ns Nos 31 50 52 54 81 and 82 of 1964
Petitions under article 32 of the Constitution of India for the enforcement of Fundamental Rights
R Gopalakrishnan for the petitioners in WP Nos 31 and 52 of 1964
G C Kasliwal Advocate General State of Rajasthan K K Jain for W P No 31 of 1964 only and R N Sachthey for the respondent in W P Nos 31 and 52 of 1964
C K Daphtary Attorney General and R H Dhebar for the Union of India
M C Setalvad J B Dadachanji O C Mathur and Ravinder Narain for intervener No 1
G section Pathak J B Dadachanji O C Mathur and Ravinder Narain for intervener No 2
Dipak Dutta Chaudhuri and A K Nag for the petitioners in W P No 50 of 1964
B K Khanna and R N Sachthey for the respondent in W P No 50 1964
section K Mehta K L Mehta for the petitioners in W P No 54 of 1964
B K Khanna and R N Sachthey for respondents Nos1 to 3 in W P No 54 of 1964
R V section Mani for the petitioners in W P Nos 81 and 82 of 1964
937 C K Daphtary Attorney General B Sen and R H Dhebar for respondent No 1 W P No 81 of 1964
C K Daphtary Attorney General R K P Shankardass and R H Dhebar for respondent No 1 in W P No 82 of 1964
N Krishnaswamy Reddy Advocate General State of Madras A Ranganadham Chetty and A V Rangam for respondent No 2 in W P Nos 81 and 82 1964
K section Chawla and R V section Mani for intervener No 3
The Judgment of P B GAJENDRAGADKAR CJ K  N WANCHOO and RAGHUBAR DAYAL JJ was delivered by GAJENDRAGADKAR CJ M HIDAYATULLAH and J R MUDHOLKAR JJ
delivered separate judgments
Gajendragadkar CJ
These six writ petitions which have been filed under article 32 of the Constitution seek to challenge the validity of the Constitution 17th Amendment Act 1964
The petitioners are affected by one or the other of the Acts added to the 9th Schedule by the impugned Act and their contention is that the impugned Act being constitutionally invalid the validity of the Acts by which they are affected cannot be saved
Some other parties who are similarly affected by other Acts added to the 9th Schedule by the impugned Act have intervened at the hearing of these writ petit ions and they have joined the petitioners in contending that the impugned Act is invalid
The points raised in the present proceedings have been elaborately argued before us by Mr Setalvad and Mr Pathak for the interveners and Mr Mani for the petitioners
We have also heard the Attorney General in reply
The impugned Act consists of three sections
The first section gives its short title
Section 2i adds a proviso to cl
1 of article 31A after the existing proviso
This proviso reads thus Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto unless the law relating to the acquisition of such land building or structure provides for payment of compensation at a rate which shall not be less than the market value thereof
938 Section 2 ii substitutes the following sub clause for sub cl
a of cl
2 of article 31A a the expression estate shall in relation to any local area have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include i any jagir inam or muafi or other similar grant and in the States of Madras and Kerala any janmam right ii any land held under ryotwari settlement iii any land held or let for purposes of agriculture or for purposes ancillary thereto including waste land forest land land for pasture or sites of buildings and other structures occupied by cultivators of land agricultural labourers and village artisans
Section 3 amends the 9th Schedule by adding 44 entries to it
That is the nature of the provisions contained in the impugned Amendment Act
In dealing with the question about the validity of the impugned Act it is necessary to consider the scope and effect of the provisions contained in article 368 of the Constitution because a large part of the controversy in the present writ petitions turns upon the decision of the question as to what the true scope and effect of article 368 is
Let us read article 368  368
An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting it shall be presented to the President for his assent and upon such assent being given to the Bill the Constitution shall stand amended in accordance with the terms of the Bill  Provided that if such amendment seeks to make any change in a Article 54 Article 55 Article 73 Article 162 or Article 241 or b Chapter IV of Part V Chapter V of Part VI or Chapter 1 of Part XI or 939 c any of the Lists in the Seventh Schedule or d the representation of States in Parliament or e the provisions of this Article the amendment shall also require to be ratified by the Legislatures of not less than one half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent
It would thus appear that the broad scheme of article 368 is that if Parliament proposes to amend any provision of the Constitution not enshrined in the proviso the procedure prescribed by the main part of the Article has to be followed
The Bill introduced for the purpose of making the amendment in question has to be passed in each House by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting
This requirement postulates that a bill seeking to amend the relevant provisions of the Constitution should receive substantial support from members of both the Houses
That is why a two fold requirement has been prescribed in that behalf
After the bill is passed as aforesaid it has to be presented to the President for his assent and when he gives his assent the Constitution shall stand amended in accordance with the terms of the bill
That is the position in regard to the amendment of the provisions of the Constitution to which the proviso does not apply
If Parliament intends to amend any of the provisions of the Constitution which are covered by clauses a to e of the proviso there is a further requirement which has to be satisfied before the bill car
be presented to the President for his assent
Such a bill is required to be ratified by the Legislatures of not less than one half of the States by Resolutions to that effect passed by them
In other words in respect of the Articles covered by the proviso the further safeguard prescribed by the proviso is that the intended amendment should receive the approval of the Legislatures of not less than one half of the States
That means that at least half of the States constituting the Union of India should by a majority vote approve of the proposed amendment
It is obvious that the fundamental rights enshrined in Part III are not included in the proviso and so if Parliament intends to amend any of the provisions contained in Articles 12 to 35 which are included in Part III it is not necessary to take recourse to the proviso and to satisfy the additional requirements prescribed by it
940 Thus far there is no difficulty
But in considering the scope of article 368 it is necessary to remember that article 226 which is included in Chapter V of Part VI of the Constitution is one of the constitutional provisions which fall under cl
b of the proviso and so it is clear that if Parliament intends to amend the provisions of article 226 the bill proposing to make such an amendment must satisfy the requirements of the proviso
The question which calls for our decision is  what would be the requirement about making an amendment in a constitutional provision contained in Part III if as a result of the said amendment the powers conferred on the High Courts under article 226 are likely to be affected  The petitioners contend 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 and that raises 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
In our opinion the two parts of article 368 must on a reasonable construction be harmonised with each other in the sense that the scope and effect of either of them should not be allowed to be unduly reduced or enlarged
It is urged that any amendment of the fundamental rights contained in Part III would inevitably affect the powers of the High Court prescribed by article 226 and as such the bill proposing the said amendment cannot fall under the proviso otherwise the very object of not including Part III under the proviso would be defeated
When the Constitution makers did not include Part III under the proviso it would be reasonable to assume that they took the view that the amendment of the provisions contained in Part III was a matter which should be dealt with by Parliament under the substantive provisions of article 368 and not under the proviso
It has no doubt been suggested that the Constitution makers perhaps did not anticipate that there would be many occasions to amend the fundamental rights guaranteed by Part M
However that may be as a matter of construction there is no escape from the conclusion that 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
It is true that as a result of the amendment of the fundamental rights the area over which the powers prescribed by article 226 would operate may be reduced but apparently the Constitution makers took the view that the diminution in the area 941 over which the High Courts  powers under article 226 operate would not necessarily take the case under the proviso
On the other hand if the substantive part of article 368 is very liberally and generously construed and it is held that even substantial modification of the fundamental rights which may make a very serious and substantial inroad on the powers of the High Courts under article 226 can be made without invoking the proviso it may deprive cl
b of the proviso of its substance
In other words in construing both the parts of article 368 the rule of harmonious construction requires that if the direct effect of the amendment of fundamental rights is to make a substantial inroad on the High Courts  powers under article 226 it would become neces sary to consider whether the proviso would cover such a case or not
If the effect of the amendment made in the fundamental rights on the powers of the High Courts prescribed by article 226 is indirect incidental or is otherwise of an insignificant order it may be that the proviso will not apply
The proviso would apply where the amendment in question seeks to make any change inter alia in article 226
and the question in such a case would be  does the amendment seek to make a change in the provisions of article 226  The answer to this question would depend upon the effect of the amendment made in the fundamental rights
In dealing with constitutional questions of this character courts generally adopt a test which is described as the pith and substance test
In Attorney General for Ontario vs Reciprocal Insurers and others1 the Privy Council was called upon to consider the validity of the Reciprocal Insurance Act 1922 12  13 Geo 5 Ont c 62 and section 508c which had been added to the Criminal Code of Canada by sections 7  8 Geo 5 c 29 Dom
Mr Justice Duff who spoke for the Privy Council observed that in an enquiry like the one with which the Privy Council was concerned in that case it has been formally laid down in judgments of this Board that in such an inquiry the Courts must ascertain the true nature and character  of the enactment  Citizens  Insurance Co vs Parsons1 its pith and substance   Union Colliery Co vs Bryden3 and it is the result of this investigation not the form alone which the statute may have assumed under the hand of the draughtsman that will determine within which of the categories of subject matters mentioned in sections 91 and 92 the legislation falls and for this purpose the legislation must be scrutinised in its entirety  Great West Saddlery Co vs The King 4
