeping those observations in mind.

346. Both Mr. Seervai and the learned Attorney General have strongly relied on the decisions of the United States Supreme Court, Federal Courts and the State Courts on the interpretation of Article V of the Constitution of the United States and some State Constitution. Mr. Palkhiwala, on the other hand, relied on some State decisions in support of his submissions.

347. Article V of the Constitution of the United States differs greatly from Article 368 of our Constitution. For facility of reference Article V is reproduced below:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislatures of two thirds of several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; Provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.

348. It will be noticed that Article V provides for two steps to be taken for amending the Constitution. The first step is proposal of an amendment and the second step is ratification of the proposal. The proposal can be made either by two thirds of both Houses of Congress or by a convention called by the Congress on the application of the legislatures of two thirds of several States.

349. Congress determines which body shall ratify the proposal. It can either be the legislatures of three fourths of the States or by conventions in three fourth of the States.

350. If a proposal is made by a Convention and ratified by three fourth of the States in conventions it can hardly be doubted that it is amendment made by the people. Similarly if a proposal is made by the Congress and ratified by conventions there cannot be any doubt that it is the people who have amended the Constitution. Proposal by Congress and ratification by three fourth legislatures of the States can in this context be equated with action of the people. But what is important to bear in mind is that the Congress, a federal legislature, does not itself amend the Constitution.

351. In India, the position is different. It is Parliament, a federal legislature, which is given the power to amend the Constitution except in matters which are mentioned in the proviso. I may repeat that many important provisions including fundamental rights are not mentioned in the proviso. Can we say that an amendment made by Parliament is an amendment made by the people ? This is one of the matters that has to be borne in mind while considering the proper meaning to be given to the expression “amendment of this Constitution” in Article 368 as it stood before its amendment by the 24th Amendment.

352. Article V of the U.S. Constitution differs in one other respect from Article 368.

There are express limitations on amending power. The first, which has spent its force, was regarding the first and fourth clauses in the ninth section of the first article and the second relates to deprivation of a State’s suffrage in the Senate without its consent. Apart from the above broad differences in Article V as compared to Article 368, the Constitution of India is different in many respects which has a bearing on the extent of the power of Parliament to amend the Constitution. In brief they are : the background of the struggle for freedom, various national aspirations outlined during this struggle, the national objectives as recited in the Objectives Resolution dated January 22, 1947 and the Preamble, the complex structure of the Indian nation consisting as it does of various peoples with different religions and languages and in different stages of economic development. Further the U.S. Constitution has no Directive Principles as has the Indian Constitution. The States in U.S. have their own Constitutions with the right to modify them consistently with the Federal Constitution. In India the States have no power to amend that part of the Indian Constitution which lays down their Constitution. They have legislative powers on certain specified subjects, the residuary power being with Parliament.

353. I may before referring to the decisions of the Supreme Court of the United States say that that court has hitherto not been confronted with the question posed before us : Can Parliament in exercise of its powers under Article 368 abrogate essential basic features and one fundamental right after another including freedom of speech, freedom of religion, freedom of life ? The American decisions would have been of assistance if this fundamental question had arisen there and if the power to amend the Federal Constitution had been with two third majority of the Congress.

354. The question before the Court in Hawke v. Sminth [1920] USSC 127; 64 L. Ed. 871 was whether the States while ratifying proposals under Article V of the Constitution were restricted to adopt the modes of ratification mentioned in Article V, i.e. by the legislatures or by conventions therein, as decided by Congress, or could they ratify a proposed amendment in accordance with the referendum provisions contained in State Constitutions or statutes.

355. The Court held that “the determination of the method of ratification is the exercise of a national power specifically granted by the Constitution” and “the language of the article is plain, and admits of no doubt in its interpretation.” The Court also held that the power was conferred on the Congress and was limited to two methods : by action of the legislatures of three fourths of the states, or conventions in a like number of states.

356. The Court further held that the power to ratify a proposed amendment to the Federal Constitution had its source in the Federal Constitution and the act of ratification by the state derived its authority from the Federal Constitution to which the state and its people had alike assented.

357. This case is of no assistance to us in interpreting Article 368 of the Constitution.

358. I may now refer to decision of the Supreme Court Rhode Island v. Palmer 64 L. Ed.

946. This case was concerned with the validity of the 18th Amendment and of certain general features of the National Prohibition Law known as Volstead Act. No reasons were given by the Court for the conclusions arrived at. The conclusions which may have some relevance for us are conclusion 4 and 5. The learned Counsel sought to deduce the reasons for these conclusions from the arguments addressed and reported in 64 L. Ed. and for the reasons given by the learned Judge in 264 Fed. Rep. 186 but impliedly rejected by the Supreme Court by reversing the decision.

359. Counsel sought to buttress this argument by citing views of learned American authors that the arguments against the validity of the 18th Amendment were brushed aside although no reasons are given. I have great respect for the judges of the Supreme Court of United States, but unless the reasons are given for a judgment it is difficult to be confident about the ratio of the decision. Apart from the decision, I would be willing to hold the 18th Amendment valid if it had been enacted by our Parliament and added to our Constitution, for I would discern no such taking away of Fundamental rights or altering the basic structure of the Constitution as would place it outside the contours of the Preamble and the basic features of the Constitution.

360. United States of America v. William H. Sorague (75) L. Ed. 640 was concerned with the validity of the 18th Amendment. The District Court had held 44 F. (2d) 967 that the 18th Amendment had not been properly ratified so as to become part of the Constitution.

It was the contention of the respondents before the Supreme Court that notwithstanding the plain language of Article V, conferring upon the Congress the choice of method of ratification, as between action by legislatures and by conventions, this Amendment could only be ratified by the latter. The respondents urged that there was a difference in the kind of amendments, as, e.g. “mere changes in the character of federal means or machinery, on the one hand, and matters affecting the liberty of the citizen on the other.”

There was no question as to ambit of the power of amendment. In other words, there was no question that the subject-matter of amendment, namely, prohibition, fell within Article V of the Constitution.

361. The Court held that the choice of the mode rested solely in the discretion of the Congress. They observed:

It was submitted as part of the original draft of the Constitution to the people in conventions assembled. They deliberately made the grant of power to Congress in respect to the choice of the mode of ratification of amendments. Unless and until that Article be changed by amendment, Congress must function as the delegated agent of the people in the choice of the method of ratification.

362. The Court further held that the 10th Amendment had no limited and special operation upon the people’s delegation by Article V of certain functions to the Congress.

363. I am unable to see how this case helps the respondents in any manner. On the plain language of the article the Court came to the conclusion that the choice of the method of ratification had been entrusted to the Congress. We are not concerned with any such question here.

364. Mr. Seervai urged that the judgment of the District Court showed that the invalidity of the 18th Amendment to the Constitution could be rested on two groups of grounds;

group A consisted of grounds relating to the meaning of the word “amendment” and the impact of the 10th Amendment or the nature of the federal system on Article V of the Constitution, and that Article V by providing the two alternative methods of ratification by convention and legislature showed that the convention method was essential for valid ratification when the amendment affected the rights of the people. Group B consisted of the grounds on which the District Court declared the 18th amendment to be invalid and those were that “the substance of an amendment, and therefore of course, of an entirely new Constitution, might have to conform to the particular theories of political science, sociology, economics, etc. held by the current judicial branch of the Government.

365. He then pointed out that grounds mentioned in Group B, which were very much like Mr. Palkhiwala arguments, were not even urged by counsel in the Supreme Court, and, therefore we must regard these grounds as extremely unsound. I, however, do not find Mr. Palkhiwala’s arguments similar to those referred to in Group B. It is true articles like Marbury’s “The Limitations upon the Amending Power,-33 Harvard Law Rev. 232”, and Mc Goveney’s “Is the Eighteenth Amendment void because of its content ?” (20 Col. Law Rev. 499), were brought to our notice but for a different purpose. Indeed the District Judge criticised these writers for becoming enmeshed “in a consideration of the Constitutionality of the substance of the amendment”-the point before us. As the District Judge pointed out, he was concerned with the subject-matter of the 18th Amendment because of the relation between that substance or subject-matter and the manner of its adoption.

366. I do not propose to decide the validity of the amendment on the touchstone of any particular theory of political science, sociology, economics. Our Constitution is capable of being worked by any party having faith in democratic institutions. The touchstone will be the intention of the Constitution makers, which we can discern from the Constitution and the circumstances in which it was drafted and enacted.

367. A number of decisions of State Courts were referred to by both the petitioners and the respondents. But the State Constitutions are drafted in such different terms and conditions that it is difficult to derive any assistance in the task before us. Amendments of the Constitution are in effect invariably made by the people.

368. These decisions on the power to amend a Constitution are nor very helpful because “almost without exception, amendment of a state Constitution is effected, ultimately, by the vote of the people. Proposed amendments ordinarily reach the people for approval or disapproval in one of two ways; by submission from a convention of delegates chosen by the people for the express purpose of revising the entire instrument, or by submission from the legislature of propositions which the legislature has approved, for amendment of the Constitution in specific respects. However, in some states Constitutional amendments may be proposed by proceedings under initiative and referendum, and the requirements governing the passage of statutes by initiative and referendum are followed in making changes in the state Constitutions.” (American Jurisprudence, Vol. 16, 2d., p. 201). In footnote 9 it is stated:

Ratification or non-ratification of a Constitutional amendment is a vital element in the procedure to amend the Constitution.” (Towns v. Suttles- 20% Ga 838, 69 SE 2d 742). The question whether the people may, by the terms of the Constitution, delegate their power to amend to others-for example, to a Constitutional convention-is one on which there is a notable lack of authority. An interesting question arises whether this power could be delegated to the legislature, and if so, whether the instrument which the legislature would then be empowered to amend would still be a Constitution in the proper sense of the term.

369. This footnote brings out the futility of referring to decisions to interpret a Constitution, wherein power to amend has been delegated to Parliament.

370. That there is a distinction between the power of the people to amend a Constitution and the power of the legislature to amend the same was noticed by the Oregon Supreme Court in Ex Parte Mrs. D.C. Kerby 36, A.L.R. 1451; 1455, one of the cases cited before us by the respondent. McCourt, J. speaking for the Court distinguished the case of Eason v. State in these words:

Petitioner cites only one authority that has any tendency to support the contention that a provision in the bill of rights of a Constitution cannot be amended-the case of Eason v. State, supra. Upon examination that case discloses that the Arkansas Constitution provided that the legislature might, by the observation of a prescribed procedure, amend the Constitution without submitting the proposed amendment to a vote of the people of the state, and the Bill of Rights in that Constitution contained a provision not found in the Oregon Constitution, as follows : “Everything in this article is excepted out of the general powers of government.

