Writ Petition No 153 of 1966
Under Article 32 of the Constitution of India for enforcement of the Fundamental Rights And Writ Petition No 202 of 1966
Under Article 32 of the Constitution of India for enforce ment of the Fundamental Rights And Writ Petition No 205 of 1966
Under Article 32 of the Constitution of India for enforcement of the Fundamental Rights 778 In Writ Petition No 153 of 1966
R V section Mani section K Mehta and K L Mehta for the petitioners
NirenDe Additional Solicitor General of Indiaand R N Sachthey for the Respondents
Niren De Additional Solicitor General of IndiaGRajagopal and R H Dhebarfor Intervener Ng
1 section D Banerjee Advocate General for the State of West Bengal B Sen and P K Bosefor Intervener No2
Lal Narain Sinha Advocate General for the State of Bihar Bajrang Saha M M Gajadhar K M K Nair D P Singh M K Ramamurthi R K Garg section C Agarwala and G D Gupta for Intervener No 3
Mohan Kumaramangalam Advocate General for the State of Madras B Ramamurthi and A V Rangam for Intervener No V D Mahajan and R H Dhebar for Intervener No 5
K L Mishra Advocate General for the State of Uttar Pradesh and O P Rana for Intervener No 6
V A Seyid Muhamad Advocate General for the State of Kerala B R L Iyengar A G Pudissery for Intervener No 7
Naunit Lal for Intervener No 8
K B Mehta for Intervener No 9
P Ram Reddy and T V R Tatachari for Intervener No 10
M C Stealvad B R L Iyengar and R H Dhebar for Inter vener No 11
R Thiagarajan for Intervener No 12
D N Mukherjee for Interveners Nos 13 and 19 to 21
E Udayairatnam section section Dalal and D D Sharma for Inter veners Nos 14 and 15
R K Garg D P Singh M K Ramamurthi section C Agarwala G D Gupta and K M K Nair  for Intervener No 16 K Parasaran and K R Chaudhuri for Intervener No 17
Basudev Prasad K Parasaran and K R Chaudhuri for Intervener No 18
Basudev Prasad K Rajendra Chaudhuri K R Chaudhuri and section N Prasad for Interveners Nos
22 to 24
779 in Writ Petition No 202 of 1966
MK Nambyar K B Jinaraja Hegde N A Subramaniam Bhuvanesh Kumari O C Mathur J B Dadachanji and Ravin der Narain for the Petitioner
H R Gokhale B P G K Achar K H Dhebar R N Sachthey and section P Nayyar for Respondent No 1
Niren De Additional Solicitor General N section Bindra and R N Sachthey for Respondent No 2
A K Sen F section Nariman M L Bhakte section I Thakere J B Dadachanji O C Mathur and Ravinder Narain for Intervener No 1
N A Palkhiwala F section Nariman M L Bhakte D M Popat0
P Malhotra J B Dadachanji O C Mathur and Ravinder Narain for Intervener No 2 D M Parulekar B Dutta J B Dadachanji O C Mathur and Ravinder Narain for Intervener No 3
In Writ Petition No 205 of 1966
M K Nambyar K B Jinaraja Hegde N A Subramaniam Bhuvanesh Kumari O C Mathur J B Dadachanji and Ravin der Narain for the Petitioner
H R Gokhale B R G K Achar R H Dhebar and section P Nayyar for Respondent No 1 section G Patwardhan D M Parulekar B Dutta section K Dhelika 1
B Dadachanji O C Mathur and Ravinder Narain for the Intervener
The Judgment Of SUBBA RAO CJ SHAH SIKRI SHELAT and VAIDIALINGAM JJ was delivered by SUBBA RAO CI According to this Judgment i the power to amend the Constitution is not to be found in article 368 but in articles 245 246 and 248 read with Entry 97 of List 1 ii the amending power can
not be used to abridge or take away the fundamental rights guaranteed in Part III of the Constitution iii a law amending the Constitution is Law within the meaning of article 132 and iv
the First Fourth and Seventeenth Amendments though they abridged fundamental rights were valid in the past on the basis of earlier decisions of this Court and continue to be valid for the future
On the application of the doctrine of prospective over ruling as enunciated in the judgment the decision will have only prospective operation and Parliament will have no power to abridge or take away Fundamental Rights from the date of the judgment
The Judgment of WANCHOO BHARGAVA and MITTER JJ was delivered by WANCHOO J
According to this Judgment i the 780 power of amending the Constitution resides in article 368 and not in articles 245 246 and 248 read with EntrY 97 of List 1 ii there are no restrictions on the power if the procedure in article 368 is followed and all the Parts of the Constitution including Part III can be amended iii an amendment of the Constitution is not  law under article 132 and iv the doctrine of prospective overruling cannot be applied in India
HIDAYATULLAH J delivered a separate judgment agreeing with SUBBA RAo CJ
on the following two points i that the power to amend the Constitution cannot be used to abridge or take away fundamental rights and ii that a law amending the Constitution is law under article 13 2
He agrees With WANCHOO J that the power to amend does not reside in articles 245 and 248 read wish Entry 97 of List 1 article 368 according to him is sui generis and procedural and the procedure when correctly followed results in an amendment
He does not rely on the doctrine of prospective overruling
As regards the First Fourth and Seventh Amendments these having long enured and been acquiesced in he does not treat the question of their validity as being before him
As regards the Seventeenth Amendment he finds sufficient support for it in the Constitution as amended by the First Fourth and Seventh Amendments and holds that the new definition of estate introduced by the Amendment though it is law under article 13 2 and is an inroad into fundamental rights is beyond the reach of the courts because it falls within the word law in articles 31 1 2 2A and 31A1
He however declares section 3 of the Seventeenth Amendment Act ultra vires the amending process as an illegitimate exercise of the amending power
BACHAWAT and RAMASWAMI JJ delivered separate judgments concurring with WANCHOO J Subbarao CJ
These three writ petitions raise the important question of the validity of the Constitution Seventeenth Amendment Act 1964
Writ Petition No 153 of 1966 is filed by the petitioners therein against the State of Punjab and the Financial Commissioner Punjab
The petitioners are the son daughter and granddaughters of one Henry Golak Nath who died on July 30 1953
The Financial Commissioner in revision against the order made by the Additional Commissioner Jullundur Division held by an order dated January 22 1962 that an area of 418 standard acres and 9 14 units was surplus in the hands of the petitioners under the provisions of the Punjab Security of Land Tenures Act X of 1953 read with section 10 B thereof
The petitioners alleging that the relevant provisions of the said Act where under the said area was 781 declared surplus were void on the ground that they infringed their rights under cls
f and g of article 19 and article 14 of the Constitution filed a writ in this Court under article 32 of the Constitution for a direction that the Constitution First Amendment Act 1951 Constitution Fourth Amendment Act 1955 Constitution Seventeenth Amendment Act 1964 insofar as they affected their fundamental rights were unconstitutional and inoperative and for a direction that section 10 B of the said Act X of 1953 was void as violative of articles 14 and 19 1 f and g of the Constitution
Writ Petitions Nos 202 and 203 of 1966 were filed by different petitioners under article 32 of the Constitution for a declaration that the Mysore Land Reforms Act Act 10 of 1962 as amended by Act 14 of 1965 which fixed ceilings on land holdings and conferred ownership of surplus lands on tenants infringed articles 14 19 and 31 of the Constitution and therefore was unconstitutional and void
The States of Punjab and Mysore inter alia contended that the said Acts were saved from attack on the ground that they infringed the fundamental rights of the petitioners by reason of the Constitution Seventeenth Amendment Act 1964 which by amending article 31 A of the Constitution and including the said two Arts in the 9th Schedule thereto had placed them beyond attack
In Writ Petition No 153 of 1966 7 parties intervened
In Writ Petition No 202 of 1966 one party intervened
In addition in the first petition notice was given to the Advocates General of various States
A11 the learned counsel appearing for the parties the Advocates General appearing for the States and the learned counsel for the interveners have placed their respective viewpoints exhaustively before us
We are indebted to all of them for their thorough preparation and clear exposition of the difficult questions of law that were raised in the said petitions
At the outset it would be convenient to place briefly the respective contentions under different heads  1 The Constitution is intended to be permanent and therefore it cannot be amended in a way which would injure maim or destroy its indestructible character
2 The word amendment implies such an addition or change within the lines of the original instrument as will effect an improvement or better carry out the purpose for which it was framed and it cannot be so construed as to enable the Parliament to destroy the permanent character of the Constitution
3 The fundamental rights are a part of the basic structure of the Constitution and therefore the said power can be exercised only to preserve rather than destroy the essence of those rights
4 The limits on the power to amend are implied in article 368 for the 782 expression amend has a limited meaning
The wide phraseo logy used in the Constitution in other Articles such as repeal and re enact indicates that article 368 only enables a modification of the Articles within the framework of the Constitution and a destruction of them
5 The debates in the Constituent Assembly particularly the speech of Mr Jawahar Lal Nehru the first PA Minister of India and the reply of Dr Ambedkar who piloted the Bill disclose clearly that it was never the intention of the makers of the Constitution by putting in article 368 to enable the Parliament to repeal the fundamental rights the circumstances under which the amendment moved by Mr H V Kamath one of the members of Constituent Assembly was withdrawn and article 368 was finally adopted support the contention that amendment of Part II is outside the scope of article 368
6 Part III of the Constitution is a self contained Code
and its provisions are elastic enough to meet all reasonable requirements of changing situations
7 The power to amend is sought to be derived from three sources namely i by implication under article 368 itself The procedure to amend culminating in the amendment of the Constitution necessarily implies that power ii the power and the limits of the power to amend are implied in the Articles sought to be amended and iii article 368 only lays down the procedure to amend but the power to amend is only the legislative power conferred on the Parliament under articles 245 246 and 248 of the Constitution
8 The definition of law in article 132 of the Constitution includes every branch of law statutory constitutional etc  and therefore the power to amend in whichever branch it may be classified if it takes away or abridges fundamental rights would be void thereunder
9 The impugned amendment detracts from the jurisdiction of the High Court under article 226 of the Constitution and also the legislative powers of the States and therefore it falls within the scope of the proviso to article 368
The said summary though not exhaustive broadly gives the various nuances of the contentions raised by the learned counsel who question the validity of the 17th Amendment
We have not noticed the other arguments of Mr Nambiar which are peculiar to the Writ Petition No 153 of 1966 as those questions do not arise for decision in the view we are taking on the common questions
On behalf of the Union and the States the following points were pressed  1 A Constitutional amendment is made in exercise of the sovereign power and not legislative power of Parliament and
therefore it partakes the quality and character of the Constitution itself
2 The real distinction is between a rigid and a flexible Constitution
The distinction is based upon the express limits of the amending power
3 The provisions of article 783 368 axe clear and unequivocal and there is no scope for invoking implied limitations on that power further the doctrine of impliedpower has been rejected by the American courts and jurists
4 The object of the amending clause in a flexible Consetitution is to enable the Parliament to amend the Constitution in order to express the will of the people according to the changing course of events and if amending power is restricted by implied limitations the Constitution itself might be destroyed by revolution
Indeed it is a safety valve and an alternative for a violent change by revolution
5 There are no basic and non basic features of the Constitution everything in the Constitution is basic and it can be amended in order to help the future growth and progress of the country
6 Debates
in the Constituent Assembly cannot be relied upon for construing article 368 of the Constitution and even if they can be there is nothing in the debates to prove positively that fundamental rights were excluded from amendment
7 Most of the amendments are made out of political necessity they involve questions such
as how to exercise power how to make the lot of the citizens better and the like and therefore not being judicial questions they are outside the court s jurisdiction
8 The language of article 368 is clear categorical imperative and universal on the other hand the language of article 132 is such as to admit qualifications or limitations and therefore the Court must construe them in such a manner as that Article could not control article 368
9 In order to enforce the Directive Principles the Constitution was amended from time to time and the great fabric of the Indian Union has been built since 1950 on the basis that the Constitution could be amended and therefore any reversal of the previous I decisions would introduce economic chaos in our country and that therefore the burden is very heavy uponthe petitioners to establish that the fundamental rights cannot be amended under article 368 of the Constitution
10 article 31 A and the 9th Schedule do not affect the power of the High Court under article 226 or the legislative power of the States though the area of their operation is limited and therefore they do not fall within the scope of the proviso to article 3 68
The aforesaid contentions only represent a brief summary of elaborate arguments advanced by learned counsel
We shall deal in appropriate context with the other points mooted before US
It will be convenient to read the material provisions of theConstitution at
this stage
Article 131 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 toy the extent of the contravention be void
784 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
Article 31 A1 Notwithstanding anything contained in article 13 no law providing for a the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by article 14 article 19 or article 31
2 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 tenure in force in that area and shall also include ii any land held under ryotwari settlement iii any land held or let for purposes of agriculture or for purposes ancillary thereto
Article 31 D Without prejudice to the generality of the provisions contained in article 31 A none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void or ever to have become void on the ground that such Act Regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by any provisions of this Part and not withstanding any judgment decree or order of any court or tribunal to the contrary each of the said Acts and Regulations shall subject to the power of any competent Legislature to repeal or amend it continue in force
In the Ninth Schedule to the Constitution the Mysore Land Reforms Act 1961 Mysore Act 10 of 1962 is included as item 51 and the Punjab Security of Land Tenures Act 1953 Punjab Act 10 of 1953 is included as item 54
The definition of estate was amended and the Ninth Schedule was amended by including therein the said two Acts by the Constitution Seventeenth Amendment Act 1964
785 The result of the said amendments is that both the said Acts dealing with estates within their wide definition introduced by the Constitution Seventeenth Amendment Act 1964 having been included in the Ninth Schedule are placed beyond any attack on the ground that their provisions are inconsistent with or take away or abridge any of the rights conferred by Part III of the Constitution
It is common case that if the Constitution Seventeenth Amendment Act 1964 was constitutionally valid the said Acts could not be impugned on any of the said grounds
The question of the amendability of the fundamental rights was considered by this Court earlier in two decisions namely Sri Sankari Prasad Singh Deo vs Union of India and State of Bihar1 and in Sajjan Singh vs State of Rajasthan 2 In the former the validity of the Constitution First Amend ment Act 1951 which inserted inter alia articles 31 A and 31 B in the Constitution was questioned
That amendment was made under article 368 of the Constitution by the Provisional Parliament
This Court held that Parliament had power to amend Part III of the Constitution
The Court came to that conclusion on two grounds namely 1 the word law in article 132 was one made in exercise of legislative power and not constitutional law made in exercise of constituent power and ii there were two articles articles 132 and 368 each of which was widely phrased and therefore harmonious construction required that one should be so read as to be controlled and qualified by the other and having regard to the circumstances mentioned in the judgment article 13 must be read subject to article 368
A careful perusal of  the judgment indicates that the whole decision turned upon an assumption that the expression law in Art 132 does not include constitutional law and on that assumption an attempt was made to harmonise Article 13 2 and 368 of the Constitution
The decision in Sajjan Singh s case2 was given in the con text of the question of the validity of the Constitution Seventeenth Amendment Act 1964
Two questions arose in that case 1 Whether the amendment Act insofar it purported to take away or abridge the rights conferred by Part III of the Constitution fell within the prohibition of article 132 and 2 Whether Articles 31 A and 31 B sought 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 the Chief Justice and Mudholkar J made it clear that the first contention was not raised before the Court
The learned counsel appearing for both the parties accepted the correctness of the decision in Sankari Prasad s case1 in that 1  105
2   946 950 959 961 963
786 regard
Yet Gajendragadkar CJ speaking for the majority agreed with the reasons given in Sankari Prasad s case1 on the first question and Hidayatullah and Mudholkar JJ
expressed their dissent from the said view
But all of them agreed though for different reasons on the second question
Gajendragadkar CJ speaking for himself Wanchoo and Raghubar Dayal JJ rejected the contention that article 368 did not confer power on Parliament to take
away the fundamental rights guaranteed by Part III
When a suggestion was made that the decision in the aforesaid case should be reconsidered and reviewed the learned Chief Justice though he conceded that in a case where a decision had a significant impact on the fundamental rights of citizens the Court would be inclined to review its earlier decision in the interests of the public good he did not find considerations of substantial and compelling character to do so in that case
But after referring to the reasoning given in Sankari Prasad s case1 the learned Chief Justice observed In our opinion  the expression amendment of the Constitution plainly and unambiguously means amendment of all the provisions of the Constitution
 Referring to article 13 2 he restated the same reasoning found in the earlier decision and added that if it was the intention of the Constitution makers to save fundamental rights from the amendingprocess they should have taken the precaution of making A 
clear provision in that regard
In short the majority speaking through Gajendragadkar CL agreed that no case had been made out for reviewing the earlier decision and practically accepted the reasons given in the earlier decision
Hidyatullah J speaking for himself observed 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 lawin that Article After giving his reasons for doubting the correctness of the reasoning given in Sankari Prasad s case1 the learned Judge concluded thus  I would require stronger reasons than those given in Sankari Prasad s case1 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 1  787 The
learned Judge continued The Constitution gives so many assurances in Part III that it would be difficult to think that they were the playthings of a special majority
 Mudholkar J was positive that the result of a legislative action of a legislature could not be other than law and therefore it seemed to him that the fact that the legislation dealt with the amendment of a provision of the Constitution would not make its results anytheless a law
He further pointed out that article 368 did not say that whenever Parliament made an amendment to the Constitution it assumed a different capacity from that of a constituent body
He also brought out other defects in the line of reasoning adopted in Sankari Prasad s case1
It will thereforebe seen that the correctness of the decision in Sankari Prasad s case1 was not questioned in Sajjan Singh s case2 Though it was not questioned three of the learned Judges agreed with the view expressed therein but two learned Judges were inclined to take a different view
But as that question was not raised the minority agreed with the conclusion arrived at by the majority on the question whether the Seventeenth Amendment Act was covered by the proviso
to article 368 of the Constitution
The conflict between the majority and the minority in Sajjan s Singh s case1 falls to be resolved in this case
The said conflict and the great importance of the question raised is the justification for  the Constitution of the larger Bench
 The decision in Sankri Prasad s case1 was assumed to be correct in subsequent decisions of this Court
See section Krishnan vs State of Madras1 The State  of West Bengal vs Anwar All Sarkar1 and Basheshar Nath vs The Commissioner of Income tax Delhi and Rajasthan5
But nothing turns upon that fact as the correctness of the derision was not questioned 
in those cases
A correct appreciation of the scope and the place of funda mental rights in our Constitution will give its the right perspective for solving the problem presented before us Its scope cannot be appreciated unless we have a conspectus of the Constitution its objects
and its machinery to achieve those object
The objective sought to be achieved by the Constitution is declared in sonorous terms
in its preamble which reads We the people of India having solemnly resolved to constitute India into a Sovereign Democratic Republic and to secure to all its citizens justice
liberty
equality
and fraternity 
1  3  at page 652
2 1965 1 SCR933
4   366
5 1959 Supp 1 SCR 528563
788 It contains in a nutshell its ideals and its aspirations
The preamble is not a platitude but the mode of its realisation is worked out in detail in the Constitution
The Constitution brings into existence different constitutional entities namely the Union the States and the Union Territories
It creates three major instruments of power namely the Legislature the Executive and the Judiciary
It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits
They should function within the spheres allotted to them
Some powers overlap and some are superseded during emergencies
The mode of resolution of conflicts and conditions for supersession are also prescribed
In short the scope of the power and the manner of its exercise are regulated by law
No authority created under the Constitution is supreme the Constitution is supreme and all the authorities function under the supreme law of the land
The rule of law under the Constitution has a glorious content
It embodies the
modem concept of law evolved over the centuries
It empowers the Legislatures to make laws in respect of matters enumerated in the 3 Lists annexed to Schedule VII
In Part IV of the Constitution the Directive Principles of State Policy are laid down
It enjoins it to bring about a social order in which justice social
economic and political shall inform all the institutions of national life
It directs it to work for an egalitarian society where there is no concentration of wealth where there is plenty where there is equal opportunity for all to education to work to livelihood 
and where there is social justice
But having regard to the past history of our country it could not implicitly believe the representatives of the people for uncontrolled and unrestricted power might lead to an authoritarian State
It therefore preserves the natural rights against the State encroachment and constitutes the higher judiciary of the State as the sentinel of the said rights and the balancing wheel between the rights subject to social control
In short the fundamental rights subject to social control have been incorporated in the rule of law
That is brought about by an interesting process
In the implementation of the Directive Principles Parliament or the Legislature of a State makes laws in respect of matter or matters allotted to it
But the higher Judiciary tests their validity on certain objective criteria namely i whether the appropriate Legislature has the legislative competency to make the law ii whether the said law infringes any of the fundamental rights iii even if it Infringement the freedoms under article 19 whether the infringement only amounts to reasonable restriction on such rights in public interest
 By this process of scrutiny the court maintains the validity of only such laws as keep a just balance between freedoms and social control
The duty of reconciling fundamental rights in article 19 and the laws of social control is cast upon the courts 789 and the touchstone or the standard is contained in the said two expressions
The standard is an elastic one it varies with time space and condition
What is reasonable under certain circumstances may not be so under different circumstances
The constitutional philosophy of law is reflected in Parts 1111 and IV of the Constitution
The rule of law under the Constitution serves the needs of the people without unduly infringing their rights
It recognizes the social reality and tries to adjust itself to it from time to time avoiding the authoritarian pat EKery institution or political party that functions under the Constitution must accept it otherwise it has no place under the Constitution
Now what are the fundamental rights  They are embodied in Part III of the Constitution and they may be classified thus  i right to equality ii right to freedom iiiright against exploitation iv right to freedom of religion v cultural and educational rights vi right to property and vii right to constitutional remedies
They are the rights of the people preserved by our Constitution
Fundamental rights are the modern name for what have been traditionally known as natural rights
As one author puts they are moral rights which every human being everywhere at all times ought to have sim y because of the fact that in contradistinction with ot moral
 They are the primordial ment of human personality
man to chalk out his own life in is rational and ry for the developrights which enable a he likes best
Our Constitution in addition to the well known fundamental rights also included the rights of the minorities untouchables and other backward communities in such rights
After having declared the fundamental rights our Constitution says that all laws in force in the territory of India immediately before the commencement of the Constitution insofar as they are inconsistent with the said rights are to the extent of such inconsistency void
The Constitution also enjoins the State not to make any law which takes away or abridges the said rights and declares such laws to the extent of such inconsistency to be void
As we have stated earlier the only limitation cn the freedom enshrined in article 19 of the Constitution is that imposed by a valid law rating as a reasonable restriction in the interests of the public
It will therefore be seen that fundamental rights are given transcendental position under our Constitution and are kept beyond the reach of Parliament
At the same time Parts 1111 and V constituted an integrated scheme forming a self contained code
The scheme is made so elastic that all the Directive  Principles of State Policy can reasonably be enforced without taking up
Cl67 5 790 away or abridging the fundamental rights
While recognizing the immutability of fundamental rights subject to social control the Constitutional itself provides for the suspension or the modification of fundamental rights under specific circumstances for instance article 33 empowers Parliament to modify the rights conferred by Part III in their application to the members of the armed forces article 34 enables it to impose restrictions on the rights conferred by the said parts while martial law is in force in an area article 35 confers the power on it to make laws with respect to any of the matters which under clause 3 of article 16 Clause 3 of article 32 article 33 and article 34 may be provided for by law
The non obstante clause with which the last article opens makes it clear that all the other provisions of the Constitution are subject to this provision
Article 32 makes the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by the said Parts a guaranteed right
Even during grave emergencies article 358 only suspends the provisions of article 19 and article 359 enables the President by order to declare the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in that order to be suspended that is to say even during emergency only article 19 is suspended temporarily and all other rights are untouched except those specifically suspended by the President
In the Book Indian Constitution Corerstone of a Nation by Granville Austin the scope origin and the object of funda mental rights have been graphically stated
Therein the learned author says    the core of the commitment to the social revolution lies in Parts III and IV in the Fundamental Rights and fit the Directive Principles of State Policy
These are the conscience of the Constitution
 Adverting to the necessity for incorporating fundamental rights in a Constitution the learned author says That a declaration of rights had assumed such importance was not surprising India was a land of communities of minorities racial religious linguistic social and caste
For India to become a state these minorities had to agree to be governed both at the centre and in the provinces by fellow Indian members perhaps of another minority and not by a mediatory third power the British
On both psychological and political rounds
 therefore  the demand for written right rights would provide tangible safeguards against oppression proved overwhelming
791 Motilal Nehru who presided over the Committee called for by the Madras Congress resolution in May 1928 observed in his report  It is obvious that our first care should be to have our Fundamental Rights guaranteed in a manner which will not permit their withdrawal under any circumstances 
Another reason why great importance attached to a Declaration of Rights is the unfortunate existence of communal differences in the country
Certain safeguards are necessary to create and establish a sense of security among those who look upon each other with distrust and suspicion
We could dot better secure the full enjoyment of religious and communal rights to all communities than by including them among the basic principles of the Constitution Pandit Jawaharlal Nehru on April 30 1947 in proposing for the adoption of the Interim Report on Fundamental Rights said thus  A fundamental right should be looked upon not from the point of view of any particular difficulty of the moment but as something that you want to make permanent in the Constitution
The other matter should be looked upon however important it might be not from this permanent and fundamental point of view but from the more temporary point of view Pandit Jawaharlal Nehru who was Prime Minister at that time and
who must have had an effective voice in the framing of the Constitution made this distinction between fundamental rights and other provisions of the Constitution namely the former were permanent and the latter were amendable
On September 18 1949 Dr Ambedkar in speaking on the amendment proposed by Mr Kamath to article 304 of the Draft Constitution corresponding to the present article 368 namely Any provision of this Constitution may be amended whether by way of variation addition or repeal in the manner provided in this article said thus Now what is it we do  We divide the articles of the Constitution under three categories
The first category is the one which consists of articles which can be amended by Parliament by a bare majority
The second set of articles are articles which require two thirds majority
If the future Parliament wishes to amend any particular article which is not mentioned in Part III or article 304 all that is necessary for them is to have two thirds majority
Then they can amend it
 792 Therefore in Dr Ambedkar s view the fundamental rights were so important that they could not be amended in the manner provided by article 304 of the Draft Constitution which corresponds to the present article 368
We have referred to the speeches of Pandit Jawaharlal Nehru and Dr Ambedkar not with a view to interpret the provisions of article 368 which we propose to do on its own terms but only to notice the transcendental character given to the fundamental rights by two of the important architects of the Constitution
This Court also noticed the paramountcy of the fundamental rights in many decisions
In A K Gopalan vs State of Mad ras1 they are described as paramount  in State of Madras vs Smt
Champakam Dorairajan2 as sacrosanct in Pandit M section M Sharma vs Shri Sri Krishna Sinhas as rights reserved by the people  in Smt
Vijam Bai vs State of Uttar Pradesh1 as inalienable and inviolableand in other cases as transcendental
The minorities regarded them as the bedrock of their political existence and the majority considered them as a guarantee for their way of life
This however does not mean that the problem is one of mere dialectics
The Constitution has given by its scheme a place of permanence to the fundamental freedoms
In giving to themselves the Constitution the people have reserved the fundamental freedoms to themselves
Article 13 merely incorporates that reservation
That Article is however not the source of the protection of fundamental rights but the expression of the reservation
The importance attached to the fundamental freedoms is so transcendental that a bill enacted by a unanimous vote of all the members of both the Houses is ineffective to dero gate from its guaranteed exercise
It is not what the Parliament regards at a given moment as conducive to the public benefit but what Part III declares protected which determines the ambit of the freedom
The incapacity of the Parliament therefore in exercise of its amending power to modify restrict or impair fundamental freedoms in Part III arises from the scheme of the Constitution and the nature of the freedoms
Briefly stated the Constitution declares certain rights as fundamental laws infringing the said rights of social control infringing the said power on Parliament and the them in specified circumstances if the decisions in San Prasad s case1 and Sajjan Singh s case1 laid down the correct law it enables the same Parliament to abrogate them with one stroke provided the party in power singly or in combination with other parties commands the neces 1  198
3 1959 Supp 1 SCR 806
5 1952 SCP 89105
2  4 1963 1 SCR 778
6  793 sary majority
While articles of less significance would require consent of the majority of the States fundamental rights can
be dropped without such consent
While a single fundamental right cannot be abridged or taken away by the entire Parliament unanimously voting to that effect a two thirds  majority can do away with all the fundamental rights
The entire super structure built with precision and high ideals may crumble at one false step
Such a conclusion would attribute unreasonableness to the makers of the Constitution for in that event they would be speaking in two voices
Such an intention cannot be attributed to the makers of the Constitution unless the provisions of the Constitution compel us to do so
With this background let us proceed to consider the provisions of article 368 vis a vis article 132 of the Constitution
The first question is whether amendment of the Constitution under article 368 is law within the meaning of article 132
The marginal note to article 368 describes that article as one prescribing the procedure for amendment
The article in terms only prescribes various procedural steps in the matter of amendment it shall be initiated by the introduction of a bill in either House of Parliament it shall be passed by the prescribed majority in both the Houses it shall then be presented to the President for his assent and upon such assent the Constitution shall stand amended
The article assumes the power to amend found else and says that it shall be exercised in the manner laid down therein
The argument that the completion of the procedural AM culminates in the exercise of the power to amend may be subtle but does not carry conviction
If that was the intention of the provisions nothing prevented the makers of the Constitution from stating that the Constitution may be amended in the manner suggested
Indeed whenever the Constitution sought to confer a special power to amend on any authority it expressly said so  See articles 4 and 392
The alternative contention that the said power shall be implied either from article 368 or from the nature of the articles sought to be amended cannot be accepted for the simple reason that the doctrine of necessary implication cannot be invoked if there is an express sion or unless but for such implication the article will no necessity to imply any plenary power to make any Constitution subject to the Uninfluenced by any foreign doctrines let us look at the provisions of our Constitution
Under article 245 subject to the provisions of the Constitution Parliament may make laws for the whole or any part of the territory of India 
Article 246 demarcates the matters in respect of which Parliament and State 794 Legislatures may make laws
In the field reserved for Parliament there is Entry 97 which empowers it to make laws in respect of  any other matter not enumerated in Lists II and III including any tax not mentioned in either of those lists
 Article 248 expressly states that Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List
It is therefore clear that the residuary power of legislation is vested in Parliament
Subject to the argument based upon the alleged nature of the amending power as understood by jurists in other countries which we shal consider at a later stage it cannot be contended and indeed it was not contended that the Constituent Assembly if it were so minded could not have conferred an express legislative power on Parliament to amend the Constitution by ordinary legislative process
Articles 4 and 169 and para 7 of the 5th Schedule and para 21 of the 6th Schedule have expressly conferred such power
There is therefore no inherent Inconsistency between legislative process and the amending one
Whether in the field of a constitutional law or statutory law amendment can be brought about only by law
The residuary power of Parliament unles there is anything contrary in the Constitution certainly takes in the power to amend the Constitution
It is said that two Articles indicate the contrary intention
As article 245 the argument proceeds is subject to the provisions of the Constitution every law of amendment will necessarily be inconsistent with the articles sought to be amended Ibis is an argument in a circle
Can it be said reasonably that a law amending an article is inconsistent with the article amended  If an article of the Constitution expressly says that it cannot be amended a law cannot be made amending it as the power of Parliament to make a law is subject to the said Article
It may well be that in a given case such a limitation may also necessarily be implied
The limitation in article 245 is in respect of the power to make a law and not of the content of the law made Within the scope of its power
The second criticism is based upon article 39 of the Constitution
That provision confers power on the President to remove difficulties in the circumstances mentioned in that provision he can by order direct that the Constitution shall during such period as may be specified in that order have effect subject to such adaptations whether by way of modification addition or omission as he may deem to be necessary or expedient
The argument is that the President s power though confined to a temporqry periodis co extensive with legislative power and if the power to amend is a legislative power it would have to be held that the President can amend the Constitution in terms of article 368
Apart from the limited scope of article 392 which is intended only for the purpose of removing difficulties and for bringing about a smooth transition an order made by the Presi 795 dent cannot attract article 368 as the amendment contemplated by that provision can be initiated only by the introduction of a bill in the Parliament
There is no force in either of the two criticisms
Further there is internal evidence in the Constitution itself which indicates that amendment to the Constitution is a law within the meaning of article 245
Now what is law under the Constitution  It is not denied that in its comprehensive sense it includes constitutional law and the law amending the Constitution is constitutional law
But article 132 for the purpose of that Article gives an inclusive definition
It does not exclude Constitutional law
It prima facietakes in constitutional law
Article 368 itself gives the necessary clue to the problem
The amendment can be initiated by
the introduction of a bill it shall be passed by the two Houses it shall  receive the assent of the President
These are well known procedural steps in the process of law making  Indeed this Court in Sankari Prasads case1 brought out this idea in clear terms
It said in the first place it is provided that the amendment must be initiated by the introduction of a bill in either House of Parliament  a familiar feature of Parliament procedure of Article 1071 which says A bill may originate in either House of Parliament Then the bill must be Passed in each House just what Parliament does when it is called upon to exercise its normal legisrative function Article 10721 and finally the bull thus passed must be president to the President for his assent again a parliamentary process through which every bill must pass before it can reach the statute book Article 1 1 1 
We thus find that each of the component units of Parliament is to play its allotted part in bringing about an amendment to the Constitution
We have already seen that Parliament effects amendments of the first class mentioned above by going through the same three fold procedure but with a simple majority
The fact that a different majority in the same body is required for effecting the second and third categories of 1 amendments make the amending agency a different body
 In the same decision it is pointed out that article 368 is not a complete code in respect of the procedure
This Court said There are gaps in the procedure as to how and after what notice a bill is to be introduced how it is to be passed by each House and how the President s assent is to be obtained
Having provided for the Constitution of a Parliament and prescribed a certain procedure for the conduct of its ordinary legislative business to be supplemented by rules made by each House Article 118 the makers of the Constitution must be taken to have intended Parliament to follow that procedure so far as they may be applicable consistently with the express provision of article 368 when they have entrusted to it the power of ending the Con 1  1 952 SC R 89
796 stitution
 The House of the People made rules providing procedure for amendments the same as for other Bills with the addition of certain special provisions viz Rules 155 156 157 and 158
If amendment is intended to be something other than law the constitutional insistence on the said legislative process is unnecessary
In short amendment cannot be made otherwise than by following the legislative process
The fact that there are other conditions such as a larger majority and in the case of articles mentioned in the proviso a ratification by Legislatures is provided does not make the amendment anytheless a law
The imposition of further conditions is only a safeguard against hasty action or a protection to the States but does not change the Legislative character of the amendment
This conclusion is reinforced by the other articles of the Constitution
Article 3 enables Parliament by law to form now States and alter areas boundaries or the names of existing States
imposed two further conditions of the President and ii in therein the views expressed by the Legislatures
Notwithstanding the said conditions it cannot be suggested that the expression law under the said Article is not one made by the Legislative process
Under article 4 such a law can contain provisions for amendment of Schedules I and IV indicating thereby that amendments are only made by Legislative process
What is more cl
2 thereof introduces a fiction to the affect that such a law shall not be deemed to be an amendment to the Constitution
This shows that the amendment is law and that but for the fiction it would be an amendment within the meaning of article 368
Article 169 which empowers Parliament by law to abolish or create Legislative Councils in States para 7 of the 5th Schedule and para 21 of the 6th Schedule which enable Parliament by law to amend the said Schedules also bring out the two ideas that the amendment is law made by legislative process and that but for the fiction introduced it would attract Article 368
That apart amendments under the said provisions can be made by the Union Parliament by simple majority
That an amendment is made only by legislative process with or without conditions will be clear if two decisions of the Privy Council are considered in juxta position
They are McCawley vs The King1 and The Bribery Commissioner vs Pedrick Rana singhe2
The facts in McCawley vs The King1 were these In 1859 Queensland had been granted a Constitution in the terms of an Order in Council made on June 6 of that year under powers derived by Her Majesty from the Imperial Statute 18  19 Vict
1 2 797 c 54
The Order in Council had set up a legislature for the territory consisting of the Queen a Legislative Council and a Legislative Assembly and the law making power was vested in Her Majesty acting with the advice and consent of the Council and Assembly
Any laws could be made for the peace welfare and good government of the Colony
The said legislature of Queensland in the year 1867 passed the Constitution Act of that year
Under that Act power was given to the said legislature to make laws for peace welfare and good Government of the Colony in all cases whatsoever
But under section 9 thereof a two thirds majority of the Council and of the Assembly as required as a condition precedent to the validity of legislation altering the constitutionof the Council
The Legislature there fore had except in the case covered by section 9 of the Act an unrestricted power to make laws
The Legislature passed a law which conflicted with one of the existing terms of the Constitution Act
Lord Birkenhead LC upheld the law as the Constitution Act conferred an absolute power upon the legislature to pass any law by majority even though it in substance amended the terms of the Constitution Act
In The Bribery Commissioner vs Pedrick Ranasinghe1 the facts are these  By section 29 of the Ceylon Constitution Order in Council 1946 Parliament shall have power to make laws for the peace
order and good government of the Island and in the exercise of its power under the said section it may amend or repeal any of the provisions of the Order in its application to the Island
The proviso to that section says that no Bill for the amendment or repeal of any of the provisions of the Order shall be presented for the Royal assent unless it has endorsed on it a certificate under the hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two thirds of the whole number of members of the House
Under section 55 of the said Order the appointment of Judicial Officers was vested in the Judicial Service Com mission
But the Parliament under section 41 of the Bribery Amendment Act 1958 provided for the appointment of the personnel of the Bribery Tribunals by the Governor General on the advice of the Minister of Justice
The said Amendment Act was in conflict with the said section 55 of the Order and it was passed without complying with the terms of the proviso to section 29 of the Order
The Privy Council held that the Amendment Act was void
Lord Pearce after considering McCawley s case2 made the following observations at p 1310    a legislature has no power to ignore the conditions of law making that are imposed by the 1  2 1 798 instrument which itself regulates its power to make law
This restriction exists independently of the  question whether the legislature is sovereign as is the legislature of Ceylon or whether the Constitution is uncontrolled as the Board held the Constitution of Queensland to be
Such a Constitution can indeed be altered or amended by the legislature if the regulating instrument so provides and if the terms of those provisions are complied with 
It will be seen from the said judgments that an amendment of the Constitution is made only by legislative process with ordinary majority or with special majority as the case may be
Therefore amendments either under article 368 or under other Articles axe made only by Parliament by following the legislative process adopted by it  n making other law
In the premises an amendment Of the Constitution can be nothing but law
A comparative study of other Constitutions indicates that no particular pattern is followed
AR the Constitutions confer an express power to amend most of them provide for legislative procedure with special majority referendum convention etc and a few with simple majority
Indeed Parliament of England which is a supreme body can amend the constitution like any other statute
As none of the Constitutions contains provisions similar to article 368 and article 132 neither the said Constitutions nor the decisions given by courts thereon would be of any assistance in construing the scope of article 368 of our Constitution
A brief survey of the nature of the amending process adopted by various constitutions will bring out the futility of any attempt to draw inspiration from the said opinions or decisions on the said constitutions
The nature of the amending power in different constitutions generally depends on the nature of the polity created by the constitution namely whether it is federal or unitary constitution or on the fact whether it is a written or an unwritten constitution or on the circumstances whether it is a rigid or a flexible constitution
Particularly the difference can be traced to the spirit and genius of the nation in which a particular constitution has its birth
The following articles of the Constitution of the different countries are brought to our notice by one or other of the counsel that appeared before us
article 5 of the Constitution of the United States of America articles 125 and 128 of the Commonwealth of Australia Constitution Act article 92 1 of the British North American Act section 152 of the South African Act article 217 of the Constitution of the United States of Brazil Section 46 of the Constitution of Ireland 1937 articles 207 208 and 209 of the Constitution of the Union of Burma article 88 of the Constitution of the Kingdom of Denmark Act article 90 of 799 the Constitution of the French Republic 1954 article 135 of the United States of Mexico article 96 of the Constitution of Japan article 112 of the Constitution of Norway article 85 of the Constitution of the Kingdom of Sweden articles 118 119 120 121 122 and 123 of the Constitution of the Swiss Federation articles 140 141 and 142 of the Constitution of Venezuela and article 146 of the Constitution of the Union of Soviet Socialist Republics 1936 and section 294 of Ceylon Constitution Order in Council 1946
Broadly speaking amendments can be made by four methods i by ordinary legislative process with or without restrictions ii by the people through referendum iii by majority of all the units of a federal State and iv by a special convention
The first method can be in four different ways namely i by the ordinary course of legislation by absolute majority or by special majority See Section 92 1  of the British North America Act sub section 152 South African Apt where under except sections 35 137 and 152 other provisions could be amended by ordinary legislative process by absolute majority
Many constitutions provide for special majorities ii by a fixed quorum of members for the consideration of the proposed amendment and a special majority for its passage see the defunct Constitution of Rumania iii by dissolution and general election on a particular issue see the Constitutions of Belgium Holland Denmark and Norway and iv by a majority of two Houses of Parliament in joint session as in the Constitution of the South Africa
The second method demands a popular vote referendum  or plebiscite as in Switzerland Australia Ireland Italy France and Denmark
The third method is by an agreement in some form or other of either of the majority or of all the federating units as in Switzerland Australia and the United States of America
The fourth method is generally by creation of a special body ad hoc for the purpose of constitution revision as in Latin America
Lastly some constitutions impose express limitation on the power to amend
See article 5 of the United States Constitution and the Constitution of the Fourth French Republic
A more elaborate discussion of this topic may be found in the American political Constitution by Strong
It will therefore be seen that the power to amend and the procedure to amend radically differ from State to State it is left to the constitution makers to prescribe the scope of the power and the method of amendment having regard to the requirements of the particular State
There is no article in any of the constitutions referred to us similar to article 132 of our Constitution
India adopted a different system altogether it empowered the Parliament to amend the Constitution by the legislative process subject to fundamental rights
The Indian 1 Constitution has made the amending process comparatively flexible but it is made subject to fundamental rights
800 Now let us consider the argument that the power to amend is a sovereign power that the said power is supreme to the legislative power that it does not permit any implied limitations and that amendments made in exercise of that power involve political questions and that therefore they are outside judicial review This wide proposition is sought to be supported on the basis of opinions of jurists and judicial decisions
Long extracts have been read to us from the book The Amending of the Federal Constitution 1942 by Lester Bernhardt Orfield and particular reference was made to the following passages  At the point it may be well to note that when the Congress is engaged in the amending process it is not legislating
It is exercising a peculiar power bestowed upon it by Article Five
This Article for the most part controls the process and other provisions of the Constitution such as those relating to the passage of legislation having but little bearing
 Adverting to the Bill of Rights the learned author remarks that they may be repealed just as any other amendment and that they are no more sacred from a legal standpoint than any other part of the Constitution
Dealing with the doctrine of implied limitations he says that it is clearly untenable
Posing the question Is other a law about the amending power of the Constitution  he answers there is none
He would even go to the extent of saying that the sovereignty if it can be said to exist at all is located in the amending body
The author is certainly a strong advocate of the supremacy of the amending power and an opponent of the doctrine of implied limitations
His opinion is based upon the terms of article 5 of the Constitution of the United States of America and his interpretation of the decisions of the Supreme Court of America
Even such an extreme exponent of the doctrine does not say that a particular constitution cannot expressly impore restrictions on the power to amend or that a court cannot reconcile the articles couched in unlimited phraseology
Indeed article 5 of the American Constitution imposes express limitations on the amending power
Some passages from the book Political Science and Government by James Wilford Garner are cited
Garner points out  An unamendable constitution said Mulford is the worst tyranny of time or rather the very tyranny of time But he also notices The provision for amendment should be neither so rigid as to make needed changes practically impossible nor so flexible as to encourage frequent and 801 unnecessary changes and thereby lower the authority of the Constitution
 Munro in his book The Government of the United States 5th Edition uses strong words when he says   it is impossible to conceive of an unamendable constitution as anything but a contradiction in terms
 The learned author says that such a constitution would constitute government by the graveyards Hugh Evander Wills in his book Constitutional Law of the United States avers that the doctrine of amendability of the Constitution is grounded in the doctrine of the sovereignty of the people and that it has no such implied limitations as that an amendment shall not contain a new grant of power or change the dual form of government or change the protection of the Bill of Rights or make any other change in the Constitution