It is not 1 2 1881 7 App
Cas 96
3 4  117 942 necessary to multiply authorities in support of the proposition that in considering the constitutional validity of the impugned Act it would be relevant to inquire what the pith and substance of the impugned Act is
This legal position can be taken to be established by the decisions of this Court which have consistently adopted the view expressed by Justice Duff to which we have just referred
What then is the pith and substance of the impugned Act  For answering this question it would be necessary to recall very briefly the history of Articles 31A and 31B Articles 31A and 3 1 B were added to the Constitution with retrospective effect by section 4 of the Constitution First Amendment Act 1951
It is a matter of general knowledge that it became necessary to add these two provisions in the Constitution because it was realised that legislative measures adopted by certain States for giving effect to the policy of agrarian reform which was accepted by the party in power had to face a serious challenge in the courts of law on the ground that they contravened the fundamental rights guaranteed to the citizens by Part III
These measures had been passed in Bihar Uttar Pradesh and Madhya Pradesh and their validity was impeached in the High Courts in the said three States
The High Court of Patna held that the relevant Bihar legislation was unconstitutional whilst the High Courts at Allahabad and Nagpur upheld the validity of the corresponding legislative measures passed in Uttar Pradesh and Madhya Pradesh respectively
See Kameshwar vs State of Bihar1 and Surya Pal vs U P Government1
The parties aggrieved by these respective decisions had filed appeals by special leave before the Supreme Court
At the same time petitions had also been preferred before the Supreme Court under article 32 by certain other zamindars seeking the determination of the same issues
It was at this stage that Parliament thought it necessary to avoid the delay which would necessarily have been involved in the final decision of the disputes pending before the Supreme Court and introduced the relevant amendments in the Constitution by adding Articles 31A and 31B Mat was the first step taken by Parliament to assist the process of legislation to bring about agrarian reform by introducing Articles 31A and 31B
The second step in the same direction was taken by Parlia ment in 1955 by amending article 31A by the Constitution Fourth Amendment Act 1955
The object of this amendment was to widen the scope of agrarian reform and to confer on the legislative measures adopted in that behalf immunity from a possible attack 1 AIR 1951 Pat 91
2 AIR 1951 AU
674 943 that they contravened the fundamental rights of citizens
In other words this amendment protected the legislative measures in respect of certain other items of agrarian and social welfare legislation which affected the proprietary rights of certain citizens
That is how the second amendment was made by Parliament
At the time when the first amendment was made article 31B expressly provided that none of the Acts and Regulations specified in the 9th Schedule nor any of the provisions thereof shall be deemed to be void or ever to have become void on the ground that they were inconsistent with or took away or abridged any of the rights conferred by Part III and it added that notwithstanding any judgment decree or order of any Court or tribunal to the contrary each of the said Acts and Regulations shall subject to the power of any competent legislature to repeal or amend continue in force
At this time 19 Acts were listed in Schedule 9 and they were thus effectively validated
One more Act was added to this list by the Amendment Act of 1955 so that as a result of the second amendment the Schedule contained 20 Acts which were validated
It appears that notwithstanding these amendments certain other legislative measures adopted by different States for the purpose of giving effect to the agrarian policy of the party in power were effectively challenged
For instance in Karimbil Kunhikoman vs State of Kerala1 the validity of the Kerala Agrarian Relations Act IV of 1961 was challenged by writ petitions filed under article 32 and as a result of the majority decision of this Court the whole Act was struck down
This decision was pronounced on December 5 1961
In A P Krishnaswami Naidu etc
vs The State of Madras 2 the constitutionality of the Madras Land Reforms Fixation of Ceiling on Land Act No 58 of 1961 was put in issue and by the decision of this Court pronounced on March 9 1964 it was declared that the whole Act was invalid
It appears that the Rajasthan Tenancy Act HI of 1955 and the Maharashtra Agricultural Lands Ceiling and Holdings Act 27 of 1961 have been similarly declared invalid and in consequence Parliament thought it necessary to make a further amendment in article 31B so as to save the validity of these Acts which had been struck down and of other similar Acts which were likely to be struck down if challenged
With that object in view the impugned Act hasenpfeffer s3 by which 44 Acts have been added to Schedule 9
If the impugned Act is held to be valid and the amendment made 1 1962 Supp 1 SCR 829
2 19647 SCR 82 944 in the Schedule is found to be effective these 44 Acts would have to be treated as valid
Thus it would be seen that the genesis of the amendments made by Parliament in 1951 by adding Articles 31A and 31B to the Constitution clearly is to assist the State Legislatures in this country to give effect to the economic policy in which the party in power passionately believes to bring about much needed agrarian reform
It is with the same object that the second amendment was made by Parliament in 1955 and as we have just indicated the object underlying the amendment made by the impugned Act is also the same
Parliament desires that agrarian reform in a broad and comprehensive sense must be introduced in the interests of a very large section of Indian citizens who live in villages and whose financial prospects are integrally connected with the pursuit of progressive agrarian policy
Thus if the pith and substance test is applied to the amendment made by the impugned Act it would be clear that Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfilment of the socioeconomic policy in which the party in power believes
If that be so the effect of the amendment on the area over which the High Courts  powers prescribed by article 226 operate is incidental and in the present case can be described as of an insignificant order
The impugned Act does not purport to change the provisions of article 226 and it cannot be said even to have that effect directly or in any appreciable measure
That is why we think that the argument that the impugned Act falls under the proviso cannot be sustained
It is an Act the object of which is to amend the relevant Articles in Part III which confer fundamental rights on citizens and as such it falls under the substantive part of article 368 and does not attract the provisions of cl
b of the proviso
If the effect of the amendment made in the fundamental rights on article 226 is direct and not incidental and is of a very significant order different considerations may perhaps arise
But in the present case there is no occasion to entertain or weigh the said considerations
Therefore the main contention raised by the petitioners and the interveners against the validity of the impugned Act must be rejected
Then it is urged that the true purpose and object of the impugned Act is to legislatein respect of land and legislation in respect of land falls within the jurisdiction of the State Legislatures under Entry 18 of List II
The argument is that since the State Legislatures alone can make laws in respect of land Parliament had no right to pass the impugned Act
This argument is 945 based on the assumption that the impugned Act purports to be and in fact is a piece of land legislation
The same argument is placed before us in another form
It is urged that the scheme of Articles 245 and 246 of the Constitution clearly shows that Parliament has no right to make a law in respect of land and since the impugned Act is a legislative measure in relation to land it is invalid
This argument in our opinion is misconceived
In dealing with this argument again the pith and substance test is relevant
What the impugned Act purports to do is not to make any land legislation but to protect and validate the legislative measures in respect of agrarian reforms passed by the different State Legislatures in the country by granting them immunity from attack based on the plea that they contravene fundamental rights
Parliament in enacting the impugned Act was not making any provisions of land legislation
It was merely validating land legislations already passed by the State Legislatures in that behalf
It is also urged that inasmuch as the impugned Act purports in substance to set aside the decisions of courts of competent jurisdiction by which some of the Acts added to the Ninth Schedule have been declared to be invalid it is unconstitutional
We see no substance in this argument
It is hardly necessary to emphasize that legislative power to make laws in respect of areas entrusted to the legislative jurisdiction of different legislative bodies can be exercised both prospectively and retrospectively
The constituent power conferred by article 368 on the Parliament can also be exercised both prospectively and retrospectively
On several occasions legislatures think it necessary to validate laws which have been declared to be invalid by Courts of competent jurisdiction and in so doing they have necessarily to provide for the intended validation to take effect notwithstanding any judgment decree or order passed by a court of competent jurisdiction to the contrary
Therefore it would be idle to contend fiat by making the amendment retrospective the impugned Act has become constitutionally invalid
It has also been contended before us that in deciding the question as to whether the impugned Act falls under the proviso we should take into account the operative words in the proviso
The proviso takes in cases where the amendment sought to be made by the relevant bill seeks to make any change in any of the Articles specified in clauses a to e of the proviso and it is urged that on a fair reading of clauses b and c it would follow that the impugned Act purports to do nothing else but to seek to amend the provisions contained in article 226
It is not 946 easy to appreciate the strength or validity of this argument
This argument is really based on the assumption that the legislative mechanism adopted by the Parliament in passing the impugned Act introduces this infirmity
The argument obviously assumes that it would have been open to Parliament to make appropriate changes in the different Articles of Part III such as Articles 14 and 19 and if such a course had been adopted the impugned Act would have been constitutionally valid
But inasmuch as the impugned Act purports to amend only articles 31A and 31B and seeks to add several Acts to the Ninth Schedule it does not amend any of the provisions in Part III but is making an independent provision and that it is said must take the case within the scope of the proviso