The court held that the clause quoted exempted the provisions in the Bill of Rights from the authority delegated to the legislature to amend the Constitution, and reserved the right to make any such amendment to the people themselves, so that the case is in fact an authority in support of the right of the people to adopt such an amendment.

The case is readily distinguished from the instant case, for every proposed amendment to the Oregon Constitution, in order to become effective, must be approved by a majority vote of the people, recorded at a state election, and consequently, when approved and adopted, such an amendment constitutes a direct expression of the will of the people in respect to the subject embraced by the particular measure, whether the same be proposed by initiative petition or by legislative resolution.

371. No report of the decision in Eason v. State is available to me but it appears from the annotation at page 1457 that it was conceded that a Constitutional provision might be repealed if done in the proper manner viz. by the people, who have the unqualified right to act in the matter. The Court is reported to have said:

And this unqualified right they can Constitutionally exercise by means of the legislative action of the general assembly in providing by law for the call of a convention of the whole people to reconstruct or reform the government, either partially or entirely. And such convention, when assembled and invested with the entire sovereign power of the whole people (with the exception of such of these powers as have been delegated to the Federal government), may rightfully strike out or modify any principle declared in the Bill of Rights,’ if not forbidden to do so by the Federal Constitution.

372. Both sides referred to a number of distinguished and well-known authOrs. I do not find it advantageous to refer to them because the Indian Constitution must be interpreted according to its own terms and in the background of our history and conditions. Citations of comments on the Indian Constitution would make this judgment cumbersome. I have had the advantage of very elaborate and able arguments on both sides and I must apply my own mind to the interpretation.

373. The learned Attorney-General brought to our notice extracts from 71 Constitutions. I admire the research undertaken but I find it of no use to me in interpreting Article 368.

First the language and the setting of each Constitution is different. Apart from the decisions of the Courts in United States there are no judicial decisions to guide us as to the meaning of the amending clauses in these Constitutions. Further, if it is not helpful to argue from one Act of Parliament to another (see Commissioner of Stamps, Straits Settlements v. Oei Tjong Swan [1933] A.C. 378; 389). much less would it be helpful to argue from one Constitution to another different Constitution (see Bank of Toronto v.

Lambe [1887] 12 A.C. 575-787).

374. During the course of the arguments I had drawn the attention of the Counsel to the decision of the Supreme Court of Ireland in The State (at the prosecution of Jeremiah Ryan) v. Captain Michael Lennon and Ors. [1935] Irish Reports 170, and the respondents place great reliance on it. I may mention that this case was not cited before the Bench hearing Golak Nath’s case. On careful consideration of this case, however. I find that this case is distinguishable and does not afford guidance to me in interpreting Article 368 of the Constitution.

375. In order to appreciate the difference between the structure of Article 50 of the Irish Constitution of 1922 and Article 368 of the Indian Constitution, it is necessary to set out Article 50 before its amendment. It reads:

50. Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas, but no such amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters on the register, or two- thirds of the votes recorded, shall have been cast in favour of such amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation, and as such shall be subject to the provisions of Article 47 hereof.

376. It will be noticed that after the expiry of the period of eight years mentioned in the article, the amending power was not with the Oireachtas as every amendment had to be first passed by the two Houses of the Oireachtas and then submitted to a referendum of the people, and the condition of the referendum was that a majority of the votes on the register shall have recorded their votes on such referendum, and either the votes of a majority of the votes on the register, or two-thirds of the votes recorded shall have been cast in favour of such amendment. So, in fact, after the expiry of the first eight years, the amendments had to be made by the people themselves. In our Article 368 people as such are not associated at all in the amending process.

377. Further, the Irish Constitution differed from the Indian Constitution in other respects. It did not have a Chapter with the heading of fundamental rights, or a provision like our Article 32 which is guaranteed. The words “fundamental rights” were deliberately omitted from the Irish Constitution (see foot note 9 page 67, The Irish Constitution by Barra O’ Briain, 1929). At the same time, there was no question of any guarantee to any religious or other minorities in Ireland.

378. It will be further noticed that for the first eight years an amendment could be made by way of ordinary legislation, i.e., by ordinary legislative procedure. The sixth amendment had deleted from the end of this article the words “and as such shall be subject to the provisions of Article 47 which provided for a referendum hereof. In other words, for the first eight years it was purely a flexible Constitution, a Constitutional amendment requiring no special procedure.

379. With these differences in mind, I may now approach the actual decision of the Supreme Court.

380. The High Court and the Supreme Court were concerned with the validity of the Constitution (Amendment No. 17) Act 1931 (No. 37 of 1931) having regard to the provisions of the Constitution. The validity of that Act depended on the validity of the Constitution (Amendment No. 10) Act, 1928, No. 8 of 1928, and of the Constitution (Amendment No. 16) Act, 1929, No. 10 of 1929.

381. The Constitution (Amendment No. 17) Act 1931 was passed as an Act of the Oireachtas on October 17, 1931 i.e. some 11 months after the expiry of the period of 8 years mentioned in Article 50 of the Constitution, as originally enacted. It was not submitted to a referendum of the people. It was described in its long title as an “Act to amend the Constitution by inserting therein an Article making better provision for safeguarding the rights of the people and containing provisions for meeting a prevalence of disorder.” But there is no doubt that it affected various human rights which were granted in the Irish Constitution.

382. The Constitution (Amendment No. 10) Act No. 8 of 1928 removed Articles 47 and 48 of the Constitution and also the words “and as such shall be subject to the provisions of Article 47 thereof” from the end of Article 50 as originally enacted. Constitution (Amendment No. 16) Act No. 10 of 1929 purported to amend Article 50 of the Constitution by deleting the words “eight years” and inserting in place thereof the words “sixteen years” in that Article.

383. The impugned amendment was held valid by the High Court. Sullivan P., J.

interpreted the word “amendment” in Article 50 widely relying on Edwards v. Attorney General of Canada [1929] UKPC 86; [1930] A.C. 124. Meredith J. relied on the fact that the width of the power of amendment for the period during the first eight years was co-extensive with the period after eight years and he could find no distinction between Articles of primary importance or secondary importance. O’Byrne J. could not see any distinction between the word “amendment” and the words “amend or repeal.

384. In the Supreme Court., the Chief Justice first noticed “that the Constitution was enacted by the Third Dail sitting as a Constituent Assembly, and not by the Oireachtas which, in fact, it created.” He read three limitations in the Constitution. The first, he described as the over-all limitatioin. Thus:

The Constituent Assembly declared in the forefront of the Constitution Act (an Act which it is not within the power of the Oireachtas to alter, or amend, or repeal), that all lawful authority comes from God to the people, and it is declared by Article 2 of the Constitution that “all powers of government and all authority, legislative, executive and judicial, in Ireland are derived from the people of Ireland….

385. The limitation was deduced thus : “It follows that every act, whether legislative, executive or judicial, in order to be lawful under the Constitution, must be capable of being justified under the authority thereby declared to be derived from God.

386. Now this limitation in so far as it proceeds from or is derived from the belief in the Irish State that all lawful authority comes from God to the people, can have no application to our Constitution.

387. The second limitation he deduced from Section 2 of the Irish Fret State Act and Article 50 of the Irish Constitution. It Was that any amendment repugnant to the Scheduled Treaty shall be void and inoperative.

388. The third limitation was put in these words:

The Third Dail Eireann has, therefore, as Constituent Assembly, of its own supreme authority, proclaimed its acceptance of and declared, in relation to the Constitution which it enacted, certain principles, and in language which shows beyond doubt that they are stated as governing principles which are fundamental and absolute (except as expressly qualified), and, so, necessarily, immutable. Can the power of amendment given to the Oireachtas be lawfully exercised in such a manner as to violate these principles which, as principles, the Oireachtas has no power to change ?.

In my opinion there can be only one answer to that question, namely, that the Constituent Assembly cannot be supposed to have in the same breath declared certain principles to be fundamental and immutable, or conveyed that sense in other words, as by a declaration of inviolability, and at the same time to have conferred upon the Oireachtas power to violate them or to alter them. In my opinion, any amendment of the Constitution, purporting to be made under the power given by the Constituent Assembly, which would be a violation of, or be inconsistent with, any fundamental principle so declared, is necessarily outside the scope of the power and invalid and void.

389. He further said that these limitations would apply even after the expiry of eight years. He said:

I have been dealing with limitations of the power of amendment in relation to the kinds of amendment which do not fall within the scope of the power and which are excluded from it always, irrespective of the time when, i.e.

within the preliminary period of eight years or after, or the process by which, the amendment is attempted.

390. He then approached the validity of the 16th Amendment in these words:

Was, then, the Amendment No. 16 lawfully enacted by Act No. 10 of 1929 ? There are two principal grounds for impeaching its validity; the first, the taking away whether validly or not, in any case the effective removal from use, of the Referendum and the right to demand a Referendum; the second, that the Amendment No. 16 is not within the scope of the power of amendment, and therefore the Oireachtas was incompetent to enact it.

391. He thought:

The Oireachtas, therefore, which owes its existence to the Constitution, had upon its coming into being such, and only such, power of amendment (if any) as had been given it by the Constituent Assembly in the Constitution, that is to say, the express power set out in Article 50, and amendments of the Constitution could only be validly made within the limits of that power and in the manner prescribed by that power.

392. He then observed:

Now, the power of amendment is wholly contained in a single Article, but the donee of the power and the mode of its exercise are so varied with regard to a point of time as to make it practically two separate powers, the one limited to be exercised only during the preliminary period of eight years, the other, a wholly different and permanent power, to come into existence after the expiry of that preliminary period and so continue thereafter.

393. After referring to the condition (it shall be subject to the provisions of Article 47) he thought:

The Constituent Assembly, even during the preliminary period, would not relax the ultimate authority of the people, and expressly reserved to the people the right to intervene when they considered it necessary to restrain the action of the Oireachtas affecting the Constitution. The frame of this provision makes it clear to my mind that, even if, by amendment of the Constitution under the power, Article 47 might cease to apply to ordinary legislation of the Oireachtas, the provisions of that clause were declared, deliberately, expressly and in a mandatory way, to be kept in force and operative for the purpose of amendments of the Constitution during the preliminary period of eight years.

394. According to him “the permanent power of amendment, to arise at the expiry of the period of eight years, is a wholly different thing both as to the donee of the power and the manner of its exercise.

395. He held that it was apt competent for the Oireachtas to remove from the power granted to it by the Constituent Assembly the requisites for its exercise attached to it in the very terms of donation of the power. He observed:

That provision of the Statute, No. 8 of 1928, was bad, in my opinion as being what is called in the general law of powers ‘an excessive execution.’ It was outside the scope of the power. We have not been referred to, nor have I found, any precedent for such a use of a power. I do not believe that there can be a precedent because it defies logic and reason. It was, therefore, invalid in my opinion.