Herman Finer in his book The Theory and Practice of Modem Government defines constitution as its process of amendment for in his view to amend is to deconstitute and reconstitute
The learned author concludes that the amending clause is so fundamental to a constitution that he is tempted to call it the constitution itself
But the learned author recognizes that difficulty in amendment certainly products circumstances and makes impossible the surreptitious abrogation of rights guaranteed in the constitution
William section Livingston in Federalism and Constitutional Change says  The formal procedure of amendment is of greater importance than the informal processes because it constitutes a higher authority to which appeal lies on any question that may arise
 But there are equally eminent authors who express a different view
In American Jurisprudence 2nd Edition Vol
16 it is stated that a statute and a constitution though of unequal dignity are both laws
Another calls the constitution of a State as one of the laws of the State
Cooley in his book on Constitutional Law opines that changes in the fundamental laws of the State must be indicated by the people themselves
He further implies limitations to the amending power from the belief in the constitution itself such as the republican form of Government cannot be abolished as it would be revolutionary in ifs characters
In the same book it is further said that the power to amend the constitution by legislative action does not confer the power to break it any more than it confers the power to legislate on any other subject contrary to the prohibitions
C F Strong in his book Modem Poliical Constitutions 1963 edition does not accept the theory of absolute sovereignty of the amending power which does not brook any limitations for he says
802 In short it attempts to arrange for the recreation of a constituent assembly whenever such matters are in future to be considered even though that assembly be nothing more than the ordinary legislature acting under certain restrictions
At the same time there may be some elements of the constitution which the constituent assembly wants to remain unalterable by the action of any authority whatsoever
These elements are to be distinguished from the rest and generally come under the heading of fundamental law
Thus for example the American Constitution the oldest of the existing Constitutions asserts that by no process of amendment shall any State without its own consent be deprived of its equal suffrage in the Senate  while among the Constitutions more recently promulgated those of the Republics of France and Italy each containing a clause stating that the republican form of government cannot be the subject of an amending proposals it is not necessary to multiply citations from text books
A catena of American decisions have been cited before us in support of the contention that the unending power is a supreme power or that it involves political issues which are not justiciable
It would be futile to consider them
at length for after going through them carefully we find that there are no considered judgments of the American Courts which would have a persuasive effect in that regard
In the Constitution of the United States of America prepared by Edwards section Corwin Legislative Reference Service Library of Congress 1953 edn the following summary under the heading Judicial Review under Article V is given  Prior to 1939 the Supreme Court had taken cognizance of a number of diverse objections to the validity of specific amendments
Apart from holding that official notice of ratification by the several States was con clusive upon the Courts it had treated these questions as justiciable although it had uniformly rejected them on the merits
In that year however the whole subject was thrown into confusion by the inconclusive decision in Coleman vs Miller
This case came up on a writ of certiorari to the Supreme Court of Kansas to review the denial of a writ of mandamus to compel the Secretary of the Kansas Senate to erase an endorsement on a resolution ratifying the child labour amendment to the Constitution to re effect that it had been adopted by the Kansas Senate
The attempted ratification was 803 assailed on three grounds  1 that the amendment had been previously rejected by the State Legislature 2 that it was no longer open to ratification because an unreasonable period of time thirteen years had elapsed since its submission to the States and 3 that the lieutenant governor had no right to cast the deciding vote in the Senate in favour of ratification
Four opinions were written in the Supreme Court no one of which commanded the support of more than four mem bers of the Court
The majority ruled that the plain tiffs members of the Kansas State Senate had a sufficient interest in the controversy to give the federal courts jurisdiction to review the case
Without agreement as to the grounds for their decision a different majority affirmed the judgment of the Kansas court denying the relief sought
Four members who concur red in the result had voted to dismiss the writ on the ground that the amending process is political in its
entirety from submission until an amendment becomes part of the Constitution and is not subject to judicial guidance control or interference at any point
 whether the contention that the lieutenant governor should have been permitted to cast the deciding vote in favour of ratification presented a justiciable controversy was left undecided the court being equally divided on the point
In an opinion reported as the opinion of the Court  but in which it appears that only three Justices concurred Chief Justice Hughes declared that the writ of  mandamus was properly denied because the question as to the effect of the previous rejection of the amendment and the lapse of time since it was submitted to the States were political questions which should be left to Congress
On the same day the Court dismissed a writ of certiorari to review a decision of the Kentucky Court of Appeals declaring the action of the Kentucky General Assembly purporting to ratifying the child labour amendment illegal and void
Inasmuch as the governor had forwarded the certified copy of the resolution to the Secretary of State before being served with a copy of the restraining order issued by the State Court the Supreme Court found that there was no longer a controversy susceptible of judicial determination
 This passage in our view correctly summarises the American law on the subject
It will be clear therefrom that prior to 1939 the Supreme Court of America had treated the objections to the validity of specific amendments as justiciable and that only in 1939 it rejected them in an inconclusive judgment without 804 discussion
In this state of affairs we cannot usefully draw much from the judicial wisdom of the Judges of the Supreme Court of America
One need not cavil at the description of an amending power as sovereign power for it is sovereign only within the scope of the power conferred by a particular constitution
All the authors also agree that a particular constitution can expressly limit the power of amendment both substantive and procedural
The only conflict lies in the fact that some authors do not pen nit implied limitations when the power of amendment is expressed in general words
But others countenance such limitations by construction or otherwise
But none of the authors goes to the extent of saying which is the problem before us that when there are conflicting articles couched in widest terms the court has no jurisdiction to construe and harmonize them
If some of the authors meant to say that in our view they did not we cannot agree with them for in that event this Court would not be discharging its duty
Nor can we appreciate the arguments repeated before us by learned counsel for the respondents that the amending process involves political questions which are outside the scope of judicial review
When a matter comes before the Court its jurisdiction does not depend upon the nature of the question raised but on die question whether the said matter is expressly or by necesssary implication excluded from its jurisdiction
Secondly it is not possible to define what is a political question and what is not
The character of a question depends upon the circumstances and the nature of a political society
To put if differently the court does not decide any political question at all in the ordinary sense of the term but only ascertains whether Parliament is acting within the scope of the amending power
It may be that Parliament seeks to amend the Constitution for political reasons but the Court in denying that power will not be deciding on political questions but will only be holding that Parliament has no power to amend particular articles of the Constitution for any purpose whatsoever be it political or otherwise
We therefore hold that there is nothing in the nature of the amending power which enables Parliament to override all the express or implied limi tations imposed on that power
As we have pointed out earlier our Constitution adopted a novel method in the sense that Parliament makes the amendment by legislative process subject to certain restrictions andthat the amendment so made being law issubject to article 132
The next argument is based upon the expression amendment in article 368 of the Constitution and if is contended that the said 805 expression has a
Positive and a negative content and that in exercise of the power amendment parliament cannot destroy the structure of the Constitution but it can only modify the provisions thereof within the framework of the original instrument for its better effectuation
If the fundamentals would be amenable to the ordinary process of amendment with a special majority the argument proceeds the institutions of the President can be abolished the parliamentary executive can be removed the fundamental rights can be abrogated the concept of federalism  can be obliterated and in short the sovereign democratic republic can be converted into a totalitarian system of government
There is considerable force in this argument
Learned and lengthy arguments are advanced to sustain it or to reject it
But we are relieved of the necessity to express our opinion on this all important question as so far as the fundamental rights are concerned the question raised can be answered on a narrower basis
This question may arise for consideration only if Parliament seeks to destroy the structure of the Constitution embodied in the provisions other than in Part III of the Constitution
We do not therefore propose to express our opinion in that regard
In the view we have taken on the scope of article 368 vis a vis the fundamental rights it is also unnecessary to express our opinion on the question whether the amendment of the fundamental rights is covered by the proviso to article 368
The result is that the Constitution Seventeenth Amendment Act 1964 inasmuch as it takes away or abridges the funda mental rights is void under article 132 of the Constitution
The next question is whether our decision should be given retrospective operation
During the period between 1950 and 1967 ie 17 years as many as 20 amendments were made in our Constitution
But in the context of the present petitions it would be enough if we notice the amendments affecting fundamental right to property
The Constitution came into force on January 26 1950
The Constitution First Amendment Act 1951 amended articles 15 and 19 and articles 31 A and 31 B were inserted with retrospective effect
The object of the amendment was said to be to validate the acquisition of zamindaries or the abolition of permanent settlement without interference from courts
The occasion for the amendment was that the High Court of Patna in Kameshwar Singh v State of Bihar1 held that the Bihar Land Reforms Act 30 of 1950 passed by the State of Bihar was unconstitutional while the High Courts of Allahabad and Nagpur upheld the validity of corresponding legislations in Uttar Pradesh and Madhya Pradesh respectively
1 A I R 1951 Patna 91
CT167 6 806 The amendment was made when the appeals from those decisions were pending in the Supreme Court
In Sankari Prasad s case1 the constitutionality of the said amendment was questioned but the amendment was upheld
It may be noticed that the said amendment was not made on the basis of the power to amend fundamental rights recognized by this Court but only in view of the conflicting decisions of High Courts and without waiting for the final decision from this Court
article 31 A was again amended by the Constitution Fourth Amendment Act 1955
Under that amendment cl
2 of article 31 was amended and cl
2 A was inserted therein
While in the original article 31 A the general expression any provisions of his Part was found in the amended article the scope was restricted onlyto the violation of articles 14 19 and 31 and 4 other clauses were included namely clauses providing for a taking over the management of any property by the State for a limited period b amalgamation of two or more corporations c extinguishment or modification of rights of person interested in corporations and d extinguishment or modification of rights accruing under any agreement lease or licence relating to minerals and the definition of estate was enlarged in order to include the interests of raiyats and under raiyats
The expressed object of the amendment was to carry out important social welfare legislations on the desired lines to improve the national economy of the State and to avoid serious difficulties raised by courts in that regard
Article 31A has further been amended by the Constitution Fourth Amendment Act 1955
By the said amendment in the Ninth Schedule to the Constitution entries 14 to 20 were added
The main objects of this amending Act was to distinguish the power of compulsory acquisition or requisitioning of private property and the deprivation of property and to extend the scope of article 31 A to cover different categories of social welfare legislations and to enable monopolies in particular trade or business to be created in favour of the State
Amended article 312makes the adequacy of compensation not justiciable
It may be said that the Constitution Fourth Amendment Act 1955 was made by Parliament as this Court recognized the power of Parliament to amend Part III of the Constitution but it can  also be said with some plausi bility that as Parliament had exercised the power even before the
decision of this Court in Sankari Prasad s case1 it would have amended the Constitution even if the said decision was not given by this Court
The Seventeenth Amendment Act was made on June 20 1964
The occasion for this amendment was the decision of this Court in Karimbil Kunhikoman vs State of Kerala2 which struck down the Kerala Agrarian Relations Act IV of 1961 relating to ryotwari lands
Under that amendment the definition of the expression estate was enlarged so as to take 1   105 2 1962 Supp 1 SCR 829 807 in any land held under ryotwari settlement and any 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
In the Ninth Schedule the amendment included items 21 to 65
In the objects and reasons it was stated that the definition estate was not wide enough that the courts had struck down many land reform Acts and that therefore in order to give them protection the amendment was made
The validity of the Seventeenth Amendment Act was questioned in this Court and was held to be valid in Sajian Singh s case1
From the history of these amendments two things appear namely unconstitutional laws were made and they were protected by the amendment of the Constitution or the amendments were made in order to protect the future laws which would be void but for the amendments
But the fact remains that this Court held as early as in 1951 that Parliament had power to amend the fundamental rights
It may therefore said that the Constitution Fourth Amendment Act 1955 and the Constitution Seventeenth Amendment Act 1964 were based upon the scope of the power to end recognized by this Court
Further the Seventeenth Amendment Act was also approved by this Court
Between 1950 and 1967 the Legislatures of various States made laws bringing about an agrarian revolution in our country zamindaries inams and other intermediary estates were abolished vested rights were created in tenants consolidation of holdings of villages was made ceilings were fixed and the surplus lands transferred to tenants
All these were done on the basis of the correctness of the decisions in Sankari Prasads case2 and Sajjan Singh s case1 namely that Parliament had the power to amend the fundamental rights and that Acts in regard to estates were outside judicial scrutiny on the ground they infringed the said rights
The agrarian structure of our country has been revolutionised on the basis of the said laws
Should we now give retrospectivity to our decision it would introduce chaos and unsettle the conditions in our country
Should we hold that because of the said consequences Parliament had power to take away fundamental rights a time might come when we would gradually and imperceptibly pass under a totalitarian rate
Learned counsel for the petitioners as well as those for the respondents placed us on the horns of this dilemma for they have taken extreme positions leamed counsel for the petitioners want us to reach the logical position by holding that all the said laws are void and the learned counsel for the respondents persuade us to hold that Parliament has unlimited power and if it chooses it can do away with fundamental rights
We do not think that 1  2   808 this Court is so helpless
As the highest Court in the land we must evolve some reasonable principle to meet this extraordinary situation
There is an essential distinction between Constitution and statutes
Comparatively speaking Constitution is permanent it is an organic statute it grows by its own inherent force
The constitutional concepts are couched in elastic terms
Courts are expected to and indeed should interpret its terms without doing violence to the language to suit the expanding needs of the society
In this process and in a real sense they make laws
Though it is not admitted the said role of this Court is effective and cannot be ignored
Even in the realm of ordinary statutes the subtle working of the process is apparent though the approach is more conservative and inhibitive
In the constitutional field therefore to meet the present extraordinary situation that may be caused by our decision we must evolve some doctrine which has roots in reason and precedents so that the past may be preserved and the future protected
There are two doctrines familiar to American Jurisprudence one is described as Blackstonian theory and the other as prospective over ruling which may have some relevance to the present enquiry
Blackstone in his Commentaries 69 15th edn 1809 stated the common law rule that the duty of the Court was not to pronounce a new rule but to maintain and expound the old one
It means the Judge does not make law but only discovers or finds the true law
The law has always been the same
If a subsequent decision changes the earlier one the latter decision does not make law but only discovers the correct principle of law
The result of this view is that it is necessarily retrospective operation
But Jurists George F Canfield Robert Hill Freeman John Henry Wigmore and Cardozo have expounded the doctrine of prospective over ruling and suggested it as a useful judicial tool
In the words of Canfield the said expression means  a court should recognize a duty to an nounce a new and better rule for future transactions whenever the court has reached the conviction that an old rule as established by the precedents is unsound even though feeling compelled by stare decisis to apply the old and condemned rule to the instant case and to transactions which had already taken place
 Cardozo before he became a Judge of the Supreme Court of the United States of America when he was the Chief Justice of New York State addressing the Bar Association said thus The rule the Blackstonian rule that we are asked to apply is out of tune with the life about us
It has been made discordant by the forces that generate a 809 living law
We apply it to this case because the repeal might work hardship to those who have trusted to its existence
We give notice however that any one trusting to it hereafter will do at his peril
 The Supreme Court of the United States of America in the year 1932 after Cardozo became an Associate Justice of that Court in Great Northern Railway vs Sunburst Oil  Ref
Co1 applied the said doctrine to the facts of that case
In that case the Montana Court had adhered to its previous construction of the statute in question but had announced that that interpretation would not be followed in the future
It was contended before the Supreme Court of the United States of America that a decision of a court over ruling earlier decision and not giving its ruling retroactive operation violated the due process clause of the 14th Amendment
Rejecting that plea Cardozo said  This is not a case where a Court in overruling an earlier decision has come to the new ruling of retroactive dealing and thereby has made invalid what was followed in the doing
Even that may often be done though litigants not infrequently have argued to the contrary 
This is a case where a Court has refused to make its ruling retroactive and the novel stand is taken that the Constitution of the United States is infringed by the refusal
We think that the Federal Constitution has no voice upon the subject
A state in defining the elements of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward
It may be so that the decision of the highest courts though later over ruled was law nonetheless for intermediate transactions 
On the other hand it may hold to the ancient dogma that the law declared by its Courts had a platonic or ideal existence before the act of declara tion in which event the discredited declaration will be viewed as if it had never been and to reconsider declaration as law from the beginning
The choice for any state maybe determined by the juristic philosophy of the Judges of her Courts their considerations of law its origin and nature
 The opinion of Cardozo tried to harmonize the doctrine of prospective over ruling with that of stare decisis
In 1940 Hughes CJ in Chicot County Drainage District vs Baxter State Bank2 stated thus 1   366  2  810 The law prior to the determination of unconstitutionality is an operative fact and may have consequences which cannot justly be ignored
The past cannot always be erased by a new judicial declaration
 In Griffin vs Illionis1 the Supreme Court of America reaffirmed the doctrine laid down in Sunburst s case 2
There a statute required defendants to Submit bills of exceptions as a pre requisite to an appeal from a conviction the Act was held unconstitutional in that it provided no means whereby indigent defendants could secure a copy of the record for this purpose
Frankfurter J in that context observed  in arriving at a new principle the judicial process is not important to define its scope and limits
Adjudication is not a mechanical exercise nor does it compel eitheror  determination In Wolf vs Colorado3 a majority of the Supreme Court held that in a prosecution in a State Court for a state crime the 14th Amendment did not forbid the admission of evidence obtained by an unreasonable search and seizure
But in Mapp
vs Ohio4 the Supreme Court reversed that decision and held that all evidence obtained by searches and seizure in violation of the 4th Amendment of the Federal Constitution was by virtue of the due process clause of the 14th Amendment guaranteeing the right to privacy free from unreasonable State instrusion inadmissible in a State court
In Linkletter vs Walker5 the question arose whether the exclusion of the rule enunciated in Mapp vs Ohio4 did not apply to State Court convictions which had become final before the date of that judgment
Mr Justice Clarke speaking for the majority observed We believe that the existence of the Wolf doctrine prior to Mapp is an operative  fact and may have consequences which cannot justly be ignored
The past cannot always be erased by a new judicial declaration Mapp had as its prima purpose the enforcement of the Fourth Amendment through the inclusion of the exclusionary rule within its rights  
We cannot say that this purpose would be advanced by making the rule retrospective
The misconduct of the police prior to Mapp has already occurred and win 1 1956351US122 2 1932 287 U section 358366  3  193LEd 872
4  6 L Ed
5  1081
811 not be corrected by releasing the prisoners involved
On the other hand the States relied on Wolf and followed its command
Final judgments of conviction were entered prior to Mapp
Again and again the Court refused to reconsider Wolf and gave its implicit approval to hundreds of cases in their application of its rule
In rejecting the Wolf doctrine as to the exclusionary rule the purpose was to deter the lawless action of the police add to effectively enforce the Fourth Amendment
That purpose will not at this late date be served by the wholesale release of the guilty victims Finally there are interests in the administration of justice and the integrity of the judicial process to consider
To make the rule of Mapp retrospective would tax the administration of justice to the utmost
Hearings would have to be held on the excludability of evidence long since destroyed misplaced or deteriorated
If it is excluded the witness available at the time of the original trial will not be available or if located their memory will be dimmed
To thus legitimate such an extraordinary procedural weapon that has no bearing on guilt would seriously disrupt the administration of justice
 This case has reaffirmed the doctrine of prospective overruling and has taken a pragmatic approach in refusing to give it retroactivity
In short in America the doctrine of prospective overruling is now accepted in all branches of law including constitutional law
But the carving of the limits of retrospectivity of the new rule is left to courts to be done having regard to the requirements of justice
Even in England the Blackstonian theory was criticized by Bentham and Austin
In Austin s Jurisprudence 4th Ed at page 65 the learned author says  What hindered Blackstone was the childish fiction  employed by our judges that the judiciary or common law is not Made by them but is a miraculous something made by nobody existing I suppose from eternity and merely declared from time to time by the Judges Though English Courts in the past accepted the Blackstonian theory and though the House of Lords strictly adhered to the doctrine of precedent  in the earlier years both the doctrines were practically given up by the Practice Statement Judicial Precedent issued by the House of Lords recorded in 1966 1 WLR 1234
Lord Gardiner LC speaking for the House of Lords made the following observations 812 Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law
They propose therefore to modify their present practice and while treating former decisions of this House as normally binding to depart from a previous decision when it appears right to do so
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law This announcement is not intended to affect the use of precedent elsewhere than in this House
 It will be seen from this passage that the House of Lords hereafter in appropriate cases may depart from its previous decision when it appears right to do so and in so departing will bear in mind the danger of giving effect to the said decision retroactivity
We consider that what the House of Lords means by this statement is that in differing from the precedents it will do so only without interefering with the transactions that had taken place on the basis of earlier decisions
This decision to a large extent modifies the Blackstonian theory and accepts though not expressly but by necessary implication the doctrine of prospective overruling
 Let us now consider some of the objections to this doctrine
The objections are 1 the doctrine involved legislation by courts 2 it would not encourage parties to prefer appeals as they would not get any benefit therefrom 3 the declaration for the future would only be obiter 4 it is not a desirable change and 5 the doctrine of retroactivity serves as a brake on court which otherwise might be tempted to be so fascile in overruling
But in our view these objections are not insurmountable
If a court can over rule its earlier decision there cannot be any dis pute now that the court can do so there cannot be any valid reason why it should not restrict its ruling to the future and not to the past
Even if the party filing an appeal may not be benefited by it in similar appeals which he may file after the change in the law he will have the benefit
The decision cannot be obiter for what the court in effect does is to declare the law but on the basis of another doctrine restricts its scope
Stability in law does not mean that injustice shall be perpetuated
An illuminating article on the subject is found in Pennsylvania Law Review Vol
I 10 p 650
813 It is a modem doctrine suitable for a fast moving society
It does not do away with the doctrine of stare decisis but confines it to past transactions
It is true that in one sense the court only declares the law either customary or statutory or personal law
While in strict theory it may be said that the doctrine involves making of law what the court really does is to declare the law but refuses to give retroactivity to it
It is really a pragmatic solution reconciling the two conflicting doctrines namely that a court finds law and that it does make law
It finds law but restricts its operation to the future
It enables the court to bring about a smooth transition by correcting its errors without disturbing the impact of those errors on the past transactions
It is left to the discretion of the court to prescribe the limits of the retroactivity and thereby it enables it to would the relief to meet the ends of justice
In India there is no statutory prohibition against the court refusing to give retroactivity to the law declared by it
Indeed
the doctrine of res judicata precludes any scope for retroactivity in respect of a subject matter that has been finally decided between the parties
Further Indian court by interpretation reject retroactivity
to statutory provisions though couched in general terms on the ground that they affect vested rights
The present case only attempts a further extension of the said rule against retroactivity
Our Constitution does not expressly or by necessary implica tion speak against the doctrine of prospective over ruling
Indeed articles 32 141 and 142 are couched in such wide and elastic terms as to enable this Court to formulate legal doctrines to meet the ends of justice
The only limitation thereon is reason restraint and injustice
Under article 32 for the enforcement of the fundamental rights the Supreme Court has the power to issue suitable directions or orders or writs
Article 141 says that the law declared by the Supreme Court shall be binding on all courts and article 142 enables it in the exercise of its jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it
These articles are designedly made comprehensive to enable the Supreme Court to declare law and to give such directions or pass such orders as are necessary to do complete justice
The expression declared is wider than the words found or made
To declare is to announce opinion
Indeed the latter involves the process while the former expresses result
Interpretation ascertainment and evolution are parts of the process while that interpreted ascertained or evolved is declared as law
The law declared by the Supreme Court is the law of the and
If so we do not see any acceptable reason why it in declaring the law in superses 814 sion of the law declared by it earlier could not restrict the operation of the law as declared to future and save the transactions whether statutory or otherwise that were effected on the basis of the earlier law
To deny this power to the Supreme Court on the basis of some outmoded theory that the Court only finds law but does not make it is to make ineffective the powerful instrument of
justice placed in the hands of the highest judiciary of this country
As this Court for the first time has been called upon to apply the doctrine evolved in a different country under different circumstances we would like to move warily in the beginning
We would lay down the following propositions  I The doctrine of prospective over ruling can be invoked only in matters arising under our Constitution 2 it an be applied only by the highest court of the country ie the Supreme Court as it has the constitutional jurisdiction to declare an binding on all the courts in India 3 the scope of the retroactive operation of the law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matter before it
We have arrived at two conclusions namely 1 Parliament has no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights and 2 this is a fit case to invoke and apply the doctrine or prospective overruling
What then is the effect of our conclusion on the instant case 
Having regard to the history of the amendments their impact on the social and economic affairs of our country and the chaotic situation that may be brought about by the sudden withdrawal at this stage of the amendments from the Constitution we think that considerable judicial restraint is called for
We therefore declare that our decision will not affect the validity of the Constitution Seventeenth Amendment Act 1964 or other amendments made to the Constitution taking away or abridging the fundamental rights
We further declare that in future Parliament will have no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights
In this case we do not propose to express our opinion on the question of the scope of the amendability of the provisions of the Constitution other than the fundamental rights as it does not arise for consideration before us
Nor are we called upon to express out opinion on the question regarding the scope of the amends ability of Part Ill of the constitution otherwise than by taking away or abridging the fundamental rights
We will not also in dicate our view one way or other whether any of the Acts questioned can be sustained under the provisions of the Constitution without the aid of articles 31A 31B and the 9th Schedule
815 The aforesaid discussion leads to the following results 1 The power of the Parliament to amend the Constitution is derived from articles 245 246 and 248 of the Constitution and not from article 368 thereof which only deals with procedure
Amendment is a legislative process
2 Amendment is law  within the meaning of article 13 of the Constitution and therefore if it takes away or abridges the rights conferred by Part III thereof it is void
3 The Constitution First Amendment Act 1951 Constitution Fourth Amendment Act 1955 andthe Constitution Seventeenth Amendment Act 1964 abridge the scope
of the fundamental rights
But on the basis of earlier decisions of this Court they were valid
4 On the application of the doctrine of prospective over ruling  as explained by us earlier our decision will have only prospective operation and therefore the said amendments will continue to be valid
5 We declare that the Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein
6 As the Constitution Seventeenth Amendment Act holds the field the validity of the two impugned Acts namely the Punjab Security of Land Tenures Act X of 1953 and the Mysore Land Reforms Act X of 1962 as amended by Act XIV of 1965 cannot be questioned on the ground that they offend articles 13 14 or 31 of the Constitution
Before we close it would be necessary to advert to an argu ment advanced on emotional plane
It was said that if the provisions of the Constitution could not be amended it would lead to revolution
We have not said that the provisions of the Constitution cannot be amended but what we have said is that they cannot be amended so as to take away or abridge the fundamental rights
Nor can we appreciate the argument that all the agrarian reforms which the Parliament in power wants to effectuate cannot be brought about without amending the fundamental rights
It was exactly to prevent this attitude and to project the rights of the that the fundamental rights were inserted in the Constitution
If it is the duty of the Parliament to enforce the directive principles it is equally its duty to enforce them without infringing the fundamental rights
The Constitution makers thought that it could be done and we also think that the directive prin 816 ciples can reasonably be enforced within the self regulatory machinery provided by Part III
Indeed both Parts III and IV of the Constitution form an integrated scheme and is elastic enough to respond to the changing needs of the society
The verdict of the Parliament on the scope of the law of social control of fundamental rights is not final but justiciable
If not so the whole scheme of the Constitution will break
What we can I not understand is how the enforcement of the provisions of the Constitution can bring about a revolution
History shows that revolutions are brought about not by the majorities but by the minorities and some time by military coups
The existence of an all comprehensive amending power cannot prevent revolutions if there is chaos in the country brought about by mis rule or abuse of power
On the other hand such a restrictive power gives stability to the country and prevents it from passing under a totalitarian or dictatorial regime
We cannot obviously base our decision on such hypothetical or extraordinary situations which may be brought about with or without amendments
Indeed a Constitution is only permanent and not eternal
There is nothing to choose between destruction by amendment or by revolution the former is brought about by totalitarian rule which cannot brook constitutional checks and the other by the discontentment brought about by mis rule
If either happens the constitution will be a scrap of paper
Such considerations are out of place in construing the provisions of the Constitution by a court of law
Nor are we impressed by the argument that if the power of amendment is not all comprehensive there will be no way to change the structure of our Constitution or abridge the fundamental rights even if the whole country demands for such a change
Firstly this visualizes an extremely unforeseeable and extravagant demand but even if such a contingency arises the residuary power of the Parliament may be relied upon to call for a Constituent Assembly for making a new Constitution or radically changing it
The recent Act providing for a poll in Goa Daman and Diu is an instance of analogous exercise of such residuary power by the Parliament
We do not express our final opinion on this important question
A final appeal is made to us that we shall not take a different view as the decision in Sankari Prasad s case1 held the field for many years
While ordinarily this Court will be reluctant to reverse its previous decision it is its duty in the constitutional field to correct itself as early as possible for otherwise the future progress of the country and the happiness of the people will be at stake
As we are convinced that the decision in Sankari Prasad s case1 is wrong it is pre eminently a typical case where this Court should over rule it
The longer it holds the field the greater will 1   105 817 be the scope for erosion of fundamental rights
As it contains the seeds of destruction of the cherished rights of the people the sooner it is over ruled the better for the country
This argument is answered by the remarks made by this Court in the recent judgment in The Superintendent and Legal Remembrancer State of West Bengal vs The Corporation of Calcutta1
The third contention need not detain us  or it has been rejected by this Court in The Bengal Immunity Company Limited vs The State of Bihar2 
There a Bench of 7 Judges unanimously held that there was nothing in the Constitution that prevented the Supreme Court from departing from a previous decision of its own if it was satisfied of its error and of its baneful effect on the general interest of the public
If the aforesaid rule of construction accepted by this Court is in consistent with the legal philosophy of our Constitution it is our duty to correct ourselves and lay down the right rule
In constitutional matters which affect the evolution of our polity we must more readily do so than in other branches of law as perpetuation of a mistake will be harmful to public interests
While continuity and consistency are conducive to the smooth evolution of the rule of law hesitancy to set right deviation will retard its growth
In this case as we are satisfied that the said rule of construction is inconsistent with our republican polity and if accepted bristles with anomalies we have no hesitation to reconsider our earlier decision In the result the petitions are dismissed but in the circumstances without costs
Wanchoo J
This Special Bench of eleven Judges of this Court has been constituted to consider the correctness of the decision of this Court in Sri Sankari Prasad Singh Deo vs Union of India which was accepted as correct by the majority in Sajjan Singh vs State of Rajasthan 4 
The reference has been made in three petitions challenging the constitutionality of the Seventeenth Amendment to the Constitution
In one of the petitions the inclusion of the Punjab Security of Land Tenures Act No X of 1953 in the Ninth Schedule which makes it immune from
attack under any provisions contained in Part III of the Constitution  has been attacked on the ground that the Seventeenth Amendment is in itself unconstitutional
In the other two petitions the inclusion of the Mysore Land Reforms Act No 10 of 1962 has been attacked on the same grounds
It is not necessary to set out the facts in 1  176 2 1955 2SCR603
3  4 1965 1CSR 933 818 the three petitions for present purposes
The main argument in all the three petitions has been as to the scope and effect of article 368 of the Constitution and the power conferred thereby to amend the Constitution
Before we come to the specific I points raised in the present petitions we may indicate the circumstances in which Sankari Prasad s case1 as well as Sajjan Singh s case 2 came to be decided and what they actually decided
The Constitution came into force on January 261950
It provides in Part III for certain fundamental rights
Article 31 which is in Part 111 as it originally stood provided for compulsory acquisition of property
By clause 1 it provided that no person shall be deprived of his property save by authority of law
Clause 2 hereof provided that any law authorising taking of Possession or acquisition of property must provide for compensation therefor and either fix the amount of compensation or specify the principles on which and the manner in which the compensation was to be determined and paid
Clause4 made a special provision to the effect that if any Bill pending at the commencement of the Constitution in the Legislature of a State had after it had been passed by such Legis lature been reserved for the consideration of the President and had received his assent then such law would not be called in question though it contravened the provisions of cl
2 relating to compensation
Clause 6 provided that any law of the State enacted not more than eighteen months before the Constitution might be submitted to the President for his certification and if so certified it could not be called in question on the ground that it contravened the provision of cl
2 of article 31 relating to compensation
These two clauses of article 31 were meant to safeguard legislation which either had been passed by Provincial or State legislatures or which was on the anvil of State legislatures for the purpose of agrarian reforms
One such piece of legislation was the Bihar Land Reforms Act which was passed in 1950
That Act received the assent of the President as required under cl
6 of article 31
It was however challenged before the Patna High Court and was struck down by that court on the ground that it violated Art  14 of the Constitution
Then there was an appeal before this Court but while that appeal was pending the First Amendment to the Constitution was made
We may briefly refer to what the First Amendment provided for
It was the First Amendment which was challenged and was upheld in Sankari Prasad s case1
The First Amendment contained a number of provisions but it is necessary for present purposes only to refer to those provisions which made changes in Part III of the Constitution
These changes related to articles 15 1  2  819 and 19 and in addition provided for insertion of two Articles numbered 31 A and 31 Bin Part III Article 31 A provided that no law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights shall be deemed to be void on the ground that it was
inconsistent with or took away or abridged any of the rights conferred by any provision in part Ill The word estate was also defined for the purpose of article 31 A Further Article 31 B provided for validation of certain Acts and Regulations and specified such Acts and Regulations in the Ninth Schedule which was for the first time added to the Constitution
The Ninth Schedule then contained 13 Acts all relating to estates  passed by various legislatures of the Provinces or States
It laid down that those Acts and Regulations would not 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 any provision of Part III
It further provided that notwithstanding any judgment decree or order of any court or tribunal to the contrary all such Acts and Regulations subject to the power of any competent legislature to repeal or amend them continue in force
This amendment and in particular articles 31 A and 31 B were
immediately challenged by various writ petitions in this Court and these came to be decided on October 5 1951 in Sankari Prasad s case1
The attack on the validity of the First Amendment was made on various grounds but three main grounds which were
taken were first 1  that amendments to the Constitution made under article 368 were liable to be tested under article 132 secondly that in any case as articles 31 A and 31 B insert the Constitution by the First
Amendment affected the power of the High Court under article 226 1 and of this Court under Articles 132 and 136 the amendment required ratification under the proviso to article 368 and thirdly that Acts
31 A and 31 B were invalid on the ground that they related to matters covered by the State List namely item 18 of List 11 and could not therefore be passed by Parliament
This Court rejected all the three contentions
It held that although law would ordinarily include constitutional law there was a clear demarcation between ordinary law made in the exercise of legislative power and constitutional law made in the exercise of constituent power and in the context of article 13 law must be taken to mean rules or regulations made
in exercise of ordinary legislative power and not amendments to the Constitution made in the exercise of constituent power in consequence article 132 did not affect amendments made under article 3 68
It further held that articles 3 1 A and 31 B did not curtail the power of the High Court under article 226 or of this court under articles 132 and 136 and did not require ratification under the 1  820 proviso contained in article 368
Finally it was held that articles 31
A and 31 B were essentially amendments to the Constitution and Parliament as such had the power to enact such amendments
In consequence the First Amendment to the Constitution was upheld as valid
After this decision there followed sixteen more amendment to the Constitution till we come to the Seventeenth Amendment which was passed on June 20 1964
There does not seem to have been challenge to any amendment up to the Sixteenth Amendment even though two of them namely the Fourth Amendment and the Sixteenth Amendment contained changes in the provisions of Part III of the Constitution
Further the nature of these amendments was to add to or alter or delete various other provisions of the Constitution contained in Part III thereof On December 5 1961 came the decision of this Court by which the Kerala Agrarain Reforms Act No 4 of 1961 passed by the Kerala legislature was struck down among other grounds for the reason that ryotwari lands in South India were not estates within the meaning of article 31 A and therefore acquisition of reyotwari land was not protected under article 31 A of the Constitution  see Karimbil Kunhikoman vs State of Kerala1
This decision was followed by the Seventeenth Amendment on June 20 1964
By this amendment changes were made in article 31 A of the Constitution and 44 Acts were included in the Ninth Schedule to give them complete protection from attack under any provision of Part III of the Constitution
Practically all these Acts related to land tenures and were concerned with agrarian reforms
This amendment was challenged before this Court in Sajjan Singh s case2
The points then urged were that as article 226 was likely to be affected by the Seventeenth Amendment it required ratification under the proviso to article 368 and that the decision in Sankari Prasads case3 which had negatived this contention required re consideration
It was also urged that the Seventeenth Amendment was legislation with respect to land and Parliament bad no right to legislate in that behalf and further that as the Seventeenth Amendment provided that the Acts put in the Ninth Schedule would be valid in spite of the decision of the Courts it was unconstitutional
This Court by a majority of 3 to 2 upheld the correctness of the decision in Sankari Prasad s case
It further held unanimously that the Seventeenth Amendment did not require ratification under the proviso to article 368 because of its indirect effect on article 226 and that Parliament in enacting the Amendment was not legislating with respect to land and that it was open to Parliament to validate legislation which had been invalid by courts
Finally this Court held by majority 1 1962 Supp 1 SCR 829
2  3  821 that the power conferred by article 368 included the power to take away fundamental rights guaranteed by Part HI and that the power to amend was a very wide power and could not be controlled by the literal dictionary meaning of the word amend and that the word law in article 13 2 did not include an amendment of the Constitution made in pursuance of article 368
The minority however doubted the correctness of the view taken in Sankari Prasads case1 to the effect that the word law in article 13 2 did not include amendment to the Constitution made under article 368 and therefore doubted the competence of Parliament to make any amendment to Part III of the Constitution
One of the learned Judges further doubted whether making a change in the basic features of the Constitution could be regarded merely as an amendment or would in effect be re writing a part of the Constitution and if so whether it could  be done under article 368
It was because of this doubt thrown on the correctness of the view taken in Sankari Prasad s case1 that the present reference has been made to this Special Bench
As the question referred to this Bench is of great constitutional importance and affected legislation passed by various States notice was issued to the Advocates General of all States and they have appeared and intervened before us
Further a number of persons who were also affected by the Seventeenth Amendment have been permitted to intervene
The arguments on behalf of the petitioners and the interveners who support them may now
be briefly summarised
It is urged that article 368 when it provides for the amendment of the Constitution merely  contains the procedure for doing so and that the power to make amendment has to be found
in article 248 read with item 97 of List 1
It is further urged that the word amendment in article 368 means that the provisions in the Constitution can be changed so as to important upon them And that this power is of a limited character and does not authorise Parliament to make any addition to alteration of or deletion of any provision of the Constitution including the provision contained in Part III
So article 368 authorises only those amendments which have the effect of improving the Constitution
Then it is urged that amendment permissible under article 368 is subject to certain implied limitations and the these limitations are that basic features of the Constitution cannot be amended at all
An attempt was made to indicate some of these basic features as f example the provisions in Part III the federal structure the republican character of the State elected Parliament and State Legislatures on the basis of adult suffrage control by the judiciary and so on and it is
said that an amendment under article 3 69 is subject to the implied limi 1 1952 SCR 89
L3Sup
CI67 7 822 tations that these basic features and others of the kind cannot be changed
Thus in effect the argument is that there is a very limited power of amendment under the Constitution
It is further urged that apart from these implied limitations there is an express limitation under article 132 and the word law in that Article includes an amendment of the Constitution
The argument thus in the alternative is that as the word law in article 132 includes a constitutional amendment no amendment can be made in Part HI under article 368 which would actually take away or abridge the rights guaranteed under that Part
In effect it is said that even if there are no implied limitations to amend the Constitution under article 368 article 132 is an express limitation insofar as the power to amend Part III is concerned and by virtue of article 132 the rights guaranteed under Part III cannot be taken away or abridged under article 368 though it is conceded that Part III may be amended by way of enlarging the rights contained therein
Another line of argument is that in any case it was necessary to take action under the proviso to article 368 and as that was not done the Seventeenth Amendment is not valid
It is urged that article 226 is seriously affected by the provisions contained in the Seventeenth Amendment and that amounts to an amendment of Aft
226 and in consequence action under the proviso was necessary
It is also urged that article 245 was addition of a number of Acts in the Ninth 13 2 and therefore also it was necessary to take action under the proviso
It is further urged that it was not competent for Parliament to amend the Constitution by putting a large number of Acts in the Ninth Schedule as the power to legislate with respect to land is solely within the
competence of State Legislatures and that is another reason why the addition to the Ninth Schedule read with article 31 B should be struck down
Lastly an argument had been advanced which we may call the argument of fear
It is said that if Art368 is held to confer full to amend each and every part of the Constitution as has been held in Sankari Prasad s case1
Parliament May do all kinds of things which were never intended under this unfettered power and may for example abolish elected legislatures abolish the President or change the present form of Government into a Presedential type like the United States
Constitution or do away with the federal structure altogether
So it is urged that we shouldinterpret article 368 in such a way that Parliament may not be able to do all these things
In effect this argument of fear has been put forward to reinforce the contention that this Court should 11952 SCR 89
823 hold that there are some implied limitations on the amending power and these implied limitations should be that there is no power any where in the Constitution to change the basic features of the Constitution to which reference has already been made
This is in brief the submission on behalf of the petitioners and the interveners who support them
The submission on behalf of the Union of India and the States may now be summarised
It is urged that article 368 not only provides procedure or amendment but also contains in it the power to amend the Constitution
It is further urged that the word amendment in law does not merely mean making such changes in the Constitution as would improve it but includes the power to make any addition to the Constitution any alteration of any of the existing provisions and its substitution by another provisions and any deletion of any particular provision of the Constitution
In effect it is urged that even if the word amendment used in article 368 does not take in the power to abrogate the entire Constitu tion and replace it by another new Constitution it certainly means that any provisions of the Constitution may be changed and this change can be in the form of addition to alteration of or deletion of any provision of the Constitution
So long therefore as the Constitution is not entirely abrogated and replaced by a new Constitution at one stroke the power of amendment would enable Parliament to make all changes in the existing Constitution by addition alteration or deletion
Subject only to co repeal being not possible the power of amendment contained in article 368 is unfettered
It is further urged that there can be no implied limitations on the power to amend and the limitations if any on this
power must be found hi express terms in the Article providing for amendment
It is conceded that there may be an express limitation not merely in the Article providing for amendment but in some other part of the Constitution
But it is said that if that is so there must be a clear provision to that effect
In the absence of express limitations therefore there can be no implied limitations on the power to amend the Constitution contained in article 368 and that power will take in all changes whether by way of addition alteration or deletion subject only to this that the power of amendment may riot contain the power to abrogate and repeal the entire Constitution and substitute it with a new one
It is then urged that there is no express provision in Art368 itself so far as any amendment relating to the substance of the amending power is concerned  die only limitations in Art 368 are as to procedure and courts can only see that the procedure as indicated in article 368 is followed before an amendment can be said to be valid