It is clear that what the impugned Act purports to do is to amend article 3 1 A and Article 3 1 A itself is included in Part III
If Parliament thought that instead of adopting the cumbersome process of amending each relevant Article in Part III it would be more appropriate to add Articles 3 1 A and 3 1 B and on that basis it passed the material provisions of the Constitution First Amendment Act it would not be reasonable to suggest that this method brings the amendment within the proviso
What the Parliament did in 1951 has afforded a valid basis for further amendments made in 1955 and now in 1964
It would be clear that though the arguments which have been urged before us in the present proceedings have been put in different forms basically
they involve the consideration of the main question whether the  impugned Act falls within the scope of the proviso or not and the answer to this question in our opinion has to be against the petitioners by the application of the doctrine of pith and substance
Then it is urged that the power to amend which is conferred by article 368 does not include the power to take away the fundamental rights guaranteed by Part III
The contention is that the result of the material provisions of the impugned Act is to take away a citizen s right to challenge the validity of the Acts added to the Ninth Schedule and that means that in respect of the said Acts the relevant fundamental rights of the citizens are taken away
We do not think there is any substance in this argument
it is true that the dictionary meaning of the word amend is to correct a fault or reform but in the context reliance on the dictionary meaning of the word is singularly inappropriate
because what article 368 authorises to be done is the amendment of the provisions of the Constitution
It is well known that the amendment of a law may in a proper case include the deletion of any one or more of the provisions of the law and substitution in their 947 place of new provisions
Similarly an amendment of the Constitution which is the subject matter of the power conferred by article 368 may include modification or change of the provisions or even an amendment which makes the said provisions inapplicable in certain cases
The power to amend in the context is a very wide power and it cannot be controlled by the literal dictionary meaning of the word amend
The question about the validity of the Constitution First Amendment Act has been considered by this Court in Sri Sankari Prasad Singh Deo vs Union of India and State of Bihar1
In that case the validity of the said Amendment Act was challenged on several grounds
One of the grounds was that the newly inserted Articles 31A and 31B sought to make changes in Articles 132 and 136 in Chapter IV of Part V and article 226 in Chapter V of Part VI and so they required ratification under cl
b of the proviso to article 368
This contention was rejected by this Court
Patanjali Sastri J as he then was who spoke for the unanimous Court observed that the said Articles did not either in terms or in effect seek to make any change in article 226 or in Articles 132 and 136 and he added that it was not correct to say that the powers of the High Courts under article 226 to issue writs for the enforcement of any of the rights conferred by Part HI or of this Court under Articles 132 and 136 to entertain appeals from orders issuing or refusing to issue such writs were in any way affected
In the opinion of the Court the_ said powers remained just the same as they were before only a certain class of cases had been excluded from the purview of Part Ill The fact that the courts could not exercise their powers in respect of the said class of cases did not show that the powers of the courts were curtailed in any way or to any extent
It only meant that certain area of in which the said powers could have been exercised had been withdrawn
Similarly the argument that the amendments were invalid because they related to legislation in respect of land was also rejected on the ground that the impugned Articles 31A and 31B were essentially amendments of the Constitution which Parliament alone had the power to make
It would thus appear that in substance the points urged before us in the present proceedings are really concluded by the decision of this Court in Sankari Prasad s case1
It was however urged before us during the course of the hearing of these writ petitions that we should reconsider the matter and review our earlier decision in Sankari Prasad s case
It is true that the Con 1  Supp165 948 stitution does not place any restriction on our powers to review our earlier decisions or even to depart from them and there can be no doubt that in matters relating to the decision of constitutional points which have a significant impact on the fundamental rights of citizens we would be prepared to review our earlier decisions in the interest of public good
The doctrine of stare decisis may not strictly apply in this context and no one can dispute the position that the said doctrine should not be pemiitted to perpetuate erroneous decisions pronounced by this Court to the detri ment of general welfare
Even so the normal principle that judgments pronounced by this Court would be final cannot be ignored and unless considerations of a substantial and compelling character make it necessary to do so we should be slow to doubt the correctness of previous decisions or to depart from them
It is universally recognised that in regard to a large number of constitutional problems which are brought before this Court for its decision complex and difficult questions arise and on many of such questions two views are possible
Therefore if one View has been taken by this Court after mature deliberation the fact that another Bench is inclined to take a different view may not justify the Court in reconsidering the earlier decision or in departing from it
The problem of construing constitutional provisions cannot be reasonably solved merely by adopting a literal construction of the words used in the relevant provisions
The Constitution is an organic document and it is intended to serve as a guide to the solution of changing problems which the Court may have to face from time to time
Naturally in a progressive and dynamic society the shape and appearance of these problems are bound to change with the inevitable consequence that the relevant words used in the Constitution may also chance their meaning and significance
That is what makes the task of dealing with constitutional problems dynamic rather than static
Even so the Court should be reluctant to accede to the suggestion that its earlier decisions should be lightheartedly reviewed and departed from  In such a case the test should be  is it absolutely necessary and essential that the question already decided should be re opened  The answer to this question would depend on the nature of the infirmity alleged in the earlier decision its impact on public good and the validity and compelling character of the considerations urged in support of the contrary view
If the said decision has been followed in a large number of cases that again is a factor which must be taken into account
In the present case if the arguments urged by the petitioners 949 were to prevail it would lead to the inevitable consequence that the amendments made in the Constitution both in 1951 and 1955 would be rendered invalid and a large number of decisions dealing with the validity of the Acts included in the Ninth Schedule which have been pronounced by different High Courts ever since the decision of this Court in Sankari Prasad s1 case was declared would also be exposed to serious jeopardy
These are consideration which are both relevant and material in dealing with the plea urged by the petitioners before us in the present proceedings that Sankari Prasad s case should be re considered
In view of the said plea however we have deliberately chosen to deal with the merits of the contentions before referring to the decision itself
In our opinion the plea made by the petitioners for reconsidering Sankari Prasad s case is wholly unjustified and must be rejected
In this connection we would like to refer to another aspect of the matter
As we have already indicated the principal point which has been urged before us in these proceedings is that the impugned Act is invalid for the reason that before presenting it to the President for his assent the procedure prescribed by the proviso to article 368 has not been followed though the Act was one which fell within the scope of the proviso
In other words it was not disputed before us that article 368 empowers Parliament to amend any provision of the Constitution including the provisions in respect of the fundamental rights enshrined in Part M
The main contention was that in amending the relevant provisions of the Constitution the procedure prescribed by the proviso should have been followed
But it appears that in Sankari Prasad s case another argument was urged before this Court in challenging the validity of the Constitution First Amendment Act and since we are expressing our concurrence with the said decisions we think it is necessary to refer to the said argument and deal with it even though this aspect of the matter has not been urged before us in the present proceedings
In Sankari Prasad s case it was contended that though It may be open to Parliament to amend the provisions in respect of the fundamental rights contained in Part III the amendment if made In that behalf would have to be tested in the light of the provisions contained in article 132 of the Constitution
The argument was that the law to which article 132 applies would include a law passed by Parliament by virtue of its constituent power to amend  the Constitution and so its validity will have to be tested by article 132 itself
It will be recalled that article 132 prohibits 1  950 the State from making any law which takes away or abridges the rights conferred by Part III and provides that any law made in contravention of clause 2 shall to the extent of the contravention be void
In other words it was urged before this Court in Sankari Prasad s1 case that in considering the question as to the validity of the relevant provisions of the Constitution First Amendment Act it would be open to the party challenging the validity of the said Act to urge that in so far as the Amendment Act abridges or takes away the fundamental rights of the citizens it is void
This argument was however rejected by this Court on the ground that the word law used in article 13 must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power with the result
that article 13 2 does not affect amendments made under article 368
It is significant that Patanjali Sastri J as he then was who spoke for the Court described as attractive the argument about the applicability of article 13 2 to Constitution Amendment Acts passed under article 368 examined it closely and ultimately rejected it
It was noticed in the judgment that certain constitutions make certain rights eternal and inviolate and by way of illustration reference was made to article 11 of the Japanese Constitution and article 5 of the American
Federal Constitution
It was also noticed that the word law in its literal sense may include constitutional law but it was pointed out that there is a clear demarcation between ordinary law which is made in exercise of legislative power and constitutional law which is made in exercise of constituent power