396. Regarding the substitution of “sixteen years” for the words “eight years” he said:

If this amendment is good there is no reason why the Oireachtas should not have inserted or should not even yet insert, a very much larger term of years or, indeed, delete the whole of Article 50 from the words “by the Oireachtas” in the second line to the end of the Article.

397. Later he observed:

The attempt to take from the people this right, this exclusive power and authority and to confer on the Oireachtas a full and uncontrolled power to amend the Constitution without reference to the people (even though for a period of years, whether it be until 1938 or Tibb’s Eve, a matter of indifference in the circumstances) was described by counsel in, I think, accurate language, as a usurpation, for it was done in my opinion without legal authority.

398. He then repelled the argument that Section 50 conferred the power to amend the Article itself. His reasons for this conclusion are summarised thus at page 219:

In my opinion, on the true interpretation of the power before us, upon a consideration of express prohibition, limitations and requirements of the clause containing it, the absence of any express authority, the donation of the effective act in the exercise of the power to the people as a whole, the relevant surrounding circumstances to which I have already referred and the documents and their tenor in their entirety, there is not here, either expressly or by necessary implication, any power to amend the power of amendment itself.

399. I cannot agree with the learned Attorney-General that the sole basis of Kennedy C.J.’s decision was that Article 50 did not contain an express power of amending the provisions of Article 50 itself. He gave various reasons which I have referred to above.

400. FitzGibbon J. held that the word “amendment” was wide enough to include a power to amend or alter or repeal and there is no express prohibition in Article 50 itself that any article of the Constitution including Article 50 could not be amended. The only limitation that he could find was that the provisions of the Scheduled Treaty could not be amended.

He observed:

I see no ground for holding that either of these Articles could not have been amended by the Oireachtas subject to a Referendum of the people after the period of eight years, and, if so, it follows that the same amendment, e.g., the deletion of the word “no” in Article 43 could be made “by way of ordinary legislation” within that period, or within sixteen, years, after eight had been altered to sixteen.

401. In other words, according to him, if the Oireachtas subject to a referendum of the people mentioned in Article 50 could amend any Article, so could Oireachtas during the period of eight years. But he noticed that in other Constitutions, there are articles, laws or provisions which are specifically described as “Fundamental” e.g., Sweden, or “Constitutional” e.g., Austria, Czechoslovakia and France, in respect of which the Constitution expressly restricts the power of amendment, but in Constitution of the Saorstat there is no such segregation, and the power of amendment which applies to any Article appears to me to be equally applicable to all others, subject, of course, to the restriction in respect of the Scheduled Treaty. He, later observed:

Unless, therefore, these rights appear plainly from the express provisions of our Constitution to be inalienable, and incapable of being modified or taken away by any legislative act, I cannot accede to the argument that the Oireachtas cannot alter, modify, or repeal them. The framer of our Constitution may have intended “to bind man down from mischief by the chains of the Constitution,” but if they did, they defeated their object by banding him the key of the padlock in Article 50. (P. 234) 402. Murnaghan J. stressed the point that “this direct consultation of the people’s will does indicate that all matters, however fundamental, might be the subject of amendment.

On the other hand the view contended for by the appellants must go to this extreme point, viz., that certain Articles or doctrines of the Constitution are utterly incapable of alteration at any time even if demanded by an absolute majority of the voters.

403. This observation really highlights the distinction between Article 50 of the Irish Constitution and Article 368 of the Indian Constitution. As I have already observed, there is no direct consultation of the people’s will in Article 368 of our Constitution.

404. The only limitation he could find in Article 50 was that the amendment to the Constitution must be within the terms of the Scheduled Treaty.

405. As I have observed earlier, I find Article 50 of the Irish Constitution quite different in structure from Article 368 of the Indian Constitution and I do not think it is permissible to argue from Article 50 of the Irish Constitution to Article 368 of the Indian Constitution. Be that as it may, if I had to express my concurrence, I would express concurrence with the view of the learned Chief Justice in so far as he said that the Oireachtas could not increase its power of amendment by substituting sixteen years for the words “eight years”.

406. I had also invited attention of Counsel to Moore and Ors. v. Attorney-General for the Irish Free State and Ors. [1935] A.C. 484 and the respondents rely heavily on it. In this case the validity of the Constitution (Amendment No. 22) Act, 1933 (Act 6 of 1933) was involved. It was alleged that this amendment was no bar to the maintenance by the petitioners, who were the appellants, of their appeal before the Judicial Committee, as it was Void.

407. On May 3, 1933, the Oireachtas passed an Act, No. 6 of 1933, entitled the Constitution (Removal of Oath) Act, 1933. That Act, by Section 2, provided that Section 2 of the Constitution of the Irish Free State (Saorstat Eireann) Act, 1922, should be repealed, and, by Section 3, that Article 50 of the Constitution should be amended by deleting the words “within the terms of the Scheduled Treaty.

408. Finally, on November 15, 1933, the Oireachtas, enacted the Constitution (Amendment No. 22) Act, 1933, amending Article 66 of the Constitution so as to terminate the right of appeal to His Majesty in Council.

409. The Validity of the last amending Act depended on whether the earlier Act, No. 6 of 1933, was valid, namely, that which is directed to removing from Article 50 the condition that there can be no amendment of the Constitution unless it is within the terms of the Scheduled Treaty.

410. It appears that Mr. Wilfrid Greene, arguing for the petitioners, conceded that the Constitution (Amendment No. 16) Act, 1929 was regular and that the validity of the subsequent amendments could not be attacked on the ground that they had not been submitted to the people by referendum.

411. It is true that the Judicial Committee said that Mr. Greene rightly conceded this point but we do not know the reasons which impelled the Judicial Committee to say that the concession was rightly made. In view of the differences between Article 50 of the Irish Constitution and Article 368 of our Constitution, this concession cannot have any importance in the present case. The actual decision in the case is of no assistance to us because that proceeds on the basis that the Statute of Westminster had removed the restriction, contained in the Constitution of the Irish Free State Act, 1922.

412. Mr. Greene challenged the validity of Act No. 6 of 1933 by urging:

The Constitution derived its existence not from any legislature of the Imperial Parliament but solely from the operations of an Irish body, the Constituent Assembly, which is called in Ireland the Third Dail Eireann.

This body, it is said, though mentioned in the Irish Free State (Agreement) Act, 1922, was in fact elected pursuant to a resolution passed on May 20, 1922, by the Second Dail Eireann, an Irish Legislative Assembly. The Third Dail Eireann was thus, it was alleged, set up in Ireland by election of the people of Ireland of their own authority as a Constituent Assembly to create a Constitution, and having accomplished its work went out of existence, leaving no successor and no body in authority capable of amending the Constituent Act. The result of that argument is that a Constitution was established which Mr. Greene has described as a semi- rigid Constitution-that is, “one capable of being amended in detail in the different articles according to their terms, but not susceptible of any alteration so far as concerns the Constituent Act, unless perhaps by the calling together of a new Constituent Assembly by the people of Ireland.

Thus the articles of the Constitution may only be amended in accordance with Article 50, which limits amendments to such as are within the terms of the Scheduled Treaty. On that view Mr. Greene argues that the law No.

6 of 1933 is ultra vires and hence that the amendment No. 22 of 1933 falls with it.

413. Mr. Greene referred their Lordships to State (Ryan and Ors.) v. Lennon and Ors.

[1935] Irish Reports 170. In that case Chief Justice Kennedy is reported to have expressed a view which corresponds in substance to that contended for by Mr. Greene.

414. Now it is these contentions which I have just set out and which their Lordships could not accept. They observed:

In their opinion the Constituent Act and the Constitution of the Irish Free State derived their validity from the Act of the Imperial Parliament, the Irish Free State Constitution Act, 1922. This Act established that the Constitution, subject to the provisions of the Constituent Act, should be the Constitution of the Irish Free State and should come into operation on being proclaimed by His Majesty, as was done on December 6, 1922. The action of the House of Parliament was thereby ratified.

415. The position was summed up as follows:

(1) The Treaty and the Constituent Act respectively form parts of the Statute Law of the United Kingdom, each of them being parts of an Imperial Act. (2) Before the passing of the Statute of Westminster it was not competent for the Irish Free State Parliament to pass an Act abrogating the Treaty because the Colonial Laws Validity Act forbade a dominion legislature to pass a law repugnant to an Imperial Act. (3) The affect of the Statute of Westminster was to remove the fetter which lay upon the Irish Free State Legislature by reason of the Colonial Laws Validity Act. That Legislature can now pass Acts repugnant to an Imperial Act In this case they have done so.

416. I think that summary makes it quite clear that it wag because of the Statute of Westminster that the Irish Free State Parliament was enabled to amend the Constitution Act.

PART IV Validity of 24th Amendment 417. Now I may deal with the question whether the Constitution (Twenty-Fourth Amendment) Act, 1971 is valid. It reads thus:

(2) In Article 13 of the Constitution, after Clause (3), the following clause shall be inserted, namely:

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.

(3) Article 368 of the Constitution shall be re-numbered as Clause (2) thereof, and- (a) for the marginal heading to that article, the following marginal heading shall be substituted, namely:

Power of Parliament to amend the Constitution and procedure therefor.;

(b) before Clause (2) as so re-numbered, the following clause shall be inserted, namely:

(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with toe procedure laid down in this article;

(c) in Clause (2) as so re-numbered, for the words “it shall be presented to the President for his ascent and upon such assent being given to the Bill”, the words “it shall be presented to the President who shall give his attest to the Bill and thereupon” shall be substituted;

(d) after Clause (2) as so re-numbered, the following shall be inserted, namely:

(3) Nothing in Article 13 shall apply to any amendment made under this article.

418. According to the petitioner, the 24th Amendment has sought to achieve five results:

(i) It has inserted an express provision in Article 368 to indicate that the source of the amending power will be found in that Article itself.

(ii) It has made it obligatory on the President to give his assent to any Bill duly passed under that Article.

(iii) It has substituted the words “amend by way of addition, variation or repeal…” in place of the bare concept of “amendment” in the Article 368.

(iv) It makes explicit that when Parliament makes a Constitutional amendment under Article 368 it acts “in exercise of its constituent power.

(v) It has expressly provided, by amendments in Article 13 and 368, that the bar in Article 13 against abridging or taking away any of the fundamental rights should not apply to any amendment made under Article 368.

419. Mr. Palkhivala did not dispute that the amendments covered by (i) and (ii) above were within the amending power of Parliament. I do not find it necessary to go into the question whether Subba Rao, C.J., rightly decided that the amending power was in List I entry 97, or Article 248, because nothing turns on it now.