It is further urged that the word law in article 13 does not include an amendment of the Constitution and only 824 moans law as made
under the legislative provisions contained in Chapter I of Part XI read with Chapters II and III of Part V of the
Constitution and Chapters III and V of Part VI thereof
In effect it is a law which is made under the Constitution which included in the word law in article 132 and not an amendment to the Constitution under article 368
As to Articles 226 and 245 and the necessity of taking action under the proviso to article 368 it is urged that there is no change in articles 226 and 245on account of any provision in the Seventeenth Amendment and therefore no action under the proviso was necessary
it is only direct change in articles 226 and 245 which would require following the procedure as to ratification or at any rate such change in other Articles which would have the effect of directly compelling change in Arts 226 and 245 and that in the present case no such direct compulsion arises
Lastly as to the argument of fear it is urged that there is always a provision with respect to amendment in written federal Constitutions
Such a provision may be rigid or flexible
In our Constitution article 368 provides for a comparatively flexible provision for amendment and there is  no reason to make it rigid by implying any limitations on that power
Further there Is no reason to suppose that all those things will be done by Parliament which are being urged to deny the power under article 368 which flows naturally from its terms
Besides the above reliance is also placed on behalf of the Union of India and the States on the doctrine
of stare decisis
It is urged that since the decision of this Court in Sankari Prasad s case1 sixteen further amendments have been made by Parliament on the faith of that decision involving over 200 Articles of the Constitution
The amendments relating to Part III have been mainly with respect to agrarian reforms resulting in transfers of title of millions of acres of land in favour of millions of people
Therefore  even though Sankari Prasad s case1 has stood only for fifteen years there has been a vast agrarian revolution effected on the faith of that decision and this Court should not now go back on what was decided in that case
Further besides the argument based on state decisis it is urged on the basis of certain decisions of this Court that the unanimous decision in Sankari Prasad s case1 which had stood practically unchallenged for about 15 years till the decision in Sajjan Singh s case2 should not be over ruled unless it is found to be incorrect by a large majority of the Judges constituting this Special Bench
It is urged that if the present Bench is more or less evenly divided it should not over rule the unanimous decision in  Sankari Prasad s case1 by a Majority of one
1 1952 SCR 89
2  825 We shall first take Art 368
It is found in Part XX of the Constitution which is headed
Amendment of the Constitution and is the only Article in that Part
That Part thus provides specifically for the amendment of the Constitution and the first question that arises is whether it provides power for the amendment of the Constitution as well as the procedure for doing so
It is not disputed that the procedure for amendment of the Constitution is to be found in article 368 but what is in dispute is whether article 368 confers power also in that behalf
Now the procedure for the amendment of the Constitution is this The amendment is initiated by the introduction of a Bill in either House of Parliament
The Bill has to be passed in each House by a majority of the total membership of that House and by a Majority of not less two thirds of the members of that House present and voting
After it is so passed it has to be presented to the President for his assent
On such presentation if the President assents to the Bill article 3 68 provides that the Constitution shall stand amended in accordance with the terms of the Bill
Further there is a proviso for ratification with respect to certain Articles and other provisions of the Constitution including article 368 and those matters can only be amended if the Bill passed by the two Houses by necessary majority is ratified by the legislatures of not less than one half of the States by resolutions to that effect
In such a case the Bill cannot be presented for his assent to the President until necessary ratification is available
But when the necessary ratification has been made the Bill with respect to these matters is then presented to the President and on his assent being given the Constitution stands amended
in accordance with the terms of the Bill
The argument is that there is no express provision in terms in article 368 conferring power on Parliament to amend the Constitution and in this connection our attention has been invited to an analogous provision in the Constitution of Ireland in article 46 where cl 1 provides that any provision of the Constitution may be amended in the manner provided in that Article and then follows the procedure for amendment in clauses 2 to 5
Reference is also made to similar provisions in
other constitutions but it is unnecessary to refer to them
It is urged that as article 368 has nothing comparable to cl
I of article 46 of the Irish Constitution the power to amend the Constitution is not in
article 3 68 and must be
found elsewhere
We are not prepared to accept this argument
The fact that article 368 is not in two parts the first part indicating that the Constitution shall be amended in the manner provided thereafter and the second part indicating the procedure for amendment does not mean that the power to amend the Cons titution is not contained in article 368 itself
The very fact that a 826 separate Part has been devoted in the Constitution for amendment thereof and there is only one Article in that Part shows that both the power to amend and the procedure for amendment are to be found in article 368
Besides the words the Constitution shall stands amended in accordance with the terms of the Bill in article 368 clearly in our opinion provide for the power to amend after the procedure has been followed
It appears that our Constitution makers were apparently thinking of economy of words and elegance of language in enacting article 368 in the terms in which it appears and that is why it is not in two parts on the model of Art46 of the Irish Constitution
But there can in our opinion
be not doubt when a separate Part was provided headed Amendment of the Constitution that the power to amend the Constitution must also be contained in article 368 which is the only Article in that Part
If there was any doubt about the matter that doubt in our opinion is resolved by the words to which we have already referred namely the Constitution shall stand amended in the terms of the Bill
These words can only mean that the
power is there to amend the Constitution after the procedure has been followed
It is however urged that the power to amend the Constitution is not to be found in article 368 but is contained in the residuary power of Parliament in article 48 read with item 97 of List 1
It is true that article 248 read with item 97 of List I insofar as it provides for residuary power of legislation is very wide in its scope and the argument that the power to amend the Constitution is contained in this provision appears prima facie attractive in view of the width of the residuary power
But we fail to see why when there is a whole Part devoted to the amendment of the Cons titution the power to amend should not be found in that Part if it can be reasonably found there and why article 368 should only be confined to providing for procedure for amendment
It is true that the marginal note to article 368 is procedure for amendment of the Constitution but
the marginal note cannot control the meaning of the words in the Article itself and we have no doubt that the words the Constitution shall stand amended in accord the power of amendment
If we were to compare the language of cls
2 to 5of article 46 of the Irish Constitution which prescribes the procedure for amendment we find no words therein comparable to these words in article 368
These words clearly are com parable to cl
I of article 46 of the Irish Constitution and must be rod as conferring power on Parliament to amend the Constitution
Besides it is remarkable in contrast that article 248 read with List I does not in terms mention the amendment of the Constitution
while therefore there is a whole Part devoted to the amendment of the Constitution we do not find any specific mention of the 827 amendment of the Constitution in article 248 or in any entry of List 1
It would in the circumstances be more appropriate to read in power in article 3 68 in view of the words which we have already referred to than in article 248 read with item 97 of List I
Besides it is a historical fact to which we can refer that originally the intention was to vest residuary power in States and if that intention had been eventually carried out it would have been impossible for any one to argue that the power to amend the Constitution was to be found in the residuary power if it had been vested in the States and not in the Union
The mere fact that during the passage of the Constitution by the Constituent Assembly residuary power was finally vested in the Union would not therefore mean that it includes the power to amend the Cons titution
On a comparison of the scheme of the words in Art 368 and the scheme of the words in article 248 read with item 97 of List 1 therefore there is no doubt in our mind that both the procedure and power to amend the Constitution are to be found in article 368 and they are not to be found in article 248 read with item 97 of List I which provides for residuary legislative power of Parliament
There is in our opinion another reason why the power to amend the Constitution cannot found in article 248 read with item 97 of List 1
The Constitution is the fundamental law and no law passed under mere legislative power conferred by the Constitution can affect any change in the Constitution unless there is an express power to that effect given in the Constitution itself
But subject to such express power given by the Constitution itself the fundamental law namely the Constitution cannot be changed by a law passed under the legislative provisions contained in the Constitution as all legislative acts passed under the power conferred by the Constitution must conform to the Constitution can make no change therein
There are a number of Articles in the Constitution which expressly provide for amendment by law as
for example 3 4 10 593 653 732 97 983 106 1202 135 137 1421 1462 1483 149 169 1712 196 1873 1893 1943 195 2102 2212
225 2292 2391 2413 2831 and 2 2852 287 3061 313 345 373 Sch
V cl 7 and Sch
VI cl 21 and so far as these Articles are concerned they can be amended by Parliament by
ordinary law making process
But so far as the other Articles are concerned they can only be amended by amendment of the Constitution under article 368
Now article 245 which gives power to make law for the whole or any part of the territory of India by Parliament is subject to the provisions of this Consti tution and any law made by Parliament whether under article 246 read with List I or under article 248 read with item 97 of List I be subject to the provisions of the Constitution
If therefore the power to amend the Constitution is contained in article 248 828 read with item 97 of List 1 that power has to be exercised subject to the provisions of the Constitution and cannot be used to change the fundamental law namely the Constitution itself
But it is argued that article 368 which provides a special procedure for amendment of the Constitution should be read along with articles 245 248 and so read it would be open to amend any provision of the Constitution by law passed under article 248 on the ground that article 248 is subject to article 368 and therefore the two together give power to Parliament to pass a law under article 248 which will amend even those provisions of the Constitution which are not expressly made amendable by law passed under the legislative power of Parliament
This in our opinion is arguing in a circle
If the fundamental law ie
the Constitution cannot be I changed by any law passed under the legislative powers contained therein for legislation so passed must conform to the fundamental law we fail to see how a law passed under the residuary power which is nothing more than legislative power conferred on parliament under the Constitution can change the Constitution namely the fundamental law Itself
Wemay in this connection refer to the following passage in The Lawand the Constitution by W Ivor Jennings 1933 Ed at p 51 onwards  A written constitution is thus the fundamental law of a country the express embodiment of the doctrine of the region of law
All public uthorities legislative administrative and judical take their powers directly or indirectly from it Whatever the nature of the written constitution it is clear that there is a fundamental distinction between constitutional law and the rest of the law 
There is a clear separation therefore between the constitutional law and the rest of the law
 It is because of this difference between the
fundamental law namely the Constitution and the law passed under the legislative provisions of the Constitution that it is not possible in the absence of an express provision to that effect in the fundamental law to change the fundamental law by ordinary legislation passed thereunder for such ordinary legislation must always conform to the fundamental law ie the Constitution
If the power to amend the Constitution is to be found in article 248 read with item 97 of List 1
It will mean that ordinary legislation passed under fundamental law would amend that law and this cannot be done unless there is express provision as in article 3 etc
to that effect In the absence of such express provisions any law passed under the legislative powers granted under the fundamental  law cannot amend it
So if we were to hold that the power to amend the 829 Constitution is comprised in article
248 that would mean that no amendment of the Constitution would be possible at all except to the extent expressly provided in various Articles to which we have referred already for the power to legislate under article 245 read with article 248 is itself subject to the Constitution
Therefore reading article 368 and considering the scheme of the legislative powers conferred by Articles 245 and 248 read with item 97 of List I this to our mind is clear firstly that the power to amend the Constitution is to be found in article 368 itself and secondly that the power to amend the Constitution can never reside in article 245 and article 248 read with item 97 of List 1 for that would make any amendment of the Constitution impossible except with respect to the express provisions contained in certain Articles thereof for amendment by law 
We may in this connection add that all this argument that power to amend the Constitution is to be found in article 245 and article 248 read with item 97 of List I has been based on one accidental circumstance and that accidental circumstance is that the procedure for amendment of the Constitution contained in article 368 is more or less assimilated to the procedure for making ordinary laws under the Constitution
The argument is that constitutional amendment is also passed by the two Houses of Parliament and is assented to by the President like ordinary legislation with this difference that a special majority is required for certain purposes and a special majority plus ratification is required for certain other purposes
It may be admitted that the procedure for amendment under article 368 is somewhat similar to the procedure for passing ordinary legislation under the Constitution
Even so as pointed out by Sir Ivor Jennings in the passage already quoted there is a clear separation between constitutional law and the rest of the law and that must never be forgotten
An amendment to the Constitution is a constitutional law and as observed in Sankari Prasad s case1 is in exercise of constituent power passing of ordinary law is in exercise of ordinary legislative power and is clearly different from the power to amend the Constitution
We may in this connection refer for example to article V of other US Constitution which provides for the amendment thereof
It will be clearly seen that the power contained in article V of the US Constitution is not ordinary legislative power and no one can possibly call it ordinary legislative power because the procedure provided for the amendment of the Constitution in article V differs radically from the procedure provided for ordinary legislation for example the President s assent is not required constitutional amendment under article V of the US Constitution Now if article 368 also had made a similar departure from the procedure provided for ordinary legislation it could never have 1 1952  1 section C R 89 830 said that article 368 merely contained the procedure for amendment and that what emerges after that procedure is followed is ordinary law of the same quality and nature as emerges after following the procedure for passing ordinary law
If for example the assent of the President which is to be found in article 368 had not been there and the Constitution would have stood amended after the Bill had been passed by the two Houses by necessary majority and after ratification by not less than one half of the States where so required  it could never have been argued that the power to amend the Constitution was contained in article 245 and 248 read with item 97 of List I and article 368 merely con tained the procedure
We are however of opinion that we should look at the quality and nature of what is done under article 368 and not lay so much stress on the similarity of the procedure contained in article 368 with the procedure for ordinary lawmaking
If we thus look at the quality and nature of what is done under article 368 we find that it is the exercise of constituent power for the purpose of amending the Constitution itself land is very different from the exercise of ordinary legislative power for passing laws which must be in conformity with the Constitution and cannot go against any provision thereof unless there is express provision to that effect to which we have already referred
If we thus refer to the nature and quality of what is done under article 368 we immediately See that what emerges after the procedure in article 368 is gone through is not ordinary law which emerges after the legislative procedure contained in the Constitution is gone through
Thus article 368 provides for the coming into existence of what may be called the fundamental law in the form of an amendment of the Constitution and therefore what emerges after the procedure under article 368 is gone through is not ordinary legislation but an amendment of the Constitution which becoming a part of the fundamental law itself by virtue of the words contained in article 368 to the effect that the Constitution shall stand amended in accordance with the terms of the Bill
It is urged in this connection on behalf of the Union of India that even though the assent of the President is required under Aft 368 the President must assent thereto and cannot withhold his assent as is possible in the case of ordinary law in view of article III of the Constitution for the words that he withholds assent therefrom found in article III are not to be found in article 368
It is however difficult to accept the argument on behalf of the Union that the President cannot withhold his assent when a Bill for amendment of the Constitution is presented to him
Article 368 provides that a Bill for the amendment of the Constitution shall be presented to the President for his assent
It further provides 831 that upon such assent by the President the Constitution shall stand amended
That in our opinion postulates that if assent is not given the Constitution cannot be amended
Whether a President will ever withhold his assent in our form of Government is a different matter altogether but as we road article 368 we cannot
hold that the President is bound to assent and cannot withhold his assent when a Bill for amendment of the Constitution is presented to him
We are of opinion that the President can refuse to give his assent when a Bill for amendment of the Constitution is presented to him the result being that the Bill altogether falls for there is no specific provision for anything further to be done about the Bill in article 368 as there is in article III
We may in this
connection refer to the different language used in cl 5 of article 46 of the Irish Constitution which says that a Bill containing a proposal for the amendment of this Constitution shall be signed by the President Forthwith upon his being satisfied that the provisions of this Article have been complied with in respect thereof 
It will be seen therefore that if the intention kinder article 368 had been that the President cannot withhold his assent we would have found language similar in terms to that in cl 5 of article 46 of the Irish Constitution
We thus see that in one respect at any rate article 368 even on its present terms differs from the power of the President in connection with ordinary legislation under the Constitution and that is if the President withholds his assent the Bill for amendment of  the Constitution immediately falls
We cannot accept that the procedure provided under the proviso to article 111 can apply in such a case for this much cannot be disputed that so far as the procedure for amendment of the Constitution is concerned we must look to article 368 only and nothing else
In any case the mere fact that the procedure in article 368 is very much assimilated
to the procedure for passing ordinary legislation is no reason for holding that what emerges after the procedure under article 368 is followed is ordinary law and no more
We repeat that we must look at the quality and nature of what is done under article 368 and that is the amendment of the Constitution
If we look at that we must bold that what emerges is not ordinary law passed under the Constitution but something which has the effect of amending the fundamental law itself which could not be done by ordinary legislative process under the Constitution unless there is express provision to that effect
We have already referred to such express provisions in various Articles but article 368 cannot be treated as such an Article for it deals specifically with the amendment of the Constitution as a whole
It is also remarkable to note in this connection that the word law which has been used in so many Articles of the Consti 832 tution has been avoided apparently with great care in article 368
We again refer to the concluding words 368 which says that the Constitution shall stand amended in accordance with the terms of the Bill
Now it is well known that in the case of ordinary legislation as soon both Houses and has received the assent of the main part of article stand amended in ac it is well known that as the Bill is passed by of the President it becomes an Act
But article 368 provides that as soon as the Bill for amendment of the Constitution has been passed in accordance with the procedure provided there in the Constitution shall stand amendmend in accordance with the terms of the Bill
These words in our opinion have significance of their own
It is also remarkable that these words clearly show the difference between the quality of what emerges after the procedure under article 368 is followed and what happens when ordinary law making procedure is followed
Under article III in the case of ordinary law making when a Bill is passed by the two Houses of parliament it is presented to the President and the President shall declare either that he assents to the Bill or that he withholds assent therefrom
But it is remarkable that article 111 does not provide that when the Bill has been assented to by the President it becomes an Act  The reason for this is that the Bill assented to by the President though it may become law is still not declared by article I I I to be a law for such law is open to challenge in courts on various grounds namely on the ground that it violates any fundamental rights or on the ground that Parliament was not competent to pass it or on the ground that it is in breach of any provision of the Constitution
On the other hand we find that when a Bill for the amendment of the Constitution is passed by requisite majority and assented to by the President the Constitution itself declares that the Constitution shall stand amended in accordance with the terms of the Bill
Thereafter what courts can see is whether the procedure provided in article 368 has been followed for if that is not done the Constitution cannot stand amended in accordance with the terms of the Bill
But if the procedure has been followed the Constitution stands amended and there is no question of testing the amendment of the Constitution thereafter on the anvil of fundamental rights or in any other way as in the case of ordinary legislation
In view of an this we have no doubt that even though
by accident the procedure provided in the Constitution for amendment thereof is very akin to the procedure for passing ordinary legislation the power contained in article 368 is still not ordinary legislative power but constituent power for the specific purpose of amendment of the Constitution and it is the quality of that power which determines the nature of what emerges after the procedure in article 368 has been followed and what thus emerges is not ordinary legislation but fundamental law which cannot be tested
for example under article 132 of the Constitution or under any other provision of the Constitution
833 We may briefly refer to an argument on behalf of the Union of India that the amending power contained in article 368 is same sovereign power which was possessed by the Constituent Assembly when it made the Constitution and therefore it is not subject to any fetters of any kind
We do not think it necessary to enter into the academic question as to where sovereignty re sides and whether legal sovereignty is in the people and political
sovereignty in the body which has the power to amend the Constitution and vice versa
In our view the words of article 368 clearly confer the power to amend the Constitution and also provide the procedure for doing so and that in our opinion is enough for the purpose of deciding whether the Seventeenth Amendment is valid or not
Further as we have already stated the power conferred under article 368 is constituent power to change the fundamental law ie the Constitution and is distinct and different from the ordinary legislative power conferred on Parliament by various other provisions in the Constitution
So long as this distinction is kept in mind Parliament would have the power under article 368 to amend the Constitution and what Parliament does under article 368 is not ordinary law making which is subject to article 13 2 or any other Article of the Constitution
What is the extent of the power conferred on Parliament and whether there are any limitations on it express or implied will be considered by us presently
But we have no doubt without entering into the question of sovereignty and of whether article 368 confers the same sovereign power on Parliament as the Constituent Assembly had when framing the Constitution that article 368 does confer power on Parliament subject to the procedure provided therein for amendment of any provision of the Constitution
This brings us to the scope and extent of the power conferred for amendment under article 368
It is urged that article 368 only gives power to amend the Constitution
Recourse is had on behalf of the petitioners to the dictionary meaning of the word amendment
It is said that amendment implies and means improvement in detail and cannot take in any change in the basic features of the Constitution
Reference in this connection may be made to the following meaning of the word  amend in the Oxford English Dictionary namely to make professed improvements in a measure before Parliament formally to after in detail though practically it may be to alter its principle so as to thwart 
This meaning lit any rate does not support the case of the petitioners that amendment merely means such change as results in improvement in detail
It shows that in law though amendment MAY professedly be intended to make improvements and to alter only in detail in reality it may make a radical change in the provision which is amended
In any case as was pointed out in Sajjan Singh s case1 the word amend or amendment  is well under 1  834 stood in law and will certainly include any change whether by way of addition or alteration or deletion of any provision in the Constitution
This is no reason to suppose that when the word
amendment of the Constitution was being used in article 368 the intention was to give any meaning less than what we have stated above
To say that amendment in law only means a change which results in improvement would make amendments impossible for what is improvement of an existing law is a matter of opinion and what for example the legislature may consider an improvement may not be so considered by others
It is therefore in our opinion impossible to introduce in the concept of amendment as used in article 368 any idea of improvement as to details of the Constitution
The word amendment used in article 368 must therefore be given its full meaning as used in law and that means that by amendment an existing Constitution or law can be changed and this change can take the form either of addition to the existing provisions or alteration of existing provisions and their substitution by others or deletion of certain provisions
altogether
In this connection reference has been made to contrast certain other provisions of the Constitution where for example the word amend has been followed by such words as by way of addition variance or repeal see Sixth Schedule paragraph 2 1 and more or less similar expressions in other Articlesof the Constitution
it is very difficult to say fact that no such words appear in article make any difference for the meaning of the word why this was done
But the 368 does not in our mind amendmend in law is clearly as indicated above by us and the presence or sense of explanatory words of the nature indicated above do not in our opinion make any difference
The question whether the power of amendment given by article 368 also includes the power to abrogate the Constitution completely and to replace it by an entire new Constitution does not really arise in the present case for the Seventeenth Amendment has not done any such thing and need not be considered
It is enough to say that it may be open to doubt whether the power of amendment contained in article 568 goes to the extent of completely abrogating the present Constitution and substituting it by an entirely new one
But short of that we are of opinion that the power to amend includes the power to add any provision to the Constitution
to alter any provision and substitute any other provision in its place and to delete any provision
The Seventeenth Amendment is merely in exercise of the power of amendment a indicated above and cannot be struck down on the ground that it goes beyond the power conferred on Parliament to amend the Constitution by article 368
The next question that arises is whether there is any limi tation on the power of amendment as explained by us above
835 Limitations may be of two kinds namely express or implied
So far as express limitations are concerned there are none such in  article 368
When it speaks of the amendment of this Constitution it obviously and clearly refers to amendment of any provision thereof including the provisions contained in Part III relating to fundamental rights
Whether article 132 is an express limitation on the power of amendment will be considered by us law but so far as article 368 is concerned there are no limitation whatsoever in the matter of substance on the amending power and any provision of the Constitution be it in Part III and any other Part can be amended under article 368
The next question is whether there are any implied limita tions on the power of amendment contained in article 368 and this Wags us to the argument that there are certain basic features of the Constitution which cannot be amended at all and there is an implied limitation on the power of amendment contained in article 5 68 so far as these basic features are concerned
We may in this connection refer to the view prevailing amongst jurists in the United States of America as to whether there are any plied limitations on the power of amendment contained in article V of the US Constitution
There are two lines of thought in this matter in the United States
Some jurists take the view that there are certain implied limitations on the power to amend contained in article V of the US Constitution
These are said to be with respect to certain basic features like the republican character of Government the federal structure etc
On the other hand it is that the more prevalent view amongst jurists in the United States is that there are no implied limitations on the scope of the amending power in article V of the US Constitution
Willis on the Constitutional Law of the United States of America 1936 Edition says that probably the correct position is that the amending power embraces everything in other words there are no legal limitations whatever on the power of amendment except what is expressly provided in article V  see discussion on pp 122 to 127
Even with respect to these express limitations Munro in The Government of the United States Fifth Edition at p 77 says that even these express limitations can be removed and one of the ways of doing so is to remove the exception by a preliminary amendment and thus clear the way for further action
Besides as a matter of fact there is no decision of the Supreme Court of the United States holding that there are implied limitations on the power of amendment contained in article V of the US Constitution and all amendments so far made in the United States have been upheld by the Supreme Court there in the few cases that have been taken to it for testing the validity of the amendments
836 We have given careful consideration to the argument that certain basic features of our Constitution cannot be amended under article 368 and have come to the conclusion that no limitations can be and should be implied upon the power of amendment under article 368
reason for coming to this conclusion is that if we were to accept that certain basic features of the Constitution cannot be amended under article 368 it will lead to the position that any amendment made to any Article of the Constitution would be liable to challenge before courts on the ground that it amounts to amendment of a basic feature
Parliament would thus never be able to know what amendments it can make in the Constitution and what it cannot for till a complete catalogue of basic features of the Constitution is available it would be impossible to make any amendment under article 368 with any certainty that it would be upheld by courts
If such an implied limitation were to be put on the power of amendment contained in article 368 it would only be the courts which would have the power to decide what are basic features of the Constitution and then to declare whether a particular amendment is valid or not on the ground that it amends a particular basic feature or not
The result would be that every amendment made in the Constitution would provide a harvest of legal wrangles so much so that Parliament may never know what provisions can be amended and what cannot
The power to amend being a constituent power cannot in our opinion for these reasons be held subject to any implied limitations thereon on the ground that certain basic features of the Constitution cannot be amended
We fail to see why if there was any intention to make any part of the Constitution unamendable the Constituent Assembly failed to indicate it expressly in article 368
If for example the Constitution makers intended certain provisions in the Constitution and Part III in particular to be not amendable we can see no reason why it was not so stated in article 368
On the clear words of article 368 which provides for amendment of the Constitution which means any provision thereof
we cannot infer an implied limitation on the power of amendment of any provision of the Constitution  be it basic or otherwise
Our conclusion is that constituent power like that containedin article 368 can only be subject to express limitations and not to any implied limitations sofar as substance of the amendments are concerned and in the absence of anything in article 368 making any provision of the Constitution unamendable it Must be held that the power to
amend in article 3 68 reaches every provision of the Constitution and can be used to amend any provision thereof provided the procedure indicated in article 368 is followed
Copious references were made during the course of arguments to debates in Parliament and it is urged that it is open to this 837 Court to look into the debates in order to interpret article 368 to find out the intention of the Constitution makers
We are of opinion that we cannot and should not look into the debates that took place in the Constituent Assembly to determine the interpretation of article 368 and the scope and extent of the provision contained therein
It may be conceded that historical background and perhaps what was accepted or what was rejected by the Constituent Assembly while the Constitution was being framed may be taken into account in finding out the scope and extent of article 368
But we have no doubt that what was spoken in the debates in the Constituent Assembly cannot and should not be looked into in order to interpret article 368
Craies on Statute Law Sixth Edition at p 128 says that it is not permissible in discussing the meaning of an obscure enactment to refer to parliamentary history  of a statute in the sense of the debates which took place in Parliament when the statute was under consideration and supports his view with reference to a large number of English cases
The same is the view in Maxwell on Interpretation of Statutes 11th Edition p 26
Crawford on Statutory Construction 1940 Edition at p 340 says that resort may not be had to debates to ascertain legislative Intent though historical background in which the legislation came to be passed can be taken into consideration 
In Administrator General of Bengal vs Prem Lai Mullick1 the Privy Council held that proceedings of the legislature cannot be referred to as legitimate aids to the construction of the Act in which they result
 In Baxter vs Commissioner of Taxation2 it was said that reference to historical facts can be made in order to interpret a statute
There was however no reference to the debates in order to arrive at the meaning of a particular provision of the Constitution there in dispute
In A K Gopalan vs the State of Madras3 Kania CJ re ferring to the debates and reports of the Drafting Committee of the Constituent Assembly in respect of the words of article 21 observed at p I 10 that they might not be read to control the meaning of the Article
In that case all that was accepted was that due process of law which was a term used in the
US Constitution was not accepted for the purpose of article 21 which used the words 44 the procedure established by law
Patanjali Sastri J at p 202 also refused to look at the debates and particularly the speeches made in order to determine the meaning of article 21
Fazl Ali J at p 158 was of opinion that the pro 1 2  3  Sup
CI67 8 838 ceedings and discuss ions In Constituent Assembly were not relevant for the purpose of construing the expressions used in article 2 1
Again in The Automobile Transport Rajasthan Limited vs the State of Rajasthan  this Court looked into the historical background but refused to look into the debates in order to determine the meaning of the provisions of the Constitution in dispute in that case
We are therefore of opinion that it is not possible to read the speeches made in the Constituent Assembly in order to interpret An 368 or to define its extent and scope and to determine what ittakes in and what it does not
As to this historical facts namely what was accepted or what was avoided in the Constituent Assembly in connection with article 368 it is enough to say that we have not been able to find any help from the material relating to this
There were proposals for restricting the power of amendment under article 368 and making fundamental rights immune from and there were counter proposals before the Constituent assembly for making the power of amendment all embracing They were all either dropped or negatived and in the circumstanses are of no help in determining the interpretation of article 368 which must be interpreted on the words thereof as they finally found place in the Constitution and on those words we have no doubt that there are no implied limitations of any kind on the power to amend given therein
An argument is also raised that limitations on the power to amend the Constitution can be found in the preamble to the Constitution
As to that we may refer only to in re the Berubari Union and Exchange of Enclaves2 with respect to the value of the preamble to the Constitution and its importance therein
It was observed in that case unanimously by a Bench of nine judges that although it may be correct to describe the preamble as a key to the mind of the Constitution makers it form no part of the Constitution and cannot be regarded as the source of any substantive power which the body of the Constitution alone can confer on the Government  expressly or by implication
This is equally true to prohibitions and limitations
The Court there was considering whether the preamble could in any way limit the power of Parliament to cede any part of the national teritory and held that it was not correct to say that the preamble in any way limit the power of Parliament to cede parts of the national territory
On a parity of reasoning we are of opinion that the preamble cannot prohibit or control in any way or impose any implied prohibitions or limitations oft Me power to amend the Constitution contained in article 368
1 1963 1 SCR 491
2 839 This brings us to the question whether the word law in article 13 2 includes an amendment of the Constitution and therefore there is an express provision in article 1 3 2 which at least limits the power of amendment under article 3 68 to this extent that by such amendment fundamental rights guaranteed by Part 111 cannot be taken away or abridged
We have already pointed out that in Sankari Prasad s case1 as well as Sajjan Singh s case1 it has already been held in one case unanimously and in the other by majority that the word law in article 132 does not include an amendment of the Constitution and it is the correctness of this view which is being imputed before this Bench Article 13 is in three parts
The first part lays down that all laws in force in the territory of India immediately before the commencement of this Constitution insofar as they are inconsistent with the provisions of this Part shall to the extent of such inconsistency be void
Further all previous constitutionalprovisions were repealed by article 395 which provided that  the Indian Independence Act 1947 and the Government of India Act 1935 together with all enactments amending or supplementing the latter Act but not including the Abolition of Privy Council Jurisdiction Act 1949 are hereby repealed  Thus it is clear that the word law in article 131 does not include any law in the nature of a constitutional provision for no such law remained after the repeal in article 395
Then comes the second part of article 13 which says that 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
The third part defines the word law for the purpose of article 13 the definition is inclusive and not exhaustive
It is because of the definition in cl
3  of article 13 being inclusive that it is urged that the word law in article 13 2 includes an amendment of the Constitution also
Now we see no reason why if the word law in article 131 relating to past laws does not include any constitutional provision the word law in cl
2 would take in an amendment of the Constitution for it would be reasonable to the word law in article 132 includes an amendment of the 13
But apart from this consideration we are of opinion that the word law in Art 132 could never have been intended to take in an amendment of the Constitution
What article 132 means is that a law made under the constitutional provisions would be tested on the anvil of Part III and if it takes away or abridges rights conferred by Part III it would be void to the extent of the contraventions
There are many Articles in the Con stitution which directly for making law in addition to Articles 245 246 248 etc
and the three Lists and Aft
132 1  2  840 prohibits the State from making any law under these provisions
We see no difficulty in the circumstances in holding that article 13 2 when it talks of the State making any law refers to the law made under the provisions contained in Ch
I of Part XI of the Constitution beginning with article 245 and also other provisions already referred to earlier
Article 246 provides that Parliament may make laws for the whole or any part of the territory of India and the legislature of a State may make laws for the whole or any part of the State
Article 2461 gives exclusive power to Parliament to make laws with respect to subjects enumerated in List 1
Article 2463 gives exclusive power to State legislatures to make laws with respect to List II
Article 2481 gives exclusive power to Parliament to make laws with respect to any matter not enumerated in the Concurrent List or the State List
We are referring to these provisions merely to show that the various provisions in Chapter I of Part XI provide for making lawsand these laws are all laws which are made under the legislative power conferred on Parliament or on State legislatures under the Constitution
Therefore when in article 13  it is said that the State shall not make any law State there including Parliament and legislature of each State its meaning could only take in laws made by Parliament and State legislatures under the powers conferred under Chapter I of Part XI
and also other provisions already referred to earlier
We have already held that the power to amend the Constitution is to be found in article 368 along with the procedure and that such power is not to be found in article 248 read item 97 of List I Therefore an amendment of the Constitution is not an ordinary law made under the powers conferred under Chapter I of Part XI of the Constitution and cannot be subject to article 132 where the word law must be read as meaning law made under the ordinary legislative power
We have already referred to a large number of Articles where Parliament is given the power to make law with respect to those Articles
So far as this power of Parliament is concerned it is ordi nary legislative power and it will certainly be subject to article 13 2
But there can in our opinion be no doubt that when article 132 prohibits the State from making any law which takes away or abridges rights conferred by Part III it is only referring to ordinary legislative power conferred on Parliament and legislatures of States and cannot halve any reference to the constituent power for amendment of the Constitution contained in article 368
We have already pointed out that there are no implied limitative on the power to amend under article 368 and it is open to Parliament under that Article to amend any part of the Constitution including Part M
It is worth remembering that a whole Part XX is devoted by the Constitution makers to the subject of 841 amendment of the Constitution
If it was their intention that Part III of the Constitution will not be liable to amendment by way of abridgement or abrogation under the amending power contained in article 368 we see no reason why an express provision to that effect was not made in article 368
We cannot see what prevented the Constituent Assembly from making that clear by an express provision in article 368
It is however said that it was not necessary to say so in article 368 because the provision was already made in article 132
We are unable to accept this contention for we have no doubt that article 132 when it refers to making of laws is only referring to the ordinary legislative power and not to the constituent power which results in amendment of the Con stitution
In any case it seems to us somewhat contradictory that in article 368 power should have been given to amend any provision of the Constitution without any limitations but indirectly that power is limited by using words of doubtful import in article 132
It is remarkable that in article 132 there is no express provision that amendment of the Constitution under article 368 would be subject thereto
It seems strange indeed that no express provision was made in Part XX in this matter and even in article 132 no express provision is made to this effect and in both places the matter is left in a state of uncertainty
It is also remarkable that in article 368 the word law which we find so often used in so many Articles of the Constitution is conspicuously avoided and it is specifically provided that after the procedure has been gone through the Constitution shall stand amended in accordance with the terms of the Bill
This language of article 368 is very significant and clearly makes a distinction between a constitutional Amendment and an ordinary law passed as an Amending Act
The validity of a law has to be determined at the time when the Bill actually matures into an Act and not at the stage while it is still a Bill
The provision in article 368 has the effect that when a Bill amending the Constitution receives the assent of the President the Constitution stands amended in accordance with the terms of the Bill
The Constitution thus stands amended in terms of the Bill if the Bill has been introduced passed and assented to by the President in accordance with the procedure laid down in article 368 and not as a result of the Bill becoming an Amendment Act introducing amendment in the Constitution
The provision that the Constitution shall stand amended in terms of the Bill was thus clearly intended to indicate that the amendment of the Constitution is not dependent on the Bill being treated as a law or an Act duly passed by Parliament
Thus it is clear that by indicating that the Constitution is to stand amended in accordance with the terms of the Bill article 368 clearly envisages that the power of amendment of the Constitution stands on an entirely different footing from an ordinary law made by Parliament in exercise of its legislative power
842 If We keep in mind this difference between constitutional amendment or constitutional law and an ordinary amending Act or law it should not be difficult to hold that when Art 13 2 speaks of the St ate making a law it is referring to ordinary law made under the powers conferred by article 245 etc read with various Lists and various provisions of the Constitution where express provision to that effect has been made and is not referring to the amendment of the Constitution which is made under the constituent power
Once it is held that the power to amend is found in article 368 and is not to be found in article 248 read with item 97 of List I it must follow that the power to amend the Constitution under article 368 is a different power namely constituent power and when article 13 2 speaks of making law it can only refer to making ordinary law particularly when we compare the words of article 13 2 namely the State shall not make any law and the words of articles 245 248 and 250 which all speak of Parliament making law State legislatures making law and so on
Lastly as the power to amend is in article 368 and on the words as they stand in that Article that power is unfettered and includes the power to amend Part III it is strange that that power should be limited by putting an interpretation on the word law in article 132 which would include constitutional law also
There is nothing to suggest this even in the inclusive definition of the words law and laws in force in article 133
Besides it is conceded on behalf of the petitioners that article 368 gives power to amend Part 111 but that power is only to amend one way namely towards enlargement of the rights contained therein and not the other way namely for abridging or taking away the rights contained therein
W  must say that it would require a very clear provision in the Constitution to read the power to amend the Constitution relating to Part III in this manner
We cannot find that clear provision in article 1 3 2
We repeat that when the Constituent Assembly was taking the trouble of providing a whole Part for amendment of the Constitution and when the words in article 368 clearly give the power to amend the Constitution and are subject to no implied limitations and contain no express limitations it is strange indeed that it should have omitted to provide in that very Article that Part III is not liable to amendment thereunder
In any case if the power of amendment conferred by the words of article 368 is unfettered we must avoid any inconsistency between that power and the provision contained in article 13 2
We avoid that in keeping with the unfettered power in article 368 by reading the word law in article 13 2 as meaning law passed under ordinary legislative power and thus not including an amendment of the Constitution therein
The words in article
II 2 are in our opinion not specific and clear  enough to take in 843 the power of amendment under article 368 and must be confined only to the power of ordinary law making contained in articles 245 etc and other provisions of the Constitution read with various Lists
We have therefore no hesitation in agreeing with the view taken in Sankari Prasad s case1 which was upheld by the majority in Sajjan Singh s case2
The next argument is that action under the proviso to article 368 is necessary as the Seventeenth Amendment affects the power of the High Court contained in article 226
It is said that by including various Acts in the Ninth Schedule and making them immune from challenge under the provisions contained in Part III the power of the High Court under article 226 is affected inasmuch as the High Court cannot strike down any of the Acts included in the Ninth Schedule on the ground that they take away or abridge the rights conferred by Part III
So it is said that there has been a change in article 226 and it was necessary that the Seventeenth Amendment should have been ratified by more than half the States under the proviso
A similar argument was raised in Sankari Prasad s case1 and was turned down unanimously
The same argument was again raised in Sajjan Singh s case2 and was also turned down
Now ratification is required under the proviso if the amendment seeks to make any change in various provisions mentioned therein and one such provision is article 226
The question therefore is whether the Seventeenth Amendment makes any change in article 226 and whether this change has to be a direct change in the words of article 226 or whether merely because there may be some effect by the Seventeenth Amendment on the content of the power in article 226 it will amount to change in article 226
We are of opinion that when the proviso lays down that there must be ratification when there is any change in the entrenched provisions including article 226 it means that there must be actual change in the terms of the provision concerned
If there is no actual change directly in the entrenched provision no ratification is required even if any amendment of any other provision of the Constitution may have some effect indirectly on the entrenched provisions mentioned in the proviso
But it is urged that there may be such a change in some other provision as would seriously affect an entrenched provision and in such a case ratification should be necessary
This argument was also dealt with in the majority judgment in Sajjan Singh s case2 where the doctrine of pith and substance was applied and it was held that where the amendment in any other Article so affects the entrenched Article as to amount to an amendment therein then ratification may be necessary even though the entrenched Article may not be directly touched
Perhaps the use of the doctrine of pith and substance 1  2 1965 1 SCP 933
844 in such a case is not quite apt
But what was meant in Sajjan Singh s case1 was that if there is such an amendment of an unentrenched Article that it will directly affect an entrenched Article and necessitate a change therein then recourse must be had to ratification under the proviso
We may illustrate this by two examples
Article 226 lays down inter alia that the High Court shall have power to issue writs for the enforcement of any of the rights conferred by Part III and for any other purpose
Now assume that Part III is completely deleted by amendment of the Constitution
If that takes place it will necessitate an amendment of article 226 also and deletion therefrom of the words for the enforcement of any of the rights conferred by Part III
We have no doubt that if such a contingency ever happens and Part III is completely deleted Parliament will amend article 226 also and that will necessitate ratification under the proviso
But suppose Parliament merely deletes Part III and does not make the necessary consequential amendment in article 226 it can then be said that deletion of Part III necessitates change in article 226 also and therefore in such a case ratification is necessary even though Parliament may not have in fact provided for amendment of Art 226
Take another example
Article 54 is an entrenched Article and provides for the election of the President
So is article 55 which provides for the manner of election
Article 52 which lays down that there shall be a President is on the other hand not an entrenched Article
It is said that article 52 may be altered and something else may be substituted in its place and that would not require ratification in terms as article 52 is not among the entrenched Articles