The scheme of the relevant provisions of the Constitution was then examined and ultimately the Court reached the conclusion that though both Articles 13 and 368 are widely phrased the harmonious rule of construction requires that the word law in article 13 should be taken to exclude law made in exercise of the constituent power
In our opinion this conclusion is right and as we are expressing our full concurrence with the decision in Sankari Prasad s1 case we think it is necessary to indicate our reasons for agreeing with the conclusion of the Court on this point even though the coffectness of this conclusion has not been questioned before us in the course of arguments
If we had felt a real difficulty in accepting this part of the conclusion we would have seriously considered the question as to whether the matter should not be referred to a larger Bench for a further examination of the problem
1  951 The first point which falls to be considered on this aspect of the matter is the construction of article 368 itself
Part XX which contains only article 368 is described as a Part dealing with the Amendment of the Constitution and article 368 which prescribes the procedure for amendment of the Constitution begins by saying that an amendment of this Constitution may be initiated in the manner there indicated
In our opinion the expression amendment of the Constitution plainly and unambiguously means amendment of all the provisions of the Constitution
It would we think be unreasonable to suggest that what article 368 provides is only the mechanics of the procedure to be followed in amending the Constitution without indicating which provisions of the Constitution can be amended and which cannot
Such a restrictive construction of the substantive part of article 368 would be clearly untenable
Besides the words used in the proviso unambiguously indicate that the substantive part of the article applies to all the provisions of the Constitution
It is on that basic assump tion that the proviso prescribes a specific procedure in respect of the amendment of the articles mentioned in clauses a to e thereof
Therefore we feel no hesitation in holding that when article 368 confers on Parliament the right to amend the Constitution the power in question can be exercised over all the provisions of the Constitution
How the power should be exercised has to be determined by reference to the question as to whether the proposed amendment falls under the substantive part of article 368 or attracts the provisions of the proviso
It is true that article 132 refers to any law in general and literally construed the word law may take in a law made in exercise of the constituent power conferred on Parliament but having regard to the fact that a specific unqualified and unambiguous power to amend the Constitution is conferred on Parliament it would be unreasonable to hold that the word law in article 13 2 takes in Constitution Amendment Acts passed under article 368
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
Besides it seems to us very unlikely that while conferring the power on Parliament to amend the Constitution it was the intention of the Constitutionmakers to exclude from that comprehensive power fundamental rights altogether
There is no doubt that if the word law used in article 132 includes a law in relation to the amendment of the 952 Constitution fundamental rights can never be abridged or taken away because as soon as it is shown that the effect of the amendment is to take away or abridge fundamental rights that portion of the law would be void under article 13 2
We have no doubt that such a position could not have been intended by the Constitution makers when they included article 368 in the Constitution
In construing the word law occurring in article 132 it may be relevant to bear in mind that in the words of Kania CJ in A K Gopalan vs The State of Madras1 the inclusion of article 13 1 and 2 in the Constitution appears to be a matter of abundant caution
Even in their absence if any of the fundamental rights was infringed by any legislative enactment the Court has always the power to declare the enactment to the extent it transgresses the limits invalid
The importance and significance of the fundamental rights must obviously be recognised and in that sense the guarantee to the citizens contained in the relevant provisions of Part III can justly be described as the very foundation and the comer stone of the democratic way of life ushered in this country by the Constitution
But can it be said that the fundamental rights guaranteed to the citizens are eternal and inviolate in the sense that they can never be abridged or amended It is true that in the case of A K Gopalan1 Patanjali Sastri as he then was expressed the view that there can be no doubt that the people of India have in exercise of their sovereign will as expressed in the Preamble adopted the democratic ideal which assures to the citizen the dignity of the individual and other cherished human values as a means to the full evolution and expression of his personality and in delegating to the legislature the executive and the judiciary the irrespective powers in the Constitution
reserved to themselves certain fundamental rights so called I apprehend because they have been retained by the people and made paramount to the delegated powers as in the American model p 198
This hypothesis may prima facie tend to show that the right to amend these fundamental rights vested not in Parliament but in the people of India themselves
But it is significant that when the same learned Judge had occasion to consider this question more elaborately in In re The  1 etc
he has emphatically expressed the view that it is established beyond doubt that the Indian Legislature when acting within the limits circumscribing its legislative power has and was intended to have 1   at p 100
2   at pp
883 84 953 plenary of legislation as large and of the same nature as those of the British Parliament itself and no constitutional limitation on the delegation of legislative power to a subordinate unit is to be found in the Indian Councils Act 1861 or the Government of India Act 1935 or the Constitution of 1950
The suggestion that the legislatures including the Parliament are the delegate of the people of India in whom sovereignty vests was rejected by the learned Judge when he observed that the maxim delegates ten protest delegate  is not part of the Constitutional law of India and has no more force than a political precept to be acted upon by legislatures in the discharge of their function of making laws and the courts cannot strike down an Act of Parliament as unconstitutional merely because Parliament decides in a particular instance to entrust its legislative power to another in whom it has confidence or in other words to exercise such power through its appointed instrumentality however repugnant such entrustment may be to the democratic process
What may be regarded as politically undesirable is constitutionally competent
It would thus appear that so far as our Constitution is concerned it would not be possible to deal with the question about the powers of Parliament to amend the Constitution under article 368 on any theoretical concept of political science that sovereignty vests in the people and the be statures are merely the delegate of the people
Whether or not Parliament has the power to amend the Constitution must depend solely Upon the question as to whether the said power is included in article 368
The question about the reasonableness or expediency or desirability of the amendments in question from a political point of view would be irrelevant in construing the words of article 3 6 8
Incidentally we may also refer to the fact that the Constitutionmakers had taken the precaution to indicate that some amendments should not be treated as amendments of the Constitution for the purpose of article 368
Take for instance article 42 which deals with law made by virtue of article 41
article 42 provides that no such law shall be deemed to be an amendment of the Constitution for the purposes of article 368
Similarly article 1693 provides that any law in respect of the amendment of the existing legislative apparatus by the abolition or creation of Legislative Councils in State  shall not be deemed to be an amendment of the Constitution for the purposes of article 368
In other words laws falling within the purview of Articles 42 and 1693 need not be passed subject to the restrictions imposed by article 368 even though
in effect they may amount to the amendment of the relevant provisions of the Constitution
If the Constitution makers took the 954 precaution of making this specific provision to exclude the applicability of article 368 to certain amendments it would be reasonable to assume that they would have made a specific provision if they had intended that the fundamental rights guaranteed by Part HI should be completely outside the scope of article 368
Apart from the fact that the words used in article 368 are clear and unambiguous in support of the view that we are taking on principle also it appears unreasonable to suggest that the Constitution makers wanted to provide that fundamental rights guaranteed by the Constitution should never be touched by way of amendment
It must not be forgotten that the fundamental rights guaranteed by article 19 for instance are not absolute the scheme of this article itself indicates that the fundamental rights guaranteed by subclauses a to g of clause 1 can be validly regulated in the light of the provisions contained in clauses 2 to 6 of article 19
In other words the broad scheme of article 19 is two fold the fundamental rights of the citizens are of paramount importance but even the said fundamental rights can be regulated to serve the interests of the general public or other objects mentioned respec tively in clauses 2 to 6 and that means that for specified purposes indicated in these clauses even the paramountcy of fundamental rights has to yield to some regulation as contemplated by the said clauses
It is hardly necessary to emphasise that the purposes for which fundamental rights can be regulated which are specified in clauses 2 to 6 could not have been assumed by the Constitution makers to be static and incapable of expansion
The Constitution makers must have anticipated that in dealing with socioeconomic problems which the legislatures may have to face from time to time the concepts of public interest and other important considerations which are the basis of clauses 2 to 6 may change and may even expand and so it is legitimate to assume that the Constitution makers know that Parliament should be competent to make amendments in these rights so as to meet the challenge of the problems which may arise in the course of spcio economic progress and development of the country
That is why we think that even on principle it would not be reasonable to proceed on the basis that the fundamental rights enshrined in Part III were intended to be finally and immutably settled and determined once for all and were beyond the reach of any future amendment
Let us illustrate this point by reference to some of the provisions of the Constitution First Amendment Act 1951 itself