420. Mr. Palkhivala rightly conceded that Parliament could validly amend Article 368 to transfer the source of amending power from List I entry 97 to Article 368.

421. Mr. Palkhivala however contended that “if the amendments covered by (iii) and (iv) above are construed as empowering Parliament to exercise the full constituent power of, the people themselves, and as vesting in Parliament the ultimate legal sovereignty of the people, and as authorising Parliament to alter or destroy all or any of the essential features, basic elements and fundamental principles of the Constitution (hereinafter referred to “essential features”), the amendments must be held, to be illegal and void.” He further urges that “if the amendment covered by (v) is construed as authorising Parliament to damage or destroy the essence of all or any of the fundamental rights, the amendment must be held to be illegal and void.” He says that the 24th Amendment is void and illegal for the following reasons : A creature of the Constitution, as the Parliament is, can have only such amending power as is conferred by the Constitution which is given by the people unto themselves. While purporting to exercise that amending power, Parliament cannot increase that very power. No doubt, Parliament had the power to amend Article 368 itself, but that does not mean that Parliament could so amend Article 368 as to change its own amending power beyond recognition. A creature of the Constitution cannot enlarge its own power over the Constitution, while purporting to act under it, any more than the creature of an ordinary law can enlarge its own power while purporting to act under that law. The power of amendment cannot possibly embrace the power to enlarge that very power of amendment, or to abrogate the limitations, inherent or implied, in the terms on which the power was conferred. The contrary view would reduce the whole principle of inherent and implied limitations to an absurdity.

422. It is contended on behalf of the respondents that the 24th Amendment does enlarge the power of Parliament to amend the Constitution, if Golak Nath’s case limited it, and as Article 368 clearly contemplates amendment of Article 368 itself, Parliament can confer additional powers of amendment on it.

423. Reliance was placed on Ryan’s [1935] Irish Reports 170 case and Moore’s [1935] A.C. 484 case. I have already dealt with these cases.

424. It seems to me that it is not legitimate to interpret Article 368 in this manner. Clause (e) of the proviso does not give any different power than what is contained in the main article. The meaning of the expression “Amendment of the Constitution” does not change when one reads the proviso. If the meaning is the same, Article 368 can only be amended so as not to change its identity completely. Parliament, for instance, could not make the Constitution uncontrolled by changing the prescribed two third majority to simple majority. Similarly it cannot get rid of the true meaning of the expression “Amendment of the Constitution” so as to derive power to abrogate fundamental rights.

425. If the words “notwithstanding anything in the Constitution” are designed to widen the meaning of the word “Amendment of the Constitution” it would have to be held void as beyond the amending power. But I do not read these to mean this. They have effect to get rid of the argument that Article 248 and Entry 97 List I contains the power of amendment. Similarly, the insertion of the words “in exercise of its constituent power”

only serves to exclude Article 248 and Entry 97 List I and emphasize that it is not ordinary legislative power that Parliament is exercising under Article 368 but legislative power of amending the Constitution.

426. It was said that if Parliament cannot increase its power of amendment Clause (d) of Section 3 of the 24th Amendment which makes Article 13 inapplicable to an amendment of the Constitution would be bad. I see no force in this contention. Article 13(2) as existing previous to the 24th Amendment as interpreted by the majority in Golak Nath’s case prevented legislatures from taking away or abridging the rights conferred by Article

13. In other words, any law which abridged a fundamental right even to a small extent was liable to be struck down under Article 368 Parliament can amend every article of the Constitution as long as the result is within the limits already laid down by me. The amendment of Article 13(2) does not go beyond the limits laid down because Parliament cannot even after the amendment abrogate or authorise abrogation or the taking away of fundamental rights. After the amendment now a law which has the effect of merely abridging a right while remaining within the limits laid down would not be liable to be struck down.

427. In the result, in my opinion, the 24th Amendment as interpreted by me is valid.

PART V.-Validity of Section 2 of the Constitution (Twenty-fifth Amendment) Act, 1971.

428. Section 2 of the Constitution (Twenty-fifth Amendment) Act, 1971 enacted as follows:

(a) for Clause (2), the following clause shall be substituted, namely:

(2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law; and no such law shall be called in question in any court on the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amount is to be given otherwise than in cash:

(b) after Clause (2A), the following clause shall be inserted, namely:

(2B) Nothing in Sub-clause (f) of Clause (1) of Article 19 shall affect any such law as is referred to in Clause (2).

429. There cannot be any doubt that the object of the amendment is to modify the decision given by this Court in Rustom Cavasjee Cooper v. Union of India [1970] INSC 18; [1970] 3 S.C.R. 530 where it was held by ten Judges that the Banking Companies (Acquisition and Transfer of Undertakings) Act violated the guarantee of compensation under Article 31(2) in that it provided for giving certain amounts determined according to principles which were not relevant in the determination of compensation of the undertaking of the named Banks and by the method prescribed the amounts so declared could not be regarded as compensation.

430. If we compare Article 31(2) as it stood before and after the 25th Amendment, the following changes seem to have been effected. Whereas before the amendment, Article 31(2) required the law providing for acquisition to make provision for compensation by either fixing the amount of compensation or specifying the principles on which and the manner in which the compensation should be determined after the amendment Article 31(2) requires such a law to provide for an “amount” which may be fixed by the law providing for acquisition or requisitioning or which may be determined in accordance with such principles and given in such manner as may be specified in such law. In other words, for the idea that compensation should be given, now the idea is that an “amount”

should be given. This amount can be fixed directly by law or may be determined in accordance with such principles as may be specified.

431. It is very difficult to comprehend the exact meaning which can be ascribed to the word “amount”. In this context, it is true that it is being used in lieu of compensation, but the word “amount” is not a legal concept as “compensation” is.

432. According to Shorter Oxford English Dictionary, Third Edn. p. 57, the word “amount” has the following meaning:

Amount (amount sb. 1710, (f. the vb.) 1). The sum total to which anything amounts up; spec. the sum of the principal and interest 1796. 2. fig. The full value, effect, or significance 1732. 3. A quantity or sum viewed as a total 1833.

433. According to Webster’s Third New International Dictionary, p. 72, “amount” means:

amount 1a : the total number of quantity; AGGREGATE (the amount of the fine is doubled); SUM, NUMBER (add the same amount to each column) (the amount of the policy is 10,000 dollars) b : the sum of individuals (the unique amount of worthless IOU’s collected during each day’s business – R.L. Taylor) c : the quantity at hand or under consideration (only a small amount of trouble involved) (a surprising amount of patience) 2 : the whole or final effect, significance, or import (the amount of bis remarks is that we are hopelessly beaten) 3 : accounting : a principal sum and the interest on it syn see SUM.

434. I have also seen the meaning of the word “amount” in the Oxford English Dictionary, Volume 1 p. 289, but it does not give me much guidance as to the meaning to be put in Article 31(2), as amended. The figurative meaning, i.e., the full value, I cannot give because of the deliberate omission of the word “compensation” and substitution of the word “amount” in lieu thereof.

435. Let us then see if the other part of the article throws any light on the word “amount”.

The article postulates that in some cases principles may be laid down for determining the amount and these principles may lead to an adequate amount or an inadequate amount.

So this show that the word “amount” here means something to be given in lieu of the property to be acquired but this amount has to and can be worked out by laying down certain principles. These principles must then have a reasonable relationship to the property which is sought to be acquired, if this is so, the amount ultimately arrived at by applying the principles must have some reasonable relationship with the property to be acquired; otherwise the principles of the Act could hardly be principles within the meaning of Article 31(2).

436. If this meaning is given to the word “amount” namely, that the amount given in cash or otherwise is of such a nature that it has been worked out in accordance with the principles which have relationship to the property to be acquired, the question arises :

what meaning is to be given, to the expression “the amount so fixed”. The amount has to be fixed by law but the amount so fixed by law must also be fixed in accordance with some principles because it could not have been intended that if the amount is fixed by law, the legislature would fix the amount arbitrarily. It could not, for example, fix the amount by a lottery.

437. Law is enacted by passing a bill which is introduced. The Constitution and legislative procedure contemplate that there would be discussion, and in debate, the Government spokesman in the legislature would be able to justify the amount which has been fixed. Suppose an amendment is moved to the amount fixed. How would the debate proceed ? Can the Minister say-“This amount is fixed as it is the government’s wish.”

Obviously not. Therefore, it follows that the amount, if fixed by the legislature, has also to be fixed according to some principles. These principles cannot be different from the principles which the legislature would lay down.

438. In this connection it must be borne in mind that Article 31(2) is still a fundamental right. Then, what is the change that has been brought about by the amendment ? It is no doubt that a change was intended, it seems to me that the change effected is that a person whose property is aquired can no longer claim full compensation or just compensation but he can still claim that the law should lay down principles to determine the amount which he is to get and these principles must have a rational relation to the property sought to be acquired. If the law were to lay down a principle that the amount to be paid in lieu of a brick of gold acquired shall be the same as the market value of an ordinary brick or a brick of silver it could not be held to be a principle at all. Similarly if it is demonstrated that the amount that has been fixed for the brick of gold is the current value of an ordinary brick or a brick of silver the amount fixed would be illegal. If I were to interpret Article 31(2) as meaning that even an arbitrary or illusory or a grossly low amount could be given which would shock not only the judicial conscience but the conscience of every reasonable human being, a serious question would arise whether Parliament has not exceded its amending power under Article 368 of the Constitution. The substance of the fundamental right to property, under Article 31, consists of three things : one, the property shall be acquired by or under a valid law; secondly, it shall be acquired only for a public purpose; and, thirdly, the person whose property has been acquired shall be given an amount in lieu thereof, which, as I have already said, is not arbitrary, illusory or shocking to the judicial conscience or the conscience of mankind. I have already held that Parliament has no power under Article 368 to abrogate the fundamental rights but can amend or regulate or adjust them in its exercise of amending powers without destroying them. Applying this to the fundamental right of property, Parliament cannot empower legislatures to fix an arbitrary amount or illusory amount or an amount that virtually amounts to confiscation, taking all the relevant circumstances of the acquisition into consideration. Same considerations apply to the manner of payment. I cannot interpret this to mean that an arbitrary manner of payment is contemplated. To give an extreme example, if an amount is determined or fixed at Rs. 10,000 a legislature cannot lay down that payment will be made at the rate of Rs. 10 per year or Rs. 10 per month.