But we are of opinion that if Parliament amends article 52 it is bound to make consequential amendments in articles 54 and 55 which deal with the election of the President and the manner thereof and if it is so the entire amendment must be submitted for ratification
But suppose Parliament merely amends article 52 and makes no change in articles 54 and 55 a supposition which is impossible to visualise
In that case it would in our opinion be right to hold that article 52 could not be altered by abolition of the office of the President without necessi tating a change in articles 54 and 55 and in such a case if article 52 alone is altered by Parliament to abolish the office of President it will require ratification
These two examples will show where alteration or deletion of an unentrenched Article would necessitate amendment of an entrenched Article and in such a case if Parliament takes the incredible course of amending only the unentrenched Article and not amending the entrenched Article courts can say that ratifi 1  845 cation is necessary even for amending the unentrenched Article for it directly necessitates a change in an entrenched Article
But short of that we are of opinion that merely because there is some effect indirectly on an entrenched Article by amendment of an unentrenched Article it is not necessary that there should be ratification in such circumstances also
Besides let us consider what would happen if the argument on behalf of the petitioners is accepted that ratification is necessary whenever there is even indirect effect on an entrenched Article by amending an unentrenched Article
Take the case of article 226 itself
It gives power to the High Court not only to issue writs for the enforcement of fundamental rights but to issue them for any other purpose
Writs have thus been issued by High Courts for enforcing other rights conferred by ordinary laws as well as under other provisions of the Constitution like articles 301 and 311
On this argument if any change is made in articles 301 and 311 there is bound to be an effect on article 216 and therefore ratification would be necessary even though both articles 301 and 311 are not entrenched in the proviso
Further take an ordinary law which confers certain rights and it is amended and those rights are taken away
Article 226 would be clearly affected
Before the amendment those rights may be enforced through article 226 while after the amendment the rights having disappeared there can be no enforcement thereof
Therefore on this argument even if there is amendment of ordinary law there would be an effect on article 226 and it must therefore be amended every time even when ordinary law is changed and the entire procedure under article 368 must be gone through including ratification under the proviso
It is however said that when ordinary law is amended rights disappear and therefore there is no question of enforcement thereof if that is correct with respect to ordinary law it is in our opinion equally correct with respect to the amendment of an unentrenched provision of the Constitution
The answer given in Sankari Prasad s case1 to this argument was that article 226 remained just the same as it was before and only a certain class of cases had been excluded from the purview of Part III and the courts could no longer interfere not because their powers were curtailed in any manner or to any extent but because there would be no occasion thereafter for the exercise of their power in such cases
We respectfully agree with these observations and are of opinion that merely because there is some indirect effect on article 226 it was not necessary that the Seventeenth Amendment should have been ratified by more than one half of the States
It is only in the extreme case the examples of which we have given above that an amendment of an unentrenched Article without amendment of entrenched Article 1  846 might be had for want of ratification and this is what was intended by the majority judgment in Sajjan Singh s case1 when it applied the doctrine of pith and substance in these circumstances
The argument that ratification is necessary as article 226 is indirectly affected has therefore no force and must be rejected
This is equally true with respect to the power of this Court under articles 132 and 136
Then it is urged that article 245 is enlarged by the Seventeenth Amendment inasmuch as State legislatures and Parliament were freed from the control of Part III in the matter of certain laws affecting for example
ryotwari lands and therefore as article 245 is an entrenched Article there should have been ratification under the proviso
This argument in our opinion is of the same type as the argument with respect to the effect on article 226 and our answer is the same namely that there is no direct effect on article 245 by the amendment and the indirect effect if any does not require that there should have been ratification in the present case
It is then urged that ratification is necessary as article 31 B deals with State legislation and in any case Parliament cannot make any law with respect to Acts which were put in the Ninth Schedule and therefore Parliament could not amend the Constitution in the manner in which it was done by making additions in the Ninth Schedule both for want of ratification and for want of legislative competence
The answer to this argument was given in Sahkari Prasad s case2 and it was observed there that Article 31 A and 31 B really seek to save a certain class of laws and certain specified laws already passed from the combined operation of article 13 read with other relevant Articles of Part III
The new Articles being thus essentially amendments of the Con stitution Parliament had the power of enacting them
That laws thus saved relate to matters covered by List II does not in any way affect the position
It was said that Parliament could not validate a law which it had no power to enact
The proposition holds good where
the validity of the impugned provision turns on whether the subject matter falls within or without the jurisdiction of the legislature which passed it
But to make a law which contravenes the Constitution constitutionally valid is a matter of constitutional amendment and as such it falls within the exclusive power of Parliament 1  2  847 We respectfully agree with these observations
They succinctly put the legal and constitutional position with respect to the validity of Arts 3 1 A and 3 1 B
It seems to us that article 3 1 B in particular is a legislative drafting device which compendiously puts in one place amendments which would otherwise have been added to the Constitution under various Articles in Part III
The laws in the Ninth Schedule have by the device of article 3 1 B been excepted from the various provisions in Part III which affected them and this exception could only be made by Parliament
The infirmity in the Arts put in the Ninth Schedule was apprehended to be a constitutional infirmity on the ground that those laws might take away or abridge rights conferred by Part HI
Such a constitutional infirmity could not be cured by State legislatures in any way and could only be cured by Parliament by constitutional amendment
What Parliament in fact did by including various Acts in the Ninth Schedule read with article 3 1 B was to amend the various provisions in Part III which affected these Acts by making them an exception to those provisions in Part III
This could only be done by Parliament under the constituent power it had under article 368 and there was no question of the application of the proviso in such a case for Parliament was amending Part III only with respect to these laws
The laws had already been passed by State legislatures and it was their constitutional infirmity if any which was being cured by the device adopted in article 3 1 B read with the Ninth Schedule the amendment being only of the relevant provisions of Part III which was compendiously put in one place in article 3 1 B Parliament could alone do it under article 368 and there was no necessity for any ratification under the proviso for amendment of Part III is not entrenched in the proviso
Nor is there any force in the argument that Parliament could  not validate those laws by curing the constitutional infirmity because they dealt with land which is in List 11 of the Seventh Schedule to the Constitution over which State Legislatures have exclusive legislative power
The laws had already been passed by State legislatures under their exclusive powers what has been done by the Seventeenth Amendment is to cure the constitutional  infirmity if any in these laws in relation to Part III
That could only be done by Parliament and in so doing Parliament was not encroaching on the exclusive legislative power of the State
The States had already passed the laws and all that was done by the Seventeenth Amendment was to cure any constitutional infirmity in the laws by including them in the Ninth Schedule read with article 31 B We must therefore reject the argument that the Seventeenth Amendment required ratification because laws put in the Ninth Schedule were State law 
We must equally reject the argument that as these laws dealt with land which is in the 848 exclusive legislative power of State legislature Parliament could not cure the constitutional infirmity if any in these laws by putting them in the Ninth Schedule
We now come to what may be called the argument of fear
It is urged that if article 368 confers complete power to amend each and every provision of the Constitution as we have held that it does frightful consequences will follow on such an interpretation
If Parliament is clothed with such a power to amend the Constitution it may proceed to do away with fundamental rights altogether it may abolish elected legislatures it may change the present form of Government it may do away with the federal structure and create a unitary state instead and so on
It is therefore argued that we should give a limited interpretation to the power of amendment contained in article 368 as otherwise we shall be giving power to Parliament to destroy the Constitution itself
This argument is really a political argument and cannot be taken into account in interpreting article 368 when its meaning to our mind is clear
But as the argument was urged with a good deal of force on behalf of the petitioners and was met with equal force on behalf of the Union and the States we propose to deal with it briefly
Now if this argument means that Parliament may abuse its power of amendment conferred by article 368 all that need be said in reply is that mere possibility of abuse cannot result in courts withholding the power if the Constitution grants it
It is well settled so far as ordinary laws are concerned that mere possibility of abuse will not induce courts to hold that the power is not there if the law is valid and its terms clearly confer the power
The same principle in our opinion applies to the Constitution
If the Constitution gives a certain power and its terms are clear there is no reason why that power should be withheld simply because of possibility of abuse
If we may say so possibility of abuse of any power granted to any authority is always there and if possibility of abuse is a reason for withholding the power no power whatever can ever be conferred on any authority be it executive legislative or even judicial
Therefore the so called fear of frightful consequences which has been urged on behalf of the Petitioners if we hold as we do that the power to amend the Constitution is unfettered by any implied limitations is no ground for withholding the power for we have no reason to suppose that Parliament on whom such power is conferred will abuse it
Further even if it abuses the power of constitutional amendment under article 368 the check in such circumstances is not in courts but is in the people who elect members of Parliament
The argument for giving a limited 849 meaning to article 368 because of possibility of abuse must therefore be rejected
The other aspect of this argument of fear is that we should not make the Constitution too flexible so that it may be open to the requisite majority with the requisite ratification to make changes too frequently in the Constitution
It is said that the Constitution is an organic document for the governance of the country and it is expected to endure and give stability to the institution which it provides
That is undoubtedly so and this is
very true of a written federal Constitution
But a perusal of
various Constitutions of the world shows that there are usually provisions for amendment of the Constitution in the Constitution itself
This power to amend a Constitution may be rigid or flexible in varying degrees
Jurists have felt that where the power to amend the Constitution is made too rigid and the people outgrow a particular Constitution and feel that it should be amended but cannot do so because of the rigidity of the Constitution they break the Constitution and this breaking is more often than not by violent revolution
It is admitted by even those writers on the United States Constitution who are of the view that there are certain basic features which cannot be amended and who would thus make the U section Constitution even more rigid  than it is that howsoever rigid the Constitution may be its rigidity will not stop the people from breaking it if they have outgrown it and this breaking is generally speaking by violent revolution
So making our Constitution rigid by putting the interpretation which the petitioners want us to put on it will not stop the frightfulness which is conjured up before us on behalf of the petitioners
If anything an interpretation which will make our Constitution rigid in the manner in which the petitioner want the amending power in article 368 to be interpreted will make a violent revolution followed by frightfulness of which the petitioners are afraid a nearer possibility than an interpretation which will make it flexible
It is clear that our Constitution makers wanted to avoid  making the Constitution too rigid
It is equally clear that they did not want to make an amendment of the Constitution too easy
They preferred an intermediate course which would makethe Constitution flexible and would still not allow it to be amended too easily
That is why article 368 provides for special majorities of the two Houses for the purpose of amendment of the Constitution
Besides it also provides for ratification by more than half the States in case of entrenched Provisions in the proviso
Subject to these limitations the Constitution has been made moderately flexible to allow any change when the people feel that change is necessary
The necessity for special majorities 850 in each House separately and the necessity for ratification by more than half the States in certain cases appear to us to be sufficient safeguards to prevent too easy change in the Constitution without making it too rigid
But it is said that in the last sixteen Years a large number of amendments have been made to the constitution and that shows that the power to amend is much too easy and should be restricted by judicial interpretation
Now judicial interpretation cannot restrict the power on the basis of a political argument
It has to interpret the Constitution and finds it on the basis of well knowncanons of constructionand on the terms of article 368 in particular
If on those terms it is clear we think it is that power to amend is subject to no limitations except those to be expressly found in the Constitution courts must give effect to that
The fact that m the last sixteen years a large number of amendments could be made and have been made is in our opinion due to the accident that one party has been returned by electors in sufficient strength to be able to command the special majorities which are required under article 368 not only at the Centre but also in all the Stites
It  is because of this circumstance that we have had so many amendments in the course of the last sixteen years
But that in our opinion is no ground for limiting the clear words of article 368
The power of amendment contained in a written federal Con stitution is a safety valve which to a large extent provides for stable growth and makes violent revolution more or less unnecessary
It has been said by text book writers that the power of amendment though it allows for change also makes a Constitution long lived and stable and serves the needs of the people from time to time
If this power to amend is made too rigid it loses its value as a safety valve
The more rigid a Constitution the more likely it is that people will outgrow it and throw it over board violently
On the other hand if the Constitution is flexible though it may not be made too easy to modify it the power of amendment provides for stability of the Constitution itself and for ordered progress of the nation
If therefore there had to be a choice between giving an interpretation to article 368 which would make our Constitution rigid and giving an interpretation which would make it flexible we would prefer to make it flexible so that it may endure for a long period of time and may if necessary be amended from time to time in accordance with the progress in the ideas of the people for whom it is meant
But we feel that it is not necessary to go to this extent for that would be entering into the field of politics
As we see the terms of article 368 we are clearly Df opinion that the Constitutionmakers wanted to make our Constitution reasonably flexible and that the interpretation that we have given to article 368 is in 851 consonance with the terms thereof and the intention of those who made it
We therefore reject the argument of fear altogether
This brings us to the argument of stare decisis raised on behalf of the Union of India and the States
The argument is put thus
After the decision of the Patna High Court invalidating the Bihar Land Reforms Act 1950 Parliament passed the First Amendment to the Constitution
That Amendment was challenged in this Court by a number of writ petitions and was upheld in Sankari Prasad s case  in 1951
That case practically stood unchallenged till Sajjan Singh s case2 in 1964 after the Seventeenth Amendment was passed
Thus in the course of these fifteen years or so a large number of State Acts were passed on the basis of the First Amendment by which in particular articles 31 A and 31 B were introduced in the Constitution
It is said that though Sankari Prasad s case 1 has stood for less than 15 years there have been so many laws dealing with agrarian reforms passed on the basis of the First Amendment which was upheld by this Court that the short period for which that case has stood should not stand in the way of this Court acting an the principle of stare decisis
The reason for this is that an agrarian revolution has taken place all over the country after the First Amendment by State laws passed on the faith of the decision of this Court in Sankari Prasad s case1
This agrarian revolution has led to millions of acres of land having changed hands and millions of now titles having been created
So it is urged that the un animous decision in Sankari Prasad s case2 which was challenged when the Seventeenth Amendment was passed and was upheld by majority in Sajjan Singh s case2 should not now be disturbed as its disturbance would create chaos in the country particularly in the agrarian sector which constitutes the vast majority of the population in this country
We are of opinion that there is force in this argument 
Though the period for which Sankari Prasad s case1 has stood unchallenged is not long the effects which have followed in the passing of State laws on the faith of that decision  are so overwhelming that we should not disturb the decision in that case
It is not disputed that millions of acres of land have changed hands and millions of new titles in agricultural lands have been created and the State laws dealing with Agricultural land which have been passed in the course of the last fifteen years after the decision in Samkari Prasad s case1 have brought about an agrarian revolution
Agricultural population constitutes a vast majority of the population in this country
In these circumstances it would in our opinion be wrong to hold now that 1  2  852 Sankari Prasad s case 1 was not correctly decided and thus disturb all that has been done during the last fifteen years and create chaos into the lives of millions
of our countrymen who have benefited by these laws relating to agrarian reforms
We would in the circumstances accept the argument on behalf of the Union of India and the States that this is the fittest possible case in which the principle of stare decisis should be applied
On this basis also apart from our view that Sankari Prasad s case 1 was in fact rightly decided we would not interfere with that decision now
But it is urged that instead of following the principle of stare decisis which would make die decision in Sankari Prasad s case1 good for all times
 we should follow the doctrine of prospective over ruling which has been evolved by some United States courts so that everything that has been done up to now including the Seventeenth Amendment would be held good but in future it would not be open to Parliament to amend Part III by taking away or abridging any of the rights conferred thereby and if the argument as to implied limitations on the power to amend is accepted further limit the power of Parliament to amend what may be called basic features of the Constitution
We must say that we are not prepared to accept the doctrine of prospective over ruling
We do not know whether this doctrine which it is urged should be applied to constitutional amendment would also be applied to amendments of ordinary laws
We find it difficult to visualise what would be the effect of this doctrine if it is applied to amendment of ordinary laws
We have so far been following in this country the well known doctrine that courts declare law and that a declaration made by a court is the law of the land and takes effect from the date the law came into force
We would on principle be loath to change that well known doctrine and supersede it by the doctrine of prospective over ruling
Further it seems to us that in view of the provisions of article 132 it would be impossible to apply the doctrine of prospective over ruling in our country particularly where a law infringes fundamental rights
Article 132 lays down that all
laws taking away or abridging fundamental rights would be void to the extent of contravention
It has been held by this Court in Deep Chand vs The State of Uttar Pradesh 2 that a law made after the Constitution came into force which infringes fundamental rights is a stillborn law and that the prohibition contained in article 132 went to the root of the State power of legislation and any law made in contravention of that provision was void ab initio
This case has been followed in Mahendra Lal Jaini vs The State of Uttar Pradesh3
In the face of these 1  2 1959 Supp 2 SCR 8
3 1963 Supp 1
SCR 912
853 decisions it is impossible to apply the principle of prospective over ruling in this country so far as ordinary laws are concerned
Further if the word law in article 132 includes an amendment of the Constitution the same principle will apply for that amendment would be stillborn if it infringes any fundamental rights contained in Part III
In these circumstances it would be impossible to apply the principle of prospective over ruling to constitutional amendments also
On the other hand if the word law in article 132 does not include an amendment of the Constitution then there is no necessity of applying the principle of prospective over ruling for in that case unless some limitations on the power of amendment of the Constitution are implied the amendment under article 368 would not be liable to be tested under article 132
We are therefore unable to apply the doctrine of prospective over ruling in the circumstances
Further as we are of opinion that this is the fittest possible case in which the prin ciple of stare decisis applieswe must uphold Sankari Prasad s case 1 for this reason also
Lastly we would refer to the following observations in Sajjan Singh s case2 at pp
947 48 with respect to over ruling earlier judgments of this Court and specially those which are unanimious like Sankari Prasad s case1 It is true that the Constitution 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  
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 decisionsor 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  
Even so the Court should be re 1 1952 SCR 89
2 1965 1 SCR 933
p CI67 9 854 luctant to accede to the suggestion that its earlier decisions should be light heartedly 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 reopened 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
 A similar view was taken in the Keshav Mills Company Limited vs Commissioner of Income tax1 where it was observed that  before a previous decision is pronounced to be plainly erroneous the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified
 These principles were applied in Sajjan Singh s case2 and it was observed that if Sankari Prasad s case3 were to be overruled it would lead to the inevitable consequence that the amendments made in the Constitution both in 1951 and 1955 would be rendered invalid and a large number of decisions dealing with the validity of the Acts included in the Ninth Schedule which have been pronounced by different High Courts ever since the decision of this Court in Sankari Prasad s case3 was declared would also be exposed
to serious jeopardy
 The majority in that case therefore was not in favour of reviewing Sankari Prasad s case even so in View of the argument raised and the importance of the question it considered the arguments against that decision and came to the conclusion its that that case was rightly decided We may add that besides so many cases in the High Courts there have been a large number of cases in this Court to which it is unnecessary to refer where on the faith of various amendments made in the Constitution particularly the First the Fourth and the Sixteenth amending fundamental rights this Court has upheld the validity of various Acts on the basis of these amendments
Further we would be very reluctant to over rule the unanimous decision in Sankari Prasad s case3 or any other unanimous decision by the slender majority of one in a larger Bench constituted for the purpose
We say this with great respect and would hold that apart from the principle of stare decisis we should not say that the 1  2  3  855 unanimous judgment in Sankari Prasad s case was wrongly decided by such a slender majority in this Special Bench
We therefore hold that Sankari Prasad s cases1 was correctly decided and that the majorityin Sajjan Singh s case2 WAS Correct in following that decision
We would follow the decision in Sankari Prasad s case1 even now as in our opinion it was correctly decided  Following that decision we hold that the Seventeenth Amendment is good
In view of this decision it is unnecessary to refer to other arguments raised with respect to the two petitions challenging the Mysore Land Reforms Act
In our view therefore all the three petitions should fail and we would dismiss them
In the circumstances we would pass no order as to costs
Hidayatulla
J In these three writ petitions the facts of which appear in the two judgment just delivered the validity of the Punjab Security of Land Tenures Act 1953 and the Mysore Land Reforms Act 1953 is principally involved  Since these Acts are protected by the Constitution Seventeenth Amendment Act 1964 the validity of the constitutional amendment is also questioned
Therefore a much larger field must be traversed because of the claim of the State that no part of the Constitution from the Preamble to the Ninth Schedule is beyond the provision for amendment contained in article 368
The article forms the Twentieth Part of the Constitution and is said to be a code by itself in which reposes a sovereign power transcending anything elsewhere in the Constitution
The State submits that except as stated in the article there are no limitations on the amending power and denies that there are any implied restrictions
It claims therefore that an amendment of the Constitution Or of any of its part can never be a justiciable issue if the procedure for amendment has been duly followed
In this claim no exception is made the Preamble the Fundamental Rights the guaranteed remedy to uphold them all of them severally and together are said to be capable of being Partially or wholly abrogated by an amendment
Looked at from this Point of view the Seven teenth Amendment Act not only must be valid but also beyond the Power of the courts to question
The petitioners on the other hand contend that this is to deny the real importance and inviolability of the Fundamental Rights which the Constitution itself paramount even to article 368 consideration  before we can Acts are valid or not
1  2  856 The same questions were before this Court on two earlier occasions
They arose for the first time immediately after the Constitution First Amendment Act 1951 was adopted and became the subject of a decision of this Court reported in Sri Sankari Prasad Singh Deo vs Union of India1
There Patanjali Sastri J speaking for Harilal Kania CJ Mukherjea Das and Chandrasekhara Aiyar JJand himself upholds the First Amendment on the grounds that the power conferred by Part XX is constituent paramount and sovereign and is therefore not subject to article 132 which prohibits the making of ordinary laws tending to abridge or take away Fundamental Rights
The questions were again before the Court in sajjan Singh c State of Rajasthan2 when the Seventeenth Amendment was impugned
The authority of Sankari Prasad s case1 was the ministry ofof the argument in support of the validity of the new amendment
This time the Court was not unanimous although the Court as aas a whole did not strike down the Act
Three opinions weredelivered by Gajendragadkar CJ on behalf of Wanchoo and Raghubar Dayal JJ
and himself by Mudholkar J and by me
I found the reasoning in Sankari Prasad s case1 to be unaccept able although for reasons which I shall give I refrained from expressing a final opinion
Mudholkar J in his opinion supported me with additional and forceful reasons but he also did not express himself finally on the broader question
I closed my opinion with the following observations  I would require stronger reasons than those given in Sankari Prasad s case1 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
Ibis shows that Part III is not static
It Visualises changes 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 more to the public exchequer the rights of society are made paramount and they ire 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 Mt 19 is 1  2  857 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 case1
It is true that such things would never be but one is concerned to know if such a doing would be possible The Constitution gives so many assurances in Part III that it would be difficult to think that they were the playthings of a special majority
To hold this would 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 anomaly 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 liberal 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 ordinarily to be a means of escape from absolute constitutional restrictions
 My opposition lest one misunderstands its veridical charac ter appears to be cautious and even timid but this was because it was attended by an uneasy feeling that I might have missed some immanent truth beyond what was said in Sankari Prasad s case1
The arguments then were extremely brief
After hearing full arguments in this case which have not added to the reasoning of the earlier cases I am not satisfied that the reasons are cogent enough for me to accept them
I say it with respect that I felt then as I do so even more strongly now that in the two earlier cases the result was reached by a mechanical juris prudence in which harmonious construction was taken to mean that unless article 368 itself made an exception the existence of any other provision indicative of an implied limitation on the amending power could not be considered
This was really to refuse to consider any argument which did not square with the a priori view of the omnicompetence of article 368
Such reasoning appears to me to be a kind of doctrinaire conceptualism based on an and textual approach supplemented by one concept that an amendment of the Constitution is not an exercise of legislative 1  858 power but of constituent Dower and therefore an amendment of the Constitution is not law at all as contemplated by article 132
I am reminded of the
words of
Justice Holmes that we must think things and not words
The true principle is that if there are two provisions in the Constitution which seem to be hostile juridical hermeneutics requires the Court to interpret them by combining them and not by destroying one with the aid of the other
No part in a Constitution is superior to another part unless the Constitution itself says so and there is no accession of strength to any provision by calling it a code
Portalis the great
French Jurist who helped in the making of the Code Napole on supplied the correct principle when he said that it is the context of the legal provisions which serves to illustrate the meaning
of the different parts so that among them and between them there should be correspondence and harmony
We have two provisions to reconcile
Article 368 which says that the Constitution may be amended by following this and this
procedure and article 132 which says the State shall not make any law which takes away or abridges the rights conferred by Part III and that any law made in contravention of the clause shall to the extent of the contravention be void
The question therefore is  does this create any limitation upon the amending process  On the answer to this question depends the solution of all the problems in this case
It is an error to view our Constitution as if it were a mere organisational document by which the people established the atructure and the mechanism of their Government
Our Constitution is intended to be much more because it aims at being a social document In which the relationship of society to the indiVidual and of Government to both and the rights of the minorities and the backward classes are clearly laid down
This social document is headed by a Preamble which epitomizes the principles on which the Government is intended to function and these principles are later expanded into Fundamental Rights in Part III and the Directive Principles of Policy in Part TV
The former are protected but the latter are not
The former represent the PREAMBLE WE THE PEOPLE OF INDIA having solemnly Resolved to constitute
India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure all Its citizens JUSTICE social economic and political EQUALITY of status and of opportunity and to promote among themall FRATERNITY assuring the dignity of the individual andthe unity of Nation IN OUR CONSTITUENT ASSEMBLY this twenty sixth day of November1949do HEREBY ADOPTENACT AND GIVE TO OURSELVES THIS CONSTffUTION
 859 limits of State action and the latter are the obligations and the duties of the Government as a good and social Government
Why was it necessary to have the Fundamental Rights at all and make them justiciable  As we seem to be forgetting our own history so soon let me say that the answer lies there the Nationalist Movement and the birth of the Indian National Congm in 1885 were the direct result of the discriminatory treatment of the Indians in their own country
The demand for the guarantee of Fundamental Rights had unfortunately to be made
then to a foreign ruler and it appeared in the Constitution of India Bill framed by the Indian National Congress ten years later
All that is valuable to an Individual in civilized society including free speech imprisonment only by a competent authority free law education etc were claimed therein
Resolutions of the Congress since then reiterated this demand and the securing of Fundamental Rights in any future Constitution became one of the articles of faith
To cut the narration short the main steps may only be mentioned
Mrs Besant s Commonwealth of India Bill 1925 with its seven fundamental rights the precursor of article 19 the Madras Congress Resolution of 1927 a constitution on the basis of declaration of rights the Nehru Report it is obviour that our first care should be to have the Fundamental Rights guaranteed in a manner which will not permit their withdrawal in any circumstancees  the draft article in the Nehru Constitution No person shall be deprived of his liberty nor shall his dwelling or property be entered requisitioned or confiscated save in accordance with law  the Independence Resolution of 26th January 1930 We believe that it is the inalienable right of the Indian people as of any other people to have freedom and to enjoy the fruits of their toil and have the necessities of life so that they may have full opportunities of growth the Karachi Resolution on Fundamental Rights Economic and Social Change 1931 the Sapru Report 1945 which for the first time distinguished between justiciable and non justiciable rights the Suggestion of the Cabinet Mission for the constitution of an Advisory Committee on Fundamental and Minority Rights and lastly the Committee on Fundamental Rights of the Constituent Assembly are just a few of the steps to be remembered
The Fundamental Rights and the Directive Principles were the result
Fundamental laws are needed to make a Government of laws and not of men and the Directive Principles are needed to lay down the objectives of a good Government
Our Constitution was not the cause but the result of political and personal freedom
Since Dicey had said that the proclamation 
in a Constitution or Charter of the right to personal freedom or indeed of any other right gives of itself but slight security that the right has more than a 860 nominal existence1 provision had to be made for guaranteeing them andto make them justiciable and enforceable
This result is reachedby means of articles 12 13 32 136 141 144 and 226
The The High Courts and finally this Court have been made the Judges of whether any legislative or executive action on the part oft the State considered as comprehensively as is possible offends the Fundamental Rights and article 132 declares that legislation which so offends is to be deemed to be void
It is thus that Parliament cannot today abridge or take away a single Fundamental Right even by a unanimous vote in both the Chambers
But on the argument of the State it has only to change the title of the same Act to an Amendment of the Constitution Act and then a majority of the total strength and a 23rds majority of the members present and voting in each House may remove not only any of the Fundamental Rights but the whole Chapter giving them
And this is said to be possible because of article 368 and its general language which it is claimed makes no exception in its text and therefore no exception can be implied
It is obvious that if an Act amending the Constitution is treated as a law it must also be subject to the provisions of article 132
Since the definition of the word law  makes no exception a strenuous eeffort is made on the basis of argument and authority to establish that a constituent power does not result in a law in the ordinary sense
Distinction is thus made between laws made ordinarily that is to say from day to day by ordinary majority and laws made occasionally for the amendment of the Constitution by a slightly enhanced majority
In our Constitution this distinction is not valid in the eye of article 132
It is not essential of course that a difference must always exist in the procedure for the exercise of constituent and ordinary legislative power
One has not to go far to find the example of a country in which constitutional law as such may be made by the same agency which makes ordinary laws
The most outstanding example is that of England about which de Tocqueville observed
the Parliament has an acknowledged right to modify the Constitution as therefore the Constitution may undergo perpetual changes it does not in reality exist the Parliament is at once a legislative and a constituent assembly2 of course the dictum of de Tocqueville that the English Constitution elle n existe point it does not exist is far from accu 1Dicey Law of the Constitution 10th Edn
p 207
2Introduction to the Study of the Law of the Constitution AV Dicey Tenth Edn p 88 quoting from OEuvres completes 14th ed1864 Democratie en Amerique pp 166 167
861 rate
There is a vast body of constitutional laws in England which is written and statutory but it is not all found in one place and arranged as a written Constitution usually is
The Act of Settlement 1701 the Act of Union with Scotland 1707 the Act of Union with Ireland 1800 the Parliament Act 1911 the Representation of the Peoples Acts of 1832 1867 1884 1918 1928 and 1948 the Ballot Act 1872 the Judicature Acts 1873 1875 and 1925 the Incitement to Disaffection Act 1934 His Majesty s Declaration of Abdication Act 1936 the Regency Act 1937 and the various Acts setting up different ministries are examples of what will pass for constitutional law under our system1
The Bill of Rights 1689 lays down the fundamental rule in England that taxation may not be levied without the consent of Parliament which in our Constitution has its counterpart in article 265
In our Constitution also the laws relating to delimitation of constituencies or allotment of seats to such constituencies made or purporting to be made under article 327 or article 328 by reason of the exclusion of the powers of the courts to question them are rendered constitutional instruments
Other examples of constitutions which in addition to constitution proper contain certain ordinary legislation having constitutional qualities also exist
2 What then is the real distinction between ordinary law and the law made in the exercise of constituent power I would say under the scheme of our Constitution none at all
This distinction has been attempted to be worked out by several authors
It is not necessary to quote them
Taking the results obtained by Willoughby3 it may be said that the fact that a Constitution is written as a Constitution is no distinction because in Britain constitutional law is of both kinds and both parts coexist
The test that the Constitution requires a different kind of procedure for amendment also fails because in Britain Parliament by a simple majority makes laws and also amends constitutional statutes
In our Constitution too in spite of the claim that article 368 is a code whatever is meant by the word code here articles 4 11 and 169 show that the amendment of the Constitution can be by the ordinary law making procedure
By this method one of the legislative limbs in a State can be removed or created This destroys at one stroke the claim that article 368 is a code arid also that any special method of amendment of the Constitution is fundamentally necessary
1 The list is raken from K C Wheare s The Statute of Westminster and Dominion Status 4th Edn p 8
Dicey and others give different list
2 See Constitutions of Austria Honduras Nicaragua Peru Spain and Sweden among others
The Constitution of Spain in particular is in several Instruments
The Constitution of Austria A t 149 makes special mention of these constitutional instruments
3 Tagore Law Lectures 1924 p 83
862 The next test that the courts must apply the Constitution in preference to the ordinary law may also be rejected on the ansalogy of the British practice
There every statute has equal standing
Therefore the only difference can be said to arise from the fact thatconstitutional laws are generally amendable under a process which in varying degrees is more difficult or elaborate
This may give a distinct character to the law of the Constitution but it does not serve to distinguish it from the other laws of the land for purposes of article 132
Another difference is that in the written constitutions the form and power of Government alone are to be found and not rules of private law as is the case with ordinary laws
But this is also not an invariable rule
The Ame Constitution and our Constitution itself are outstanding examples There are certain other differences of degree such as that nary _legislation may be tentative or temporary more detailed or secondary while the Constitution is intended to be permanent general and primary
Because it creates limitations on the ordinary legislative power constitutional law in a sense is fundamental law but if the legislative and constituent processes can become one Ls there any reason why the result should be regarded as law in the one case and not in the other  On the whole therefore as observed in the American Jurisprudence It should be noticed however that a statute and a constitution though of unequal dignity are both laws and each rests on the will of the people   A Constitution is law which is intended to be for all time and is difficult to change so that it may not be subject to impulses ofmajority temporary excitement and popular caprice or passion2
I agree with the authors cited before us that the power of amendment must be possessed by the State
I do not take a narrow view of the word amendment as including only minor changes within the general framework
By an amendment new matter may be added old matter removed or altered
I alm concede that the reason for the amendment of the Constitution is a political matter although I do not go as far as some Justice of the Supreme court of the United States did in Coleman vs Miller3 that the whole process is political in its entirely from submission until an Amendment becomes part of the Constitution and is not subject to judicial guidance control or interference at any point
 There are fundamental differences between our Con 1 American Jurispruence Vol
II Section 3
2 Amendment is expressly called a legislative process in the Constitutions of Colombia Costa Rica Hungary Panama and Peru
In Portugal the ordinary legislatures enjoy constituent powers every 10 years
3 37 US 443  863 stitution and the Constitution of the United States of America
Indeed this dictum of the four Justices based upon the case of Luther vs Borden1 has lost some of its force after Baker vs Carr2 A Republic must as says Story 8 possess the means for altering and improving the fabric of the Government so as to promote the happiness and safety of the people
The power is also needed to disarm opposition and prevent factions over the Constitution
The power however is not intended to be used for experiments or as an escape from restrictions against undue state action enacted in the Constitution itself
Nor  LS the power of amendment available for the purpose of removing express or fmplied restrictions against the State
Here I make a difference between Government and State which I shall explain presently
As Willoughby4 points out constitutional law ordinarily limits Government but not the State because a constitutional law is the creation of the State for its own purpose
But there is nothing to prevent the State from limiting itself
The rights and duties of the individual and the manner in which such rights are to be exercised and enforced ire ordinarily to be found in the laws though some of the Constitutions also fix them
It is now customary to have such rights guaranteed in the Constitution
Peaslee5 writing in 1956 says that about 88 of the national Constitutions contain clauses respecting individual liberty and fair legal process 83 respecting freedom of speech and the press 82 respecting property right 80 respecting rights of assembly and association 80 respecting rights of conscience and religion 79 res pecting secrecy of correspondence and inviolability of domi cile 78 respecting education 73 respecting equality 64 respecting right to petition 56 respecting labour 51 respecting social security 47 respecting rights of movement within and to and from the nation 47 respecting health and motherhood and 35 respecting the non retroactivity of laws
In some of the Constitutions there is an attempt to put a restriction against the State seeking to whittle down the rights conferred on the individual
Our Constitution is the most outstanding example of this restriction which is to be found in article 132 The State is no doubt legally supreme but in the supremacy of its powers it may create impediments on its own sovereignty
Government is always bound by the restrictions created in favour of fundamental Rights but the State may or may not be
Amendment may be open to the State according to the procedure laid 1 2  7 L Ed
2d 633
3 Commentaries on the Constittition of the United States 1833 Vol
III pp 686 687
4 Tagore Law Lectures p 84
5 Constitutions of Nations Vol
I 2nd Edn p 7
863 stitution and the Constitution of the United States of Americathis dicttan of the four Justices based upon the case of Luther vs Borden1 has lost some of its force after Baker vs Carr2
A Republic must as says Story  ssess the means for ai andimproving the fabric of tc Government so as to promote the happiness and safety of the people
The power is dw needed to disarm opposition and prevent factions over theThe power however is not intended to be used for experiments or as an escape from restrictions against undue state action enacted in the Constitution itself
Nor is the power of amendment available for the purpose of removing express or implied restrictions against the State
Here I make a difference between Government and Statewhich I shall explain presently
As Willoughby4 points out wmtitutional law ordinarily limits Government but not the State because a constitutional la is the creation of the State for its own pu se
But there is nothing to prevent the State from rpo limiting itself
The rights and duties of the individual and the manner in which such rights are to be exercised and enforced are ordinarily to be found in the laws though some of the Constitutions also fix them
It now customary to have such rights guaranteed in the Constitution
Peaslee5 writing in 1956 says that about 88Yo of the national Constitutions contain clauses respecting individual liberty and fair legal process 83 respecting freedom of speech and the press 82 respecting property right 80 respecting rights of assembly and association 80 respecting rights of conscience and religion 79 respecting secrecy of correspondence and  inviolability of domicile 78 respecting education 73 respecting equality 64 respecting right to petition 56 respecting labour 51 respecting social security 47 respecting rights of movement within and to and from the nation 47 respecting health and motherhood and 35 respecting the non retroactivity of laws
In some of the Constitutions there is an attempt to put a restriction Against the State seeking to whittle down the rights conferred  on the individual
Our Constitution is the most outstanding i6xample of this restriction Which is to be found in article 132
Tbe State is no doubt legally supreme but in the supremacy of its powers it may creat e impediments on its OIM sovereignty
Govent is always bound by the restrictions created in favour of Fundamental Rights but the State may or may not be
Amendment may be open to the State according to the procedure lair 17 How 1 2  7 L Ed
2d 633
3 Commentaries on the Constitution of the United States 1 833 Vol
III PP 686 687
4Tagore Law Lectures p 84
5Constitutions of Nations Vol
I 2nd Edn p 7 864 down by the Constitution
There is nothing however to prevent the State from placing certain matters outside the amending procedure 
Examples of this exist in several Constitutions of the world  see article 5 of the American Constitution article 95 of the Constitution of France article 95 of the Constitution of Finland article 97 of the Constitution of Cambodia article 183 of the Constitution of Greece article 97 of the Japanese Constitution article 139 of the Italian Constitution to mention only a few
When this happens the ordinary procedure of amendment ceases to apply
The unlimited competence the kompetenz kompetenz of the Germans does not flow from the amendatory process
Amendment can then be by a fresh constituent body
To attempt to do this otherwise is to attempt a revolution
I do not known why the word revolution which I have used before should evoke in some persons an image of violence and subversion
The whole American Constitution was the result of a bloodless revolution and in a sense so was ours
The adoption of the whole Constitution and the adoption of an amendment to the Constitution have much in common
An amendment of the Constitution has been aptly called a Constitution in little and the same question arises whether it is by a legal process or by revolution
There is no third alternative
An amendment which repeals the earlier Constitution unless legal is achieved by revolution
As stated in the American Jurisprudence  An attempt by the majority to change the fundamental law in violation of self imposed restrictions is unconstitutional and revolutionary
  There are illegal and violent revolutions and illegal and peaceful revolutions
Modification of Constitution can only be by the operation of a certain number of wills acting on other wills
The pressure runs through a broad spectrum harsh at one end and gentle at the other
But whatever the pressure may be kind or cruel the revolution is always there if the change is not legal
The difference is one of method not of kind
Political thinking starts from the few at the top and works downward more often than in the reverse direction
It is wrong to think that masses alone called the people after Mazini or the proletariate after Marx begin a revolutionary change
Political changes are always preceded by changes in thought in a few
They may be outside the 1 In the Constitution of Honduras partial amendment only is possible
For a complete amendment a Constituent Assembly has to be convoked
In the Constitution of Brazil the Constitution cannot be amended when there is a state of seige our emergency
In Turkey an amendment of Article 1 cannot even be proposed
2 Vol
12 Section 25 pp
629 630
865 Government or in it
It is a revolution nevertheless if an attempt is made to alter the will of the people in an illegal manner
A revolution is successful only if there is consent and acquiescence and a failure if there is not
Courts can interfere to nullify the revolutionary change because in all cases of revolution there is infraction of existing legality
It is wrong to classify as revolution some thing coming from outside the Government and an illegality committed by the Government against the Constitution as evolution
I am mindful of the observations of Justice Holmes that We need education in the obvious to learn to transcend our own convictions and to leave room for much that we hold dear to be done away with short of revolution by the orderly change of law
1 But the problem we are faced with is not an orderly change of law but of a claim to a revolutionary change against the vitals of the Constitution
In such a case the apprehension is that democracy may be lost if there is no liberty based on law and law based on equality
The protection of the fundamental Rights is necessary so that we may not walk in fear of democracy itself
Having assumed the distinction between Government and  State let me now explain what I mean by that distinction and what the force of article 132 in that context is
I shall begin first by reading the pertinent article
Article 13 2 which I quoted earlier may again be read here 13      2The 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 contravention be void
 The definition of the State in article 12 reads 12
In this Part unless the context otherwise requires the State includesthe Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India
 The State is the sum total of all the agencies which are also individually mentioned in article 12 and by the definition all the parts severally are also included in the prohibition
Now see how law  is defined 13     1 The Mind and Faith of Justice Holmes p 390 866 3In 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 In Sajjan Singh s case1 I said that if amendments of the constitution were meant to be excluded from the word law it was the easiest thing to add to the definition the further words but shall not include an amendment of the Constitution
it LS argued now before us that this wag not necessary because article 368 does not make any exception
This argument came at all stages like a refrain and is the real cause of the obfuscation in the opposite view
Those who entertain this thought do not pause to consider  why make a prohibition against the State As Cooley said there never was a republican Constitution which delegated to functionaries all the latent powers which lie dormant in every nation and are boundless in extent
and incapable of definition
 If the State wields more power than the functionaries there must be a difference between the
State and its agencies such as Government Parliament the Legislatures of the States and the local and other authorities
Obviously the State means more than any of there or all of them put together
By making the State subject to Fundamental Rights it is clearly stated in article 13 2 that any  of the agencies acting alone or all the agencies acting together are not above the Fundamental Rights
Therefore when the House of the People or the Council of States introduces a Bill for the abridgement of the Fundamental Rights it ignores the injunction against it and even if the two Houses pass the Bill the injunction is next operative against the President since the expression Government of India in the General Clauses Act means the President of India
This is equally true of ordinary laws and laws seeking to amend the Constitution
The meaning of the word State will become clear if I draw attention at this stage to article 325 of the Constitution of Nicargua which reads as follows 325
The agencies of the Government jointly or separately are for bidden to suspend the Constitution or to restrict she rights granted by it except in the cases provided therein
 In our Constitution the agencies of the State are controlled jointly and separately and the prohibition is against the whole force of 1  867 the State acting either in its executive or legislative capacity
Ile of the Executive is more important than even the Legislature
In modem politics run on parliamentary democracy the Cabinet attains a position of dominance over the Legislature