By this Act Articles 15 19 and 31 were amended
One has merely to 955 recall the purpose for which it became necessary to amend Articles 15 and 19 to be satisfied that the changing character of the problems posed by the words used in the respective articles could not have been effectively met unless amendment in the relevant provisions was effected and yet if the argument that the fundamental rights are beyond the reach of article 368 were valid an these amendments would be constitutionally impermissible
That we think is not the true purport and effect of article 368
We are therefore satisfied that this Court was right in rejecting the said argument in the case of Sankari Prasad1
This question can be considered from another point of view
The argument that the fundamental rights guaranteed by Part in are eternal inviolate and beyond the reach of article 368 is based on two assumptions
The first assumption is that on a fair and reasonable construction of article 368 the power to amend the fundamental rights cannot be held to be included within the constituent powers conferred on Parliament by the said Article
We have already held that a fair and reasonable construction of article 368 does not justify this assumption
The other assumption which this argument makes and must of necessity make is that if the power to amend the fundamental rights is not included in article 368 as it stands it cannot ever be included within its purview because unless it is assumed that the relevant power can never be included in article 368 it would be unrealistic to propound the theory that the fundamental rights are eternal inviolate and not within the reach of any subsequent constitutional amendment
It is clear that article 368 itself can be amended by Parliament though cl
e of the proviso requires that before amending article 368 the safeguards prescribed by the proviso must be satisfied
In other words even if the powers to amend the fundamental rights were not included in article 368 Parliament can by a suitable amendment of article 368 take those powers
Thus the second assumption underlying the argument about the immutable character of the fundamental rights is also not well founded
There is one more point to which we would like to refer
In the case of Sankari Prasad1 this Court has observed that the question whether the latter part of article 31B is too widely expressed was not argued before it and so it did not express any opinion upon it
This question has however been argued before us and so we would like to make it clear that the effect of the last clause in article 31B is to leave it open to the respective legislatures to repeal 1  956 or amend the Acts which have been included in the Ninth Schedule
In other words the fact that the said Acts have been included in the Ninth Schedule with a view to make them valid does not mean that the legislatures in question which passed the said Acts have lost their competence to repeal them or to amend them
That is one consequence of the said provision
The other inevitable quince of the said provision is that if a legislature amends any of the provisions contained in any of the said Acts the amended provision would not receive the protection of article 31B and its validity may be liable to be examined on the merits
Before we part with this matter we would like to observe that Parliament may consider whether it would not be expedient and reasonable to include the provisions of Part III in the proviso to article 368
It is not easy to appreciate why the Constitution makers did not include the said provisions in the proviso when article 368 was adopted
In In re  the Berubari Union and Exchange of Enclaves1 this Court had pointed out that amendment of article 1 of the Constitution consequent upon the cession of any part of the territory of India in favour of a foreign State does not attract the safeguard prescribed by the proviso to article 368 because neither article 1 nor article 3 is included in the list of entrenched provisions of the Constitution enumerated in the proviso and it was observed that it was not for this Court to enquire or consider whether it would not be appropriate to include the said two articles under the proviso and that it was a matter for Parliament to consider and decide
Similarly it seems somewhat anomalous that any amendment of the provisions contained in article 226 should fall under the proviso but not an amendment of article 32
Article 226 confers on High Courts the power to issue certain writs while article 32 which itself is a guaranteed fundamental right enables a citizen to move this Court for similar writs
Parliament may consider whether the anomaly which is apparent in the different modes prescribed by article 368 for amending Articles 226 and 32 respectively should not be remedied by including Part HI itself in the proviso
If that is done difficult questions as to whether the amendment made in the provisions of Part III substantially directly and materially affects the jurisdiction and powers of the High Courts under article 226 may be easily avoided
In the result we hold that the impugned Act is constitutionality valid
The petitions accordingly fail and are dismissed
There will be no order as to costs
1 957 Hidayatullah J I have had the privilege of reading the judgment just delivered by my lord the Chief Justice
I agree with him that there is no force in the contention that the 17th Amendment required for its valid enactment the special procedure laid down in the proviso to article 368
It would of course have been necessary if the amendment had sought to make a change in article 226
This eventuality cannot be said to have arisen
Article 226 remains unchanged after the amendment
The proviso comes into play only when the article is directly changed or its ambit as such is sought to be changed
What the 17th amendment does is to enlarge the meaning of the word estate  in article 31 A and  to give protection to some Acts passed by the State Legislatures by including them in the Ninth Schedule under the shield of article 31 B
These Acts promoted agrarian reform and but for the inclusion in the Ninth Schedule they might be assailed by the provisions of Articles 14 19 or 31 of the Constitution
Some of the Acts were in fact successfully assailed but the amendment makes them effective and invulnerable to the three articles notwithstanding article 13 of the Constitution
In Sri Sankari Prasad s1 case when the Constitution First Amendment Act was passed and Articles 3 I A and 31 B and Ninth Schedule were introduced the effect of that amendment on article 226 was considered and it was held that the Amendment had not the effect visualised by the proviso to article 368
The reasoning in that case on this point applies mutatis mutandis to the 17th Amendment
I find however some difficulty in accepting a part of the reasoning in Sankari Prasad s case and my purpose in writing a separate judgment is to say that I decide the present cases without the assistance of that reasoning
I shall briefly indicate what that reasoning is and why I have doubts
In Sankari Prasad s case it was contended that by article 132 the Fundamental Rights in Part III of the Constitution were put beyond the reach of article 368 and outside the power of amendment conferred on Parliament by article 368
This argument was considered attractive  but was rejected because of certain important considerations which it was held pointed to the opposite conclusion
Two reasons alone appear to have weighed with this Court
The first is that as constitutional law is distinguishable from other municipal laws and as there is no clear indication to be found that the Fundamental Rights are immune from constitutional amendment only the invasion of the Fundamental Rights by laws other than constitutional laws 1  958 must be the subject of the prohibition in article 13 2
article 13 may to be quoted at this stage  13
Laws inconsistent with or in derogation of the fundamental rights
1 All laws in force in the territory of India immediately before the commencement of this Constitution in so far as they are inconsistent with the provisions of this Part shall to the extent of such inconsistency be void
2 The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void
3 In this article unless the context otherwise requires a law includes any Ordinance order bye law rule regulation notification custom or usage having in the territory of India the force of law b It is true that there is no complete definition of the word law in the article but it is significant that the definition does not seek to exclude constitutional amendments which it would have been easy to indicate in the definition by adding but shall not include an amendment of the Constitution
The meaning is also sought to be enlarged not curtailed
The meaning of article 13 thus depends on the sense in which the word law in article 132 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
But the restricted meaning given to the word law prevents this to be held
There is a priori reasoning without consideration of the text of the articles in Part M
The Articles use the language of permanency
I am of opinion that there are indications in the Constitution which needed to be considered and I shall mention some of them later as illustrations
The next reason was that article 368 was perfectly general and allowed amendment of the Constitution without any exception whatsoever and therefore article 13 2 did not cover a constitutional amendment
It was observed in this connection that if it was con 959 sidered necessary to save Fundamental Rights a clear proviso in article 368 would have conveyed this intention without any doubt
To my mind the easiest and most obvious way was to say that the word law in article 13 did not include an amendment of the Constitution
It was finally concluded as follows  In short we have here two articles each of which is widely phrased but conflicts in its operation with the other
Harmonious construction requires that one should be read as controlled and qualified by the other
Having regard to the considerations adverted to above we are of opinion that in the context of article 13 law  must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power with the result that article 1 3 2 does not affect amendments made under article 368
 At the hearing reliance was not placed on article 13 2 but emphasis was laid on the amendment of article 226
Mr R V section Mani did however refer to the provision for the suspension of Fundamental Rights as showing that unless suspended in an emergency Part III must stand unchanged and he referred to article 324
For the disposal of these cases I indicate my view that on the arguments before us I must hold that as decided in Sankari Prasad s1 case article 226 is not sought to be changed by the 17th Amendment
But I make it clear that I must not be understood  to have subscribed to the view that the word law in article 132 does not control constitutional amendments
I reserve my opinion on that case for I apprehend that it depends on how wide is the word law in that Article
The prohibition in that article may have to be read in the light of declarations in the various articles in Part III to find out the proper meaning
Though I do not express a final opinion I give a few examples
Take for instance article 32
It reads  32