439. Reference may be made to two cases that show that if discretion is conferred it must be exercised reasonably.

440. In Roberts v. Hopwood [1925] A.C. 578; 590 it was held that the discretion conferred upon the Council by Section 62 of the Metropolis Management Act, 1855, must be exercised reasonably. The following observations of Lord Buckmaster are pertinent:

It appears to me, for the reasons I have given, that they cannot have brought into account the consideration which they say influenced them, and that they did not base their decision upon the ground that the reward for work is the value of the work reasonably and even generously measured, but that they took an arbitrary principle and fixed an arbitrary sum, which was not a real exercise of the discretion imposed upon them by the statute.

441. I may also refer to Lord Wrenbury’s observation at p. 613:

I rest my opinion upon higher grounds. A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so – he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the course which reason directs. He must act reasonably.

442. In James Leslie Williams v. Haines Thomas [1911] A.C. 381 the facts are given in the headnote as follows:

Under Section 4 of the New South Wales Public Service Superannuation Act, 1903, the plaintiff was awarded by the Public Service Board a gratuity of 23 # 10 $. 1 d. per mensem, calculated for each year of service from December 9, 1875, the date of his permanent employment, upto December 23, 1895; and upon his claiming to have his service reckoned up to August 16, 1902, was awarded a further gratuity of one penny in respect of each year subsequent to December 23, 1895, up to August 16, 1902, the date of the commencement of the public Service Act of that year.

443. The Judicial Committee held the award to be illusory. The Judicial Committee observed:

…it seems to their Lordships to be quite plain that an illusory award such as this – an award intended to be unreal and unsubstantial – though made under guise of exercising discretion, is at best a colourable performance, and tantamount to a refusal by the Board to exercise the discretion entrusted to them by Parliament.

444. Although I am unable to appreciate the wisdom of inserting Clause (2B) in Article 31, the effect of which is to make Article 19(1)(f) inapplicable, I cannot say that it is an unreasonable abridgement of rights under Article 19(1)(f). While passing a law fixing principles, the legislatures are bound to provide a procedure for the determination of the amount, and if the procedure is arbitrary that provision may well be struck down under Article 14.

445. In view of the interpretation which I have placed on the new Article 31(2), as amended, it cannot be said that Parliament has exceeded its amending power under Article 368 in enacting the new Article 31(2).

446. For the reasons aforesaid I hold that Section 2 of the Constitution (Twenty-fifth Amendment) Act, 1971, as interpreted by me, valid.

447. Part VI-Validity of Section 3 of the Constitution (Twenty-Fifth Amendment) Act, 1971.

448. Section 3 of the twenty-fifth amendment, reads thus:

3. After Article 31B of the Constitution, the following article shall be inserted, namely:

31. C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy:

Provided that where such law is made by the legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.

449. It will be noted that Article 31C opens with the expression “notwithstanding anything contained in Article 13”. This however cannot mean that not only fundamental rights like Artice 19(1)(f) or Article 31 are excluded but all fundamental rights belonging to the minorities and religious groups are also excluded. The article purports to save laws which a State may make towards securing the principles specified in Clauses (b) or (c) of Article 39 from being challenged on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Articles 14, 19 or 31. This is the only ground on which they cannot be challenged. It will be noticed that the article provides that if the law contains a declaration that it is for giving effect to such policy, it shall not be called in question in any court on the ground that it does not give effect to such policy. In other words, once a declaration is given, no court can question the law on the ground that it has nothing to do with giving effect to the policy; whether it gives effect to some other policy is irrelevant. Further, a law may contain some provisions dealing with the principles specified in Clauses (b) or (c) of Article 39 while other sections may have nothing to do with it, yet on the language it denies any court power or jurisdiction to go into this question.

450. In the face of the declaration, this Court would be unable to test the validity of incidental provisions which do not constitute an essential and integral part of the policy directed to give effect to Article 39(b) and Article 39(c).

451. In Akadasi Padhan v. State of Orissa [1963] Supp. 2 S.C.R. 691-707 Gajendragadkar, C.J., speaking for the Court, observed:

“A law relating to” a State monopoly cannot, in the context, include all the provisions contained in the said law whether they have direct relation with the creation of the monopoly or not. In our opinion, the said expression should be construed to mean the law relating to the monopoly in its absolutely essential features. If a law is passed creating a State monopoly, the Court should enquire what are the provisions of the said law which are basically and essentially necessary for creating the State monopoly. It is only those essential and basic provisions which are protected by the latter part of Article 19(6). If there are other provisions made by the Act which are subsidiary, incidental or helpful to the operation of the monopoly, they do not fall under the said part and their validity must be judged under the first part of Article 19(6).

452. These observations were quoted with approval by Shah, J., speaking on behalf of a larger Bench in R.C. Cooper v. Union of India [1970] 3 S.C.R. 530-582. After quoting the observations, Shah, J., observed:

This was reiterated in Rashbihar Panda and Ors. v. The State of Orissa [1969] INSC 10; [1969] 3 S.C.R. 374. Vrajlal Manilal & Co. and Anr. v. The State of Madhya Pradesh and Ors. [1969] INSC 124; [1970] 1 S.C.R. 400 and Municipal Committee, Amritsar and Ors. v. State of Punjab [1969] INSC 17; [1969] 3 S.C.R. 447.

453. While dealing with the validity of the Bombay Prohibition Act (XXV of 1949), this Court in State of Bombay v. F.N. Balsara [1951] INSC 38; [1951] S.C.R. 682 struck down two provisions on the ground that they conflicted with the fundamental rights of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. These provisions were Sections 23(a) and 24(1)(a), which read:

23. No person shall- (a) commend, solicit the use of, offer any intoxicant or hemp, or….

24(1). No person shall print or publish in any newspaper news-sheet, book, leaflet, booklet or any other single or periodical publication or otherwise display or distribute any advertisement or other matter- (a) which commends, solicits the use of, or offers any intoxicant or hemp….

454. Section 23(b) was also held to be void. It was held that “the words “incite” and “encourage” are wide enough to include incitement and encouragement by words and speeches and also by acts and the words used in the section are so wide and vague that the clause must be held to be void in its entirety.

455. Section 23(b) reads as follows:

23. No person shall- (a) …

(b) incite or encourage any member of the public or any class of individuals of the public generally to commit any act, which frustrates or defeats the provisions of this Act, or any rule, regulation or order made thereunder, or….

456. Mr. Palkhivala contends, and I think rightly, that this Court would not be able to strike these provisions down if a similar declaration were inserted now in the Bombay Prohibition Act that this law is for giving-effect to Article 47, which prescribes the duty of the State to bring about prohibition of the consumption of intoxicating drinks. If a similar provision were inserted in the impugned Kerala Acts making it a criminal offence to criticise, frustrate or defeat the policy of the Acts, the provisions would be protected under Article 31(C).

457. The only so-called protection which is given is that if the legislature of a State passes such a law it must receive the President’s assent. It is urged before us that it is no protection at all because the President would give his assent on the advice of the Union Cabinet.

458. Article 31C in its nature differs from Article 31A, which was inserted by the Fourth Amendment.

31A. (1) Notwithstanding anything contained in Article 13, no law providing for- (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or (b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or (c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or (d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or (e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or license, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31 :

Provided that….

459. In Article 31A the subject-matter of the legislation is clearly provided, namely, the acquisition by the State of any estate or any rights therein, (Article 31A(a)). Similarly, the subject-matter of legislation is specifically provided in Clauses (b), (c) and (d) of Article 31A. But in Article 31C the sky is the limit because it leaves to each State to adopt measures towards securing the principles specified in Clauses (b) and (c) of Article 39.

The wording of Articles 39(b) and 39(c) is very wide. The expression “economic system”

in Article 39(c) may well include professional and other services. According to Encylopedia Americana (1970 Ed. Vol. 9p. p. 600) “economic systems are forms of social organization for producing goods and services and determining how they will be distributed. It would be difficult to resist the contention of the State that each provision in the law has been taken for the purpose of giving effect to the policy of the State.

460. It was suggested that if the latter part of Article 31C, dealing with declaration, is regarded as unConstitutional, the Court will be entitled to go into the question whether there is any nexus between the impugned law and Article 39(b) and Article 39(c). I find it difficult to appreciate this submission. There may be no statement of State policy in a law. Even if there is a statement of policy in the Preamble, it would not control the substantive provisions, if unambiguous. But assuming that there is a clear statement it would be for the State legislature to decide whether a provision would help to secure the objects.

461. The Courts will be unable to separate necessarily incidental provisions and merely incidental. Further, as I have pointed out above, this question is not justiciable if the law contains a declaration that it is for giving effect to such a policy. According to Mr.

Palkhivala, Article 31C has four features of totalitarianism : (1) There is no equality. The ruling party could favour its own party members, (2) There need not be any freedom of speech, (3) There need be no personal liberty which is covered by Article 19(1)(b), and (4) The property will be at the mercy of the State. In other words, confiscation of property of an individual would be permissible.

462. It seems to me that in effect, Article 31C enables States to adopt any policy they like and abrogate Articles 14, 19 and 31 of the Constitution at will. In other words, it enables the State to amend the Constitution. Article 14, for instance, would be limited by the State according to its policy and not the policy of the amending body, i.e., the Parliament, and so would be Articles 19 and 31, while these fundamental rights remain in the Constitution. It was urged that when an Act of Parliament or a State Legislature delegates a legislative power within permissible limits the delegated legislation derives its authority from the Act of Parliament. It was suggested that similarly the State law would derive authority from Article 31C. It is true that the State law would derive authority from Article 31C but the difference between delegated legislation and the State law made under Article 31C is this : It is permissible, within limits, for a legislature to delegate its functions, and for the delegate to make law. Further the delegated legislation would be liable to be challenged on the ground of violation of fundamental rights regardless of the validity of the State Act. But a State legislature cannot be authorised to amend the Constitution and the State law deriving authority from Article 31C cannot be challenged on the ground that it infringes Articles 14, 19 and 31.

463. It will be recalled that Article 19 deals not only With the right to property but it guarantees various rights : freedom of speech and expression; right to assemble peaceably and without arms; right to form associations or unions; right to move freely throughout the territory of India; right to practice any profession or to carry on any occupation, trade or business. I am unable to appreciate the reason for giving such powers to the State legislature to abrogate the above freedoms. In effect, Parliament is enabling State legislatures to declare that “a citizen shall not be free; he will have no freedom of speech to criticise the policy of the State; he shall not assemble to protest against the policy; he shall be confined to a town or a district and shall not move outside his State; a resident of another state shall not enter the State which is legislating; he shall not, if a lawyer, defend people who have violated the law. It could indeed enable legislatures to apply one law to political opponents of the ruling party and leave members of the party outside the purview of the law. In short, it enables a State Legislature to set up complete totalitarianism in the State. It seems that its implications were not realised by Parliament though Mr. Palkhiwala submits that every implication was deliberately intended.