The Executive therefore can use the Legislature as a means of securing changes in the laws which it desires
It happened in Germany under Hitler
The fact has been noticed by numerous writers
for example Wade and Philips1 Sir Ivor Jennings2  Dawson3 Keith4 and Ramsay Muir5
Dawson in particular said that a Cabinet is no longer responsible to the Commons but the Commons has become instead responsible to the Government
Ivor Jennings added that if a Government had majority it could always secure the legislation
The others pointed out that the position of the Cabinet towards Parliament tends to assume more or less dictatorial powers and that was why people blamed Government this is to say the Cabinet rather than Parliament for ineffective and harsh laws
This is true of our country also regarding administration and Station
Fortunately this is avoided at least in so far as the Fundamental Rights are concerned
Absolute arbitrary power in defiance of Fundamental Rights exist nowhere under our Constitution not even in the largest majority
The people s representatives have of course inalienable and undisputable right to alter reform or abolish the Government in any manner they think fit but the declarations of the Fundamental Rights of the citizens are the inalienable rights of the people
Ile extent of the power of the rulers at any time is measured by the Fundamental Rights
It is wrong to think of them as rights within the Parliament s giving or taking
Our Constitution enables an individual to oppose successfully the whole community and the State and claim his rights
This is because the Fundamental Rights are I so safe guarded that within the limits set by the Constitution they are inviolate
The Constitution has itself said what protection has been created round the person and property of the citi zens and to what extent this protection may give way to the general good
it is wrong to invoke the Directive Principles as if there is some antinomy between them and the Fundamental Rights
The Directive Principles lay down the routes of State but such action must avoid the restrictions stated in the Fundamental Rights
Prof Anderson 6 taking the constitutional amendments as they have been in our country considered the Directive principles to be more potent than the Fundamental 1 Constitutional Law 6th Edn
p 27
2 Parliament 1957 pp
11 12
3 Government of Canada 1952 Chapter XIX
4 An Introduction to British Constitutional Law 1931 P 48 5 How Britain is Governed P 56
6 Changing Law in Developing Countries pp 88 89 868 Rights
That they are not is clear when one takes the Fundamental Rights
with the guaranteed remedies
The Directive Principles are not justiciable but the Fundamental Rights are  made justiciable
This gives a judicial control and check over State action even within the four corners of the Directive Principles
It cannot be conceived that in following the Directive Principles the Fundamental Rights say for example the equality clause can be ignored
If it is attempted then 
the action is capable of being struck down
In the same way if an amendment of the Constitution is law for the reasons explained by me such an amendment is also open to challenge under article 32 if it offends against the Fundamental Rights by abridging or taking them away
Of course it is always open to better Fundamental Rights
A law or amendment of the Constitution would offend the Fundamental Rights only when it attempts to abridge or take them away
The importance of Fundamental Rights in the world of today cannot be lost sight of
On December 10 1948 the General
Assembly of the United Nations adopted the Universal Declaration of Human Rights without a dissent
This draft was made after the Third Committee of the United Nations had devoted 85 meetings to it
The Declaration represents the civil political and religious liberties for which men have struggled through the centuries and those new social and economic rights of the Individual which the Nations are increasingly recognising in their Constitutions
Some of these were proclaimed during the French Revolution and areincluded in the declarations of Nations taking pride in the dignity and liberty of the Individual
They are epitomized in the Preamble and more fully expressed in Parts III and IV of our Constitution
These Declarations wherever found are intended to give a key to social progress by envisaging rights to work to education and to social insurance
The Nations of the world are now in the second stage where Covenants are being signed on the part of the States to respect such rights
United Nations Human Rights Commission has worked to produce two drafts one dealing with civil and political rights and the other with economic social and cultural rights
 The third stage is still in its infancy in which it is hoped to provide for the enforcement of these rights on an international basis
The Regional Charter of the Human Rights under which there is established already a European Commission of Human Rights to investigate and report on violations of Human Rights is a significant step in that direction
After 1955 the European Commission has become competent to receive complaints from individuals although the enforceability of Human Rights on an international basis is still far from being achieved
If one compares the Uni 869 versal Declaration with Parts III and IV of our Constitution one finds remarkable similarity in the two
It is significant that our Committee on Fundamental Rights was deliberating when the This Committee of the United Nations was deliberating on the
Universal Declaration of Human Rights
Both are manifestos of man s inviolable and fundamental freedoms
While the world is anxious to secure Fundamental Rights in ternationally it is a little surprising that some intellectuals in our country whom we may call classe non classe after Hegel think of the Directive Principles in our Constitution as if they were superior to Fundamental Rights
As a modern philosopher1 said such people do lip service  to freedom thinking all the time in terms of social justice with freedom  as a by product
Therefore in
their scheme of things Fundamental Rights become only an epitheton ornans
One does not know what they believe in the communistic millennium of Marx or the individualistic Utopia of Bastiat
To them an amendment of the Fundamental Rights is permissible if it can be said to be within a scheme of a supposed socioeconomic reform however much the danger to liberty dignity and freedom of the Individual
There are others who hold to liberty and freedom of the
Individual under all conditions
Compare the attitude of Middleton Murray who would have Communism provided there was universal freedom of speech of association of elections and of Parliament To such the liberty and dignity of the Individual are inviolable
Of course the liberty of the individual under our Constitution though meant to be fundamental is subject to such restrictions as the 
needs of society dictate
These are expressly mentioned in the Constitution itself in the hope that no further limitations would require to be imposed at any time
I do not for a moment suggest that the question about reasonableness expediency or desirability of the amendments of the Constitution from a political angle is to be considered by the courts
But what I do say is that the possession of the necessary majority does not put any party above the constitutional limitations implicit in the Constitution
It is obvious that the Constituent Assembly in making the Fundamental Rights justiciable was not justisfied with reliance on the sense of self restraint or public opinion2 on which the majority in Sajjan Singh s3 case does
This is not argument of fear The question to ask is  can a party which enjoys 23rds majority today before it 1Benedetto Croce
2Sir Robert Peel calls it that great compound of foiiy weakness prejudice wrong feeling right feeling obstinacy and newspaper paragraphs 31965 1 SCR 933
CI67 10 870 loses it amend article 368 in such wise that a simple majority would be sufficient for the future amendments of the constitution  Suppose it did so would there be any difference between the constitutional and the Ordinary laws made thereafter  The liberty of the Individual has to be fundamental and it has been so declared by the people
Parliament today is not the constituent body as the Constituent Assembly was but is a constituted body which must bear true allegiance to the Constitution as by law established
To change the Fundamental part of the Individual s liberty is a usurpation of constituent functions be cause they have been placed outside the scope of the power of constituted
Parliament
It is obvious that Parliament need not now legislate at all
It has spread the umbrella of article 31 B and has only to add a clause that all legislation involving Fundamental Rights would be deemed to be within that protection hereafter
Thus the only palladium against legislative dictatorship may be removed by a 23rds majority not only in praesanti but defuturo
This can hardly be open to a constituted Parliament
Having established that there is no difference between the ordinary legislative and the amending processes in so far as cl2 of Aft 13 is concerned because both being laws in their true character come within the prohibition created by that clause against the State and that the Directive Principles cannot be invoked to destroy Fundamental Rights
I proceed now to examine whether the English and Amercan precedents lay down any principle applicable to amendments of our Constitution
In Britain the question whether a constitutional amendment is valid or not at arise because the courts are powerless  Parliamentary Sovereignty under the English Constitution means that Parliament enjoys the right to make or unmake any law whatever and no person or body has any right to question the legislation
The utmost and absolute despotic power belongs to Parliament
It make confirm enlarge restrain abrogate repeal revise and expand law concerning matters of all possible denominations
What Parliament does no authority on earth can undo
The The Queen each House of Parliament the constituencies and the law courts have in the past claimed independent legislative powers but these claims are unfounded
It is impossible to compare the Indian Parliament with the Brittsh Parliament as the former con codedly in the ordinary legislation is subject to judicial review both on the ground of competence arising from a federal structure And the existence of Fundamental Rights
The question of competence in the matter of amendment of the Constitution depends upon firstly compliance with the procedure laid down in article 368 and secondly upon the question whethertheprocess is in 871 any manner restricted by the Fundamental Rights
Such questions cannot obviously arise in the British Parliament 
The example of the Constitution of the United States cannot also serve any purpose although the greatest amount of support was sought to be derived from the decisions of the Supreme Court and the institutional writings in the United States
The power of amend in the United States Constitution flows from article V 1
It must be noticed that the power is clearly not made equal to ordinary legislative process
One salient point of difference is that the President is nowhere in  this scheme because his negative does not run
  The amendment is thus not of the same quality as ordinary legislation
The Supreme Court of the United States has no doubt brushed aside objections to amendments of the Constitution on the score of incompetence but has refrained from giving any reasons
In the most important of them which questioned the 18th Amendment the Court only stated its conclusions
After recalling the texts of the Article under which Amendments may be made and of the 18th Amendment proposed by the Congress in 1917 and proclaimed as ratified by the States in 1919 the Court announced  4
The prohibition of the manufacture sale trans portation importation and exportation of intoxicating liquors for beverage purposes as embodied in the 18th amendment Is within the power to amend reserved by article 5 of the Constitution emphasis supplied 4 One would have very much liked to know why this proposition was laid down in the terms emphasised above if the effective exercise of the
power depended upon a particular procedure which was immaculately followed
The silence of the Court about its reasons has been noticed in the same judgment by Mr Justice 1 Dicey gives three supposed limitations on the power of Parliament
Of these one that language has been used in Acts of Parliament which implies that one Parliament can make laws which cannot be touched by any subsequent Parliament is not true
The best examples are Act of treaties with Scotland and Ireland but these same Acts have been amended later
Francis Bacon found this claim to be untenable
See Dicey The Law of the Constitution pp 64 65
2 Article V
The Congress whenever two thirds of both houses shall deem it necessary shall propose amendments to this Constitution or on the application of the legislatures of two thirds of the several States shall call a convention for proposing amendments which in either case shall be valid to all intents and purposes as part of this Constitution when ratified by the legislatures of three fourths of the several States or by conventions in three fourths thereof as the one or the other mode of ratification may be proposed by the Congress provided that no amendment which may be made prior to the year  one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article and that no State without its consent shall be deprived of its equal suffrage in the Senate 3 Hollingsworth vs Virginia  4 National Prohibition Cases  872 Mckenna
In feser vs Garnett1 the Court was hardly more expressive
The only question considered by the Court was The first contention is that the power of amendment conferred by the  Federal Constitution and sought to be exercised does not dxtend to this Amendment because of its character emphasis supplied
This was repelled by Brandeis J on behalf of the unanimous court on the grxund that the Amendment was in character and phraseology similar to the 15th Amendment and was adopted by following the same method
As thelsth Amendment had been accepted for half a century the suggestion that it was not in accordance with law but as a war measure validated by acquiescence was not accepted
It is significant however that at the time of the 18th Amendment the arguments were a that amendment  was  limited to the correction of error in the framing of the Constitution b Article V did not comprehend the adoption of additional or supplementary provisions c ordinary legislation could not be embodied
in the constitutional amendment and d Congress could not propose amendment which pared the sovereign power of the States
None of these at I guin ents was accepted
At the time of the 19th Amendment which increased the franchise in the States the narrow ground was that a State which had not ratified the Amendment would be deprived of its equal suffrage in the Senate because its representatives in that body would be persons not of its choosing ie personschosen by voters whom the State itself had not authorised to vote for Senators
This argument was rejected
However in Dillion vs Gloss2 the Supreme Court held that Congress had the power to a time limit for ratification because article V implied that application must be within some reasonable time after
the proposal
The fixation of 7 years was held by the Court to be reasonable
In 1939 came the case of Coleman vs Miller3 which dealt with the Child Labour Amendment
Such a law was earlier re jected by the Kansas Leizislature
Later the State ratified the amendment after a lapse of 13 years by the casting vote of the Lt Governor
Mandamus was asked against the Secretary of Kansas Senate to erase the endorsement of ratification from its record and it was denied
The Supreme Court of Kansas refused to review this denial on certiorari
The Supreme Court of the United States in an opinion in which not more than 4 Justices 1 258 US 130
2256 US 368
3 307 US 443
873 took any particular view
declined to interfere
Majority affirmed the decision of Supreme Court of Kansas
Four Justices considered that the question was political from start to finish and three Justices that the previous rejection of the law and the extraordinary time taken to ratify were political questions
Although the Supreme Court has scrupulously refrained from passing on the ambit of article V it has nowhere said that it will not take jurisdiction in any case involving the amending process
1 In Hollingsworth vs Virginia2 the supreme Court assumed that the question was legal
The Attorney General did not even raise an objection
In Luther vs Borden the matter was finally held to be political which opinion prevailed unimpaired till some doubts have arisen after Baker vs Carr4
In the case the Court remarked We conclude that the non justiciability of claims resting on the guarantee clause which arises from the embodiment of questions that were thought Political  can have no bearing upon the justiciability of the equal protection claim presented in this case
We ernphasise that it is the involvement in guarantee clause claims of the elements thought to define political questions and no other feature which could render them non justiciable
specifically We have said that such claims are not held non justiciable because they touch matters of State governmental Organisation
It would appear that the Equal Protection Clause was held to supply a guide for examination of apportionment methods better than the Guarantee Clause
Although there is no clear pronouncement a great contro versy exists whether questions of substance can ever come before the Court and whether there are any implied limitations upon the amendatory Power
In the cases above noted the other articles particularly the Bill of Rights were not read as limitations and no limitation outside the amending clause was implied
In the two cases inwhich the express limitation of Equal suffrage Clause was involved the Court did not enter the question
Thus the 15th and on its strength the 19th Amendments were upheld
In Coleman vs Miller5 the political question doctrine brought the support of only four Justices and in Baker vs Carr4 the Federal Courts were held to have jurisdiction to scrutinise the fairness of legislative apportionment under the 14th Amendment and to take steps to assure that serious inequities were wiped out
The 1 See Rottschaeffer Handbook of American Constitutional Law 1939 pp
397 398 though the author s opinion is that it will deny jurisdiction
2  3 4  5 307 U section 443 874 courts have thus entered the political thicket The question of delimitation of constituencies cannot of course arise before courts under our Constitution because of article 329
Baker vs Carr1 makes the Court sit in judgement over the possession and distribution of politcal power which is an essential part of a Constitution
The magical formula of political questions is losing ground and it is to be hoped that a change may be Soon
coming
Many of the attacks on the amendments were the result of a misunderstanding that the Constitution Was a compact between States and that the allocation of powers was not to be changed at all
This was finally decided by Texas vs White 2 as far back as 1869
The main question of implied limitations has evoked a spate of writings Bryces Weaver4 Mathews5 Burdick6 Willoughby7 Willis8 Rottshaefer9 Orfield10 to name only a few are of the opinion that there are no implied limitations although as Cooley points out it is sometimes expressly declared what indeed is implied without the declaration that everything in the declaration of rights contained is excepted out of the general powers of Government and all laws contrary thereto shall be void11
 Ex press checks there are only three
Two temporary checks were operative till 1808 and dealt with interference with importation of slaves and the levying of a direct tax without apportionment among then States according to population
Permanent check that now remains is equality of representation of States in the Senate
Some writers suggest that this check may also be removed in two moves
By the first the Article can be amended and by the second the equality removed
When this happens it will be seen whether the Supreme Court invokes any doctrine such as achieving
indirectly what cannot be done directly
It will of course be completely out of place in a judgment to discuss the
views of the several writers and so I shall confine myself to the observation of Orfield to whom again and again counsel for the State turned either for support or inspiration
Accord
ing to him there are  no implied limitations unless the Courts adopt 1  2 Wall700
3 The American Commonwealth Vol
I 4 Constitutional law and its Administration 1946
5 American Constitutional System 2nd Edn p 43 45
6The Law of the American Constitution 7th Imp p 45
7 Tagore Law Lectures 1924
8constitutionaI Law of United States 1936
9 Handbook of American Constitutional Law
10The Amending of the Federal Constitution 11Constitutional Limitations Vol
I 8th Edn
95 96
875 that view and therefore no limitations on the substance of the amendments except the Equality Clause
His view is that when Congress is in the amending process it is not legislating but exercising a peculiar power bestowed by article V
I have already shown that under our Constitution the amending process is a legislative process the only difference being a special majority and the existence of article 132
Orfield brushes aside the argument that this would destroy the very concept of the Union which as Chief Justice
Marshall had said was indestructible
Orfield faces boldly the question whether the whole Constitution can be overthrown by an amendment and answers yes
But he says that the amendment must not be in violation of the Equality Clause
This seems to be a great concession
He makes this exception but Munro  who finds it difficult to conceive of an unamendable constitution suggests that it should be possible to begin with that clause and then the door to amendments would be wide open
Of course the Supreme Court has not yet faced an amendment of this
character and it has not yet denied jurisdiction to itself
In the
United States the Constitution works because as observed by Willis the Supreme Court is allowed to do  the work of remolding the Constitution to keep it abreast with new conditions and new times and to allow the agencies expressly endowed with the amending process to act only in extraordinary emergencies or when the general opinion disagrees with the opinion of the Supreme Court
 In our country amendments so far have bean made only with the object of negativing the Supreme Courtdecisions but more of it later
I have referred to Orfield although there are greater names than his expounding the same views
I have refrained from referring to the opposite view which in the words of Willoughby has been strenuously argued by reputable writers although Willis discourteously referred to them in his book
My reason for not doing so is plainly this
The process of amendment in the United States is clearly not a legislative process and there is no provision like article 13 2 under which laws abridging or taking away Fundamental Rights can be declared void
Our liberal Constitution has given to the Individual all that he should have freedom of speech of association of assembly of religion of motion and locomotion of property and trade and profession
In addition it has made the State incapable of abridging or taking away these rights to the extent guaranteed and has itself shown how far the enjoyment of those rights can be curtailed
It has given a guaranteed right to the person affected to move the Court  I le guarantee is worthless if the rights are capable of being taken away
This makes our Constitution unique and the American precedents cannot be of much assistance
1 The Govenment of the United States 5th Edn p 77
876 The Advocate General of Madras relied upon Vedel1 According to Vedel a prohibition in the Constitution against its own amendment has a political but not juridical value and from the juridical point of view a declaration of absolute constitutional immutability cannot be imagined
The constituent power being supreme the State cannot be fettered even by itself
He notices however that the Constitution of 1791 limited the power of amendment revision for a certain time and that of 1875 prohibited the alteration of the Republican form of Govermment
He thinks that this hindrance can be removed by a two step amendment
He concludes that the constituent of today cannot bind the nation of tomorrow and no Constitution can prohibit its amend Of course the French have experimented with over a dozen Constitutions all very much alike while the British have slowly changed their entire structure from a monarchical executive to an executive from Parliament and have reduced the power of the House of Lords
Cambell Bannerman former Prime Minister of England summed up the difference to Ambassador M de Fleurian thus  
Quand nous faisons une Revolution nous ne ditruisons pas notre maison nous en conservons avec soin la facade et derriere cette facade nous reconstruisons une nouvelle maison
Vous Francais agissez autrement vous jetez bas le vieil edifice et vous reconstruisez la mime maison avec une autre facade et sous un nom different When we make a Revolution we do not destroy an house we save with care the facade and behind construct a new house
You Frenchmen act differently
You throw down the old edifice and you reconstruct the same house with a different facade and under a different name
Mde Fleurian agreed that there was a lot of truth in it ll ya du vrai dans cette boutade 2
But of course to a Frenchman brought up in a legal system in which the Courts do not declare even an ordinary statute to be invalid the idea of the unconstitutionality of a constitutional amendment does not even occur
France and Belgium have created no machinery for questioning legislation and rely on moral and political sanctions
Even an English lawyer and less so an American lawyer find it difficult to understand how the legality of an amendment of the Constitution can ever be questioned
It 1 Mannual Elementaire da Droil Constitutional Sirey p 117
2 Recounted by M de Fleuriau in the Preface to J Magnan de Bornier L Empire Britannique son evolution politique et constitutionnelle p 6 quoted in Wheare The Statute of Westminster and Dominion status P 9 10
877 appears to them that the procedure for the amendment being gone through there is no one to question and what emerges is the Constitution as valid as the old Constitution and just as binding
The matter however has to be looked at in this way
Where the Constitution is overthrown and the Courts lose their position under the old Constitution they may not be able to pass on the validity of the new Constitution
This is the result of a revolution pure and simple
Where the new Constitution is not accepted and the people have not acquiesced in the change and the courts under the old Constitution function the courts can declare the new Constitution to be void
Perhaps even when the people acquiesce and a new Government comes into being the courts may still declare the new Constitution to be invalid but only if moved to do so
It is only when the courts begin to function under the new Constitution that they cannot consider the vires of that Constitution because then they owe their existence to it
I agree with Or field in these observations taken from his book
He however does not include amendments of the Constitution in these remarks and expressly omits them
His opinion seems to indicate that in the case of amendments courts are completely free to see that the prescribed constitutional mode of alteration is complied with and the alteration is within the permissive limits to which the Constitution wishes the amendments to go
This is true of all amendments but particularly of an amendment seeking to repeal the courts  decision and being small in dimension leaves the courts free to consider its validity
The courts derive the power from the existing terms of the Constitution and the amendment fails if it seeks to overbear some existing restriction on legislation
What I have said does not mean that Fundamental Rights are not subject to change or modification
In the most inalienable of such rights a distinction must be made between possession of a right and its exercise
The first is fixed and the latter controlled by justice and necessity
Take for example article 21  No person shall be deprived of his life or personal liberty except according to procedure established by law
Of all the rights the right to one s life is the most valuable
This article of the Constitution therefore makes
the right fundamental
But the inalienable right is curtailed by a murderer s conduct as viewed under law
The deprivation when it takes place is not of the right which was immutable but of the continued exercise of the right
Take a Directive Principle which is not enforceable at law but where the same result is reached
The right to employ ment is a directive principle
Some countries even view it as a Fundamental Right
The exercise however of that right must depend upon the capacity of Society to afford employment to all 878 and sundry
The possession of this right cannot be confused with its exercise
One right here is positive and can be enforced although its exercise can be curtailed or taken away the other is a right which the State must try to give but which cannot be enforced
The Constitution permits a curtailment of the exercise of most of the Fundamental Rights by stating the limits of that curtailment
But this power does not permit the State itself to take away or abridge the right beyond the limits set by the Constitution
It must also be remembered that the rights of one individual are often opposed by the rights of another individual and thus also become limitative
The Constitution in this way permits the Fundamental Rights to be controlled in their exercise but prohibits their erasure
It is argued that such approach makes Society static and robs the State of its sovereignty
It is submitted that it leaves revolution as the holy alternative if change is necessary
This is not right
The whole Constitution is open to amendment only two dozen articles are outside the reach of article 368
That too because the Constitution has made them fundamental
What is being suggested by the counsel or the State is itself a revolution because as things are that method ofamendment is illegal
There is a legal method
Parliament must act in a different way reach the Fundamental Rights
The State must reproduce the power which it has chosen to put under a restraint
Just as the French or the Japaneseetc
cannot change the articles of their Constitution which are made free from the power of amendment and  must call a convention or a constituent body so also we  India cannot abridge or take away the Fundamental Rights by the ordinary amending process
Parliament must amend article 369 to convoke another Constituent Assembly pass a law under item 97 of the First List of Schedule VII to call a Constituent Assembly and then that assembly may be able to abridge or take away the Fundamental Rights if desired
It cannot be done otherwise
The majority in Sajjan Singh s case1 suggested bringing article 32 under the Proviso to improve protection to the Fundamental Rights
Article 32 does not stand in need of this Protection
To abridge or take away that article and the same is true of all other Fundamental Rights a constituent body and not a constituted body is required
Parliament today is a constituted body with powers of legislation which include amendments of the Constitution by a special majority but only so far as article 13 2 allows
To bring into existence a constituent body is not impossible as I had ventured to suggest during the hearing and which I have now more fully explained here
It may be said that
this is not necessary because article 368 can be amended by Parliament to confer on itself constituent powers over the Fundamental Rights
This would he wrong and against article 13 2
Parliament cannot
increase its 1  879 powers in this way and do indirectly which it is intended not to de
directly
The State does not lose its sovereignty
but as it has chosen
to create self imposed restrictions through one constituent body those restrictions cannot be ignored by a constituted body which makes laws
Laws so made can affect those parts of the Constitution which are outside the restriction in article 13 2 but any law legislative or mendatory passed by such a body must conform to that article
To be able to abridge or take away the Fundamental Rights which give so many assurances and guarantees a fresh Constituent Assembly must be convoked
Without such action the protection of the Fundamental Rights must remain immutable and any attempt to abridge or take them away in any other way must be regarded as revolutionary
I shall now consider the amendments of the Fundamental Rights made since the adoption of the Constitution with a view to illustrating my meaning
Part III is divided under different headings
They are a General b Right to Eqility c Right to Freedom d Right against exploitation e Right to Freedom of Religion f Cultural and Educational Rights g Right to Property h Right to Constitutional Remedies
I shall first deal with amendments of topics other than the topic g Right to Property The articles which are amended in the past are Art 15  and 19 by the 1st Amendment 18th June 1951 and Art 16 by the 7th Amendment 19th October 1956
The 16th Amendment added the words the sovereignty and integrity of India to some clauses
As that does not abridge or take away any Fundamental Right I shall not refer to the 16th Amendment hereafter
That Amendment was valid
The changes so made may be summarized
In article 15 which deals with
prohibition or discrimination on the ground of religion race caste sex or place of birth clause 3 allowed the State to make special provision for women and children
A new clause was added which reads 4 Nothing in this article or in clause 2 of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes
It is argued by counsel for the State that by lifting the ban to make special provision for backward classes of citizens there is discrimination against the higher classes
This is the view which classes in a privileged position who had discriminated against the backward classes for centuries might indeed take
But I cannot accept this contention
The Constitution is intended to secure to all citizens Justice social economic and political and Equality of status and opportunity vide the Preamble and the Directive Principles include article 38 which provides 880 lm15 38 The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice social economic and political shall inform all the institutions of the national life To remove the effect of centuries of discriminatory treatment and to raise the down trodden to an equal status cannot be regarded as discriminatory against any one
It is no doubt true that in State of Madras vs Champakam1 the reservation of seats for Backward Classes Scheduled Castes and Tribes in public educational institutions was considered invalid
Articles 164 and 340 had already provided for special treatment for these backward classes and article 46 had provided that the State shall promote with special care their educational and economic interests
With all due respects the question of discrimination hardly arose because in view of these provisions any reasonable attempt to raise the status of the backward classes could have been upheld on the principle of classification
In any event the inclusion of this clause to article 16 does not abridge or take away any one s Fundamental Rights unless the view be taken that the backward classes for ever must remain backward
By the First Amendment the second and the sixth clauses of article 19 were also amended
The original cl
2 was substituted by a new clause and certain words were added in clause 6
The changes may be seen by comparing the unamended and the amended clauses side by side  19 1 All citizens shall have the right a to freedom of speech and expression 2 Before Amendment After Amendment Nothing in sub clause a of clause 1 Nothing in sub clause a of clause 1shall affect the operation of any existing law in so far as it relates to or prevent the State from making any law relating to libel slander defamation contempt of Court or any matter which offends against decency or morality or which undermines the security or tends to overthrow the State
shall affect the operation of any existing law or prevent the State from making any law
in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interest of the security of the State friendly relations with foreign States public order decency or morality or in relation to contempt of court defamation or incitement to an offence The amendment was necessary because in Romesh Thapar v State of Madras2 it was held that disturbances of public tranquallity did not come within the expression undermines the secu 11951SCR525
2  881 rity of the State
Later the Supreme Court itself observed in the State of Bihar vs Shailabala Devi1 that this Court did not intend to lay down that an offence against public order could not in any case come within that expression
The changes related to a friendly relations with foreign States b public order and c incitement to an offence and the words undermines the security of the State or tends to overthrow the State
were replaced by the words in the interests of the security of the State
This change could be made in view of the existing provisions of the clause as the later decision of this Court above cited clearly show that public order and incitement to offence were already comprehended
The amendment was within the permissible limits as it did not abridge or take away any Fundamental Right
The Amending Act passed by Parliament also included a sub section which read 2 No law in force in the territory of India immediately before the commencement of the Constitution which is consistent with the provisions of article 19 of the Constitution as amended by sub section 1 of this section shall be deemed to be void or ever to have become void on the ground only that being a law which takes away or abridges the right conferred by sub clause a of clause  I  of the said article its operation was not saved by clause 2 of that article as originally enacted
Explanation
In this sub section the expression law in force has the same meaning as in clause 1 of article 1 3 of this Constitution
This sub section was not included in the Constitution
That device was followed in respect of certain State statutes dealing with property rights by including them in a now Schedule
It did not then occur to Parliament that the laws could be placed
under a special umbrella of constitutional protection
Perhaps it was not considered  necessary because article 192 was retrospectively changed and the enactment of this sub section was an ordinary legislative action
If the amendment had failed the second subsection of section 3 would not have availed at all
Tuming now to clause 6 we may read the original and the amended clause side by side 191 All citizens shall have the right g to practise any profession or to carry on any occupation trade or business
1  882 6 Before Amendment Nothing in sub clause g of the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing in the interests of the general public reasonable restrictions on the exercise of the right conferred by the said sub clause and in particular nothing in the said sub clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe or prevent the State from making any law prescribing or empowering any authority to prescribe the professional or technical qualifications necessary for practising any profession or carrying on any occupation trade or business
After Amendment Nothing in sub clause g of the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing in the interests of the general public reasonable restrictions on the exercise of the right conferred by the said sub clause and in particular nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to or prevent the State from making any law relating to ithe professional or technical qualifications necessary for practising any profession or carrying on any occupation trade or business or iithe carrying on by the State or a corporation owned or controlled by the State of any trade business industry or service whether to the exclusion complete or partial of citizens or otherwise The first change is in the verbiage and is not one of substance
It only removes some unnecessary words
The new sub clause is innocuous except where it provides for the exclusion of citizens
It enables nationalisation of industries and trade
Sub clause g to the generality of which the original clause 6 created some exceptions allowed the State to make laws imposing in the interests of the general public reasonable restrictions on the exercise of the right conferred by the sub clause
A law creating restrictions can of course be made outside the Constitution or inside it
If it was considered that this right in the state was required in the interests of the general public then the exercise of the right to practise profession or to carry on an occupation trade or business could be suitably curtailed
It cannot be said that nationalisation is never in the interest of the general public
This amendment was thus within the provision for restricting the exercise of the Fundamental Right in sub cl
g and was perfectly in order
The Seventh Amendment introduced certain words in article 16 3 no clauses may be compared  16
3 Before Amendment Nothing in this article shall prevent Parliament from making any law prescribing in regard to a class or classes of employment or appointment to an office under any State specified in the First Schedule or any local or other authority within its territory any requirement as to residence within the State prior to such employment or appointment
After Amendment Nothing in this article shall prevent Parliament from making any law prescribing in regard to a class or classes of employment or appointment to an office under the Government of or any local authority within a State or Union territory any requirement as to residence within that State or Union territory prior to such employment or appointment
 883 The change is necessary to include a reference to Union territory
It has no breaking upon Fundamental Rights and neither abridges nor takes away any of them
In the result none of the amendments of the article
in parts other than that dealing with Right to property is outside the amending process because article 132 is in no manner breached
This brings me to the main question in this case It is whether the amendments of the part Right to Property in Part III of the Constitution were legally made or not
To understand this part of the case I must first begin by discussing what property rights mean and how they were safeguarded by the Constitution as it was originally framed
Right to Propertyin Part III was originally the subject of one article namely article 31
Today there are three articles 3 1 3 1 A and 31 B and the Ninth Schedule
The original thirty first article read 31 Compulsory acquisition of property
1 Nov person shall be deprived of his property save by authority of law
2 No property movable or immovable including any interest in or in any company owning any commercial or industrial undertaking shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation or specifies the principle on which and the manner
in which the compensation is to be determined and given
No such law as is referred to in clause
2 made by the Legislature of the State shall have effect unless such law having been reserved for the consideration of the President has received his assent
4 If any Bill pending at the commencement of this Constitution in the Legislature of a State has after it has been passed by such Legislature been reserved for the consideration of the President and has received his assent then notwithstanding anything in this constitution the law so assented to shall not be Called in question in any court on the ground that it contravenes the provisions of clause 2
5 Nothing in clause2 shall affect a the provisions of any existing law other than a law to which the provisions of clause 6 applyor 884 b the provisions of any law which the State may hereafter make i for the purpose of imposing or levying any tax or penalty or ii for the promotion of public health or the prevention of danger to life or property or iii in pursuance of any agreement entered into between the Government of the Dominion of India or the Government of India and the Government of 
any other country or otherwise with respect to property declared by law to be evacuee property
6 Any law of the State enacted not more than eighteen months before the commencement of this Constitution may within three months from such commencement be submitted to the President for his certification and thereupon if the President by public notification so certifies it shall not be called in question in any court on the ground that it contravenes the provisions of clause 2 of this article or has contravened the provisions of sub section 2 of section 299 of the Government of India Act 1935
The provisions of this article are intended to be read with article 191 f which reads 191 All citizens shall have the right f to acquire hold and dispose of property
Article 19 1  f  is subject to clause 6 which I have already set out elsewhere and considered
Ownership and exchange of property are thus recognised by the article
The word property is is not defined and I shall presently consider what may be included in property 
Whatever the nature of property it is clear that by the first clause of article 3 1 the right to property may be taken away under authority of law
This was subject to one condition under the original article 3 1 namely that the law must either fix the compensation for the deprivation or specify the principles on which and the manner in which compensation was to be determined and given
This was the heart of the institution of property as understood by the Constituent Assembly
The rest of the article only gave constitutional support against the second clause to legislation already on foot in the States
This created a Fundamental Right in property
The question may now be 885 askedwhy was it necessary to make such a Fundamental Right at all  There is no natural right in property and as Burke said in his Reflections Government is not made in virtue of natural rights which may and do exist in total independence of it
Natural rights embrace activity outside the status of citizen
Legal rights are required for free existence as a social being and the State undertakes to protect them
Fundamental Rights are those rights which the State enforces against itself
Looking at the matter briefly but historically it may be said that the Greeks were not aware of these distinctions for as Gierke1 points out they did not distinguish between personality as a citizen and personality as a human being
For them the Individual was merged in the citizen and the citizen in the State
There was personal liberty and private law but there was no sharp division between the different kinds of laws
The Romans evolved this gradually not when the Roman Republic existed but when the notion of a Fiscus developed in the Empire And the legal personality of the Individual was separated from his membership of the State
It was then that the State began to recognize the rights of the Individual in his dealings with the State
It was Cicero2 who was the first to declare that the  primary duty of the Governor of a State was to secure to each individual in the possession of his property
Here we may see a recognition of the ownership of property as a Fundamental Right
This idea wasso engrained in early social philosophy that we find Locke opining in his Civil Government  Ch 7 that Government has no other end but the preservation of property
The concepts of liberty equality and religious freedom were well known
To them was added the concept of property rights
Later the list included equalitas libertas ius securitatis ius defensionis and ius puniendi
The concept of property right gained further support from Bentham and Spencer and Kant and Hegel3
The term property in its pristine meaning embraced only land but it soon came to mean much more
According to Noyes4_ Property is any protected right or bundle of rights interest or thing with direct or indirect regard to any external object ie other than the person himself which is material or quasi material ie a protected process and which the then and there Organisation of Society permits to be either private or public which is connoted by the legal concepts of occupying possessing or using
1 Das Doutscheg Genossenschaftrecht III 10
2 De Off
The Offices It Ch
XXI Everyman p 105
3 W FriedmanLegal Theory 4th Edn see pp
373 376
4 The Institution of Property 1936 p 436 L3Sup CI67 11 886 The right is enforced by excluding entry or interference by a per
son not legally entitled
The position of the State vis a vis the individual is the subject of articles 19 and 31 31 A and 31 B Now in the enjoyment the ultimate right may be an interest which is connected to the object through a series of intermediaries in which each holder  from the last to the first holds of  the holder  before him
Time was when there was a lot of free property  which was open for appropriation
As Noyes  puts it all physical manifestations capable of being detected localised and identified can be the objects of property
One exception now made by all civilized nations is that humanbeings are no longer appropriable
If any free property was available then it could be brought into possession and ownership by mere taking
It has been very aptly said that all private property is a system of monopolies and the right to monopolise lies at the foundation of the institution of property
Pound  in classifying right in rem puts private property along with personal integrity right against injury to life body and health bodily or mental personal liberty free motion and locomotion Society and control of one s family and dependents
An extremely valuable definition of ownership is to be found in the Restatement of the Law of Property where it is said  It is the totality of rights as to any specific objects which are accorded by law at any time and place after deducting social reservations
This is the core from which some rights may be detached but to which they must return when liberated
The right to property in its primordial meaning involved the acquisition of a free object by possession and conversion of this possession into ownership by the protection of State or the ability to exclude interference
As the notion of a State grew the right of property was strong or we according to the force of political opinion backing it or the legislative support of the State
The English considered the right as the foundation of society
Blackstone explained it on religious and social ground claiming universality for it and called it the right of the English people
William  Paley4although he thought the institution paradoxical and unnatural found it full of advantage and Mackintosh in his famous diatribe against the French Revolution described it as the sheet anchorof society
This institution  appeared in the Magna Carta in the American Declaration of Independence and the French Declaration of Rights of Man
Later we find it in many 1 The Institution of Property 1936p
2 Readings p 420 3 Commentaries
4 Moral Philosophy
887 Constitutions described as Fundamental general and guaran teed1
Our Constitution accepted the theory that Right of Property is a fundamental right
In my opinion it was an error to place it in that category
Like the original article 16 of the Draft Bill of the Constitution which assured freedom of trade commerce and intercourse within the territory of India as a fundamental right but was later removed the right of property should have been placed in a different chapter
Of all the fundamental rights it is the weakest
Even in the most democratic of Constitutions namely the West German Constitution of 1949 there was a provision that lands minerals and means of production might be socialised or subjected to control
article 31 if it contemplated socialization in the same way in India should not have insisted so plainly upon payment of compensation
Several speakers warned Pandit Nehru and others of the danger of the second clause of article 31 but it seems that the Constituent Assembly was quite content that under it the Judiciary would have no say in the matter of compensation
Perhaps the dead hand of section 299 of the Constitution Act of 1935 was upon the Constituent Assembly
Ignored were the resolutions passed by the National Planning Committee of the Congress 1941 which had advocated the co operative principle for exploitation of land the Resolution of 1947 that land with its mineral resources and all other means of production as well as distribution and exchange must belong to and be regulated by the Community and the warning of Mahatma Gandhi that if compensation had to be paid we would have to rob Peter to pay Paul2 In the Constituent Assembly the Congress Which wielded the majority then as it does today was satisfied with the Reprt of the Congress Agrarian Reforms Committee 1949 which declared itself in favour of the elimination of all intermediaries between the State and the tiller and imposition of prohibition against subletting
The Abolition Bills were the result
Obviously the Sardar Patel Committee on Fundamental Rights was not prepared to go far
In the debates that followed many amendments and suggestions to alter the draft article protecting property failed
The attitude was summed up by Sardar Patel
He conceded that land would be required for public purposes but hopefully added  not only land but so many other things may have to be acquired
And the State will acquire them after paying compensation and not expropriate thenm
3 1 Under the Constitution of Norway the rights Odels and Asaete rights cannot be abolished but if the State requires the owner must surrender the property and he is compensated
2 Gandhi  Constituent Assembly Debates Vol
IX pp
1204 06
3 Patel  Constituent Assembly Debates Vol
I p 517
888 What was then the theory about Right to Property accepted by the Constituent Assembly  Again I can only describe it historically
Grotius1 had treated the right as acquired right ius quaesitum and ownership dominium as either serving individual interests vulgare or for the public good eminens
According to him the acquired right had to give way to eminent domain ex vi auper eminentis dominii but there must be public interest publicautilitas and if possible compensation
In the social contract theory also 
the contract included protection of property with recognition of the power of the ruler to act in the public interest and emergency
Our constitutional theory treated property rights as inviolable except through law for public good and on payment of compensation
Our Constitution saw the matter in the way of Grotius but overlooked the possibility that just compensation may
not be possible
It follows almost literally the German jurist Ulrich Zasius except in one respect  Princeps non potest auferee mihi rem mean sive iure gentium sive civile sit facta mea
All would have been well if the Courts had construed Article 31 differently
However the decisions of the High Courts and the Supreme Court interpreting and expounding this philosophy took a different view of compensation
I shall refer only to some of them
 First the Patna High Court in
Kameshwar vs Bihar2 applied article 14 to strike down the Reforms Act in Bihar holding it to be discriminatory
This need not have occasioned an amendment because the matter could have been righted as indeed it wag byan appeal to the Supreme Court see State of Bihar vs Kameshwar3The Constitution First Amendment Act 1951 followed
It left article 31 intact but added two fresh articles articles 31 A and 31 B which are respectively headed saving of laws providing for acquisition of estates etc and Validation of certain Acts and Regulations and added a schedule Ninth to be read with Art 31 B naming thirteen Acts of the State Legislatures
Article 31 A was deemed always to have been inserted and article 31 B wiped out retrospectively all decisions of the courts which had
declared any of the scheduled Acts to be invalid
The texts of these new articles may now be seen 31A Saving of laws providing for acquisition of estates etc 1 Notwithstanding anything in foregoing provisions of this Part no law providing for the acquisition by the State of any estate or of any rights therein or for 1 Grotius  De jure Belli ac Pacis
11 c 2 2 56 1 c I 6 and II c 14 7 and 8
2 ALR 1951 Patna 91
3 889 the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is consistent with or takes away or abridges any of the rights conferred by any provisions of this Part Provided that where such law is a law made by the Legislature of a State the provisions of this article shall not apply thereto unless such law having been reserved for the consideration of the President has received his assent
2 In this article 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 any jagir inam or muafi or other similar grant b the expression right in relation to an estate shall include any rights vesting in a proprietor sub proprietor tenure holder or other intermediary and any rights or privileges in respect of land revenue 31 B Validation of certain Acts and Regulations
Without prejudice to the generality of the provisions contained in article 31A none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void or ever to have become void on the ground that such Act Regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by any provision of this Part and notwithstanding any judgment decree or order of any court or tribunal to the contrary each of the said Acts and Regulations shall subject to the power of any competent Legislature to repeat or amend it continue in force 
 Article 31 A has been a Protean article
It has changed its face many times
Article 31 B has remained the same till today but the Ninth Schedule has grown