Remedies for enforcement of rights
1 The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
2 The Supreme Court shall have power to issue directions or orders or writs in the nature of habeas corpus mandamus prohibition quo warranto and certiorari whichever may be appropriate for the 1  960 enforcement of any of the rights conferred by this Part
3 Without prejudice to the powers conferred on the Supreme Court by clauses 1 and 2 Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause 2
4 The right guaranteed by this article shall not be suspended except as otherwise provided for by the Constitution
 It is prima facie at least reasonable to think that if cls
1 and 4 of this Article were included in Part XX Amendment of the Constitution that would have made the guarantee absolute against any amendment
It is a matter for consideration whether this guarantee is any the less because the articleis in another Part  The first clause assures a guaranteed remedy
That guarantee is equally against legislative and executive actions
Part III is fun of declarations of what the legislature can do and what it cannot do
The guarantee covers all those actions which are not open to the legislature and the executive
If it be held that the guarantee is inviolable would not the guarantee of the remedy make the rights equally protected  Another provision namely the Preamble of the Constitution is equally vital to our body politic
In In re  The Berubart Union and Exchange of Enclaves1 it is held that although the preamble is the key to the mind of the Constitution makers it does not form part of the Constitution
Perhaps in one sense it does not but in another sense it does
Our preamble is more akin in nature to the American Declaration of Independence July 4 1776 than to the preamble to the Constitution of the United States
It does not make any grant of power but it gives a direction and purpose to the Constitution which is reflected in Parts III and IV
Is it to be imagined that a two thirds majority of the two Houses at any time is all that is necessary to alter it without even consulting the States  It is not even included in the proviso to 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
Again article 13 1 rendered void the laws in force in the territory of India which conflicted with Part III
Can it be said that article 13 may be repealed retrospectively and all those statutes 1 961 brought back to life  Because of successive amendments we have seen many faces of article 31 A
It is for consideration whether article 13 was not intended to streamline all existing and future laws to the basic requirements of Part 111
Or is the door left open for reversing the policy of our Constitution from time to time by legislating with a bigger majority at any given time not directly but by constitutional amendments  It is possible to justify such amendments with the aid of the provisos in article 19 which permit the making of laws restricting the freedoms but not by ignoring article 13 and relying solely on article 368
I am aware that in A K Gopalan vs State of Madras1 Kania CJ said the inclusion of article 131 and 2 in the Constitution appears to be a matter of abun dant caution
Even in their absence if any of the fundamental rights was infringed by any legislative enactment the Court has always the power to declare the enactment to the extent it transgresses the limits invalid
 The observation is not clear in its meaning
There was un doubtedly a great purpose which this article achieves
It is probable that far from belittling the importance of article 13 the learned Chief Justice meant rather to emphasize the importance and the commanding position of Fundamental Rights in that even without article 13 they would have the same effect on other laws
To hold that article 13 is framed merely by way of abundant caution and serves no additional or intrinsic function of its own might by analogy persuade us to say the same of article 32  1  because this Court would do its duty under article 322 even in the absence of the guarantee
I would require stronger reasons than those given in Sankari Prasad s 2 case to make me accept the view that Fundamental Rights were not really fundamental but were intended to be within the powers of amendment in common with the other parts of the Constitution and without the concurrence of the States
No doubt article 19 by clauses numbered 2 to 6 allows a curtailment of rights in the public interest
This shows that Part III is not static
It as change and progress but at the same time it preserves the individual rights
There is hardly any measure of reform which cannot be introduced reasonably the guarantee of individual liberty notwithstanding
Even the agrarian reforms could have been partly carried out without Article 31 A and 31 B but they would have cost 1  at p 100
2 962 more to the public exchequer
The rights of society are made paramount and they are placed above those of the individual
This is as it should be
But restricting the Fundamental Rights by resort to cls
2 to 6 of article 19 is one thing and removing the rights from the Constitution or debilitating them by an amendment is quite another
This is the implication of Sankari Prasad s case
It is true that such things would never be but one is concerned to know if such a doing would be possible
It may be said that the words of article 368 are quite explicit
article 368 does not give power to amend any provision of the Constitution
At least the article does not say so
Analysed by the accepted canons of interpretation it is found to lay down the manner of the amendment of this Constitution but by this Constitution it does not mean each individual article wherever found and whatever its language and spirit
The Constitution itself indicates in some places a contrary intention expressly See Articles 4 169 and the former article 240 and in some others by implication See article 1 1
What article 368 does is to lay down the manner of amendment and the necessary conditions for the effectiveness of the amendment
The contrast between the opening part and the proviso does not show that what is outside the proviso is necessarily within the powers of amendment
The proviso merely puts outside the exclusive Power of Parliament to amend those provisions on which our federal structure rests
It makes it incumbent that a majority of the States should also agree
The proviso also preserves the structure of the higher judiciary so vital to a written Constitution and to a Democracy such as ours  But the article no where says that the preamble and every single article of the Constitution can be amended by two thirds majority despite any permanency in the language and despite any historical fact or sentiment
The Constitution gives so many assurances in Part III that it would be difficult to think that they were the play things of a special majority
To hold this would mean prima facie that the most solemn parts of our Constitution stand on the same footing as any other provision and even on a less firm ground than one on which the articles mentioned in the proviso stand
The anamoly that article 226 should be somewhat protected but not article 32 must give us pause
Article 32 does not erect a shield against private conduct but against state conduct including the legislatures See article 12
Can the legislature take away this shield  Perhaps by adopting a literal construction of article 368 one can say that
But I am not inclined to play a grammarian s role
As at present advised I can only say that the power to make amendments ought not 963 ordinarily to be a means of escape from absolute constitutional restrictions
For these reasons though I agree with the order proposed I would not like to be understood to have expressed a final opinion on the aspect of the case outlined above
Mudholkar J I have seen the judgments of my Lord the Chief Justice and my brother Hidayatullah J and I agree that the Writ Petitions should be dismissed
Of the various contentions raised in Sankari Prasad Singh De vs Union of India and State of Bihar1 in which the Constitution First Amendment Act 1951 was challenged before this Court only two would be relevant in the context of the Constitution Seventeenth Amendment Act 1964
They are  a whether the Amendment Act in so far as it purports to take away or abridge the rights conferred by Part III of the Constitution falls within the prohibition of article 132 and b whether articles 31A and 31B seek to make changes in articles 132 136 or 226 or in any of the Lists in the Seventh Schedule and therefore the requirements of the proviso to article 368 had to be satisfied
Both these contentions were negatived by this Court
The first contention has not been raised in the arguments before us and the attack on the Seventeenth Amendment Act was based only on the second contention
Most of the grounds which learned counsel urged before us were the same as those urged in the earlier case
Some additional arguments were also urged before us but as my Lord the Chief Justice has pointed out they are unsubstantial
An attempt was made by Mr Mani learned counsel for the petitioners to persuade us to reconsider the decision in the earlier case with regard to the second contention
As however no case was made out by him for reconsideration of that decision we intimated to him that we do not
propose to reconsider it
Since my Lord the Chief Justice in his judgment has dealt with the first contention also and expressed the view that the previous decision is right I think it necessary to say partly for the reasonsstated by my learned brother Hidayatullah J and partly for some other reasons that I would reserve my opinion on this question and that I do not regard what this Court has held in that case as the last word
It seems to me that in taking the view that the word law occurring in article 13 2 of the Constitution does not include an amend 1  L2Sup65 18 964 ment to the Constitution this Court has not borne in mind some important considerations which would be relevant for the purpose
The language of 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 amendments 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 
Article 3 6 8 does not say that when Parliament makes an amendment to the Constitution it assumes a different capacity that of a constituent body
As suggested by my learned brother Hidayatullah J it is open to doubt whether this Article confers any such power upon Parliament
But even assuming that it does it can only be regarded as an additional legislative power
Then again while the Constitution as originally framed can only be interpreted by a court of law and the validity of no provision therein can be challenged the same cannot be said of an amendment to the Constitution
For an amendment to be treated as a part of the Constitution it must in fact and in law have become a part of the Constitution
Whether it has become a part of the Constitution is thus a question open to judicial review
It is obvious that an amendment must comply with the requirements of the Constitution and should not transgress any of its provisions
Where therefore a challenge is made before the Court on the ground that no amendment had in fact been made or on the ground that it was not a valid amendment it will be both the duty of the Court as well as be and within its power to examine the question and to pronounce upon it