464. I have no doubt that the State legislatures and Parliament in its ordinary legislative capacity will not exercise this new power conferred on them fully but I am concerned with the amplitude of the power conferred by Article 31C and not with what the legislatures may or may not do under the powers so conferred.

465. I have already held that Parliament cannot under Article 368 abrogate fundamental rights. Parliament equally cannot enable the legislatures to abrogate them. This provision thus enables legislatures to abrogate fundamental rights and therefore must be declared unConstitutional.

466. It has been urged before us that Section 3 of the 25th amendment Act is void as it in effect delegates the constituent amending power to State legislatures. The question arises whether Article 368 enables Parliament to delegate its function of amending the Constitution to another body. It seems to me clear that it does not. It would be noted that Article 368 of this Constitution itself provides that amendment may be initiated only by the introduction of a bill for the purpose in either House of Parliament. In other words, Article 368 does not contemplate any other mode of amendment by Parliament and it does not equally contemplate that Parliament could set up another body to amend the Constitution.

467. It is well-settled in India that Parliament cannot delegate its essential legislative functions.

See: (1) Per Mukherjea J. in re The Delhi Laws Act, 1912. [1951] INSC 35; (1951) SCR 747 at 984-5.

(2) Raj Narain Singh v. Patna Administration [1954] INSC 73; 1955 (1) SCR 290.

(3) Hari Shankar Bagla v. State of Madhya Pradesh 1955 (1) SCR 380.

(4) Vasantlal Sanjanwala v. State of Bombay [1960] INSC 129; 1961 (1) SCR 341.

(5) The Municipal Corporation of Delhi v. Birla Cotton Mills [1968] INSC 48; 1968 (3) SCR 251.

(6) Garewal v. State of Punjab 1959 Supp. (1) SCR 792.

468. It is also well-settled in countries, where the courts have taken a position different than in Indian courts, that a legislature cannot create another legislative body. Reference may be made here to In re Initiative and Referendum Act (1919) A.C. 935 and Attorney- General of Nova Scoitia v. Attorney-General of Canada (1951) S.C.R. Canada 31. I have discussed the latter case while dealing with the question of implied limitation. Initiative and Referendum case is strongly relied on by Mr. Palkhivala to establish that an amending power cannot be delegated. In this case the Judicial Committee of the Privy Council was concerned with the interpretation of Section 92, head 1 of the British North America Act, 1867, which empowers a Provincial Legislature to amend the Constitution of the Province, “excepting as regards the office of the Lieutenant-Governor”. The Legislative Assembly of Manitoba enacted the Initiative and Referendum Act, which in effect would compel the Lieutenant Governor to submit a proposed law to a body of voters totally distinct from the legislature of which he is the Constitutional head, and would render him powerless to prevent it from becoming an actual law if approved by these voters.

469. The judgment of the Court of Appeal is reported in 27 Man. L.R. 1, which report is not available to me, but the summary of the reasons of the learned Judges of the Court of Appeal are given at page 936 of (1919) A.C. as follows:

The British North America Act, 1867, declared that for each Province there should be a Legislature, in which Section 92 vested the power of law-making; the legislature could not confer that power upon a body other than itself. The procedure proposed by the Act in question would not be an Act of a Legislature within Section 92, would be wholly opposed to the spirit and principles of the Canadian Constitution, and would override the Legislature thereby provided. Further, the power to amend the Constitution given by Section 92, head 1, expressly expected “the office of the Lieutenant-Governor”. Section 7 of the proposed Act, while preserving the power of veto and disallowance by the Governor-General provided for by Sections 55 and 90 of the Act of 1867, dispensed with the assent of the Lieutenant-Governor provided for by Sections 56 and 90 of that Act; even if Section 7 was not intended to dispense with that assent, Section 11 clearly did so. The proposed Act also violated the provisions of Section 54 (inconjunction with Section 90) as to money bills.

470. Their Lordships of the Judicial Committee held at page 944:

Their Lordships are of opinion that the language of the Act cannot be construed otherwise than as intended seriously to affect the position of the Lieutenant-Governor as an integral part of the Legislature, and to detract from rights which are important in the legal theory of that position. For if the Act is valid it compels him to submit a proposed law to a body of voters totally distinct from the Legislature of which he is the Constitutional head, and renders him powerless to prevent it from becoming an actual law if approved by a majority of these voters. It was argued that the words already referred to, which appear in Section 7, preserve his powers of veto and disallowance. Their Lordships are unable to assent to this contention. The only powers preserved are those which relate to Acts of the Legislative Assembly, as distinguished from Bills, and the powers of veto and disallowance referred to can only be those of the Governor-General under Section 90 of the Act of 1867, and not the powers of the Lieutenant-Governor, which are at an end when a Bill has become an Act. Section 11 of the Initiative and Referendum Act is not less difficult to reconcile with the rights of the Lieutenant-Governor. It provides that when a proposal for repeal of some law has been approved by the majority of the electors voting, that law is automatically to be deemed repealed at the end of thirty days after the clerk of the Executive Council shall have published in the Manitoba Gazette a statement of the result of the vote. Thus the Lieutenant-Governor appears to be wholly excluded from the new legislative authority.

471. I have set out this passage in extenso because this deals with one part of the reasoning given by the Court of Appeal. Regarding the Other part i.e. whether the Legislature could confer that power on a body other than itself, the Judicial Committee observed at page 945:

Having said so much, their Lordships, following their usual practice of not deciding more than is strictly necessary, will not deal finally with another difficulty which those who contend for the validity of this Act have to meet. But they think it right, as the point has been raised in the Court below, to advert to it. Section 92 of the Act of 1867 entrusts the legislative power in a Province to its legislature, and to that Legislature only. No doubt a body, with power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capacity intact, seek the assistance of subordinate agencies, as had been done when in Hodge v. The Queen 9 A.C. 117 the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence.

Their Lordships do no more than draw attention to the gravity of the Constitutional questions which thus arise.

(Emphasis supplied) 472. It is interesting to note that this position was indicated by Sir A. Hobhouse, a member of the Judicial Committee, while Hodge v. The Queen 9 A.C. 117 was being argued. This appears from Lefroy on Canadian Federal System at p. 387:

Upon the argument before the Privy Council in Hodge v. The Queen, Mr.

Horace Davey contended that under this sub-section, (Section 92(1) of Canadian Constitution) provincial legislatures “could do what Lord Selborne, no doubt correctly, said in The Queen v. Burah [1878] 3 A.C.

905 the Indian legislature could not do,-abdicate their whole legislative functions in favour of another body.” But, as Sir A. Hobhouse remarked, this they cannot do. “They remain invested with a responsibility.

Everything is done by them, and such officers as they create and give discretion to.

473. The learned Attorney-General submitted that this case decided only that in the absence of clear and unmistakable language in Section 92, head 1, the power which the Crown possesses through a person directly representing the Crown cannot be abrogated.

It is true that this was the actual decision but the subsequent observations, which I have set out above, clearly show that the Judicial Committee was prepared to imply limitations as the Court of Appeal had done on the amending power conferred on the Provincial Legislature by Section 92, head 1.

474. The Attorney General said that the scope of this decision was referred to in Nadan v.

The King (1926) A.C. 482 where at page 495 reference is made to this case in the following words:

In the case of In re Initiative and Referendum Act Lord Haldane, in declaring the judgment of the Board referred to “the impropriety in the absence of clear and unmistakable language of construing Section 92 as permitting the abrogation of any power which the Crown possesses through a person directly representing it”; an observation which applies with equal force to Section 91 of the Act of 1867 and to the abrogation of a power which remains vested in the Grown itself.

475. But this passage again dealt with the actual point decided and not the obiter dicta.

476. The first para of the head note in Nadan’s (1926) A.C. 482 case gives in brief the actual decision of the Privy Council as follows:

Section 1025 of the Criminal Code of Canada, if and so far as it is intended to prevent the King in Council from giving effective leave to appeal against an order of a Canadian Court in a criminal case, is invalid.

The legislative authority of the Parliament of Canada as to criminal law and procedure, under Section 91 of the British North America Act, 1867, is confined to action to be taken in Canada. Further, an enactment annulling the royal prerogative to grant special leave to appeal would be inconsistent with the Judicial Committee Acts 1833 and 1844, and therefore would be invalid under Section 2 of the Colonial Laws Validity Act, 1865. The royal assent to the Criminal Code could not give validity to an enactment which was void by imperial statute; exclusion of the prerogative could be accomplished only by an Imperial statute.

477. For the aforesaid reasons I am unable to agree with the Attorney General and I hold that the Initiative and Referendum Act case shows that limitations can be implied in an amending power. Mr. Seervai seeks to distinguish this case on another ground. According to him, these observations were obiter dicta, but even if they are treated as considered obiter dicta, they add nothing to the principles governing delegated legislation, for this passage merely repeats what had been laid down as far back as 1878 in The Queen v.

Burah 5 I.A. 178 : (1878) 3 A.C. 889; 904 : 905, where the Privy Council in a classical passage, observed:

But their Lordships are of opinion that the doctrine of the majority of the Court is erroneous, and that it rests upon a mistaken view of the powers of the Indian Legislature, and indeed of the nature and principles of legislation. The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself.

The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would of course be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further or to enlarge constructively those conditions and restrictions.

Mr. Seervai further says that having laid down the law as set out above, the Privy Council added:

Their Lordships agree that the Governor-General in Council could not, by any form of enactment; create in India, and arm with general legislative authority, a new legislative power, not created or authorised by the Council’s Act.

478. We are unable to agree with him that the obiter dicta of the Judicial Committee deals with the same subject as Burah’s 5 I.A. 178 case. Burah’s’ case was not concerned with the power to amend the Constitution but was concerned only with legislation enacted by the Indian Legislature. This clearly appears from the passage just cited from Lefroy. The Governor-General in Council had no power to amend the Government of India Act, under which it functioned.

479. Reference was also made to the observations of one of us in Delhi Municipality v.

B.C. & W. Mills [1968] INSC 48; A.I.R. (1968) S.C. 1232 at p. 1266 where I had observed as follows:

Apart from authority, in my view Parliament has full power to delegate legislative authority to subordinate bodies. This power flows, in my judgment, from Article 246 of the Constitution. The word “exclusive”

means exclusive of any other legislation and not exclusive of any subordinate body. There is, however, one restriction in this respect and that is also contained in Article 246. Parliament must pass a law in respect of an item or items of the relevant list. Negatively this means that Parliament cannot abdicate its functions.

480. Reference was also invited to another passage where I had observed:

The case of 1919 AC 935 provides an instance of abdication of functions by a legislature. No inference can be drawn from this case that delegations of the type with which we are concerned amount to abdication of functions.