The Constitution Fourth Amendment Act 1955 took the number of the Scheduled statutes to 20 and the Constitution Seventeenth Amendment Act 1964 to 64 and a so called explanation which saved the application of the Proviso in article 31 A was also added
The device approved by Sankari Prasad s case1 wasfound so 1  890 attractive that many more Acts were sought to be included but were dropped on second thoughts
Even so one wonders how the  The West Bengal Land Development and Planning Act and some others could have been thought of in this connection
By this device which can be extended easily to other spheres the Fundamental Rights can be completely emasculated by a 23 majority even though they cannot be touched in the ordinary way by a unanimousvote of the same body of men The State Legislatures may drive a coach and pair through the Fundamental Rights and the Parliament by 23 majority will then put them outside the jurisdiction of the courts
Was it really intended that the restriction against the State in articles 132 might be overcome by the two agencies acting hand in hand  Article 3 1 A dealt with the acquisition by the State of an estate  or of any rights therein or the extinguishment or modification of any such rights
A law of the State could do these with the President s assent althoughit took away or abridged any of the rights conferred by any provisions of Part Ill The words estate  and rights in relation to an estate  were defined
The constitutional amendment was challenged in Sankari Prasad s case1 on various grounds but was upheld mainly on two grounds to which I objected in Sajjan Singh s case2
I have shown in this judgment for reasons which I need not repeat and which must be read in addition to what I said on the earlier occasion that I disagree respectfully but strongly with the view of the Court in those two cases
This touches the first part of the amendment which created Art31 A
I do not and cannot question Art31 A because a it was not considered at the hearing of this case and b it has stood for a long time as part of the Constitution under the decision of this Court and has been acquiesced in by the people
If I was free I should say that the amendment was not legal and certainly not justified by the reasons given in the earlier cases of this Court
Under the original article 31 compensation had to be paid for acquisition by the State
This was the minimum requirement of article 31 1 and 2 and no amendment could be made by a constituted parliament to avoid compensation
A law made by a constituted Parliament had to conform to article 132 and article 31 could not be ignored
In 1954 the Supreme Court in a series of cases drew the dis tinction between article 191f and article 31 particularly in West Bengal vs Subodh Gopal3 Dwarkadas Srinivas vs Sholapur Spinning Co 4
In State of I West Bengal vs Mrs Bela Banerjee and Others5 this Court held a compensation in article 312 meant 1  2  31954 SCR
4  5 891 just equivalent ie full and fair money equivalent  thus making the adequacy of compensation justiciable
The Constitution Fourth Amendment Act 1955 then amended both article 31 and article 31 A Clause 2 of article 31 was substituted by 2 No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and other fixes the amount of the compensation or specifies the principles on which and the manner in which the compensation is to be determined and given and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate
The opening words of the former second clause were modified to make them more effective but the muzzling of courts in the matter of adequacy of the compensation was the important move
As Basu says  It is evident that the 1955 amendment of clause 2 eats into the vitals of the constitutional mandate to pay Compensation and demonstrate a drift from the meetings of the American concept of private Property and judicial review to which our Constitution was hitherto tied to that of socialism
1 It is appropriate to recall here that as expounded by Professor Beard 2 whose views offended Holmes and the Times of New York but which are now being recognised after his further explanation3 the Constitution of the United States is an economic document prepared by men who were wealthy or allied with property rights that it is based on the concept that the fundamental rights of property are anterior to Government and morally beyond the reach of popular majorities and that the Supreme Court of the United States preserved the property rights till the New Deal era
The threat at that time was to enlarge the Supreme Court but not to amend the Constitution
It appears that the Indian Socialists charged with the idea of Marx the Webbs Green Laski and others viewed property rights in a different way
Pandit Nehru once said that he had no property sensemeaning that he did not value property at all
The Constitution seems to have changed its property significantly
In addition to avoiding 1 Basu  commentaries on the Constitution of India 5th Edn Vol
2 p 230
2 An Economic Interpretation of the United States Constitution 3 See Laski  The American democracy Weaver  Constitutional Law Brown Charles Beard and the constitution will is constitutional Law
892 the concept of just compensation the amendment added a new clause 2A as follows  2A Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or control led by the State it shall not be deemed to provide for the compulsory acquisition or requisitioning of property notwithstanding that  it deprives any person of his property This narrowed the field in which compensation was payable
In addition to this clause 1 of article 31 A was substituted and was deemed to be always substituted by a new clause which provided 1 Notwithstanding anything contained in article 13 no law providing for a the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights or b the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property or c amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporation or d the extinguishment or modification of any rights of managing agents secretaries and treasurers managing directors directors or managers of corporations or of any voting rights of shareholders thereof or e the extinguishment or modification of any rights accruing by virtue of any agreement lease or licence for the purpose of searching for or winning any mineral or mineral oil or the premature termination or cancellation of any such agreement lease or licence shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by article 14 article 19 or article 31 Provided that where such law is a law made by the Legislature of a State the provisions of this article shall not apply thereto unless such law having been reserved 893 for the consideration of the President has received assent In clause 2a after the word grant  the words and in any State of Madras and Travancore Cochin any Janmam right were inserted and deemed always to have been inserted and in clause 2 b after the words tenure holder  the words raiyat under raiyat were inserted and deemed always to have been inserted
Once again the reach of the State towards private property was made longer and curiously enough it was done retrospectively from the time of the Constituent Assembly and so to speak in its name
As to the retrospective operation of these Constitutional amendment
I entertain considerable doubt
A Constituent Assembly makes a new Constitution for itself
Parliament is not even a Constituent Assembly and to
abridge fundamental rights in the name of the Constituent Assembly appears anomalous
I am reminded of the conversation between apo leon and Abe 
Sieyes the great jurist whose ability to draw up one Constitution after another has been recognised and none of whose efforts lasted for long
When Napoleon asked him what has survived  Abe Sieyes answered I have survived
I wonder if the Constituent Assembly will be able to say the same thing What it had written or the subject of property rights appears to have been written on water
The Fourth Amendment served to do away with the distinction made by this Court between articles 19 and 31 and the theory of just compensation
The Fourth Amendment has not been challenged before us
Nor was it challenged at any time before
For the reasons for which I have declined to consider the First Amendment I refrain from considering the validity of the Fourth Amendment
It may however be stated here that if I was free to consider it I would have found great difficulty in accepting that the constitutional guarantee could be abridged in this way
I may say here that the method I have followed in not recon  sidering an amendment which has stood for a long time was also invoked by the Supreme Court of United States in Leser vs Garnett1
A constitution works only because of universal recognition
This recognition may
be voluntary or forced where people have lost liberty of speech
But the acquiescence of the people is necessary for the working of the Constitution
The examples of our neighbours of Germany of Rhodesia and others illustrates the recognition of Constitutions by acquiescence
It is obvious that it is good sense and sound policy for the Courts to decline to take up an amendment for consideration after a considerable lapse of time when it was not challenged before or was sustained on an earlier occasion after challenge
1  894 It is necessary to pause here and see what the property rights have become under the repeated and retrospective amendments of the Constitution
I have already said that the Constitution started with the concept of which Grotius may  be said to be the author although his name is not particularly famous for theories of constitutional or municipal laws
The socialistic tendencies which the amendments now manifest take into consideration some later theories about the institution of property
When the original article 31 was moved by Pandit Jawaharlal Nehru he had described it as a compromise between various approaches to the question and said that it did justice and equality not only to the individual but also to the community  He accepted the principle of compensation but compensation as determined by the Legislature and not the Judiciary
His words were The law should do it
Parliament should do it
There is no reference in this to any judiciary coming into the picture
Much thought has been given to it and there has been much debate as to where the judiciary comes in
Eminent lawyers have told us that on a proper construction of this clause normally speaking the judiciary should not come in
Parliament fixes either the compensation itself or the principle governing that compensation and they should not be challenged except for one reason where it is thought that there has been a gross abuse of the law where in fact there has been a fraud on the Constitution
Naturally the judiciary comes in to see if there has been a fraud on the Constitution or not
1 He traced the evolution of property and observed that property was becoming a question of credit of monopolies that there were two approaches the approach of the Individual and the approach of the community
He expressed for the for protection of the indi vidual s rights2 The attitude changed at the time of the First Amendment
Pandit Nehru propheised that the basic problem would come before the House from time to time
That it has there is no doubt just as there is no doubt that each time the individual s rights have suffered
Of course the growth of collectivist theories have made elsewhere considerable inroads into the right of property
In Russia there is no private ownership of
land and even in the Federal Capital Territory of Australia the ownership of land is with the Crown and the individual can get a leasehold right only
Justification for this is found in the fact that the State must benefit from 1 Constituent Assemembly Debates Vol
IX pp
1193 1195
2 Constituent Assembly Debates Vol
IX p 1135
895 the rise in the value of land
The paucity of land and of dwelling houses have led to the control of urban properties and creation of statutory tenancies
In our country a ceiling is put on agricultural land held by an individual
The Supreme Court in spite of this has not frustrated any genuine legislation for agrarian reform
It has upheld the laws by which the lands from latifundia have been distributed among the landless
It seems that as the Constitutions of Peru Brazil Poland Latvia Lethuania and Mexico contain provisions for such reforms mainly without payment of compensation our Parliament has taken the same road
Of course the modem theory regards the institution of proper on a functional basis1 which means that property to be productive must be property distributed
As many writers have said property is now a duty more than a right and ownership of property entails a social obligation
Although Duguit2 who is ahead of others thinks that the institution of property has undergone a revolution the rights of the Individual are not quite gone except where Communism is firmly entrenched
The rights are qualified but property belongs still to the owner
The Seventeenth Amendment however seems to take us far away from even this qualified concept at least in so far as estates as defined by article 31 A
This is the culmination of a process
Previous to the Constitution Seventeenth Amendment Act the Constitution Seventh Amendment Act 1956 had given power indirectly by altering entry No 42 in List III
The entries may be read side by side  42
Before Amendment After Amendment Principles on which compensation for Acquisition and requisitioning of pro property acquired or requisitioned for perty
the purposes of the Union or of a State or for any other public purpose is to be determined and the form and the manner in which such compensation is to be given
 This removed the last reference to compensation in respect of acquisition and requisition
What this amendment began the Constitution Seventeenth Amendment Act 1964 achieved in full
The Fourth Amendment had added to the comprehensive definition of right in relation to an estate the rights of raiyats and under raiyats
This time the expression estate  in article 31 A was amended retrospectively by a new definition which reads 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 1 See GW Paton  Text Book of Jurisprudence 1964 pp
484 485
2 Transformations du droit prive
896 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 The only saving of compensation is now to be found in the second proviso added to clause 1 of the article which reads 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 per  son 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
 There is also the provision for compensation introduced indirectly in an Explanation at the end of the Ninth Schedule in respect of the Rajasthan Tenancy Act 1955
By this explanation the provisions of this Tenancy Act in conflict with the proviso last last quoted are declared to be void
The sum total of this amendment is that except for land within the ceilingall other land can be acquired ed or rights therein extinguished or modified without compensation and No challenge to the law can be made under articles 14 19 or 31 of the Constitution
The same is also true of the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property or the amalgamation of two or more companies or the extinguishment or modification of any rights of managing agents secretaries treasurers managing directors directors or managers of corporations or of any voting right of shareholders thereof any rights by virtue of an agreement lease or licence for the purpose of searching for or winning any mineral or mineral oil or of the premature 897 termination
or cancellation of any such agreement lease or licence
It will be noticed further that deprivation of property of any person is not to be regarded as acquisition or requisition unless the benefit of the transfer of the ownership or right to possession goes to the State or to a corporation owned or controlled by the State
Acquisition or requisition in this limited sense alone requires that it should be for public purpose and under authority of law which fixes the compensation or lays down the principles on which and
the manner in which compensation is to be deter mined
and given and the adequacy of the compensation cannot be any ground of attack
Further still acquisition of estates and of rights therein and the taking over of property amalgamation of corporations extinguishment or modification of rights in companies and mines may be made regardless of articles 14 19 and 31
In addition 64 State Acts are given special protection from the courts regardless of therein contents which may be in derogation of the Fundamental Rights
This is the kind of amendment which has been upheld in Sajjan Singh1 case on the theory of the omnipotence of article 368
The State had bound itself not to  enact any law in derogation of Fundamental Rights
Is the Seventeenth Amendment a law  To this question my answer is a categoric yes
It is no answer to gay that this is an amendment and therefore not a law or that it is passed by a special power of voting
It is the action of the State all the same
The State had put restraints on itself in law making whether the laws were made without Dr within the Constitution it is also  no answer to say that this Court in a Bench of five Judges on one occasion and by a majority of 3 to 2 on another has said thesame thing
In a matter of the interpretation of the Constitution this Court mustlook at the functioning of the Constitution as a whole
The rules of res indicate and stare decisis are not always appropriate in interpreting a Constitution particularly when article 132 itself declares a law to be void
The sanctity of a former judgment is for the matter then decided 
In Plessy vs Fergusson2 Harlan J alone dissented against the separate but equal doctrine uttering the memorable words that there was no caste and that the Constitution of the United States was colour blind
This dissent made some Southern Senators to oppose his grandson Mr Justice John Marshall Harlan in 1954
It took fifty eight years for the words of Harlan J s lone dissent 8 to 1 to become the law of the united states at least in respect of segregation in the public schools See Brown vs Board of Education3
As Mark Twain 1 1965 1 section C R 933
2163 U section 537
3  898 said very truly Loyality to a petrified opinion never yet broke a chain or freed a human soul I am apprehensive that the erosion of the right to property may be practised against other Fundamental Rights
If a halt is to be called we must declare the right of Parliament to abridge or take away Fundamental Rights
Small inroads lead to larger inroads and become as habitual as before our freedom won The history of freedom is not only how freedom is achieved but how it is preserved
I am of opinion that an attempt to abridge or take away Fundamental Rights by a constituted Parliament even through an amendment of the Constitution can be declared void
This Court has the power and jurisdiction to make the declaration
I dissent from the opposite view expressed in Sajjan Singh s1 case and I overrule that decision
It remains to consider what is the extent of contravention
Here I must make it clear that since the First Fourth and Seventh Amendments are not before me and I have not therefore questioned them I must start with the provisions of articles 31 31 A 31 B List III and the Ninth Schedule as they were immediately preceding the Seventeenth Amendment
I have elsewhere given a summary of the inroads made into property rights of individuals and Corporations by these earlier amendments
By this amendment the definition of estate  was repeated for the most part but was extended to include ii any land held under ryotwari settlement iii any land held or let 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 Further reach of acquisition or requisition without adequate compensation and without a challenge under articles 14 19 and 31 has now been made possible
There is no kind of agricultural estate or land which cannot be acquired by the State even though it pays an illusory compensation
The only exception is the second proviso added to article 31 A1 by which lands within the ceiling limit applicable for the time being to a person personally cultivating his land may be acquired only on paying compensation at a rate which shall not be less than the market value
This may prove to be an illusory protection
The ceiling may be lowered by legislation
The State may leave the person an owner in name and acquire all his
other rights
The latter question did come before this Court in two cases Ajit Singh vs State of Punjab 2 1 1965 1  C R 933 2  899 and Bhagat Ram and Ors
vs State of Punjab and Ors
1 decided on December 2 1966
My brother Shelat and I described the device as a fraud upon this proviso but it is obvious that a law lowering the ceiling to almost nothing cannot be declared a fraud on the Constitution
In other words the agricultural landholders hold land as tenants at will
To achieve this a large number of Acts of the State Legislatures have been added to the Ninth Schedule to bring them under the umbrella of article 31 B
This list may grow
In my opinion the extension of the definition of estate  to include ryotwari and agricultural lands is an inroad into the Fundamental Rights but it cannot be questioned in view of the existence of article 31 A1 a as already amended
The constitutional amendment is a law and article 31 I permits the deprivation of property by authority of law
The law may be made outside the Constitution or within it
The word law  in this clause includes both ordinary law or an amendment of the Constitution
Since no law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by article 14 article 19 or article 31 the Seventeenth Amendment when it gives a new definition of the word estate cannot be questioned by reason of the Constitution as it exists
The new definition of estate introduced by the amendment is beyond the reach of the courts not because it is not law but because it is law and falls within that word in article 31 1 2 2 A and article 31 A1
1 therefore sustain the new definition not on the erroneous reasoning in Sajjan Singh s case 2  but on the true construction of the word law  as used in articles 132 3112 A and 31 A1
The above reason applies a fortiori to the inclusion of the proviso which preserves for the time being the notion of compensation for deprivation of a cultural property
The proviso at least saves something
It prevents the agricultural lands below the ceiling from being appropriated without payment of pro per compensation
It is clearthat the proviso at least cannot be held to abridge or take away fundamental rights
In the result I uphold the second section of the Constitution Seventeenth Amendment Act 1964
This brings me to the third section of the Act
That does no more than add 44 State Acts to the Ninth Schedule
The object of article 31 B when it was enacted was to save certain State Acts notwithstanding judicial decision to the contrary
These Acts were already protected by article 31
One can with difficulty understand such a provision
Now the Schedule is being used to 1 11967 2 section C R 165
2  900 give advance protection to legislation which is known appre hended to derogate from the Fundamental Rights
The power under article 368 whatever it may be was given to amend the Constitution
Giving
protection to statutes of State Legislatures which offend the Constitution in its most fundamental part can hardly merit the description amendment of the Constitution in fact in so cases it is not even known whether the statues in question stand in need of such aid
The intent is to silence the courts and not to amend the Constitution
If these Acts were  not included in the Schedule they would have to face the Fundamental Rights and rely on articles 31 and 31 A to save them
By this device protection far in excess of these articles is afforded to them
This in my judgment is not a matter of amendment at all
The power which is given is for the specific purpose of amending the Constitution and not to confer validity on State Acts against the rest of the Constitution
If the President s assent did not do this no more would this section
I consider section 3 of the Act to be invalid as an illegitimate exercise of the powers 
of amendment however generous
Ours is the only Constitution in the world which carries a long list of ordinary laws which it protects against itself
In the result I declare section 3 to be ultra vires the amending process
As stated by me in Sajjan Singh s case1 article 368 outlines process which if followed strictly results in the amendment of the Constitution
The article gives power to no particular person or persons
All the named authorities have to act according to the letter of the article to achieve the result
The procedure of amendment if it can be called a power at all is a legislative power but it is sui generi and outside the three lists in Schedule 7 of the Constitution It does not  have to depend
upon any entryin the lusts
Ordinarily there would be no limit to the extent of the  amendatory legislation but
the Constitution itself makes distinctions
It states three methods and places certain bars
For some amendments an ordinary majority fs sufficient for some others a 23rd majority of the members present and voting with a majority of the total members in each House is necessary and for some others in addition to the second requirement ratification by at least onehalf of the legislatures of the States must be forthcom ing
Besides these methods article 132 puts an embargo on the legislative power of the State and consequently upon the agencies of the State
By its means the boundaries of legislative action of any of including legislation to amend the Constitution have been marked out
1 19651 SCR 933
901 I have attempted to show hem that under our Constitution revolution is not the only alternative to change of Constitution under article 368
A Constitution can be changed by consent or revolution Rodee Anderson and Christol 1 have shown the sovereignty of the People is either electoral or constituent
When the People elect the Parliament and the Legislatures they exercise their electoral sovereignty
I includes some constituent sovereignty also but only in so far as conceded
The remaining constituent sovereignty which is contained in the Preamble and Part III is in abeyance because of the curb placed by the People on the state under article 132
It is this power which can be reproduced
I have indicated the method
Watson2 quoting Ames On Amendments p 1 note 2 points out that the idea that provision should be made in the instrument of Government itself for the method of its amendment is peculiarly American
But even in the Constitution of the United States of America some matters were kept away from the amendatory process Other temporarily or permanently
Our Constitution has done the same 
Our Constitution provides for minorities religions socially and educationally backward peoples for ameliorating the condition of depressed classes for removing class distinctions titles etc
This reservation was made so that in the words of Madison3 men of factious tempers of local prejudices or sinister designs may not by intrigue by corruption or other means  first obtain the suffrages and then betray the interests of the people
It was to plug the loophole such as existed in section 48 of the Weimar Constitution 4 that article 13 2 was
adopted
of course as
Story   says an amendment process is a safety valve to let off all temporary effervescence and excitement as an effective instrument to control and adjust the Movements of the machinery when out of order or in danger of self d tion but is not an open valve to let out  even that which was intended to be retained
In the words of Wheare6 the people or a Constituent Assembly acting on their behalf has authority to enact a Constitution and by the same token a portion of the Constitution placed outside the amenditory process by one Constituent body can only be amended by another Constituent body
In the Commonwealth of Australia Act the provisions of the last Paragraph of section 128 have been regarded as mandatory and held to be clear limitations of the power of amendment
Dr Jethro Brown considered that the amendment of the paragraph was logically impossible even by a two step amendment
Similarly section 105 A has been judicially 1 Introduction to Political Science p 32 et seq
2 Constitution Its History Application and Construction Vol
II 1910 p 1301
3 Federalist No 10
4 See Louis L Snyder The Weimar Constitution p 42 et seq
5 Commentaries on the Constitution of the United States I 833 Vol
6 K C Wheare Modern Constitutions p 78
sup Cl67 12 902 considered in the Garnishee case  to be an exception to the power of amendment in section 128 although Wynes2 does not agree
I prefer the judicial view to that of Wynes
The same position obtains under our Constitution in article 35 where the opening words are more than a non obstante clause
They exclude article 368 and even amendment of that article under the proviso
It is therefore a grave error to think of article 368 as a code Dr as omnicompetent
It is the duty of this Court to find the limits which the Constitution has set on the amendatory power and to enforce those limits
This is what I have attempted to do in this judgment
My conclusions are i that the Fundamental Rights are outside the amendatory process if the amendment seeks to abridge or take away any of the rights ii that Sankari Prasad s case and Sajjan Singh s case which followed it conceded the power of amendment over Part III of the Constitution on an erroneous view of articles 132 and 368 iii that the First Fourth and Seventh Amendments being part of the Constitution by acquiescence for a long time cannot now be challenged and they contain authority for the Seventeenth Amendment iv that this Court having now laid down that Fundamental Rights cannot be abridged or taken away by the exercise of amendatory process in article 368 any further inroad into these rights as they exist today will be illegal and unconstitutional unless it complies with Part III in general and article 132 in particular v that for abridging or taking away Fundamental Rights a Constituent body will have to be convoked and vi that the two impugned Acts namely the Punjab Security of Land Tenures Act 1953 X of 1953 and the Mysore Land Reforms Act 1961 X of 1962 as amended by act XIV of 1965 are valid under the Constitution not because they are included in schedule 9 of the Constitution but because the are protected by article 31 A and the President s assent
1  2 Legislative Executive and Judicial Powers in Australia pp
695 698
903 In view of my decision the several petit ions will be dismissed but without costs
The State Acts Nos
21 64 in the Ninth Schedule will have to be tested under Part HI with such protection as articles 31 and 31 A give to them
Before parting with this case I only hope that the Fundamental Rights will be able to withstand the pressure of textual readings by the depth and toughness of their roots
Bachawat J The constitutionality of the Constitution First Fourth and Seventeenth Amendment Acts is challenged on the  ground that the fundamental rights conferred by Part HI are inviolable and immune from amendment
It is said that article 368 does not give any power of amendment and in any event the amending power is limited expressly by article 132 and impliedly by the language of article 368 and other articles as also the preamble
It is then said that the power of amendment is abused and should be subject to restrictions
The Acts are attacked also on the ground that they made changes in articles 226 and 245 and such changes could not be made without complying with the proviso to article 368
Article 31 B is subjected to attack on several other grounds
The constitutionality of the First Amendment was upheld in Sri Sankari Prasad Singh Deo vs Union of India and State of Bihar1 and that of the Seventeenth amendment in Sajjan Singh is that these cases were Part XX of the Constitution specifically provides for its amendment
It consists of a single article 
Part XX is as follows PART XX
Amendment of the Constitution Procedure for amendment of the Constitution 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 1  2  1196712 SCIL 904 b Chapter IV of Part V Chapter V of Part VI or Chapter 1 of Part XI or c any of the Lists in the Seventh Schedule or d the representation of States in Parliament or e the provisions of this article the amendment shall also require to be ratified by the Legislatures of not less than one half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent
 The contention that article 368 prescribes only the procedure of amendment cannot be accepted
The article not only prescribes the procedure but also gives the power of amendment
If the procedure of art368 is followed the Constitution shall stand amended in accordance with the terms of the bill
It is because the power to amend is given by the article that the Constitution stands amended
The proviso is enacted on the assumption that the several articles mentioned in it are amendable
The object of the proviso is to lay down a stricter procedure for amendment of the articles which would otherwise have been amendable under the easier procedure of the main part
There is no other provision in the Constitution under which these articles can be amended
Articles 4 169 Fifth Schedule Part D and Sixth Schedule Para 21 empower the Parliament to
pass laws amending the provisions of the First Fourth Fifth and Sixth Schedules and making amendments of the Constitution consequential on the abolition or creation of the legislative councils in States and by express provision no such law is deemed to be an amendment of the Constitution for the purposes of article 368
All other provisions of the Constitution can be amended by recourse to article 368 only
No other article confers the power of amending the Constitution
Some articles are expressed to continue until provision is made by law see articles 593 653 732 97 983 106 135 1421 1483 149 1712 186 1873 1893 1943 195 2212 2831 and 2 285 313 345 3721 373
Some articles continue unless provision is made otherwise by law see articles 1202 1333 2102 and some continue save as otherwise provided by law see articles 2391 287
Some articles are subject to the provisions of any law to be made see articles 137 1462 225 2292 2413 3001 309 and some are expressed not to derogate from the power of making laws see articles 5 to 11 2892
All these articles are transitory in nature and cease to operate when provision is made by law on the subject
None of them can be regarded as conferring 905 the power of amendment of the Constitution
Most of articles continue until provision is made by law made by the Parliament
But some of them continue until or unless provision is made by the State Legislature see articles 189 3 194 3 195 2102 2292 3001 345 or by the appropriate legislature see articles 225 2413 these articles do not confer a power of amendment for the State legislature cannot amend the Constitution
Many of the above mentioned articles and also other articles see articles 227 323 33 to 35 139140 239A 241 245 to 250 252 253 2582 2862 302 307 3152 327 369 delegate powers of making laws to the legislature
None of these articles gives the power of amending the Constitution
It is said that article 248 and List 1 item 97 of the 7th Schedule read with article 246 give the Parliament the power of amending the Constitution
This argument does not bear scrutiny
article 248 and List I item 97 vest the residual power of legislation in the Parliament
Like other powers of legislation the residual power of the Parliament to make laws is by virtue of article 245 subject to the provisions of the Constitution
No law made under the residual power can derogate from the Constitution or amend it
If such a law purports to amend the Constitution it will be void
Under the residual power of legislation the Parliament has no power to make any law with respect to any matter enumerated in Lists II and III of the 7th Schedule but under article 368 even Lists II and III can be amended
The procedure for constitutional amendments under article 368 is different from the legislative procedure for passing laws under the residual power of legislation
If a constitutional amendment could be made by recourse to the residual power of legislation and the ordinary legislative procedure article 368 would be meaningless
The power of amending the Con stitution is to be found in article 368 and not in article 248 and List I item 97
Like other Constitutions our Constitution makes express provisions for amending the Constitution
The heading of article 368 shows that it is a provision for amendment of the Constitution the marginal note refers to the procedure for amendment and the body shows that if the procedure is followed the Constitution shall stand amended by the power of the article
Chapter VIII of the Australian Constitution consists of a single section section 128
The heading is Alteration of the Constitution
The marginal note is Mode of altering the Constitution
The body lays down the procedure for alteration
The opening words are  This Constitution shall not be altered except in the following manner
Nobody has doubted that the section gives the power of amending the Constitution
Wynes in his book on Legislative Executive and Judicial Powers in Australia third edition 906 p 695 stated The power of amendment extends to alteration of this Constitution  which includes section 128 itself
It is true that section 128 is negative in form but the power is impled by the terms of the section
 Article 5 of the United States Constitution provides that a proposal for amendment of the constitution by the Congress on being ratified by the three fourth of the states shall be valid to all intents and purposes as part of this Constitution
The accepted view is that power to amend the Constitution was reserved by article 5 Per Van Devanter J in Rhode Island vs Palmer1 Art 368 uses stronger words
On the passing of the bill for amendment under article 368 the Constitution shall stand amended in accordance with the terms of the bill
Article 368 gives the power of amending this Constitution
This Constitution means any of the provisions of the Constitution
No limitation on the amending power can be gathered from the language of this article
Unless this power is restricted by some other provision of the Constitution each and every part of the Constitution may be amended under article 368
AR the articles mentioned in the proviso are necessarily within this amending power
From time to time major amendments have been made in the articles mentioned in the proviso see articles 80 to 82 124 2A1312142173222k2 224A226IA 230231241 and Seventh Schedule and other articles see articles 1 3 66 71 85 153
158 170 174 239 239A 240 258A 269 280 286 290A 291 298 305 311 316 350A 350B 371 371A 372A 376 379 to 391 the first third and fourth schedules and minor amendments have been made in innumerable articles
No one has doubted so far that these articles are amendable
Part III is a part of the Constitution and is equally amendable
It is argued that a Constitution Amendment Actis a law and therefore the power of amendment given by article 368 is limited by article 132
 article 132 is in these terms 131       2 The State shall not make any law which takes away or abridges the tights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void Now article 3 68 gives the power of amending each and every provision of the Constitution article 13 2 is a part of the Constitution and is within the reach of the amending power
In other words art 13 2 is subject to the overriding power of an 368 and is controlled by it
article 368 is not controlled by article 13 2 and the 1    907 prohibitory injunction in article 132 is not directed against the amending power Looked at from this broad angle article 13 2 does not forbid the making of a constitutional amendment abridaing or taking away any right confesed by Part III
Let us now view the matter from a narrower angle
The con tention is that a constitutional amendment under article 368 is a law within the meaning of article 13
1 am inclined to think that this narrow contention must also be rejected
In article 13 unless the context otherwise provides law  includes any ordinance order bye law rule regulation notification custom or usage having in the territory of India the force of law article 133a
The inclusive definition of law in article 13 3 c neither expressly excludes nor expressly includes the Constitution or a constitutional amendment
Now the term law  in its widest and generic sense includes the Constitution and a constitutional amendment
But in the constitution this term is employed to designate an ordinary statute or legislative act in contradistinction to the Constitution or a constitutional amendment
The Constitution is the basic law providing the framework of government and creating the organs for the making of the laws
The distinction between the Constitution and the laws is so fundamental that the Constitution is not regarded as a law or a legislative act
The Constitution means the Constitution as amended
An amendment made in conformity with article 368 is a part of the
Constitution and is likewise not a law
The basic theory of our Constitution is that it cannot be changed by a law or legislative Act
It is be cause special provision is made by articles 4 169 Fifth Schedule Part D and Sixth Schedule para 21 that some parts of the Constitution are amendable by ordinary laws
But by express provision no such law is deemed to be a constitutional amendment
Save as express1y provided in articles 4 169 Fifth Schedule Part D and Sixth Schedule para 21 no law can amend the Constitution and a law which purports to make such an amendment is void
In Marbury vs Madison1 Marshall CJ said It is a proposition too plain to be contested that the Constitution controls any legislative Act repugnant to it or that the legislature may alter the Constitution by an ordinary Act
Between these alternatives there is no middle ground
The Constitution is either a superior paramount law unchangeable by ordinary means or it is on a level with 1  177
  73
908 Ordinary legislative Acts and like other Acts is alter able when the legislature shall please to alter it
If the former part of the alternative be true then a legislative Act contrary to the Constitution is not law if the latter part be true then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation and consequently the theory of every such government must be that an Act of the Legislature repugnant to the Constitution is void
This theory is essentially attached to a written constitution and is consequently to be considered by this court as one of the fundamental principles of our society
 It is because a Constitution Amendment Act can amend the Constitution and is not a law that article 368 avoids all reference to law making by the Parliament
As soon as a bill is passed in conformity with article 368 the Constitution stands amended in accordance with the terms of the bill
The power of amending the Constitution is not an ordinary law making power
It is to be found in article 368 and not in articles 245 246 and 248 and the Seventh Schedule
Nor is the procedure for amending the Constitution under article 368 an ordinary law making procedure
The common feature of the amending process under art 368 and the legislative procedure is that a bill must be passed by each House of Parliament and assented to by the President
In other respects the amending process under article 368 is very different from the ordinary legislative proms
A constitution amendment Act must be initiated by a bill introduced for that purpose in either House of Parliament
The bill must be passed in each House by not less than two thirds of the members present and voting the requisite quorum in each House being a majority of its total membership and in cases coming under the proviso the amendment must be ratified by the legislature of not less than one half of the States
Upon the bill so passed being assented to by the President the Constitution stands
amended in accordance with the terms of the bill
The ordinary legislative process is much easier
A bill initiating a law may be passed by a majority of the members present and voting at a sitting of each House or at a joint sitting of the Houses the quorum for the meeting of either House being one tenth of the total number of members of the House
The bill so passed on being assented to by the President becomes a law
A bill though passed by all the members of both Houses cannot take effect as a 909 Constitution amendment Act unless it is initiated for the express purpose of amending the Constitution
The essence of a written Constitution is that it cannot be changed by an ordinary law
But most written Constitutions Provide for their organic growth by constitutional amendments
The main method of constitutional amendments are 1 by the ordinary legislature but under certain restrictions 2 by the people through a referendum 3 by a majority of all the units of a Federal State 4 by a special convocation see CF strong Modem Political institutions 5th Edition pp
133 4146
Our Constitution hag by article 368 chosen the first and a combination of the first and the third methods
The special attributes of constitutional amendment under article 368 indicate that it is not a law or a legislative act
Moreover it will be seen presently that the Constitution makers could not have intended that the term law in article 13 2 would include a consti tutional amendment under article 368
If a constitutional amendment creating a new fundamental right and incorporating it in Part III were a law it would not be open to the
parliament by a subsequent constitution to abrogate the new fundamental right for such an amendment would be repugnant to Part III
Bit the conclusion is absurd for
the body which created the right can surely take it away by the same process
Shri A K Sen relied upon a decision of the Oklahoma Supreme Court in Riley vs Carter1 where it was held that for some purposes the Constitution of a State was one of the laws of the State
But even in America the term law  does not ordinary include the Constitution or a constitutional amendment in this connection I will read the following passage in Corpus Juris Secundum Vol XVI Title Constitutional Law article lm15 The term constitution  is ordinarily employed to designate the organic law in contradistinction to the term law which is generally used to designate statutes Or legislative enactments
Accordingly the term law  under this distinction does not include a constitutional amendment
However the term law  may in accordance with the context in which it is used comprehend or included the constitution or a constitutional provision or amendment
A statute and a constitution although of unequal dignity are both laws  and rest on the will of the people 1 88 AALR 1008
910 In our Constitution the expression law does not include either the constitution or a constitutional amendment
For all these reasons we must hold that a constitutional amendment under article 368 is not a law within the meaning of article 13 2
I find no conflict between articles 132 and 368
The two articles operate in different fields
article 132 operates on laws it makes no express exception regarding a constitutional amendment because a constitutional amendment is not a law and is outside its purview
article 368 occupies the field of constitutional amendments
It does not particularly refer to the articles in Part III and many other articles but on its true construction it gives the power of amending each and every provision of the Constitu tion and necessarily takes in Part III
Moreover article 368 gives the power of amending itself and if express power for amending the provisions of Part III were needed such a power could be taken by an amendment of the article
It is said that the non obstante clause in article 35 shows that the article is not amendable
No one has amended article 35 and the point does not arise
Moreover the non obstante clause is to be found in articles 2581 364 369 370 and 371A
No one has suggested that these articles are not amendable
The next contention is that there are implied limitations on the amending power
It is said that apart from article 13 2 there are expressions in Part III which indicate that the amending power cannot touch Part III
Part III is headed  fundamental rights
The right to move the Supreme Court for enforcement of the rights conferred by this Part is guaranteed by article 32 and cannot be suspended except as otherwise provided for by the Constitution article 324
It is said that the terms fundamental and guarantee indicate that the rights conferred by Part HI are not amendable
The argument overlooks the dynamic character of the Constitution
While the Constitution is static it is the fundamental law of the country the rights conferred by Part III are fundamental the right under article 32 is guaranteed and the principles of State policy enshrined in Part IV are fundamental m the governance of the country
But the Constitution is never at rest it changes with the progress of time
article 368 provides the means for the dynamic changes in the Constitution
The scale cf values embodied in Parts III and IV is not immortal
Parts III and IV being parts of the Constitution are not immune from amendment under article 368
Demands for safeguards of the rights embodied in Part III and IV may be traced to the Constitution of India Bill 1895 the Congress Resolutions between 1917 and 1919 Mrs Beasan s Commonwealth of India Bill of 1925 the Report of the Nehru Committee set up under the Congress Resolution in 1927 the Congress 911 Resolution of March
1931 and the Sapru Report of 1945
The American bill of rightsthe constitutions of other countries the declaration of human rights by the United Nations and other declarations and charters gave impetus to the demand
In this background the Constituent Assembly embodied in preamble to the Constitution the resolution to secure to all citizens social economic and political justice liberty of thought expression belief faith and worship equality of status and opportunity and fraternity assuring the dignity of the individual and the unity of the nation and incorporated safeguards as to some human rights in Parts III and IV of the Constitution after separating them into two parts on the Irish model
Part III contains the passive obligations of the State
It enshrines the right of life personal liberty expression assembly movement residence avocation property culture and education constitutional remedies and protection against exploitation and obnoxious penal laws
The State shall not deny these rights save as provided in the Constitution
Part IV contains the active obligations of the State
The State shall secure a social order in which social economic and political justice shall inform all the institutions of national life
Wealth and its source of production shall not be concentrated in the hands of the few but shall be distributed so as to subserve the common good and there shall be adequate means of livelihood for all and equal pay for equal work
The State shall endeavour to secure the health and strength of workers the right to work to education and to assistance in cases of want just and humane conditions of work a living wage for workers a uniform civil code free and compulsory education for children
The State shall take steps to organize village panchayats promote the educational and economic interests of the weaker sections of the people raise the level of nutrition and standard of living improve public health
organize agricultural and animal husbandry separate the judiciary from executive and promote international peace and security
The active obligations of the State under Part IV are not justiciable
If a law made by the State in accordance with the fundamental directives of Part IV comes in conflict with the fundamental rights embodied in Part II the law to the extent of repugnancy is void
Soon after the Constitution came into force it became apparent that laws for agrarian and other reforms for implementing the directives of Part IV were liable to be struck down as they infringed the provisions of Part III
From time to time constitutional amendments were proposed with the professed object of validating these laws superseding certain judicial inter pretations of the Constitution and curing defects in the original Constitution
The First Fourth Sixteenth and Seventeenth Amendments made important changes in the fundamental rights
The First amendment introduced cl
4 in article 15 enabling the State to make special provisions for the benefit of the socially and 912 educationally backward class of citizens thescheduled castes and the scheduled tribes in derogation of articles 15 and 292 with a view to implement article 46 and to supersede the decision in State of Madras vs Champakam1 substituted a new cl
2 in article 19 with retrospective effect chiefly with a view to be in public order within the permissible restrictions and to supersede the decisions in Romesh Thappar vs State of Madras  Brij Bhushan vs State of Delhi  amended cl
6 of article 19 with a view to free state trading monopoly from the test of reasonable ness and to supersede the decision in Moti Lal vs Government of State of Uttar Pradesh
Under the stress of the First amendment it is now suggested that Champakam s case  Romesh Thappar s case  and Motilal s4 case were wrongly decided and the amendments of articles 15 and 19 were in harmony with the original Constitution and made no real change in it
It is to be noticed however that before the First amendment no attempt was made to overrule these cases and but for the amendments these judicial interpretations of the Constitution would have continued to be the law of the land
The Zamindari Abolition Acts were the subject of bitter attack by the zamindars
The Bihar Act though protected by cl 6 of article 31 from attack under article 31 was struck down as violative of article 14 by the Patna High Court see the State of Bihar vs Maharajadhiraj Sri Kameshwar Singh5 while the Uttar Pradesh Act see Raja Surya Pal Singh vs The State
of UP 6 and the Madhya Pradesh Act see Visweshwar Rao vs Stateof Madhya Pradesh 7 though upheld by the High Courts were under challenge in this Court
The First amendment therefore introduced article 31A 31B and the Ninth Schedule with a view to give effect to the policy of agrarian reforms to secure distribution of large blocks of land in the hands of the zamindars in conformity with article 39 and to immunize specially 13 State Acts form attack under Part Ill The validity of the First Amendment was upheld in Sri Sankari Prasad Singh Deo s case8
The Fourth amendment changed article 312 with a view to supersede the decision in State of West Bengal vs Bela Banerjee9 and to provide that the adequacy of compensation for property compulsorily acquired would not be justiciable inserted Cl
2A in article 31 with a view to supersede the decisions in the State of West Bengal vs Subodh Gopal Bose Dwarka Das Shrinivas vs Sholapur Spinning and Weaving Co Ltd 1  2  3  4 ILR 1951 1 All
5 1951 Pat 91
6 1952 SCR 1056 AIR 1961
7 All 674 8  9  10 11954 SCR 58711  913 Saghir Ahmad vs The State of Uttar Pradesh1 and to make it clear that clauses 1 and 2 of article 31 relate to different subject  matters and a deprivation of property short of transference of ownership or right to possession to the State should not be treated as compulsory acquisition of property
The Fourth amendment also amended article 31A with a view to protect certain laws other than agrarian laws and to give effect to the policy of fixing ceiling limits on land holdings and included seven more Acts in the Ninth Schedule
One of the Acts item 17 though upheld in Jupiter General Insurance Co vs Rajgopalan2 was the subject of criticism in Dwarka Das s case 3  
The Sixteenth amendment amended clauses 2 3 and 4 of article 19 to enable the imposition of reasonable restrictions in the interest of the sovereignty and integrity of India
The Seventeenth amendment amended the definition of estate in article 31A with a view to supersede the decisions in Karimbil Kunhikoman vs State of Kerala 4  and A P Krishnaswami Naidu vs State of Madras  and added a proviso to article 31A and included 44 more Acts in the Ninth Schedule as some of the Acts had been struck down as unconstitutional
The validity of the Seventeenth amendment was upheld in Sajjan Singh s case 
Since 1951 numerous decisions of this Court have recognised the validity of the First Fourth and Seventeenth amendments
If the rights conferred by Part III cannot be abridged or taken away by constitutional amendments all these amendments would be invalid
The Constitution makers could not have intended that the rights conferred by Part TIT could not be altered for giving effect to the policy of Part TV
Nor was it intended that defects in Part III could not be cured or that possible errors in judicial interpretations of Part III could not be rectified by constitutional amendments
There are other indications in the Constitution that the fundamental rights are not intended to be inviolable
Some of the articles make express provision for abridgement of some of the fundamental rights by law see articles 163 191 to 6 223 232 252 282 314 to 6 33 34
Articles 358 and 359 enable the suspension of fundamental rights during emergency
Likewise article 368 enables amendment of the Constitution including all the provisions of Part Ill It is argued that the preamble secures the liberties grouped together in Part III and as the preamble cannot be amended Part III is not amendable
The argument overlooks that the preamble is mirrored in the entire Constitution
 If the rest of the Constitution is amendable Part III cannot stand on a higher 1 1954 SCR 1218
3  706
5  2 AIR 1952 Pun
4 1962 Supp
I SCR 829
6  914 control the unambiguous language of the articles of the Constitution see  Wynes Legislative Executive and Judicial Powers in Australia third edition pp
694 5 in Re Berubari Union  Exchange of Enclaves
The last case decided that the Parliament can under article 368 amend article 1 of the Constitution so as to enable the cession of a part of the national territory to a foreign power The Court brushed aside the argument that in the transfer of the areas of Berubari to Pakistan the fundamental rights of thousands of persons are involved