This is precisely what a Court is competent to do in regard to any other law the validity of which is impugned before it
Neither of these matters appears to have been considered in Sankari Prasad s case and I think that they do merit consideration
My Lord the Chief Justice has observed that though in A K Gopalan vs The State of Madras 2 Patanjali Sastri J as he then was has said that fundamental rights are those rights which the people have reserved for themselves that learned Judge has emphati 1  2 1950 SCR St 965 cally stated in In re The Delhi Laws Act 19121 that Parliament acting within the limits of its legislative power has plenary powers of legislation which are as large and which are of the same nature as those of the British Parliament and rejected the suggestion that Parliament is the delegate of the people in whom the sovereignty rests
But does it follow that the learned Judge has departed from his earlier view  No reference was made by him in
Sankari Prasad s case 2 to his observations though they needed to be explained
In the case1 he has undoubtedly said that Parliament enjoys plenary powers of legislation
That Parliament has plenary powers of legislation within the circumscribed limits of its legislative power and cannot be regarded as a delegate of the people c while exercising its legislative powers is a well accepted position
The fact however remains that unlike the British Parliament our Parliament like every other organ of the State can function only within the limits of the powers which the Constitution has conferred upon it
This would also be so when in the exercise of its legislative power it makes an amendment to the Constitution or to any of its provisions
It would therefore appear that the earlier observation of Patanjali Sastri J cannot be regarded as inconsistent with what he has said in the case1
At any rate this is an aspect of the matter which requires further consideration particularly because the same learned Judge has not adverted to those observations in Sankari Prasad s case 2
It is true that by virtue of section 8 of the Indian Independence Act 1947 it was upon the Constituent Assembly which framed the Constitution and not upon the people of India that sovereignty devolved after the withdrawal of the British power
But both the Objectives Resolution adopted by the Constituent Assembly on January 22 1947 and the Preamble to the Constitution show that this sovereign body framed the Constitution in the name of the people of India and by virtue of the powers derived from them
In the circumstances it would have to be considered whether Patanjali Sastri J was not right in saying that the fundamental rights are the minimum rights reserved by the people to themselves and they are therefore unalterable
It is true that the Constitution does not directly prohibit the amendment of Part III
But it would indeed be strange that rights which are considered to be fundamental and which include one which is guaranteed by the Constitution vide 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 1  2  966 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
The argument that if fundamental rights are regarded as unchangeable it will hamper legislation which the changing needs of a dynamic society may call for in future is weighty enough and merits consideration
It is possible that there may be an answer
The rights enumerated in article 191 can be subjected to reasonable restrictions under cls
2 to 6 of article 19 and the other fundamental rights or at least many of them can perhaps be adapted to meet the needs of a changing society with the aid of the directive principles
For article 37 the second Article in Part IV which deals with Directive Principles of States Policy  imposes a duty on the State to apply those directive principles in making laws
These principles are also fundamental in the governance of the country and the provisions of Part III of the Constitution must be interpreted harmoniously with those principles
This is also an aspect of the matter which requires consideration
We may also have to bear in mind the fact that ours is a written Constitution
The Constituent Assembly which was the repository of sovereignty could well have created a sovereign Parliament on the British model
But instead it enacted a written Constitution created three organs of State made the union executive responsible to Parliament and the State executives to the State legislatures erected a federal structure and distributed legislative power between Parliament and the State legislatures recognised certain rights as fundamental and provided for their enforcement prescribed forms of oaths of office or affirmations which require those who subscribe to them to owe true allegiance to the Constitution and further require the members of the Union Judiciary and of the higher judiciary in the States to uphold the Constitution
Above all it formulated a solemn and dignified preamble which appears to be an epitome of the basic features of the Constitution
Can it not be said that these are indicate of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution  It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be in effect rewriting a part of the 967 Constitution and if the latter would it be within the purview of article 368  The Constitution has enjoined on every member of Parliament before entering upon his office to take an oath or make an affirmation to the effect that he will bear true faith and allegiance to the Constitution
On the other hand under article 368 a procedure is prescribed for amending the Constitution
If upon a literal interpretation of this provision an amendment even of the basic features of the Constitution would be possible it will be a question for consideration as to how to harmonise the duty of allegiance to the Constitution with the power to make an amendment to it
Could the two be harmonised by excluding from the procedure for amendment alteration of a basic feature of the Constitution  It would be of interest to mention that the Supreme Court of Pakistan has in Mr Fazlul Quader Chowdhry vs Mr Mohd Abdul Haque1 held that franchise and form of government are fundamental features of a Constitution and the power conferred upon the President by the Constitution of Pakistan to remove difficulties does not extend to making an alteration in a fundamental feature of the Constitution
For striking down the action of the President under what he calls sub constitutional power  Cornelius CJ relied on the Judges  oath of office
After quoting the following passage from Cooley s Constitutional Limitations For the constitution of the State is higher in authority than any law direction or order made by anybody or any officer assuming to act under it since such body or officer must exercise a delegated authority and one that must necessarily be subservient to the instrument by which the delegation is made
In any case of conflict the fundamental law must govern and the act in conflict with it must be treated as of no legal validity
 the learned Chief Justice observed To decide upon the question of constitutional validity in relation to an act of a statutory authority how highso ever is a duty devolving ordinarily upon the superior Courts by virtue of their office and in the absence of any bar either express or implied which stands in the way of that duty being performed in respect of the Order here in question it is a responsibility which cannot be avoided p 506 1 968 The observations and the passage from Cooley quoted here for convenience support what I have said earlier regarding the power of the Courts to pronounce upon the validity of amendments to the Constitution
The Constitution indicates three modes of amendments and assuming that the provisions of article 368 confer power on Parliament to amend the Constitution it will still have to be considered whether as long as the preamble stands unmended that power can be exercised with respect to any of the basic features of the Constitution
To illustrate my point as long as the words sovereign democratic republic  are there could the Constitution be amended so as to depart from the democratic form of Government or its republic character  If that cannot be done then as long as the words Justice social economic and political etc
 are there could any of the rights enumerated in 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  In view of these considerations and those mentioned by my learned brother Hidayatullah J I feel reluctant to express a definite opinion on the question whether the word law  in article 13 2 of the Constitution excludes an Act of Parliament amending the Constitution and also whether it is competent to Parliament to make any amendment at all to Part III of the Constitution
In so far as the second contention is concerned I generally agree with what my Lord the Chief Justice has said but would only like to add this  Upon the assumption that Parliament can amend Part III of the Constitution and was therefore competent to enact therein Articles 31A and 31B as also to amend the definition of estate  the question still remains whether it could validate a State 969 law dealing with land
I take it that only that legislature has power to validate a law which has the power to enact that law
Since the agrarian laws included in the Ninth Schedule and sought to be protected by article 31B could not have been enacted by Parliament would it be right to say that Parliament could validate them  If Parliament could amend Part III it could indeed remove the impediment in the way of the State
Legislatures by enacting article 3 1A and amending the definition of estate
But could it go to the extent it went when it enacted the First Amendment Act and the Ninth Schedule and has now added 44 more agrarian laws to it  Or was it incompetent to it to go beyond enacting article 31A in 1950 and now beyond amending the definition of estate  This however does not appear to have been considered in Sankari Prasad s case1 nor was such an argument advanced before us in this case
I am only mentioning this to make It clear that even in so far as the second contention is concerned I base my decision on the narrow ground that upon the arguments advanced before us no case has been made out for striking down the Seventeenth Amendment
As indicated in the judgment of my Lord the Chief Justice an amendment made by resort to the first part of article 368 could be struck down upon a ground such as taking away the jurisdiction of the High Courts under article 226 or of this Court under article 13 6 without complying with the requirements of the proviso
To this I would like to add that if the effect of an amendment is to curtail substantially though indirectly the jurisdiction of High Courts under AA 226 or of this Court under article 136 and recourse has not been had to the proviso to article 368 the question whether the amendment was a colorable exercise of power by Parliament will be relevant for consideration
Before I part with this case I wish to make it clear that what I have said in this judgment is not an expression of my final opinion but only an expression of certain doubts which have assailed me regarding a question of paramount importance to the citizens of our country  to know whether the basic features of the Constitution under which we live and to which we owe allegiance are to endure for all time or at least for the foreseeable future or whether the yard no more enduring than the implemental and subordinate provisions of the Constitution