481. It is clear these observations are contrary to many decisions of this Court and, as I said, I made these observations apart from authority.

482. But neither this Court nor the Judicial Committee in Queen v. Burah 5 I.A. 178 :

(1878) 3 A.C. 889 were concerned with an amending power, and the importance of the obiter observations of the Privy Council lies in the fact that even in exercise of its amending power the legislature could not “create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence,” and the fact that in Canada the doctrine of limited delegated legislation does not prevail as it does in India.

483. It has been urged before us that in fact there has been no delegation of the amending powers to the State legislatures by Article 31C and what has been done is that Article 31C lifts the ban imposed by Part III from certain laws. I am unable to appreciate this idea of the lifting of the ban. Fundamental rights remain as part of the Constitution and on the face of them they guarantee to every citizen these fundamental rights. But as soon as the State legislates under Article 31C and the law abrogates or takes away these Constitutional rights, these fundamental rights cease to have any effect. The amendment is then made not by Parliament as the extent of the amendment is not known till the State legislates. It is when the State legislates that the extent of the abrogation or abridgement of the fundamental rights becomes clear. To all intents and purposes it seems to me that it is State legislation that effects an amendment of the Constitution. If it be assumed that Article 31C does not enable the States to amend the Constitution then Article 31C would be ineffective because the law which in effect abridges or takes away the fundamental rights would have been passed not in the form required by Article 368, i.e. by 2/3rd of the majority of Parliament but by another body which is not recognised in Article 368 and would be void on that ground.

484. The learned Solicitor General, relying on Mohamed Samsudeen Kariapper v. S.S.

Wijesinha (1968) A.C. 717; 743 urged that there can be implied amendment of the Constitution and Article 31C may be read as an implied amendment of Article 368. What the Judicial Committee decided in this case was that a bill having received a certificate in the hands of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to no lass than two-thirds of the whole number of Members of the House in effect amounted to a bill for the amendment or repeal of any of the provisions of the order, and the words “amendment or repeal” included implied amendment.

485. Menzies, J., speaking for the Judicial Committee, observed:

Apart from the proviso to Sub-section (4) therefore the board has found no reason for not construing the words “amend or repeal” in the earlier part of Section 29(4) as extending to amendment or repeal by inconsistent law….

A bill which, if it becomes an Act, does amend or repeal some provision of the order is a bill “for the amendment or repeal of a provision of the order.

Later, he observed:

The bill which became the Act was a bill for an amendment of Section 24 of the Constitution simply because its terms were inconsistent with that section. It is the operation that the bill will have upon becoming law which gives it its Constitutional character, not any particular label which may be given to it. A bill described as one for the amendment of the Constitution, which contained no operative provision to amend the Constitution would not require the prescribed formalities to become a valid law whereas a bill which upon its passing into law would, if valid, alter the Constitution would not be valid without compliance with those formalities.

486. We are not here concerned with the question which was raised before the Judicial Committee because no one has denied that Article 31C is an amendment of the Constitution. The only question we are concerned with is whether Article 31C can be read to be an implied amendment of Article 368, and if so read, is it valid, i.e., within the powers of Parliament to amend Article 368 itself.

487. It seems to me that Article 31C cannot be read to be an implied amendment of Article 368 because it opens with the words “notwithstanding anything contained in Article 13” and Article 31C does not say that “notwithstanding anything contained in Article 368.” What Article 31C does is that it empowers legislatures, subject to the condition laid down in Article 31C itself, to take away or abridge rights conferred by Articles 14, 19 and 31. At any rate, if it is deemed to be an amendment of Article 368, it is beyond the powers conferred by Article 368 itself. Article 368 does not enable Parliament to constitute another legislature to amend the Constitution, in its exercise of the power to amend Article 368 itself.

488. For the aforesaid reasons I hold that Section 3 of the Constitution (Twenty-fifth Amendment) Act 1971 is void as it delegates power to legislatures to amend the Constitution.

PART-VII.-Twenty-Ninth Amendment The Constitution (Twenty-Ninth Amendment) reads:

2. Amendment of Ninth Schedule In the Ninth Schedule to the Constitution after entry 64 and before the Explanation, the following entries shall be inserted, namely:

65. The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969).

66. The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971).

489. The effect of the insertion of the two Kerala Acts in the Ninth Schedule is that the provisions of Article 31-B get attracted. Article 31-B which was inserted by Section 5 of the Constitution (First Amendment) Act, 1951, reads:

Insertion of new Article 31B.

490. After Article 31A of the Constitution as inserted by Section 4, the following article shall be inserted, namaly:

31B. Validation of certain Acts and Regulations Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and 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 it continue in force.

491. The First Amendment had also inserted Article 3-A and the Niath Schedule including 13 State enactments dealing with agrarian, reforms.

492. Before dealing with the points debated before us, it is necessary to mention that a new Article 31-A was substituted by the Constitution (Fourth Amendment) Act, 1955, for the original article with retrospective effect. The new article contained original Article 31A(1) as Clause (a) and added Clauses (b) to (e) and also changed the nature of the protective umbrella. The relevant part of Article 31A(1) as substituted has already been set out.

493. Under Article 31-A as inserted by the First Amendment a law was protected even if it was inconsistent with or took away or abridged any rights conferred by any provisions of Part III. Under the Fourth Amendment the protective umbrella extended to only Article 14, Article 19 or Article 31. The Seventeenth Amendment further amended the definition of the word “estate” in Article 31A. It also added seven Acts to the Ninth Schedule.

494. The argument of Mr. Palkhivala, on this part of the case, was two fold. First, he contended, that Article 31B, as originally inserted, had intimate relations with agrarian reforms, because at that stage Article 31-A dealt only with agrarian reforms. The words “without prejudice to the generality of the provisions contained in Article 31A”, according to him, pointed to this connection. He, in effect, said that Article 31-B having this original meaning did not change the meaning or its scope when a new Article 31-A containing Clauses (b) to (e) were included.

495. I am unable to accede to these contentions. The ambit of Article 31-B has been determined by this Court in three decisions. In State of Bihar v. Maharajadhiraja Sir Kameshwar Singh (1952) S.C.R. 889; 914-15, Patnjali Sastri, C.J., rejected the limited meaning suggested above by Somayya, and observed:

“There is nothing in Article 31-B to indicate that the specific mention of certain statutes was only intended to illustrate the application of the general words of Article 31-A. The opening words of Article 31-B are only intended to make clear that Article 31-A should not be restricted in its application by reason of anything contained in Article 31-B and are in no way calculated to restrict the application of the latter article or of the enactments referred to therein to acquisition of “estates.”

496. He held that the decision in Sibnath Banerji’s (1945) F.C.R. 195 case afforded no useful analogy.

497. In Visweshwar Rao v. State of Madhya Pradesh (1952) S.C.R. 1020-1037. Mahajan, J., repelled the argument in these words:

In my opinion the observations in Sibnath Banerji’s case far from supporting the contention raised negatives it. Article 31-B specifically validates certain acts mentioned in the Schedule despite the provisions of Article 31-A and is not illustrative of Article 31-A. but stands independent of it.

498. In H.B. Jeejeebhoy v. Assistant Collector, Thana (1965) 1 S.C.R. 636-648, to which decision I was a party, Subha Rao, C.J., observed that “Article 31-B is not governed by Article 31-A and that Article 31-B is a Constitutional device to place the specified statutes beyond any attack on the ground that they infringe Part III of the Constitution.

499. I may mention that the validity of the device was not questioned before the Court then.

500. But even though I do not accept the contention that Article 31-B can be limited by what is contained in Article 31-A, the question arises whether the Twenty-Ninth Amendment is valid.

501. I have held that Article 368 does not enable Parliament to abrogate or take away fundamental rights. If this is so, it does not enable Parliament to do this by any means, including the device of Article 31-B and the Ninth Schedule. This device of Article 31-B and the Ninth Schedule is bad insofar as it protects statutes even if they take away fundamental rights. Therefore, it is necessary to declare that the Twenty-Ninth Amendment is ineffective to protect the impugned Acts if they take away fundamental rights.

502. In this connection I may deal with the argument that the device of Article 31B and the Ninth Schedule has uptill now been upheld by this Court and it is now too late to impeach it. But the point now raised before us has never been raised and debated before.

As Lord Atkin observed in Proprietary Articles Trade Association v. Attorney-General for Canada (1931) A.C. 310; 317.

Their Lordships entertain no doubt that time alone will not validate an Act which when challenged is found to be ultra vires; nor will a history of a gradual series of advances till this boundary is finally crossed avail to protect the ultimate encroachment.

503. If any further authority is needed, I may refer to Attorney-General for Australia v.

The Queen and the Boilermakers’ Society of Australia (1957) A.C. 288; 323. The Judicial Committee, while considering the questionwhether certain sections of the Conciliation and Arbitration Act, 1904 1952 were ultra vires inasmuch as the Commonwealth Court of Conciliation and Arbitration had been invested with the executive powers alongwith the judicial powers, referred to the point why for a quarter of century no litigant had attacked the validity of this obviously illegitimate union, and observed:

Whatever the reason may be, just as there was a patent invalidity in the original Act which for a number of years went unchallenged, so far a greater number of years an invalidity which to their Lordships as to the majority of the High Court has been convincingly demonstrated, has been disregarded. Such clear conviction must find expression in the appropriate judgment.

504. We had decided not to deal with the merits of individual cases and accordingly Counsel had not addressed any arguments on the impugned Acts passed by the Kerala State Legislature. It would be for the Constitution Bench to decide whether the impugned Acts take away fundamental rights. If they do, they will have to be struck down. If they only abridge fundamental rights, it would be for the Constitution Bench to determine whether they are reasonable abridgements essential in the public interest.

505. Broadly speaking, Constitutional amendments hitherto made in, Article 19 and Article 15 and, the agrarian laws enacted by various States furnish illustrations of reasonable abridgement of fundamental rights in the public interest.

506. It was said during the arguments that one object of Article 31-B was to prevent time- consuming litigation, which held up implementation of urgent reforms. If a petition is filed in the High Court or a suit is filed in a subordinate court or a point raised before a magistrate, challenging the validity of an enactment it takes years before the validity of an enactment is finally determined. Surely, this is not a good reason to deprive persons of their fundamental rights. There are other ways available to the Government to expedite the decision. It may for example propose ordinary legislation to enable parties to approach the Supreme Court for transfer of such cases to the Supreme Court for determination of substantial questions of interpretation of the Constitution.

PART VIII : Conclusions To summarise, I hold that:

(a) Golak Nath’s [1967] INSC 45; (1967) 2 S.C.R. 762 case declared that a Constitutional amendment would be bad if it infringed Article 13(2), as this applied not only to ordinary legislation but also to an amendment of the Constitution.