 The case is an authority for the proposition that the Parliament can lawfully make a con stitutional amendment under article 368 authorising cession of a part of the national territory and thereby destroying the fundamental rights of the citizens of the Effected territory and this power under article 368 is not limited by the preamble
It is next argued that the people of India in exercise of their sovereign power have placed the fundamental rights beyond the reach of the amending power
Reliance is place on the following passage in the judgment of Patanjali Sastri J in A K Gopalan V
The State of Madras2 There can be no doubt thatthe people of India have in exercise of their sovereign will as expressed in the Preamble adopted the democratic ideal which assures to the citizen the dignity of the individual and other cherished human values as a means to the full evolution and expression of his personality and in delegating to the Legislature the executive and the Judiciary their respective powers in the Constitution reserved to themselves certain fundamental rights so called I apprehend because they have been retained by the people and made paramount to the delegated powers as in the American Model
 I find nothing in the passage contrary to the view unequivocally expressed by the same learned Judge in Sri Sankari Prasad Singh Deo s3 case that the fundamental rights are amendable
The power to frame the Constitution was vested in the Constituent Assembly by section 8 1  of the Indian Independence Act 1947 The Constitution though legal in its origin was revolutionary in character and accordingly the Constituent Assembly exercised its powers of framing the Constitution in the name of the people
The objective resolution of the Assembly passed on January 22 1947 1 261 2281 21950 SCR 88 98
3 1952 SCR 89
915 solemnly declared that all power and authority of sovereign independent India its constituent parts and organs and the Government were derived from the people
The preamble to the Constitution declares that the people of India adopts enacts and gives to themselves the Constitution
In form and in substance the Constitution emanates from the people
By the Constitution
the people constituted themselves into a republic
Under the republic all public power is derived from the people and is exercised by functionaries chosen either directly or indirectly by the people
The Parliament can exercise only such powers as are delegated to it under the Constitution
The people acting through the Constituent Assembly reserved for themselves certain rights and liberties and ordained that they shall not be curtailed by ordinary legislation
But the people by the same Con stitution also authorised the Parliament to make amendments to the Constitution
In the exercise of the amending power the Parliament has ample authority to abridge or take away the fundamental rights under Part III
It is urged that the word amend  imposes the limitation that an amendment must be an improvement of the Constitution
Reliance is placed on the dictum in Livermore vs E C Waite1 On the other hand the significance of the term amendment  implies such an addition or change within the lines of the original instrument as will effect an improvement or better carry out the purpose for which it was framed Now an attack on the eighteenth amendment of the US Constitution based on this passage was brushed aside by the US Supreme Court in the decision in the National Prohibition2 case
The decision totally negatived the contention that an amendment must be confined in its scope to an alteration or improvement of that which is already contained in the Constitution and cannot change its basic structure include new grants of power to the Federal Government nor relinquish in the State those which already have been granted to it see Cooley on Constitutional Law Chapter III article 5 pp
46  47
1 may also read a passage from Corpus Juris Secundum Vol
XVI title Constitutional Law p 26 thus  The term amendment a  used in the constitutional article giving Congress a power of proposal includes additions to as well as corrections of matters
already treated and there is nothing there which suggests that it is used in a restricted sense
 Article 368 indicates that the term amend means change
The proviso is expressed to apply to amendments which seek to make any change in certain articles
The main part of article 368 1 2 Rhode Island vs Palmer 253 US 350  64 L ed
947 960 978
916 thus gives the power to amend or to make changes in the Constitution
A change is not necessarily an unprovement
Normally the change is made with the object of making an improvement but the experiment may fail to achieve the purpose
Even the plain dictionary meaning of the word amend does not support the contention that an amendment must take an improvement see Oxford English Dictionary where the word amend is defined thus  4 to make professed improvements in a measure before Parliament formally to alter in detail though practically it may be to alter its principle so as to thwart it
 The 1st 4th 16th and
17th Amendment Acts made changes in Part III of the Constitution
All the changes are authorized by article 368
It is argued that under the amending power the basic features of the Constitution cannot be amended
Counsel said that they could not give an exhaustive catalogue of the basic features but sovereignty the republican form of government the federal structure and the fundamental rights were some of the features
The Seventeenth Amendment has not derogated from the sovereignty the republican form of government and the federal structure and the question whether they can be touched by amendment does not arise for decision
For the purposes of these cases it is sufficient to say that the fundamental rights are within the reach of the amending power
It is said that in the course of the last 16 years there have been numerous amendments in our Constitution whereas there have been very few amendments of the American Constitution during the last 175 years
Our condition is not comparable with the American
The dynamics of the social revolution in our country may require more rapid changes
Moreover every part of our Constitution is more easily amendable than the American
Alan Gledhill in his book The Republic of India 1951 Edition pp 74  75  said The Indian Founding Fathers were less determined than were their American predecessors to impose rigidity on their Constitution   
The Indian Constitution assigns different degrees of rigidity to its different parts but any part of it can be more easily amended than the American Constitution
 It is said that the Parliament is abusing its power of amendment by making too many frequent changes
If the Parliament has the power to make the amendments the choice of making any particular amendment must be left to it
Questions of policy cannot be debated in  this Court
The possibility of abuse of a power is not the test of its existence
In Webb vs Outrim1 lord 1 917 Hobhouse said If they find that on the due construction of the Act a legislative power falls within section 92 it would be quite wrong of them to deny its existence because by some possibility it may be abused or limit the range which otherwise would be open to the Dominion Parliament
With reference to the doctrine of implied prohibition against the exercise of power ascertained in accordance with ordinary rules of construction Knox CJ in the Amalgamated Society of Engineers vs The Adelaide Steams Company Limited and others1 said It means the necessity of protection against the aggression of some outside and possibly hostile body
It is based on distrust lest powers if once conceded to the least degree might be abused to the point of destruction
But possible abuse of powers is no reason in British law for Emiting the natural force of the language creating them The historical background in which the Constitution was framed shows that the ideas embodied in Part III were not intended to be immutable
The Constituent Assembly was corn of representatives of the provinces elected bythe members of the lower houses of the provincial legislatures and representatives of the Indian States elected by electoral colleges constituted by the rules
The draft Constitution was released on February 26 1948While the Constitution was on the anvil it was envisaged the future Parliaments would be elected on the basis of adult suffrage
Such a provision was later incorporated in article 326 of the Constitution
In a special article written on August 15 1948 Sir B N Rau remarked It seems rather illogical that a constitution should be settled by a simple majority by an assembly elected indirectly on a very limited franchise and that it should not be capable of being amended in the same way by a Parliament elected and perhaps for the most Part elected directly by adult suffrage see B N Rau  India s Constitution in the making 2nd Edition p 394
The conditions in India were rapidly changing and the country was in a state of flux politically and economically
Sir B N Rau therefore recommended that the Parliament should be empowered to amend the Constitution by its ordinary law making process for at least the first five years
Earlier para 8 of the Suggestions of the Indian National Congress of May 12 1946 and para 15 of the Proposal of the Cabinet Mission of May 16 1946 had recom mended similar powers of revision by the Parliament during the initial years or at stated intervals
The Constituent Assembly did not accept these recommendations
On September 17 1949 an amendment No 304 moved by Dr Deshmukh providing 1  151
Cf67 13 918 for amendment of the Constitution at any time by a clear majority in each house of Parliament was negatived
The Assembly was conscious that future Parliaments elected on the basis of adult suffrage would be more representative but they took the view that article 368 provided a sufficiently flexible machinery for amending all part  of the Constitution
The Assembly never entertain the proposal that any part of the Constitution including Part III should be beyond the reach of the amending power
As a matter of fact Dr Deshmukh proposed an amendment No 212 habiting any amendment of the rights with respect to property or otherwise but on September 17 1949 he withdrew this proposal we Constituent Assembly Debates Vol
IV pp
1 642 43
The best exposition of the Constitution is that which it has received from contemporaneous judicial decisions and enactments
We find a rare unanimity of view among Judges and legislators from the very commencement of the Constitution that the fundamental rights are within the reach of the amending power
No one in the Parliament doubted this proposition when the Constitution First Amendment Act of 1951 was passed
It is remarkable that most of the members of this Parliament were also
members of the Constituent Assembly
In section Krishnan and Others vs The state of Madras1 a case decided on May 7 1951 Bose J said My concept of a fundamental right is something which Parliament cannot touch save by an amendment of the Constitution
 In Sri Sankari Prasad Singh Deo s case2 decided on October 5 1951 this Court expressly decided that fundamental rights could be abridged by a constitutional amendment
This view was acted upon in all the subsequent decisions and was reaffirmed in Sajjan Singh s case3
Two learned Judges then expressed some doubt but even they agreed with the rest of the Court in upholding the validity of the amendments
A static system of
laws is the worst tyranny that any constitution can impose upon a country
An unamendable constitution means that all
reform and progress are at a standstill
If Parliament cannot amend Part III of the Constitution even by recourse to article 368 no other power can do so
There is no provision in the Constitution for calling a convention for its revision or for submission of any proposal for amendment to the referendum
Even if power to call a convention or to submit a proposal
to the refere be taken by amendment of article 368 Part III
would sip remain unamendable on the assumption that a constitutional amendment is a law
Not even the unanimous vote of the 500 1   652
2  3  919 million citizens or their representatives at a special convocation could amend Part III
The deadlock could be resolved by revolution only
Such a consequence was not intended by the framers of the Constitution
The Constitution is meant to endure
It has been suggested that the Parliament may provide for another Constituent Assembly by amending the Constitution and that Assembly can amend Part III and take away or abridge the fundamental rights
Now if this proposition is correct a suitable amendment of the Constitution may provide that the Parliament will be the Constituent Assembly and there upon the Parliament may amend Part III
If so I do not see why under the Constitution as it stands now the Parliament cannot be regarded as a recreation of the Constituent Assembly
for the special purpose of making a constitutional amendments under article 368 and why the amending power cannot be regarded a a constituent power as was held in Sri Sankari Prasad Singh Deo s 1 case
The contention that the constitutional amendments of Part III had the effect I changing articles 226 and 245 and could not be passed without complying with the proviso to article 368 is not tenable A constitutional amendment which does not profess to amend article 226 directly or by inserting or striking words therein cannot be regarded as seeking to make any change in it and thus falling within the constitutional inhibition of the proviso
article 226 gives power to the High Court throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority within those territories directions orders and Writs for the enforcement of any of the rights conferred by Part III and for any purpose The Seventeenth Amendment made no direct change in article 226
It made changes in Part In and abridged or took away some of the rights conferred by that Part
As a result of the changes some of those rights no longer exist and as the High Court cannot issue writs for the enforcement of those rights its power under article 226 is affected incidentally
But an alteration in the area of its territories or in the number of persons or authorities within those territories or in the number of enforceable rights under Part III or other rights incidentally affecting the Power of the High Court under article 226 cannot be regarded as an  amendment of that article
article 245 empowers the Parliament and the Legislatures of the States to make laws subject to the provisions of the Constitution
This power to make laws is subject to the limitations imposed by Part M
The abridgement of the rights conferred by Part III by the Seventeenth Amendment necessarily enlarged the scope of the legislate power and thus affected article 245 indirectly
But the Seventeenth amendment made no direct change in article 145 and did not amend it
1  920 Art 3 1B retrospectively validated the Acts mentioned in the Ninth Schedule notwithstanding any judgment decree or order of any court though they take away or abridge the rights conferred by Part Ill It is said that the Acts are still bom and cannot be validated
But by force of article 31B the Acts are deemed never to have become void and must be regarded as valid from their inception
The power to amend the Constitution carries with it the power to make a retrospective amendment
It is Said that article 3 1B amends article 141 as it alters the law declared by this Court on the validity of the Acts
This argument is baseless
As the Constitution is amended retrospectively the basis upon which the judgments of this Court were pronounced no longer exists and the law declared by this Court can have no application
It is said that article 3 1B is a law with respect to land and other matters within the competence of the State Legislature and the Parliament has no power to enact such a law
The argument is based on a misconception
The Parliament has not passed any of the Acts mentioned in the Ninth Schedule
article 3 IB removed the constitutional bar on the making of the Acts
Only the Parliament could remove the bar by the Constitution amendment
It has done so by article 3 1 B
The Parliament could amend each article in Part III separately and provide that the Acts would be protected from attack under each article
Instead of amend ing each article separately the Parliament has by article 3 1 B made a comprehensive amendment of all the articles by providing that the Acts shall not be deemed to be void on the ground that they are inconsistent with any of them
The Acts as they stood on the date of the Constitution Amendments are validated
By the last part of article 31B the competent legislatures will continue to the power to repeal or amend the Acts
The subsequent repeals and amendments are not validated
If in future the competent legislature passes a repealing or amending Act which is inconsistent with Part III it will be void
I have therefore coma to the conclusion that the First Fourth Sixteenth and Seventeenth Amendments are constitutional and am not void
If so it is common ground that these petitions must be For the last 16 years the validity of constitutional amendments of fundamental rights have been recognized by the people and all the organs of the government including the legislature the judiciary and the executive
Revolutionary social and economic changes have taken place on the strength of the First Fourth and Seventeenth Amendments
Even if two views were possible on the question of the validity of the amendments we should not now reverse our previous decisions and pronounce them to be invalid
Having heard lengthy arguments on the question I have 921 come to the conclusion that the validity of the constitutional amendments was rightly upheld in Sri Sankari Prasad Singh Deo s1 and Sajjan Singh s2 cases and I find no reason for over ruling them
The First Fourth and Seventeenth amendment Acts are sub jected to bitter attacks because they strike it the entrenched property rights
But the abolition of the zemindari was a necessary reform
It is the First Constitution Amendment Act that made this reform possible
No legal argument can restore the outmoded feudal zemindari system
What has been done cannot be undone
The battle for the past is lost
The legal argument necessarily shifts
The proposition now is that the Constitution Amendment Acts must be recognized to be valid in the past but they must be struck down for the future
The argument leans on the ready made American doctrine of prospective overruling
Now the First Fourth Sixteenth and Seventeenth Amendment Acts take away and abridge the rights conferred by Part M
If they are laws they are necessarily rendered void by article 132
If they are void they do not legally exist from their very inception
They cannot be valid from 1951 to 1967 and invalid thereafter
To say that they were valid in the past and will be invalid in the future is to amend the Constitution
Such a naked power of amendment of the Constitution is not given to the Judges
The argument for the petitioners suffers from a double fallacy the first that the Parliament has no power to amend Part III so as to abridge or take away the entrenched property rights and the second that the Judges have the power to make such an amend ment
I may add that if the First and the Fourth amendments are valid the Seventeenth must necessarily be valid
It is not possible to say that the First and Fourth amendments though originally invalid have now been validated by acquiescence
If they infringed article 132t they were void from their inception
Referring to the 19th amendment of the US Constitution Brandeis J said in Leser vs Garnett3 This Amendment is in character and phraseology precisely similar to the 15th
For each the same method of adoption was pursued
One cannot be valid and the other invalid
That the 15th is valid although rejected by six states including Maryland has been recognized and acted on for half a century 
The suggestion that the 15th was incorporated in the Constitution 1  2 1965 1 SCR 933
3     51 1
922 not in accordance with law but practically as a war measure which has been validated by acquiescence cannot be entertained
 Moreover the Seventeenth amendment has been acted upon and its validity has been upheld by this Court in Sajjan Singh s case
If the First and the Fourth Amendments are validated by acquiescence the Seventeenth is equally validated
Before concluding this judgment I must refer to some of the speeches made by the members of the Constituent Assembly in the course of debates on the draft Constitution
These speeches cannot be used as aids for interpreting the Constitution
See State of Travancore Cochin and others vs The Bombay Co Ltd  
Accordingly I do not rely on them as aids to construction
But I propose to refer to them as Shri A K Sen relied heavily on the speeches of Dr B R Ambedkar
According to him the speeches of Dr Ambedkar show that he did not regard the fundamental rights as amendable
This contention is not supported by the speeches
Sri Sen relied on the following passage in the speech of Dr Ambedkar on September 17 1949 We divide the articles of the Constitution under three categories
The first category is the one which consists of articles which can be amended by Parliament by a bare majority
The second set of articles are articles which require two thirds majority
If the future Parliament wishes to amend any particular article which is not mentioned in Part III or article 304 all that is necessary for them is to have two thirds majority
They can amend it
Mr President  Of Members present
Now we have no doubt put articles in a third category where for the purposes of amendment the mechanism is somewhat different or double
It requires two thirds majority plus ratification by the States
2 I understand this passage to mean that according to Dr Am bedkar an amendment of the articles mentioned in Part
III and 368 requires two thirds majority plus ratification by the States He seems to have assumed as reported that the provisions of Part III fall within the proviso to article 368
But he never said that part III was s not amendale
He maintained consistently that all the articles of the Constitution are amendable under article 368 On November 4 1948 be
said  The second means adopted to avoid rigidity and legalism is the provision for facility with which the 1 1952 SCR 1112
2 Constituent Assembly Debat Vol
IX p 1661
923 Constitution could be amended
The provisions of the Constitution relating to the amendment of the Constitution divide the Articles of the Constitution into two groups
In the one group are placed Articles relating to a the distribution of legislative powers between the Centre and the States b the representation of the States in Parliament and c the powers of I the Courts
All other Articles are placed in another group
Articles placed in the second group cover a very large part of the Constitution and can be amended by Parliament by a double majority namely a majority of not less than two thirds of the members of each House present and voting and by a majority of the total membership of each House
The amendment of these Articles does not require ratification by the States
It is only in those Articles which are placed in group one that an additional safeguard of ratification by the States is introduced
One can therefore safely sky that the Indian Federation will not suffer from the faults of rigidity or legalism
Its distinguishing feature is that it is a flexible Federation
The provisions relating to amendment of the Constitution have come in for a virulent attack at the hands of the critics of the Draft Constitution
it is said that the provisions contained in the Draft make amendment difficult
It is proposed that the Constitution should be amendable by a simple majority at least for some
years
The argument is subtle and ingenious
It is said that this Constituent Assembly is not elected on adult suffrage while the future Parliament will be elected on adult suffrage and yet the former has been given the right to pass the Constitution by a simple majority while the latter has been denied the same right
It is paraded as one of the absurdities of the Draft Constitution
I must repudiate the charge because it is without foundation
To know how simple are the provisions of the Draft Constitution in respect of amending the Constitution one has only to study the provisions for amendment contained in the American and Australian Constitutions Compared to them those contained in the Draft Constitution will be found to be the simplest The Draft Constitution has eliminated the elaborate and difficult procedures such as a decision by a convention or are ferenduni
The Powers of amendments left with the Legislatures Central and Provincial
It is only for amendment  or specific matters and they are only few that the ratification of the State Legislatures is required
924 All other Articles of the Constitution are left to be amended by Parliament
The only limitation is that it shall be done by a majority of not less than two thirds of the members of each House present and voting and a majority of the total membership of each House
It is difficult to conceive a simpler method of amending the Constitution  On December 9 1948  Dr Ambedkar said with reference to article 32 The Constitution has invested the Supreme Court with these rights and these writs could not be taken away unless and until the Constitution itself is amended by means left open to the legislature
2 On November 25 1949 Dr Ambedkar strongly refuted the suggestion that fundamental rights should  be absolute and unalterable
He said The condemnation of the Constitution largely comes from two quarters the Communist Party and the Socialist Party 
The second thing that the Socialists want is that the Fundamental Rights mentioned in the Constitution must be absolute and without any limitations so that if their Party comes into power they would have the unfettered freedom not merely to criticize but also to overthrow the State 
Jefferson the great American statesman who played so great a part in the making of the American Constitution has expressed some very weighty views which makers of Constitution can never afford to ignore
In one place he has said We may consider each generation as a distinct nation with a right by the will of the majority to bind themselves but none to bind the succeeding generation more than the inhabitants of another country
In another place he has said The idea that institutions established for the use of the nation cannot be touched or modified even to make them answer their end because of rights gratuitously supposed in those employed to manage the min the trust for the public may perhaps be a Salutary provision against the abuses of a monarch but is most absurd against the nation itself
Yet our lawyers and priests generally inculcate this doctrine and suppose that preceding generations held the earth more freely than we do had a right to impose laws on us unalterable by ourselves and 1 Constituent Assembly Debates Vol 7 pp
35 6 43 4
2 Constituent Assembly Debates Vol 7 953 925 that we in the like manner can make laws and impose burdens on future generations which they will have no right to alter in fine that the earth belongs to the dead and not the living
I admit that what Jefferson has said is not merely true but is absolutely true
There can be no question about it
Had the Constituent Assembly departed from this principle laid down by Jefferson it would certainly be liable to blame even to condemnation
But I ask has it Quite the contrary
One has only to examine the provision relating to the amendment of the Constitution
The Assembly has not only refrained from putting a seal of finality and infallibility upon this Constitution by denying to the people the right to amend the Constitution as in Canada or by making the amendment of the Constitution subject to the fulfilment of extraordinary terms and conditions as in America of Australia but has provided a most facile procedure for amending the Constitution
I challenge any of the critics of the Constitution to prove that any Constituent Assembly anywhere in the world has in the circumstances in which this country finds itself provided such a facile procedure for the amendment of the Constitu tion
If those who are dissatisfied with the Constitution have only to obtain a 23 majority and if they cannot obtain even a two thirds majority in the parliament elected on adult franchise in their favour their dissatisfaction with the Constitution cannot be deemed to be shared by the general public 1 On November 11 1948 Pandit Jawahar Lal Nehru said And remember this that while we want this Constitution to be as solid and as permanent a structure as we can make it nevertheless there is no permanence in Constitutions
There should be a certain flexibility
If you make anything rigid and permanent you stop a Nation s growth the growth of living vital organic people
Therefore it has to be flexible
2 The views of Jefferson echoed by Ambedkar and Nehru were more powerful expressed by Thomas Paine in 1791 There never did there never will and there never can exist a parliament or any description of men or any generation of men in any country possessed of the 1 Constituent Assembly Debates Vol
I 1 pp
975 6
2 Constituent Assembly Debates Vol 7 p 322
926 right or the power of binding and controuling posterity to the end of time  or of commanding for ever how the world
shall be governed or who shall govern it  and therefore all such clauses acts or declarations by which the makers of them attempt to do what they have neither the right nor the power to do nor take power to execute are in themselves null and void
Every age and generation must be as free to act for itself in all cases as the ages and generations which preceded it
The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies
Man has no property in man neither has any generation a property in the generations which are to follow
The parlia ment of the people of 1688 or of any other period had no more right to dispose of the people of the present day or to bind or to controul them in any shape whatever than the parliament or the people of the present day have to dispose of bind or controul those who are to live a hundred or a thousand years hence
Every Generation is and must be competent to all the purposes which its occasions require
It is the living and not the dead that are to be accommodated
When man ceases to be his power and his wants cease with him and having no longer any participation in the concerns of this World he has no longer any authority in directing who shall be its governors or how its government shall be organized or how administered See Rights of Man  by Thomas Paine unabridged edition by H B Bonner pp 3  4
For the reasons given above I agree with Wanchoo J that the writ petitions must be dismissed
In the result the writ petitions are dismissed without costs
Ramaswami J I have perused the judgment of my learned Brother Wanchoo J and I agree with his conclusion that the Constitution Seventeenth Amendment Act 1964 is legally valid but in view of the importanceof the constitutional issues raised in this case I would prefer to state my own reasons in a separate judgment
In these petitions which have been filed under article 32 of the Constitution a common question arises for determination viz
whether the Constitution Seventeenth Amendment Act 1964 which amends article 31 A and 3 1 B of the Constitution is ultra vires and unconstitutional 
927 The petitioners are affected either by the Punjab Security of Land Tenures Act 1954
Act X of 1953 or by the Mysore Land Reforms Act Act 10 of 1962 as amended by Act 1 1965 which were added to the 9th Schedule of the Constitution by the impugned Act and their contention is that the impugned Act being unconstitutional and invalid  the validity of the two Acts by which they are affected cannot be saved
The impugned Act consists of three sections
The first section
gives its short title
Section 2 i adds a proviso to Cl  1  of article 3 I A 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 Section 2ii substitutes the following sub clause for sub cl
a of cl
2 of article 31 A 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 force in that area and all to land tenures in also include i any jagir inam or muafi or other similar grant and in the States of Madras and Kerala any ianmam right ii any land held under ryotwari settlement iii any land held or let for purposes of agriculture or for purposes ancillary there to including wast land forest land land for posture or ones 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
In dealing with the question about the validity of the im pugned Act it is necessary to consider the scope and effect of the provisions contained in article
368 of the Constitution because the main controversy in the present applications turns uponthe 928 decision of the question as to what is the construction of that Article
Article 368 reads as follows An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting it shall be presented to the President for his assent and upon such assent being given to the Bill the Constitution shall stand amended in accordance with the terms of the Bill 
Provided that if such amendment seeks to make any change a Article 5 article 55 article 73 article 162 or article 241 or b Chapter IV of Part V Chapter V of Part VI or Chapter I of Part XI or c any of the Lists in the Seventh Schedule or d the representation of States in Parliament or e the provisions of this article the amendment shall also require to be ratified by the Legislatures of not less than one half of the States 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 is necessary at this stage to set out briefly the history of articles  31 A and 31 B These Articles were added to the Constitution with retrospective effect by section 4 of the Constitution First Amendment Act 1951
Soon after the promulgation of the Constitution the political party in power commanding as it did a majority of votes in the several State legislatures as well as in Parliament carried out radical measures of agrarian reform in Bihar may be referred to as Zamindari Abolition Acts
Certain zamindars feeling themselves aggrieved attacked the validity of those Acts in courts of law on the ground that they contravened the fundamental rights conferred on them by Part III of the Constitution
The High Court of Patna held that the Act passed iii Bihar was unconstitutional while the High Courts of Allahabad and Nagpur upheld the validity of the corresponding legislation in Uttar Pradesh and Madhya Pradesh respectively See Kameshwar Uttar Pradesh and Madhya Pradesh by enacting legislation which 929 vs State of Bihar1 and Surya Pal vs UP Government1
The parties aggrieved by these respective decisions had filed appeals by special leave before this Court
At the same time petitions had also been preferred before this Court under article 32 by certain other Zamindars seeking the determination of the same issues It was atstage that the Union Government with a view to put an endall this litigation and to remedy what they considered to be certain defects brought to light in the work of the Constitution brought forward a bill to amend the Constitution which
after undergoing amendments in various particulars was passed by the require majority as the Constitution First Amendment Act 1951 by which articles 31 A and 31 B were added to the Constitution
That was the first step taken by Parliament to assist the process of legislation to bring about agrarian reform by introducing Articles 31 A and 31 B
The second step in the same direction was taken by Parliament in 1955 by amending article 31 A 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 that they contravened  the fundamental rights of citizens
In other words the 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
At the time when the first amendment was made article 31 B 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 the Karimbil Kunhikoman vs State of Kerala3 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
The decision of this 1 A I R 1951 Pat 91 2 AIR 1951 All 674
31962 Supp
1 SCR 829 930 Court was pronounced on December 5 1961
In A P Krishna swami Naidu vs The State of Madras1 the constitutionality of the Madras Land Reforms Fixation of Ceiling on Land Act 146
58 of 1961 was the subject matter of debate 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 Rajas than Tenancy Act III of 1955 and the Maharashtra Agricultural Lands Ceiling and Holdings Act 27 of 1961 had been similarly declared invalid and in consequence Parliament thought it necessary to make a further amendment in Art 31 B so as to gave the validity of these Acts which had been struck down and of other similar Acts which were likely to be challenged
With that object in view the impugned Act has enacted section 3 by which 44 Acts have been added to Schedule 9
It is therefore clear that the object of the First Fourth and the Seventeenth Amendments of the Constitution was to help the State Legislatures to give effect to measures of agrarian reform in a broad and comprehensive sense in the interests of a very large section of Indian citizens whose social and economic welfare closely depends on the persuit of progressive agrarian policy
The first question presented for determination in this case is whether the impugned Act in so far as it purports to take away or abridge any of the fundamental rights conferred by Part III or the Constitutionfalls within the prohibition of article 13 2 which provides that 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
In other words the argument of the petitioners was that the law to which Art 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 was contended that the State includes Parliament within article 12 and law must include a constitutional amendment
It was said that it was the deliberate intention of the framers of the Constitution who realised the sanctity of the fundamental rights conferred by Part III to make them immune from interference not only by ordinary laws passed by the legislatures in the country but also from constitutional amendments
In my opinion there is no substance in this argument
Although law must ordinarily include constitutional law there is a juristic distinction between ordinary law made in exercise of legislative power and constitutional law which is Made in exercise of constituent power
In a written federal form of Constitution there is a clear and well known distinction between the law of the Constitution and ordinary law made by the legislature on the basis of separation of powers and 119647 SCR82
931 pursuant to the power of law making conferred by the Consti tution See Dicey on Law of the Constitution Tenth Edn
p 110 Jennings Law and the Constitution  pp
62 64 and American Jurisprudence  2nd Edn
16 p 181
In such a written Constitution the amendment of the Constitution is a substantive constituent act which is made in the exercise of the sovereign power which created the Constitution and which is effected by a special means namely by a predesigned fundamental procedure unconnected with ordinary legislation
The amending power under article 368 is hence sui generis and cannot be compared to the law making power of Parliament pursuant to article 246 read with List I and 111
It follows that the expresSion law in article 132 of the Constitution cannot be construed as including an amendment of the Constitution which is by Parliament in exercise of its sovereign constituent power but must mean law made by Parliament in its legislative capacity pursuant to the powers of law making given by the Constitution itself under article 246 read with Lists I and In of the 7th Schedule
It is also clear on the same line of reasoning that law  in article 132 cannot be construed so as to include law  made by Parliament under articles 4 169 392 5th Schedule Part D and 6th Schedule para 2 1
The amending power of Parliament exercised under these Articles stands on the same as the constitutional amendment made under article U8 so far as article 132 is concerned and does not fall within the definition of law within the meaning of this last article
It is necessary to add that the definition of law  in article 133 does not include in terms a constitutional amendments though it includes any Ordinance order bye law rule regulation notification custom or usage 
It should be noticed that The language
of article 3 6 8 is perfectly general and empowers Parliament to amend the Constitution without any exception Whatsoever
H I ad it been intended by the Constitution makers that the fundamental rights guaranteed under Part III should be completely outside the scope of article 368 it is reasonable to assume that they would have made an express provision to that effect
It was stressed by the petitioners during the course of the argument that Part III is headed as Fundamental Rights and that article 32 guarantee s  the right to move the Supreme Court by appropriate proceedings for enforcement of rights conferred by Part M
But the expression fundamental in the phrase Fundamental Rights means that such rights are fundamental vis a vis the laws of the legislatures and the acts of the executive authorities mentioned in article 12
It cannot be suggested that the expression fundamental lifts the fundamental rights above the Constitution itself
Similarly the expression guaranteed  in article 321 and 324 means that the right to move the Supreme Court for enforcement of fundamental rights without 932 exhausting the normal channels through the High Courts or the lower courts is guaranteed
This expression also does not place the fundamental rights above the Constitution
I proceed to consider the next question arising in this case the scope of the amending power under article 368 of the Constitution
It is contended on behalf of the petitioners that article 368 merely lays down the procedure for amendment and does not vest the amending power as such in any agency constituted under that article
I am unable to accept this argument as correct Part XX of the Constitution 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 therein indicated
In MY Opinion the expression amendment of the Constitution in article 368 plainly and unambiguously means amendment of all the provisions of the Constitution
It is 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
The significant fact  that a separate Part has been devoted in the Constitution for amendment of the Constitution and there is only one Article in that Part shows that both the power to amend and the procedure to amend are enacted in article 368
Again the words the Constitution shall stand amended in accordance with the terms of the Bill in article 368 clearly contemplate and provide for the power to amend after the requisite procedure has been followed
Besides the words used in the proviso unambiguously indicate that the substantive part of the article applied to all the provisions of the Constitution
It is on that basic assumption that the proviso prescribes a specific procedure in respect of the amendment of the articles mentioned in cls
a to e thereof
Therefore it must be held 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 whether it attracts the procedure contained in the proviso
It was suggested for the petitioners that the power of amendment is to be found in articles 246 and 248 of the constitution read with item 97 of List I of the 7th Schedule
I do not think that it is possible to accept this argument
Article 246 stats that 933 Parliament has exclusive power to make laws with respect to matters enumerated in List I in the Seventh Schedule and article 248 similarly confers power on Parliament to make any law with respect to any matter not enumerated in the Concurrent List or State List
But the power of law making in articles 246 and 248 is subject to the provisions of this Constitution
It is apparent that the power of constitutional amendment cannot fall within these Articles because it is illogical and a contradiction in terms to say that the amending power can be exercised and at the same time it is subject to the provisions of the Constitution
It was then submitted on behalf of the petitioners that the amending power under article 368 is subject to the doctrine of implied limitations
In other words it was contended that even if article 368 confers the power of
amendment it was not a general but restricted power confined only to the amendable provisions of the Constitution the amendability of such provision being determined by the nature and character of the respective provision
It was argued for instance that the amending power cannot be used to abolish the compact of the Union or to destroy the democratic character of the Constitution teeing individual and minority rights
It was said that the Constitution was a permanent compact of the States that the federal character of the States was individual and that the existence of any
of the States as part of the federal Compact Cannot4be put an end to by the power of amendment
It was also said that the chapter of fundamental rights of the Constitution cannot be the subject matter of any amendment under article 368
It was contended that the preamble to the Constitution declaring that India was a sovereign democratic republic was beyond the scope of the amending Power
it was suggested that other basic features of the Constitution were the Articles relating to
distribution of legislative powers the Parliamentary form of Government and the establishment of Supreme Court and the High Courts in the various States
I am unable to accept this argument as correct
If the Constitution makers considered that there were certain basic features of the Constitution which were permanent it
is must unlikely that they should not have expressly said in Art 368 that these basic features were
not amendable
On the contrary the Constitution makers have expressly provided
that article 368 itself should be amendable by the process indicated in the proviso to that Article
This cir cumstance is significant and suggests
that all the articles of the Constitution are amendable either under the proviso to article 368 or under the main part of that Article
In MY opinion there is no room for an
implication in the construction of article 368
So far as the federal character of the Constitution is concerned it was held by this Court in State of West Bengal vs Union of Cl67 14 934 India1 that the federal structure is not an essential pan of our Constitution and there is no compact between the States and them is no dual citizenship in India
It was pointed out in that case that there was no constitutional guarantee against the alteration of boundaries of the States
By An 3 the Parliament is by law authorised to form a new State by redistribution of the territory of a State or by uniting two or more States or parts of States or by uniting any territory to a part of any State to increase the area of any State to diminish the area of any State to alter the boundaries of any State and to alter the name of any State
In In Re The Berubari Union and Exchange of Enclaves 2 it was argued that the Indo Pakistan agreement with regard to Berubari could not be implemented even by legislation under article 368 because of the limitation imposed by the preamble to the Constitution and that such an agreement could not be implemented by a referendum
The argument was rejected by this Court and it was held that the preamble could not in i any way limit the power of Parliament to cede parts of the national territory
On behalf of the petitioners the argument was s that the chapter on fundamental rights was the basic feature of the Constitution and cannot be the subject of the amending power under Art 368
It was argued that the freedoms of democratic life are secured by the chapter on fundamental rig its and dignity of the individual cannot be preserved if any of the fundamental rights is altered or diminished
It is not possible to accept this argument as correct
The concepts of liberty and equality are changing and dynamic and hence the notion of permanency or immutability cannot be attached to any of the fundamental rights
The Directive Principles of Part IV are as fundamental as the constitutional rights embodied in Part III and article 37 imposes a constitutional duty upon the States to apply these principles in making laws
Reference should in particular be made to article 39b which enjoins upon the State to direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good
article 3 8 imposes a duty upon the State to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice social economic and political shall inform all the institutions of the national life
I have already said that the language of article 368 is clear and unambiguous in support of the view that there is no implied limitation on the amending power
In Principle also it aPPears unreasonable to suggest that the Constitution makers wanted to provide that the fundamental rights guaranteed by the Constitution should never be touched by way of amendment
In modern democratic thought I there are two main trends the liberal idea of individual rights 1 1964 1 SCR 371 p 405
2 935 protecting the individual and the democratic idea proper pro claiming the equality of rights and popular sovereignty 
The gradual extension of the idea of equality from political to economic and social fields in the modern State has led to the problems of social security economic planning and industrial welfare legislation
The implementation and harmonisation of these
somewhat conflicting principles is a dynamic task
The adjustment between freedom and compulsion between the rights of individuals and the social interest and welfare must necessarily be a matter for changing needs and conditions
The proper approach is therefore to look upon the fundamental rights of the individual as conditioned by the social responsibility by the necessities of the Society by the balancing of interests and not as pre ordained and untouchable private rights
As pointed out forcefully by Laski The struggle for freedom is largely transferred from the plane of political to that of economic rights
Men become less interested in the abstract fragment of politi cal power an individual can secure than in the use of massed pressure of the groups to which they belong to secure an increasing share of the social Product
Individualism gives way before socialism
The roots of liberty are held to be in the ownership and control of the instruments of production by the state the latter using its power to distribute the results of its regulation with increasing approximation to equality
So long as there is inequality it is argued there cannot be liberty
The historic inevitability of this evolution was seen a century ago by de tocqueville
It is interesting to compare his insistence that the democratization of political power meant equality and that its absence would be regarded by the masses as oppression with the argument of Lord Action that liberty and equality are antitheses
To the latter liberty was essentially an autocratic ideal democracy destroyed individuality which was the very pith of liberty by seeking identity of conditions
The modem emphasis is rather toward the principle that material equality is growing inescapable and that the affirmation of personality must be effective upon an immaterial plane
it is found that doing as one likes subject only to the demands of peace is incompatible with either international or municipal necessities
We pass from contract to relation as we have passed from status to contract
Men are so involved in intricate networks of relations that the place for their 936 liberty is in a sphere where their behaviour does not impinge upon that self affirmation of others which is liberty Encyclopaedia of the Social Sciences Vol IX 445
It must not be forgotten that the fundamental right guaran teed by article 31 for
instance
is not absolute
It should be not that cl
4 of that Article provides an exception to the requirements of cl
2 Clause 4 relates to Bills of a State Legislature relating to public acquisition which were pending at the commencement of fhe Co stitution
If such a Bill has been passed and assented to by the President the Courts shall have no jurisdiction to question the validity of such law on the of contravention of cl
2 ie on the ground that it does not provide for compensation or that it has been enacted without a public purpose
Clause 6 of the Article is another exception to cl
2 and provides for ouster of jurisdiction of the Courts
While cl
4 relates to Bills pending in the State Legislature at the encement of the Consistitution cl
6 relates to Bills enacted by the State within IS I months before commencement of the Constitution ie Acts providing for public acquisition which were enacted not earlier than July 26 1948
If the President certifies  such an Act within 3 months from the commencement of the Constitution the Courts shall have no jurisdiction to invalidate that Act on the ground of contravention of cl
2 of that Article Similarly the scheme of Art 19 indicates that the fundamental rights guaranted by sub cls
a to g of cl 1 can be validly regulated in the light of the provisions contained in cls
2 to 6 of article 19
In other words the scheme of Art19 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 respectively in cls
2 to 6 of article 19
It is right to state that the purposes for which fundamental rights can be regulated which are s specified in cls
2 to 6 could not have been assumed by the Constitution makers to be static and incapable of expansion
It cannot be assumed that the Constitution makers intended to forge a political strait jacket for generations to come
The Constitution makers  must have anticipated that in dealing with socioeconomic problems which the 1egislatures may have to face from time to time the concepts of public interest and other important considerations which are the basis of cls
2 to 6 may change and may even expand
As Holmes  J has said in Abrams vs United States 1  the Constitution is an experiMent as all life is an experiment
It is therefore legitimate to assume that the Constitution makers 1   630 937 intended that Parliament should be competent to make amend ments in these rights so as to meet the challenge of the problems which may arise in the course of socioeconomic progress and development of the country
I find it therefore difficult to accept the argument of the petitioners thal the Constitution makers contemplated that fundamental rights enshrined in Part III were finally and immutably settled and determined once and for all and these rights are beyond the ambit of any future amendment
Today at a time when absolutes are discredited it must riot be too readily assumed that there are basic features of the Constitution which shackle the amending power and which take precedence over the general welfare of the nation and the need for agrarian and social reform
In construing article 368 it is moreover essential to remember the nature and subject matter of that Article and to interpret it subjectae materies
The power of amendment is in point of quality an adjunct of sovereignty
It is in truth the exercise of the highest sovereign power in the State
If the amending power is an adjunct of sovereignty it does not Admit of any limitations
This view is expressed by Dicey in Law of the Constitution 10th Edn at page 148 as follows Hence the power of amending the constitution has been placed so to speak outside the constitution and that the legal sovereignty of the United States resides in the States  governments as forming one aggregate body represented by three fourths of the several States at any time
belonging to the Union
 A similar view is stated by Lord Bryce in The American Commonwealth Vol 1 ch
XXXII page 366
Lester Bernhardt Orfield statesas follows in his book he Amending of the Federal Constitution In the last analysis one is brought to the conclusion that sovereignty in the United States if it can be said to exist at all is located in the amending body
The amending body has often beep referred to as the sovereign because it meets the fest of the location of sovereignty
As Willoughby has said In all those cases in which owing to the distribution of governing power there is doubt as to the political body in which the Sovereignty rests the test to be applied is the determination of which authority has in the last instance the legal power to determine its own competence as well as that of others 
938 Applying the criteria of sovereignty which were laid down at the beginning of this chapter the amending body is sovereign as a matter of both law and fact
Article Five expressly creates the amending body
Yet in a certain manner of speaking the amending body may be said to exist as a matter of fact since it could proceed to alter Article Five or any other part of the Constitution
While it is true that the sovereign cannot act otherwise than in compliance with law it is equally true that it creates the law in accordance with which it is to act
 In his book Constitutional Law of the United States Hugh Evander Willis says that the doctrine of amendability of the Constitution is based on the doctrine of the sovereignty of the people and that it has no such implied limitations as that an amendment shall not contain a new grant of  power nor be in the form of legislation nor change our dual form of government nor change the protection of the Bill of Rights nor make any other change in the Constitution James G Randall also enunciates the proposition that when a constitutional amendment is adopted it is done not by the general government but by the supreme sovereign power of the nation ie the people acting through State Legis latures or State conventions and that the amending power is equivalent to the Constitution makin power and is wholly above the authority of the Federal Government  Constitutional Pro Under Lincoln  p 395
 The legal position is summarised by Burdick at page 48 of his treaties The Law of the American Constitution as follows  The result of the National Prohibition Cases  seems to be that there is no limit to the power to amend the Constitution except that a State may not without its consent be deprived of its equal suffrage in the Senate
To out the case most extremely this means that by action of two third of both Houses of Congress and of the legislatures in three fourths  of the states all of the powers of the national government could be surrendered to the States or all of the reserved powers of the States could be transferred to the federal government