Petitions dismissed


Summary:
In 1951 several State legislative measures passed for giving effect to a policy of agrarian reform faced a serious challenge in the Courts
In order to assist the State Legislatures to give effect to the policy articles 31A and 31B were added to the Constitution by the Constitution First
Amendment Act 1951
Article 31B provided that none of the Acts specified in the Ninth Schedule to the Constitution shall be deemed to be void or ever to have become void
In 1955 by the Constitution Fourth Amend ment Act article 31A was amended
Notwithstanding those amendments some legislative measures adopted by different States for giving effect to the policy were effectively challenged
In order to save the validity of those Acts as well as of other Acts which were likely to be struck down Parliament enacted the Constitution Seventeenth Amendment Act 1964 by which article 31A was again amended and 44 Acts were added to the Ninth Schedule
The petitioners in the Writ Petitions in Supreme Court and interveners were persons affected by one or other of those Acts
They contended that none of the Act by which they were affected could be saved because the Constitution Seventeenth Amendment Act was constitutionally invalid
It was urged that  i Since the powers prescribed by article 226 which is in Chapter V Part VI of the Constitution were likely to be affected by Seventeenth Amendment the special procedure laid down in the proviso to article 368 namely  requiring the ratification by not less half the number of States should be followed ii The decision in Sri Sankari Prasad Singh Deo vs Union of India and State of Bihar   which negatived such a contention when dealing with the First Amendment should be reconsidered iii The Seventeenth Amendment Act was a legislative measure in respect of land and since Parliament had no right to make a law in respect of land the Act was invalid and iv Since the Act purported to set aside decisions of Court of competent jurisdiction it was unconstitutional
HELD by P B Gajendragadkar C J Wanchoo and Raghubar Dayal JJ  i The main part of article 368 and its proviso must on a reasonable construction be harmonised with each other in the sense that the scope and effect of either of them should not be allowed to be unduly reduced or enlarged
Such a construction requires that if amendment of the fundamental rights is to make a substantial inroad on the High Court s powers under article 226 it would become necessary to consider whether the proviso to article 368 would cover such a case
If the effect is indirect incidental or otherwise of an insignificant order the proviso may not apply
In dealing With such a question the test to be adopted is to find the pith and substance of the impugned Act
So tested it is clear that the Constitution Seventeenth Amendment Act amends the fundamental rights solely with the object of removing obstacles in the fulfilment of a socioeconomic policy
Its effect 934 on article 226 is incidental and insignificant
The Act therefore falls under the substantive part of article 368 and does not attract the proviso
940 D E 941 B E 944 D F ii On the contentions urged there was no justification for reconsidering Shankari Prasad case
947 G H Though the Constitution is an organic document intended to serve as a guide to the solution of changing problems the Court should be reluctant to accede to the suggestion that its earlier decisions should be lightheartedly reviewed and departed from
In such a case the test is  Is it absolutely and essential that the question already decided should be reopened
The answer to the question would depend on the nature of the infirmity alleged in the earlier decision its import on public good and the validity and compelling character of the considerations urged in support of the contrary view
It is therefore relevant and material to note that if the argument urged by the petitioners were to prevail it would lead to the inevitable consequence that the amendments of 1951 and 1955 and a large number of decisions dealing with the validity of the Acts in the Ninth Schedule would be exposed to serious jeopardy
948 E H 949 A B iii Parliament in enacting the impugned Act was not making any provision of land Legislation but was merely validating land Legislation already passed by the State Legislatures in that behalf
945 C iv The power conferred by article 368 on Parliament can be exercised both prospectively and retrospectively
It is open to Parliament to validate laws which have been declared invalid by courts
945 E F v The power conferred by article 368 includes the power to take away the fundamental rights guaranteed by Part III
In the context of the constitution it includes the power of modification or changing the provisions or even an amendment which makes the said provisions inapplicable in certain cases
The power to amend is a very wide power and cannot be controlled by the literal dictionary meaning of the word amend
The expression amendment of the Constitution plainly and unambiguously means amendment of all the provisions of the Constitution
The words used in the proviso unambiguously indicate that the substantive part of the Article applies to all the provisions of the Constitution
A B 951 B The word law in article 132 does not include a law passed by Parliament by virtue of its constituent power to amend the Constitution
if the Constitution makers had intended that any future amendment of the provisions in regard to fundamental rights should be subject to article 132 they would have taken the precaution of making a clear provision in that behalf
It would not be reasonable to proceed on the basis that the fundamental rights in Part III were intended to be finally and immutably settled and determined once for all and were beyond the reach of any future amendment
The Constitution makers must have anticipated that in dealing With the socioeconomic problems which the legislatures may have to face from time to time the concepts of public interest and other important considerations may change and expand and so it is legitimate to assume that the Constitution makers knew that Parliament should be competent to make amendments in those rights so as to meet the challenge of the problems which may arise
The fundamental rights guaranteed by Part III could not have been intended to be eternal inviolate and beyond the reach of article 368 for even if the powers to amend the fundamental rights were not included in the Article Parliament ran by a suitable amendment of the Article take those powers
951 F H 954 F H 955 E G Article 226 which confers on High Court the power to issue writs falls under the proviso to article 368 while article 32 which is itself a guaranteed fundamental right and enables a citizen to move the Supreme Court to 935 issue writs fall under the main part of the section
Parliament may consider whether the anamoly which is apparent in the different modes prescribed by article 368 for amending articles 226 and 32 respectively should not be remedied by including Part III itself in the proviso
956 E G Sri Sankari Prasad Singh Deo vs Union of India and State of Bihar   followed
A K Gopalan vs State of Madras  and In re The Delhi Laws Act   referred to
vi It is not reasonable to suggest that since the impugned Act amends only articles 31A and 31B and adds several Acts to the Ninth Schedule it does not amend the provisions of Part III but makes an independent provision and so comes within the scope of the proviso to article 368
If Parliament thought that instead of adopting the cumbersome process of amending each relevant Article in Part III it would be more appropriate to add articles 31A and 31B then what Parliament did in 1951 has afforded a valid basis for further amendments in 1955 and in 1964
946 B E vii The fact that the Acts have been included in the Ninth Schedule with a view to making them valid does not mean that the Legislatures which passed the Acts have lost their competence to repeal or amend them
Also if a legislature amends any provision of any such Act the amended provision would not receive the protection of article 3 1B and its validity will be liable to be examined on the merits
956 A C Per Hidayatullah and Mudholkar JJ
Quaere i Whether the word law in article 132 of the Constitution excludes an Act of Parliament amending the Constitution
959 E F 968 G ii Whether it is competent to Parliament to make any amendment at all to Part III of the Constitution
961 F G 968 G Per Mudholkar J An amendment made by resort to the first part of article 368 could be struck down upon a ground such as taking away the jurisdiction of High Courts under article 226 or of the Supreme Court under article 136 or that the effect of the amendment is to curtail substantially though indirectly the jurisdiction of the High Courts under article 226 or the Supreme Court under article 136 and recourse had not been had to the proviso to article 368
The question whether the amendment was a colorable exercise of power by Parliament may be relevant for consideration in the latter kind of case
969 D F The attack on the Seventeenth Amendment Act was based on grounds most of which were the same as those urged and rejected in the earlier case of Sankari Prasad Singh Deo vs Union of India and State of Bihar   and on some grounds which are unsubstantial
No case has therefore been made out by the petitioners either for the reconsi deration of that decision or for striking down the Seventeenth Amendment
963 FG The following matters however were not considered in Sankari Prasad s case and merit consideration  i Where Legislation deals with the amendment of a provision of the Constitution does it cease to be law within the meaning of article 132 merely because it has to be passed by a special majority  964 B C ii Where a challenge is made before the Court on the ground that no amendment to the Constitution had in fact been made or on the ground that it was not a valid amendment would it not be the duty of the Court and within its power to examine the question and to pronounce upon it since this is precisely what a Court is competent to do in regard to any other law iii Is the statement in A K Gopalan vs State of Madras  that the fundamental rights are the minimum rights reserved by the people to themselves and therefore unalterable inconsistent with the statement in In re   that Parliament has plenary powers of legislation  965 D E iv Whether making a change in the basic features of the Constitution can be regarded merely as an amendment or would it be in effect rewriting a part of the Constitution and if it is the latter would it be within the purview of article 368  966 H 967 A v Upon the assumption that Parliament can amend Part III of the Constitution and was therefore competent to enact articles 31A and 31B as also to amend the definition of estate can Parliament validate a State law dealing with land  968 H 969 A vi Could Parliament go to the extent it went when it enacted the First Amendment and the Ninth Schedule and now when it added 44 more agrarian laws to it  Or was Parliament incompetent to go beyond enacting article 31A in 1950 and now beyond amending the definition of Estate  969 B C