(b) Golak Nath’s [1967] INSC 45; (1967) 2 S.C.R. 762 case did not decide whether Article 13(2) can be amended under Article 368 or determine the exact meaning of the expression “amendment of this Constitution” in Article 368.

(c) The expression “amendment of this Constitution” does not enable Parliament to abrogate or take away, fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity. Within these limits Parliament can amend every article.

(d) The Constitution (Twenty-fourth Amendment) Act, 1971, as interpreted by me, has been validly enacted.

(e) Article 368 does not enable Parliament in its constituent capacity to delegate its function of amending the Constitution to another legislature or to itself in its ordinary legislative capacity.

(f) Section 2 of the Constitution (Twenty-fifth Amendment) Act, 1971, as interpreted by me, is valid.

(g) Section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is void as it delegates power to legislatures to amend the Constitution.

(h) The Constitution (Twenty-Ninth Amendment) Act, 1971 is ineffective to protect the impugned Acts if they abrogate or take away fundamental rights. The Constitution Bench will decide whether the impugned Acts take away fundamental rights or only abridge them, and in the latter case whether they effect reasonable abridgements in the public interest.

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

508. The cases are remitted to the Constitution Bench to be decided in accordance with this judgment, and the law. The parties will bear their own costs.

Shelat and Grover, JJ.

509. All the six writ petitions involve common questions as to the validity of the 24th, 25th and 29th amendments to the Constitution. It is not necessary to set out the facts which have already been succinctly stated in the judgment of the learned Chief Justice.

510. It was considered, when the larger bench was constituted, that the decision of the questions before us would hinge largely on the correctness or otherwise of the decision of this court in I.C. Golak Nath and Ors. v. State of Punjab and Anr. [1967] INSC 45; [1967] 2 S.C.R. 762, according to which it was held, by majority, that Article 13(2) of the Constitution was applicable to Constitutional amendments made under Article 368 and that for that reason the fundamental rights in Part III could not be abriged in any manner or taken away. The decision in Golak Nath has become academic, for even on the assumption that the majority decision in that case was not correct, the result on the questions now raised before us, in our opinion, would just be the same. The issues that have been raised travel far beyond that decision and the main question to be determined now is the scope, ambit and extent of the amending power conferred by Article 368. On that will depend largely the decision of the other matters arising out of the 25th and the 29th amendments.

511. The respective positions adopted by learned Counsel for the parties diverge widely and are irreconcilable. On the side of the petitioners, it is maintained inter alia that the power of the amending body (Parliament) under Article 368 is of a limited nature. The Constitution gave the Indian citizens the basic freedoms and a polity or a form of government which were meant to be lasting and permanent. Therefore, the amending power does not extend to alteration or destruction of all or any of the essential features, basic elements and fundamental principles of the Constitution which power, it is said, vests in the Indian people alone who gave the Constitution to themselves, as is stated in its Preamble.

512. The respondents, on the other hand, claim an unlimited power for the amending body. It is claimed that it has the full constituent power which a legal sovereign can exercise provided the conditions laid down in Article 368 are satisfied. The content and amplitude of the power is so wide that, if it is so desired, all rights contained in Part III (Fundamental Rights) such as freedom of speech and expression; the freedom to form associations or unions and the various other freedoms guaranteed by Article 19(1) as also the right to freedom of religion as contained in Articles 25 to 28 together with the protection of interests of minorities (to mention the most prominent ones) can be abrogated and taken away. Similarly, Article 32 which confers the right to move this Court, if any fundamental right is breached, can be repealed or abrogated. The directive principles in Part IV can be altered drastically or even abrogated. It is claimed that democracy can be replaced by any other form of government which may be wholly undemocratic, the federal structure can be replaced by a unitary system by abolishing all the States and the right of judicial review can be completely taken away. Even the Preamble which declares that the People of India gave to themselves the Constitution, to constitute India into a Sovereign Democratic Republic for securing the great objectives mentioned therein can be amended; indeed it can be completely repealed. Thus, according to the respondents, short of total abrogation or repeal of the Constitution, the amending body is omnipotent under Article 368 and the Constitution can, at any point of time, be amended by way of variation, addition or repeal so long as no vacuum is left in the governance of the country.

513. These petitions which have been argued for a very long time raise momentus issues of great Constitutional importance. Our Constitution is unique, apart from being the longest in the world. It is meant for the second largest population with diverse people speaking different languages and professing varying religions. It was chiselled and shaped by great political leaders and legal luminaries, most of whom, had taken an active part in the struggle for freedom from the British yoke and who knew what domination of a foreign rule meant in the way of deprivation of basic freedoms and from the point of view of exploitation of the millions of Indians. The Constitution is an organic document which must grow and it must take stock of the vast socioeconomic problems, particularly, of improving the lot of the common man consistent with his dignity and the unity of the nation.

514. We may observe at the threshold that we do not propose to examine the matters raised before us on the assumption that Parliament will exercise the power in the way claimed on behalf of the respondents nor did the latter contend that it will be so done. But while interpreting Constitutional provisions it is necessary to determine their width or reach in fact the area of operation of the power, its minimum and maximum dimensions cannot be demarcated or determined without fully examining the rival claims. Unless that is done, the ambit, content, scope and extent of the amending power cannot be properly and correctly decided.

515. For our purposes it is not necessary to go prior to the year 1934. It was in that year that the Indian National Congress made the demand for a Constituent Assembly as part of its policy. This demand was repeated in the Central Legislative Assembly in 1937 by the represetatives of the Congress. By what is known as the Simla Conference 1945 the Congress repeated its stand that India could only accept the Constitution drawn by the people. After the end of World War II the demand was put forward very strongly by the Indian leaders including Mahatma Gandhi. Sir Stratford Cripps representing Britain had also accepted the idea that an elected body of Indians should frame the Indian Constitution.(The facts have been taken mainly from the Indian Constitution, Cornerstone of a Nation, by Granville Austin). In September 1945 the newly elected British Labour Government announced that it favoured the creation of a constituent body in India.

Elections were to be held so that the newly elected provincial legislatures could act as electoral bodies for the Constituent Assembly. A parliamentary delegation was sent to India in January 1946 and this was followed by what is known as the Cabinet Mission.

There were a great deal of difficulties owing to the differences between the approach of the Indian National Congress and the Muslim League led by Mr. M.A. Jinnah. The Cabinet Mission devised a plan which was announced on May 16, 1946. By the end of June, both the Muslim League and the Congress had accepted it with reservations. The Constituent Assembly was elected between July-August 1946 as a result of the suggestion contained in the statement of the Cabinet Mission. The Attlee Government’s efforts to effect an agreement between the Congress and the Muslim League having failed, the partition of the country came as a consequence of the declaration of the British Government on June 3, 1947. As a mult of that declaration certain changes took place in the Constituent Assembly. There was also readjustment of representation of Indian States from time to time between December 1946 and November 1949. Many Smaller States merged into the provinces, many united to from union of States and some came to be administered as commissioner’s provinces. There was thus a gradual process by which the Constituent Assembly became fully representative of the various communities and interests, political, intellectual, social and cultural. It was by virtue of Section 8 of the Indian Independence Act 1947 that the Constituent Assembly was vested with the legal authority to frame a Constitution for India.

516. The first meeting of the Constituent Assembly took place on December 9, 1946 when the swearing in of members and election of a temporary president to conduct the business until the installation of a permanent head, took place. On December 13, 1946 Pandit Jawahar Lal Nehru moved the famous “Objectives Resolution” giving an outline, aims and objects of the Constitution. This resolution was actually passed on January 22, 1947 by all members of the Constituent Assembly (standing) and it declared among other matters that all power and authority of the sovereign Independent India, its constituent parts and organs of Government are derived from the people. By November 26, 1949 the deliberations of the Constituent Assembly had concluded and the Constitution had been framed. As recited in the Preamble it was on that date that the people of India in the Constituent Assembly adopted, enacted and gave to themselves “this Constitution” which according to Article 393 was to be called “The Constitution of India”. In accordance with Article 394 that Article and the other Articles mentioned therein were to come into force at once but the remaining provisions of the Constitution were to come into force on the 26th day of January 1950.

517. Before the scheme of the Constitution is examined in some detail it is necessary to give the pattern which was followed in framing it. The Constituent Assembly was unfettered by any previous commitment in evolving a Constitutional pattern “suitable to the genius and requirements of the Indian people as a whole”. The Assembly had before it the experience of the working of the Government of India Act 1935, several features of which could be accepted for the new Constitution. Our Constitution borrowed a great deal from the Constitutions of other countries, e.g. United Kingdom, Canada, Australia, Ireland, United States of America and Switzerland. The Constitution being supreme all the organs and bodies owe their existence to it. None can claim superiority over the other and each of them has to function within the four-corners of the Constitutional provisions.

The Preamble embodies the great purposes, objectives and the policy underlying its provisions apart from the basic character of the State which was to come into existence i.e. a Sovereign Democratic Republic. Parts III and IV which embody the fundamental rights and directive principles of state policy have been described as the conscience of the Constitution(The Indian Constitution by Granville Austin p. 50) The legislative power distributed between the Union Parliament and the State Legislatures cannot be so exercised as take away or abridge the fundamental rights contained in Part III. Powers of the Union and the States are further curtailed by conferring the right to enforce fundamental rights contained in Part III by moving the Supreme Court for a suitable relief See generally, Kania C.J. in A.K. Gopalan v. The State [1950] INSC 14; [1950] S.C.R. 88 at pp. 96-97, Article 32 itself has been constituted a fundamental right. Part IV containing the directive principles of State policy was inspired largely by similar provisions in the Constitution of the Eire Republic (1937). This Part, according to B.N. Rao; is like an Instrument of Instructions from the ultimate sovereign, namely, the people of India (B.N. Rao, India’s Constitution in the Making p. 393). The Constitution has all the essential elements of a federal structure as was the case in the Government of India Act 1935, the essence of federalism being the distribution of powers between the federation or the Union and the States or, the provinces. All the legislatures have plenary powers but these are controlled by the basic concepts of the Constitution itself and they function within the limits laid down in it Per Gajendragadkar C.J. in Special Reference No. 1 of 1964, [1965] 1 S.C.R.

OFFICE TIMINGS
Monday to Saturday 10:00 am to 06:00 pm.
Sundays and Holidays Reserved for urgent & prior appointments.

Related Landmark Judgments

Contempt notices to striking lawyers in J&K

Jammu and Kashmir High Court  Year : 2019

Kesavananda Bharati vs. State of Kerala (Part IV)

Supreme Court of India  Year : 1973

Miss Mohini Jain vs State of Karnataka And Ors

Supreme Court of India  Year : 1992