It is only public opinion acting upon these agencies which places any check upon the amending power
But the alternative to this result would be to recognize the power of the Supreme Court to veto the will of the people expressed in a constitutional amendment without any possibility of the reversal of the court s action except through revolution
 939 The matter has been clearly put by George Vedel in Manuel Elementaire De Droit Constitutionnel Recueil Sirey at page 117 as follows  Truly speaking no constitution prohibits for ever its amendment or its amendment in all its aspects
But it can prohibit for example the amendment revision during a certain time the Constitution of 1791 or it can prohibit the amendment revision on this or that point as in the Constitution of 1875 which prohibits amendment of the republican form of Government and the present Constitution follows the same rule
But this prohibition has only a political but no juridical value
In truth from the juridical viewpoint a declaration of absolute  constitutional immutability cannot be imagined
The Constituent power being the supreme power in the state cannot be fettered even by itself
For examplearticle 95 of our constitution stipulates The republican form of Government cannot be the subject of a proposal for amendment
But juridically the obstacle which this provision puts in the way of an amendment of the republican form of government can be lifted as follows
It is enough to abrogate by way of amendment revision the article 95 cited above
After this the obstacle being removed a second amendment can deal with the republican form of Government
In practice this corresponds to the idea that the constituent assembly of today cannot bind the nation of tomorrow
 the argument of implied limitation was advanced by Mr N C Chatterji and it was contended that item No 3 of the Indo Pakistan Agreement providing for a division of Berubari Union between India and Pakistan was outside the power of constitutional amendment and that the preamble to the Constitution did not permit the dismemberment of India but preserved the integrity of the territory of India
The argument was rejected by this Court and it was held that Parliament acting under article 368 can make a law to give effect to and implement the Agreement in question or to pass a law amending article 3 so as to cover cases of cession of the territory of India and thereafter make a law under the amended article 3 to implement the Agreement
1 940 There is also another aspect of the matter to be taken into account
If the fundamental rights are unamendable and if article 368 does not include any such power it follows that the amendment of say article 31 by insertion of articles 31 A and 31 B can only be made by a violent revolution
It was suggested for the petitioners that an alteration of fundamental rights could be made by convening a new Constituent Assembly outside the frame work of the present Constitution but it is doubtful if the proceeding of the new Constituent Assembly will have any legal validity for the reason is that if the Constitution provides its own method of amendment any other method of amendment of the Constitution will be unconstitutional and void
For instance in George section Hawke vs Harvey C Smith as Secretairy of State of Ohio1 it was held by the Supreme Court of the USA that Referendum provisions
of State Constitutions  and statutes cannot be applied in the ratification or rejection of amendments to the Federal Constitution without violating the requirements of Article 5 of such Constitution and that such ratification shall be by the legislatures of the several states or by conventions therein as Congress shall decide
It was held in that case that the injunction was properly issued against the calling of a referendum election on the act of the legislature of a State ratifying an amendment to the Federal Constitution
If therefore the petitioners are right in their contention that article 31 is not amendable within the frame work of the present Constitution the only other recourse for making the amendment would as I have already said be by revolution and not through peaceful means It cannot be reasonably supposed
that the Constitution makers contem plated that article 31 or any other article on fundamental rights should be altered by a violent revolution and not by peaceful change
It was observed in Feigenspan vs Bodine 2 If the plaintiff is right in its contention of lack of power to insert the Eighteenth Amendment into the United States Constitution because of its subject matter
it follows that there is no way to incorporate it and others of like character into the national organic law except through revolution
This the plaintiff concedes is the inevitable conclusion of its contention
This is so starting a proposition that the judicial mind may be pardoned for not readily acceding to it and for insisting that only the most convincing reasons will justify its acceptance
 I am therefore of the opinion that the petitioners Are unable to make good their argument on this aspect of the case
It was then contended for the petitionersthat there would be anomalies if article 368 is interpreted to have no implied limita 1  2264 Fed
941 tions
It was said that the more important articles of the Constitution can be amended by the procedure mentioned in the substantive part of article 368 but the less important articles would require ratification by the legislatures of not less than half of the States under the proviso to that Article
It was argued that the fundamental rights and also article 32 could be amended by the majority of two thirds of the members of Parliament but article 226 cannot be amended unless there was ratification of the legislatures of not less than half of the States It was pointed out that articles 54 and 55 were more difficult to amend but not article 52
Similarly article  162 required ratification of the States but not article 163 which related to the Council of Ministers to aid and advise the Governor in the exercise of his functions
In my opinion the argument proceeds on a misconception
The scheme of article 368 is not to divide the Articles of the Constitution into two categories viz important and not so important Article
It was contemplated by the Constitution makers that the amending power in the main part of article 368 should extend to each and every article of the Constitution but in the case of such articles which related to the federal principles or the relation of the States with the Union the ratification of the legislatures of at least half the States should be obtained for any amendment
It was also contended that if article 368 was construed without any implied limitation the amending power under that Article could be used for subverting the Constitution
Both Mr Asoke Sen and Mr Palkiwala resorted to the method of reduction ad absurdem MI pointing out the abuses that might occur if there were no limitations on the power to amend
It was suggested that Parliament may by a constitutional amendment abolish the parliamentary system of government or repeal the chapter of fundamental rights or divide India into
two States or even reintroduce the rule of a monarch
It is inconceivable that Parliament should utilise the amending power for bringing about any of these contingencies
It is however not permissible in the first place to assume that in a matter of constitutional amendment there will be abuse of power and then utilise it as a test for finding out the scope of the amending power
This Court has declared repeatedly that the possibility of abuse is not to be used as a test of the existence or extent of a legal power See for example State of West Bengal vs Union of India1 at page 407
In the second place the amending power is a power of an altogether different kind from the ordinary governmental power and if an abuse occurs it occurs at the hands of Parliament and the State Legislatures representing an extraordinary majority of the people so that for all practical purposes it may be said to be the people or at least
the highest agent of the people and one exercising sovereign powers
It is therefore 1 19641 SCR 371 942 anomalous to speak of abuse  of a power of this description
In the last analysis political machinery and artificial limitations will not protect the people from themselves
The perpetuity of our democratic institutions will depend not upon special mechanisms or devices nor even upon any particular legislation but rather upon the character and intelligence and the good conscience of our people themselves
As observed by Frankfurter 1
in American Federation of Labour vs American Sash  Door Co1 But a democracy need rely on the courts to save it from its own unwisdom
If it is alert and without alertness by the people there can be no enduring democracy unwise or unfair legislation can readily be removed from the statute books
It is by such vigilance over its representatives that democracy proves itself I pass on to consider the next objection of the petitioners that the true purpose and object of the impugned Act was to legislate in respect of land and that legislation 1n respect of land falls within the jurisdiction of State legislatures under Entry 18 of List 11 and the argument was
that since the State Legislatures alone can make laws in respect of land Parliament had no right to pass the impugned Act
The argument was based on the assumption that the impugned Act purports to be and in fact is a piece of land legislation
It was 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 in Valid
In my opinion the argument is based upon a misconception
Whet 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
The impugned Act was passed by Parliament in exercise of the amending power conferred by article 368 and it is impossible to accept the argument that the constitutional power of amendment can be fettered by articles 245 and 246 or by the legislative Lists
It was argued for the petitioners that Parliament cannot validate a law Which it has no Power to enact
The proposition holds good where the validity on impugned Act turns on whether the subject matter falls within or without the jurisdiction of the legislature which passed it
But to make a law which contravenes the Constitution constitutionally valid is a matter of constitutional amendment and as such it falls within the exclusive power of Parliament and within the amending power conferred by article 368
I am accordingly of the opinion that the petitioners are unable to 1  556
943 substantiate their argument on this aspect of the case
I should like to add that in Lesser vs Garnett1 in National Prohibition Cases2  and in United States vs Sprague3 a similar argument Was advanced to the effect that a constitutional amendment was not valid if it was in the form of legislation
But the argument was rejected by the Supreme Court of the USA in all the three cases
It remains to deal with the objection of the petitioners that the newly inserted articles 31 A and 31 B require ratification of the State legislatures under the proviso to article 368 of the Constitution because these articles deprive the High Courts of the power to issue appropriate writs under article 226 of the Constitution
I do not think there is any substance in this argument
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 substantial measure
It is manifest that the newly inserted articles do I not either in terms or in effect seek to make any change in article 226 of the Constitution
Article 31 A aims at saving laws providing for the compulsory acquisition by the State of a certain kind of property from the operation of article 1 3 read with other relevant articles in Part III while article 31 b purports to validate certain specified Acts g Regulations already passed which but for such a provision  would be liable to be impugned under article 13 It is therefore  not correct to say that the powers of High Courts to issue writs is in any way affected
The jurisdiaction of the High Courts remains just the same as it Was before
Only a certain category of cases has been excluded from the purview of Part III and the High Courts can no longer intervene not because their Jurisdiction or powers have been curtailed in any manner or to
any but because there would be no occasion hereafter for the exercise of their power in such cases
As I have already said the effect of the impugned Act on the jurisdiction of the High Courts under article 226 of the Con stitution is not direct but only incidental in character and therefore the contention  of the petitioners on this point against the validity of the impugned Act must be rejected
It is well settled that in examining a constitutional question of this character it is legitimate to consider whether the impugned legislation is a legislation directly in respect of the subject matter covered by any particular article of the Constitution or whether touches the said articles only incidentally or indirectly
In A K Gopalan vs The State of Madras 4 kania  CJ had occasion to consider the validity of the argument that the Preventive detention order resulted in the detention of the applicant in a cell and so it contravened his fundamental rights guaranteed by 1  2253 US 350
3  4  101 944 article 191a b c d e and g
 Rejecting this argument the learned Chief Justice observed that the true approach in dealing with such a question was only to consider the directness of the legislation and not what will be the result of the detention otherwise valid on the mode of the detenu s life
On that ground alone he was inclined to reject the contention that the order of detentioncontravened the fundamental rights guaranteed to the petitioner under article 191
At page 100 of the report Kania CJ stated as follows  As the preventive detention order results in the detention of the applicant in a cell it was contended on his behalf that the rights specified in Article 191 a b c d e and g have been infringed
It was argued that because of his detention he cannot have a free right to speech as and where he desired and the same argument was urged in respect of the rest of the rights mentioned in sub clauses b c d e and g
Although this argument is advanced in a case which deals with preventive detention if correct it should be applicable in the case of punitive detention also to any one sentenced to a term of imprisonment under the relevant section of the Indian Penal Code
So considered the argument must clearly be rejected
In spite of the saving clauses 2 to 6 permitting abridgement of the rights connected with each of them punitive detention under several sections of the Penal Code ie for theft cheating forgery and even ordinary assault will be illegaL Unless such conclusion necessarily follows from the article it is obvious that such construction should be avoided
In my opinion suc h result is
clearly not the outcome of the Constitution
The article has to be read without any pre conceived notions
So read it clearly means that the legislation to be examined must be directly in respect of one of the rights mentioned in the sub clauses
If there is a legislation directly attempting to control a citizen s freedom of speech or ex pression or his right to assemble peaceably and without arms etc the question whether that legislation is saved by the relevant saving clause of article 19 will arise
If however the legislation is not directly in respect of any of these subjects but as a result of the operation of other legislation for instance for punitive or preventive detention his right under any of these sub clauses is abridged the question of the application of article 19 does not arise Me true approach is only to consider the direct ness of the legislation and not what will be the result of the detention otherwise valid on the mode of the detenu s 945 life
On that  short ground in my opinion this argument about the infringement of the rights mentioned in article 191 generally must fail
Arty other construction put on the article it seems to me  will be unreason It is true that the opinion thus expressed by Kania CJ in the case of A K Gopalan vs The State of Madras  did not receive the concurrence of the other learned Judges who heard the said case
Subsequently however in Ram Singh  Others vs The State of Delhi  Anr2 the said observations were cited with approval by the Full Court
The same
principle was accepted by this Court in Express Newspapers Pvt Ltd vs The Union of India  in the majority judgment in Atiabari Tea Co Ltd vs The State of Assam 4  and in Naresh Shridhar Mirajkar vs The State of Maharashtra
Applying the same principle to the present case consider that the effect of the impugned Act on the powers of the High Court under article 226 is indirect and incidental and not direct
I hold that the impugned Act falls under the substantive part of article 368 because the object of the impugned Act is to amend the relevant Articles in Part III which confer fundamental rights on citizens and not to change the power of the High Courts under article 226
In this connection I should like to refer to another aspect of the matter
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 Bihar6
In that case the validity of the said Amendment Act was challenged firstly on the ground that the newly inserted articles 31 A and 31 B sought to make changes in articles 132 and 136 in Ch
IV of Part V and article 226 in Ch
V of Part VI
The second ground was that the amendment was invalid because it related to legislation in respect of land
It was also urged in the third place that though it may be open to Parliament to amend the provisions in respect of fundamental rights contained in Part ITT the amendment made in that behalf would have to be tested in the light of provisions of article 132 of the Constitution
The argument was that the law to which article 132 applied 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
All these arguments were rejected by this Court and it was held in that case that the Constitution First Amendment Act was legally valid
The same question arose for consideration in Sajjan Singh vs State of Rajasthan 7 with regard to the validity of the Constitution Seventeenth Amendment Act 1964
In that case the petitioners in their 1  2  456
3 129 30
4   864
5  6 1995 1 SCR 89
7 946 Writ Petitions in this Court contended that the Constitution Seventeenth Amendment  Act was constitutionally invalid since the powers Prescribed by article 226 which is in Ch
V Part VI of the Constitution Were likely to be affected by the Seventeenth Amendment and therefore the special procedure laid down under article 368 should have been followed
It was further contended in that case that the decision of this court in Sankari Prasads1 case should be reconsidered Both the contentions were re  rejected by this Court by  a majority Judgment and it was held that the Constitution Seventeenth Amendment Act amended the fundamental rights solely with the object of assisting the State Legislatures to give effect to the socioeconomic policy of the party inpower and its effect on article 226 was incident and insignificant and the impugned Act therefore fell under the substantive part of article 368 and did not attract the proviso to that article
It was further held
by this Court that there Was no justification for re considering Sankari Prasad s1 case
On behalf of the respondents it was submitted by the Additional Solicitor Generat that this was a very strong case for the application of the principle of stare decisis
In my opinion this contention must be accepted as correct
If the arguments urged by the petitioners are to prevail it would leadto the inevitable consequence that the amendments made to the Constitution both in 1951 and in 1955 would be rendered invalid and
a large number of decisions dealing with the validity of the Acts included in the 9th Schedule which were pronounced by this Court ever since the decision in Sankari Prasad s1 case was dec lared would also have to be overruled
It was also pointed out that Parliament the Government and the people have acted on the faith of the decision of this Court in Sankari Prasad s1 case and titles to property have been transferred obligations have been incurred and rights have been acquird in the implementation of the legislation included in the 9th Schedule
The effect of land reform legislation has been clearly summarised in ch
VIII of Draft Outline on Fourth Plan as follows Fifteen years ago when the First Plan was being formulated intermediary tenures like zamindaris jagirs and inams covered more than 40 per cent of the area
There were large disparities in the ownership of land held under ryotwari tenurer which covered the other 60 per cent area and  a substantial portion of the land was cultivated through tenants at will and share croppers who paid about one half the produce as rent
Most holdings were small and fragmented
Besides there was a large population of landless agricultural labourers
In these conditions the principal
measures recommended for securing the objec 11952 SCR 89 947 tives of the land policy were the abolition of intermediary tenures reform of the tenancy system including fixation of fair rent at one fifth to one fourth of the grossproduce security of I tenure for the tenant bringing tenants into direct relationship with the State and investing in them ownership of land
A ceiling on land holding was also recmmended so that some surplus land may be made available for redistribution to the landless agricultural workers
Another important part of the progamme was consolidation of agricultural holdings and increse in the size of the operational unit to an economic scale through cooperative methods
Aboiition of Intermediaries
During the past 15 years progress has been made in several directions
Theprogramme for the abolition of intermediaries has been carried out practically all over the country
About 20 million tenants of former intermediaries came into direct relationship with the State and became owners of their holdings
State Governments are now engaged in the assessment and payment of compensation
There were some initial delays but a considerable progress hag been made in this direction in recent years and it is hoped that the issue of compensatory bonds will be completed in another two years
Tenancy Reform
TO deal with the problem of tenants at will in the ryotwari areas and of sub  tenants in the zamindari areas a good deal of legislation has been enacted
Provisions for security of tenure for bringing them into direct relation with the State and converting them into owners have been made in several States
As a result about 3 million tenants and share croppers have acquired ownership of More than 7 million acres
Ceiling on Holdings
Laws imposing ceiling on agricultural holdings bave been enacted in all the States
In the former Punjab area however the State Government has the power to settle tenants on land in excess of the permissible limit although it has not set a ceiling on ownership
According to available reports over 2 million acres of surplus areas in excess of the ceiling limits have been declared or taken possession of by Government
 It is true that the principle of stare decisis may not strictly apply to a decision on a constitutional point
There is no restriction in the Constitution itself which prevents this Court from reviewing its earlier decisions or even to depart from them in the interest of public good
It is true that the problem of construing constitutional provisions cannot be adequately solved by merely adopting 948 the literal construction of the words used in the various articles
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
It is manifest that in a progressive and dynamic society the character of these problems is bound to change with the inevitable consequence that the relevant words used in the Constitution may also change their meaning and significance
Even so the Court is reluctant to accede to the suggestion that its earlier decisions should be frequently reviewed or departed from
In such a case the test should be  what is the nature of the error alleged in the earlier decision what is its impact on the public good and what is the compelling character of the considerations urged in support of the contrary view
It is also a relevant factor that the earlier decision has been followed in a large number of cases that titles to property have passed and multitude of rights and obligations have been created in consequence of the earlier decision
I have already dealt with the merits of the contention of the petitioners with regard to the validity of the impugned Act and I have given reasons for holding that the impugned Act is constitutionally valid and the contentions of the petitioners are unsound
Even on the assumption that it is possible to take a different view and to hold that the impugned Act is unconstitutional I am of opinion that the principle of state decisis must be applied to the present case and the plea made by the petitioners for reconsideration of Sankari Prasad1 case and the decision in Sajjan Singh vs State of Rajasohan2 is wholly unjustified and must be rejected
In Writ Petition No 202 of 1966 it was contended by Mr Nambyar that the continuance of the Proclamation of Emergency under article 352 of the Constitution was a gross violation of power because the emergency had ceased to exist
It was also contended that article 358 should be so construed as to confine its operation on to legislative or executive action relevant to the Proclamation of Emergency
It was submitted that the Mysore State was rot a border area and the land reform legislation of that State had no relevant connection with the Proclamation of Emergency and the fundamental rights conferred by article 19 cannot be suspended so far as the petitions are concerned
I do not think that it is necessary to express any opinion on these points because the Writ Petition must fail on the other grounds which I have already discussed above
It is also not necessary for me to express an opinion on the doctrine of prospective overruling of legislation
For the reasons already expressed I hold that all these petitions fail and should be dismissed but there will be no order as to Petitions dismissed
Costs


Summary:
The validity of the Punjab Security of Land Tenures Act 1953 Act 10 of 1953 and of the Mysore Land Reforms Act Act 10 of 1962 as amended by Act 14 of 1965 was challenged by the petitioners under article 32 of the Constitution
Since these Acts were included in the 9th Schedule to the Constitution by the Constitution Seventeenth Amendment Act 1964 the validity of the said Amendment Act was also challenged
In this connection it was urged that Sankari Prasad s case in which the validity of the constitution First Amendment Act 1951 had been upheld and Sajjan Singh s case in which the validity of the Constitution Seventeenth Amendment Act 1964 had been upheld by this Court had been wrongly decided
It was contended that Parliament had no power to amend fundamental rights in Part III of the Constitution
HELD Per Subba Rao CJ Shah Sikri Shelat and Vaidialingam JJ
Hidayatullah J Concurring  Fundamental Rights cannot be abridged or taken away by the amending procedure in Ail
368 of the Constitution
An amendment to the Constitution is law  within the meaning of article 132 and is therefore subject to Part III of the Constitution
Sri Sankari Prasad Singh Deo vs Union of India Rajasthan   reversed
Per Subba Rao CJ Shah Sikri Shelat and Vaidialingam JJ
i Fundamental rights are the primordial rights necessary for the development of human personality
They are the rights which enable a 763 man to chalk out his own life in the manner he likes best
Our Constitution in addition to the well known fundamental rights also included the rights of minorities and other backward communities in such rights
789 E The fundamental rights are given a transcendental position under our Constitution and are kept beyond the reach of Parliament
At the same time Parts III and IV of the Constitution constituted an integrated scheme forming a self contained code
The scheme is made so elastic that all the Directive Principles of State Policy can reasonably be enforced without taking away or abridging the fundamental rights
While recognisingthe immutability of the fundamental rights subject to social control the Constitution itself provides for the suspension or the modification of fundamental rights under specific circumstances as in articles 33 34 and 35
The non obstante clause with which the last article opens makes it clear that all the other provisions of the Constitution are subject to this provision
Article 32 makes the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by the said Parts a fundamental right
Even during grave emergencies article 358 only suspends article 19 and all other rights are untouched except those specifically suspended by the President under article 359
789 H 790 D The Constitution has given a place of permanence to the fundamental freedoms
In giving to themselves the Constitution the people have reserved the fundamental freedoms to themselves
article 13 merely in corporates that reservation
The Article is however not the source of the protection of fundamental rights but the expression of the reservation
The importance attached to the fundamental freedoms is so transcendatal that a bill enacted by a unanimous vote of all the members of both Houses is ineffective to derogate from its guaranteed exercise
It is not what Parliament regards at a given moment as conducive to the public benefit but what Part III declarer
protected which determines the ambit of the freedom
The incapacity of Parliament therefore in exercise of its amending power to modify restrict or imposefundamental freedoms in Part III arises from the scheme of theConstitution and the nature of the freedoms
792 D F A K Gopalan vs State of Madras 1950 SCR88 State of Madras vs Smt
Champakam Dorairajan 1951 SCR 525 Pandit M section M Sharma vs Shri Sri Krishna Sinha 1959 Supp 1 SCR 806 and Ujjam Bai vs State of Uttar Pradesh 1963 1 SCR 778 referred to
If it is the duty of Parliament to enforce directive principles it is equally its duty to enforce them without infringing the fundamental rights
The verdict of Parliament on the scope of the law of social control of fundamental rights is not final but justiciable
If it were not so the whole scheme of the Constitution would break
815 H 816 A B  iiArticle 368 in terms only prescribes various steps in the matter of amendment
The article assumes the power to amend found else where
The completion of the procedural steps cannot be said to culminate in the power to amend for if that was so the Constitution makers could have stated that in the Constitution
Nor can the power be implied either from article 368 or from the nature of the articles sought to be amended the doctrine of necessary implication cannot be invoked if there is an express provision
There is no necessity to imply any such power as Parliament has the plenary power to make any law including the law to amend the Constitution subject to the limitations laid down therein 793 E G iiiThe power of Parliament to amend the Constitution is derived from articles 245 246 and 248 read with item 97 in List I
The residuary 764 power of Parliament can certainly take in the power to amend the Constitution
794 A D Though a law made under article 245 is subject to the provisions of the Constitution it would be wrong to say that every law of amendment made under it would necessarily be inconsistent with the articles sought to be amended
It cannot reasonably be said that a law amending an article is inconsistent with it
The limitation in article 245 is in respect of the power to make a law and not of the content of the law made within the scope of its power
794 E F An order by the President under article 392 cannot attract Art 368 as the amendment contemplated by the latter provisions can be initiated only by the introduction of a bill in Parliament
It cannot therefore be said that if the power of amendment is held to be a legislative power the President acting under article 392 can amend the Constitution in terms of article 368
794 G H iv The Constituent Assembly it so minded could certainly have conferred an express legislative power on Parliament to amend the Constitution by ordinary legislative process
There is therefore no inherent inconsistency between legislative process and the amending one
Whether in the field of a constitutional law or statutory law amendment can be brought about only by law 
794 C D Article 132 for the purpose of that Article gives an inclusive definition of law 
It does not Prima facie exclude constitutional law
The process under article 368 itself closely resemble the legislative process
Article 368 is not a complete code in respect of the procedure of amendment
The details of procedure in respect of other bills have to be followed so far as possible in respect of a Bill under article 368 also The rules made by the House of the People providing procedure for amendments lay down a procedure similar to that of other bills with the addition of certain special provisions
If amendment is intended to be Something other than law the constitutional insistence on the said legislative process is unnecessary
The imposition of further conditions is only a safeguard against the hasty action or a protection to the states but does not change the legislative character of the amendment 795 G 796 C Article 3 of the Constitution permits changes in States and their boundaries by a legislative process under articles 4 and 169 amendments in the Solution are made by law  but by a fiction are deemed not to be amendments for the purpose of article 368
This shows that amendment is law and that but for the fiction it would be an amendment within the meaning of Art 368
796 C F Therefore amendments either under article 368 or under other Articles are only made by Parliament following the legislative process and are law  for the purpose of article 132
798 C Mccawley vs The king 1920AC 691 and The Bribery Commissioner vs Pedrick Ransinghe   referred to
v One need not cavil at the description of amending power as a sovereign power for it is sovereign only viithin the scope of the power conferred by a particular Constitution which may expressly limit the power of amendment both substantive and procedural
If cannot therefore be said that amending power can have no limitations being a sovere4p power
804 The argument that the amending process involves political questions and is therefore outsidethe scope of judicial re view cannot also be aeCePted It may be
Parliament seeks to amend the Constitution for political reasons but the court in denying that power will not be deciding 765 a political question it will only be holding that Parliament has no power to armed Particular articles of the Constitution for any purpose whatsoever be it political or otherwise
804 E G vi If power to abridge the fundamental rights is denied to Parliament revolution is not a necessary result
The existence of an all comprehensive power cannot prevent revolution if there is chaos in the country brought about by misrule or abuse of power
Such considerations are out of place in construing the provisions of the Constitution by a Court of law
816 B C vii While ordinarily  Court will be reluctant to reverse its previous decisions it is its duty in the constitutional field to correct itself as early as possible for otherwise the future progress of the country and happiness of the people will be at stake
As it was clear that the decision in Sankari Prasad s case was wrong it was pre eminently a typical case where this Court should overrule it
The longer it held the field the greater the scope for erosion of fundamental rights
As it contained the seeds of destruction of the cherished rights of the people the sooner it was overruled the better for the country
816 G H The Superintendent and Legal Remembrancer Stale of West Bengal vs
The Corporation at Calcutta  relied on
viii The Constitution Seventeenth Amendment Act 1964 inasmuch as it takes away or abridges fundamental rights was beyond the amending power of Parliament and void because of contravention of article 132
But having regard to the history of this and earlier amendment to the Constitution their effect on the social and economic affairs of the country and the chaotic situation that may be brought about by the sudden withdrawl at this stage of the amendments from the Constitution it was undesirable to give retroactivity of this decision
The present was therefore a fit case for the application of the doctrine of prospective
overruling evolved by the courts in the United States of America
805 E 807 E G 808 C D Great Northern Railway vs Sunburst Oil  Ref
Co   Chicot County Drainage vs Baxter State Bank   Griffin vs Illionis   Wolf vs Colorado   193 L Ed 872 Mapp vs Ohio   6 L Ed
2nd Edn 1081 and Link letter vs Walker   referred to
ix The doctrine of prospective overruling is a modern doctrine suitable for a fast moving society
It does not do away with the doctrine of state decision but confines it to past transactions
While in Strict theory it may be said that the doctrine involves the making of law hat the court really does is to declare the law but refuse to give retroactivity to it
It is really a pragmatic solution reconciling the two conflicting doctrines namely that a court finds the law and that it does make law It finds law but restricts its operation to the future
It enables the court to bring about a smooth transition by correcting its errors without disturbing the impact of those errors on past transactions
By the application of this doctrine the past may be preserved and the future protected
913 A C 814 E F Our Constitution does not expressly of by necessary implication speak against the doctrine of prospective overruling
Articles 32 141 and 142 are designedly made comprehensive to enable the Supreme Court to declare law and to give such directions or pass such orders as are necessary to do complete justice
The expression declared  in article 141 is wider than the words found or made 
The law declared by the Supreme Court is the law of the land
If so there is no acceptable reason why 7 66 the Court in declaring the law in supersession of the law declared by it earlier could not restrict the operation of the law as declared to the future and save the transactions whether statutory or otherwise that were affected on the basis of the earlier law
813 F H As this Court for the first time has been called upon to apply the doctrine evolved in a different country under different circumstances it would like to move warily in the beginning and would lay down the following propositions  1 The doctrine of prospective overruling can be invoked only in matters arising under our Constitution 2 it can be applied only by highest court of the country ie
the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the Courts as it has India 3 the scope of the retrospective operation of the law declared by the supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matter before it
814 C D Applying the doctrine of prospective overruling in the circumstances of the present case the Court declared that this decision would not affect the validity of the Constitution Seventeenth Amendment Act 1964 or other amendments to the Constitution taking away or abridge the fundamental rights
It further declared that in future Parliament will have no power to amend Part III of Abe Constitution so as to take away or abridge the fundamental rights
814 F G x As according to the above decision the Constitution Seventeenth Amendment Act held the field the validity of the two impugned Acts namely the Punjab Security of Land Tennures Act 10 of 1953 and the Mysore Land Reforms Act 10 of 1962 as amended by Act 14 of 1965 could not be questioned on the ground that they offended Art 13 14 or 31 of the Constitution
815 E xi On the findings the following questions did not fall to be considered  a Whether in the exercise of the power of amendment the fundamental structure of the Constitution may be changed or even destroyed or whether the power is restricted to making modification within the framework of the original instrument for its better effectuation  b Whether the amendment of fundamental rights is covered by the proviso to article 368  c To what extent can the provisions of die Constitution other than fundamental rights be amended  d To what extent can Part III be amended otherwise thin by taking away or abridging the fundamental rights  e Whether the impugned Act could be sustained under the provisions of the Constitution without the aid of articles 31A and 31B of the Schedule
Obiter If necessity to abridge the fundamental rights does arise the residuary power of Parliament may be relied upon to call for a constituent bly for making a new Constitution or radically changing it
The recent Act providing for a poll in Goa Daman and Diu was an instance of analogus exercise of such residuary power by the Parliament 816 E F Per Hidayatullah
J  i The scope of the amending power under the COnstitution is not to be determined by taking an apriori view of the 767 omnicompetence of article 368
When there is conflict between that Article and article 132 juridical hermeneutics requires the Court to interpret them by combining them and not by destroying one with the aid of the other
No part in a Constitution is superior to another part unless the Constitution itself says so and there is no accession of strength to any provision
by calling it a code
It is the context of the legal provisions that illustrates the meaning of the different parts so that among them and between them there should be correspondence and harmony
857 H 858C ii It is wrong to think of the Fundamental Rights as within Parliament s giving or taking
They are secured to the people by articles 12 13 32 136 141144 and 226
The High Courts and finally this Court have been made the Judges of whether any lagislative or executive action on the part of the State considered as comprehensively as is possibleoffends the Fundamental Rights and article 132declares that legislation which so offends is to be deemed to be void
The general words of article 368 cannot be taken to mean that by calling an Act an Amendment of the Constitution Act a majority of total strengths and a 23rds majority of the members presnt and voting in each House may remove not only any of the Fundamental Rights but the whole Chapter giving them
860 A D 867 FF iii In Britain there is no distinction between constitutional law and  ordinary law as to the procedure of their enactment
In our Constitution too in spite of the claim that article 368 is a Code articles 4 11 and 169 show that the amendment of the Constitution can be by the ordinary law making procedure
By this method one of the legislative limbs in a State can be removed or created
This destroys at one stroke the claim that article 368 is a code and
also that any special method of amendment of the Constitution is fundamentally necessary
861 E G The only difference between constitutional law and ordinary law can be said to arise from the fact that constitutional laws are generally amend able under a process which in varying degrees is more difficult or elaborate
This may give a distinct character to the law of the Constitutionbut it does not serve to distinguish it from the other laws of the land for the purpose of article 132
The Article itself does not exclude constitutional law which could have been easily done had the constitution makers
so intended
862 B 866 B An amendment to the Constitution is not made under power derived  from articles 245 or 248 of the Constitution read with entry 97 of List 1
The power of amendment is sui generis
900 E iv A narrow view need not be taken of the word amendment 
By an amendment new matter may be added old matter removed or altered
The power of amending the Constitution is however not intended to be used for experiments or as an escape from restrictions against undue State action enacted in the Constitution itself
Nor is the power of amendment available for the purpose of remoing express or implied restrictions against the State
862 F 863 B C Coleman vs Milter  307 US 443  Luther V Borden and Baker vs Carr 369 US 186   633 referred to
The State is no doubt supreme but in the supremacy of its powers it may create impediments on its own sovereignty
There is nothing to prevent the State from placing certain matters outside the amending procedure
When this happens the ordinary procedure of amendment ceases to apply
Amendment can then only be by a freshly constituted body 768 To attempt to do this otherwise is to attempt revolution which is to alter the will of the people in an illegal manner
Courts can interfere to nullify the revolutionary change because there is an infraction of exiting legality
Democracy may be lost if there is no liberty based on law and law based on equality
The protection of the fundamental rights is necessary so that we may not walk in fear of democracy itself
863 G 864 A C 865 A D v In article 132 the restriction is against the State
There is a difference between the State and its agencies such as Government Parliament the Legislature of the States and the local and other authorities
The State means more than any of these or all of them put together
By making the State subject to Fundamental Rights it is clearly stated in article 132 that any of the agencies acting alone or all the agencies acting together are not above the Fundamental Rights
Therefore when the House of the People or the Council of States introduces a Bill for the abridgement of the Fundamental Rights it ignores the injunction against it and even if the two Houses pass the Bill the injunction is next operative against the President since the expression Government of India in the General Clauses Act means the President of India
Thus the injunction in article 132 is against the whole force of the State acting either in its executive or legislative capacity
866 E H vi It is wrong to invoke the Directive Principles as if there is some antinomy between them and the Fundamental Rights
The Directive Principles lay down the routes of State action but such action must avoid the restrictions stated in the Fundamental Rights
It cannot be conceived that in following the Directive Principles the Fundamental Rights can be ignored
867 G 868 B vii Our Constitution has given a guaranteed right to the persons whose fundamental rights are affected to move the Court
The guarantee is worthless if the rights are capable of being taken away
This makes our Constitution unique and the American or other foreign precedents cannot be of much assistance
875 H Hollingsworth vs Virginia   Leser vs Garnett   Dillon vs Gloss  and Texas vs White   referred to
It is not that Fundamental Rights are not subject to any change or modification
The Constitution permits a curtailment of the exercise of most of the Fundamental Rights by stating the limits of that curtailment
It permits the Fundamental Rights to be controlled but prohibits their erasure
878 B viii Parliament today is not the constituent body as the constituent assembly was but a constituted body which must bear true allegiance to the Constitution as by law established
To change the Fundamental Part of the individuals liberty is a usurpation of the constituent functions because they have been placed outside the scope of the power of the constituted Parliament
870 B D Our Constitution like some others has kept certain matters outside the amendatory process so that the their representatives
In article 35 obstante clause
They exclude Article under the proviso
It is therefore a great error to think of article 368 as a code or as omnicompetent
901 C E 902 A B 769 Garnishee case   referred to
Article 368 cannot directly be amended by Parliament to confer power on itself over the fundamental rights It would be against article 132
Parliament cannot do indirectly what it cannot do directly
878 H ix If it is desired to abridge the Fundamental Rights the legal method is that the State must reproduce the power which it has chosen to put under restraint
Parliament must amend article 368 to convoke another constituent assembly pass a law under item 97 of the List 1 of Schedule 7 to call a constituent assembly and then that assembly may be able to abridge or take away the fundamental rights
Any other method must be regarded as revolutionary
878 D E 879 B x The various amendments that have been made by Parliament in articles 15 16 and 19 did not abridge fundamental rights and were therefore valid
879 C 883 B xi Our Constitution accepted the theory that Right of Property is a fundamental right though perhaps it was an error to do so if socialisation was desired
It treated property rights as inviolable except through law for public good and on payment of compensation
However the various amendments have significantly changed the position
As a result of them except for land within the prescribed ceiling all other land can be acquired or rights therein extinguished or modified without compensation and no challenge to the law can be made under articles 14 19 or 31 of the Constitution
887 B 888 B C 896 F G As there is apprehension that the erosion of the right to property may be practised against other fundamental rights it is necessary to call a halt
An attempt to abridge or take away Fundamental Rights by a constituted Parliament even through an amendment of the Constitution can I declared void
This Court has the power and the jurisdiction to do so
The opposite view expressed in Sajjan Singh s case was wrong 898 B C xii The First Fourth and Seventh amendments of the Constitution cannot now be challenged because of long acquiescence
It is good sense and sound policy for the courts to decline to take up an amendment for consideration after a considerable lapse of time when it was not challenged before or was sustained on an earlier occasion after challenge
893 O H 1902 D E Lesser vs Garnett  1922 referred to
xiii In the Seventeenth Amendment the extension of the definition of estate  to include ryotwari and agricultural lands is an inroad into the Fundamental Rights but it cannot be questioned in view of the existence of article 3 1A1 a whose validity cannot now be challenged
The new definition of estate introduced by the amendment is beyond the reach of the Courts not because it is not law but because it is law and fills within that word in article 311 2 2A and article 3 1 A1
899 C G The third section of the Act is however invalid
It adds 44 State Acts to the ninth schedule
The Schedule is being used to give advance protection to legislation which is known or apprehended to derogatefrom the Fundamental Rights
The power under article 368 was not meant to give protection to State statute  which offend the Constitution
The intent here is to silence the courts and not to amend the Constitution
900 A D 770 xiv The two impugned Acts namely the Punjab Security of Land Tenures Act 1953 and the Mysore Land Reforms Act 1962 as amended are valid under the Constitution not because they are included in Schedule 9 of the Constitution but because they are protected by article 3 1 A and the President s assent
902 G H Per Wanchoo Bachawat Ramaswami Bhargava and Mitter JJ
dissenting Article 368 carries the power to amend all parts of the Constitution including the fundamental rights in Part III of the Constitution
An amendment is not law  for the purpose of article 132 and cannot be tested under that Article
Sri Sankari Prasad Singh Deo vs Union of India  and Sajjan Singh vs State of Rajasthan   reaffirmed
Per Wanchoo Bhargava and Mitter JJ i The Constitution provides a separate part headed Amendment of the Constitution  and article 368 is the only article in that Part
There can therefore be no doubt that the power to amend the Constitution must be contained in article 368
If there was any doubt in the matter it is resolved by the words namely the Constitution shall stand amended in accordance with the terms of the bill
These words can only mean that the power is there to amend the Constitution after the procedure has been followed
826 A D ii While there is a whole part devoted to the amendment of the Constitution there is no specific mention of the amendment of the Constitution in article 248 or in any entry of List 1
It would in the circumstances be more appropriate to read the power in article 368 than in article 248 read with item 97 of List I 826 H 827 A The original intention of the Constitution makers was to give residuary power to the States
The mere fact that during the passage of the Constitution by the Constituent Assembly residuary power was finally vested in the Union would not therefore mean that it includes the power to amend the Constitution
Moreover residuary power cannot be used to change the fundamental law of the Constitution because all legislation is under article 245 subject to the provisions of this Constitution
827 B H Mere accident of similarity of procedure provided in article 368 to that provided for ordinary legislation cannot obliterate the basic difference between constitutional law and ordinary law
It is the quality and nature of what is done under article 368 and not its similarity to other procedure that should be stressed
What emerges after the procedure in article 368 has been followed is not ordinary law but fundamental law
829 D 830 C D iii The procedure under the proviso to article III cannot apply to a bill to amend the Constitution
If the President refused to give his assent to such a bill  the proposed amendment falls
In this respect at any rate the procedure under article 368 differs from the ordinary legislative process
831 B E iv The word law  has been avoided apparently with great care in Art368
What emerges after the procedure has been followed is not an Act but the Constitution stands amended
After that the courts can only see whether the procedure in article 368 was followed
If it has been followed there is no question of testing the amendment of the Constitution On the avail of fundamental rights or in any other way as in the case of ordinary legislation
832 A G 771 v To say that amendment  in law only means a change which results in improvement would make amendment impossible for what is improvement is a matter of opinion
834 B It may be open to doubt whether the power of amendment contained in article 368 goes to the extent of completely abrogating the present Constitution and substituting I it by an entirely new one
But short of that the power to amend includes the power to add any provision to the Constitution to alter any provision and substitute any other provision in its place or to delete any provision
834 F G The seventeenth amendment is merely in exercise of the power of amendment as indicated above and cannot be struck down on the ground that it goes beyond the power conferred by Parliament to amend the Constitution by article 368
834 H vi There is no express limitation on power of amendment in article 368 and no limitation can or should be implied therein
If the Constitution makers intended certain basic provisions in the Constitution and Part III in particular to be not amendable there is no reason why it was not so stated in article 3 68
The acceptance of the principle that them is an implied bar to amendment of basic features of the Constitution would lead to the position that any amendment to any article would be liable to challenge before the courts on the ground that it amounted to amendment of a basic feature
Constituent power like that in Art 368 can only be subject to express limitations so far as the substance of the amendments is concerned
835 A 836 D G vii For interpreting article 369 it is not permissible to read the speeches made in the Constituent Assembly
Historical facts namely what was accepted or what was not accepted or what was avoided in the Constituent Assembly can be looked into but in connection with article 368 no help can be got from the historical material available
838 C Administrator General of Bengal vs Prem Lal Mullick 1895 XXII IA 107 Baxter vs Commissioner of Taxation 1907 4 CIR 1087 A K Gopalan vs State of Madras 1950 SCR 88 and The Automobile Transport Rajasthan Ltd vs State of Rajasthan 1963 1 SCR 491 referred to
viii The preamble to the Constitution cannot prohibit or control in any way or impose any implied restrictions or limitations on the power to amend the Constitution contained in Aft 368
838 H In re the Berubari Union and Exchange of Enclaves  referred to
ix The word law  in article 131 does not include
any law in the nature of a constitutionalprovision for no such law remained in view of article 395 which provided that the Indian Independence Act 1947 and the Government of India Act 1935 together with all enactments amending or supplementing the latter Act but not including the Abolition of Privy Council Jurisdiction Act 1949 are hereby repealed
There is no reason why if the word law  in article 131 relating to past laws does not include any constitutional provision the word law  in cl
2 would take in an amount of the Constitution for it would be reasonable to read the word in the same sense in both the clauses
839 D F Article 13 2 when it talks of the State making any law refers to the law made under the provisions contained in Ch
1 of Part XI of the Constitution beginning with article 245
It can have no reference to the 772 Constituent power of amendment under article 368
For it is somewhat contradictory that in article 368 power should have been given to amend any provision of the Constitution without any limitations but indirectly that power should be limited by using words of doubtful import in article 1325841 C The power conferred by the words of article 368 being unfettered inconsistency between
that power and the provision in article 132 must be avoided
Therefore in keeping with the unfettered power in article 368 the word law  in article 132 must be read as meaning law passed under the ordinary legislative power and not a constitutional amendment
The words in article 132 are not specific and clear enough to be regarded as an express limitation on article 368
842 G H x Merely because there was some indirect effect on article 226 it was not necessary that the Seventeenth Amendment should have been ratified under the proviso to article 368
article 245 had not also been directly affected by the said Act and no ratification  as required on this ground either
843 G H 846 C xi The laws added to the Ninth Schedule by the Seventeenth Amendment Act had already been passed by the State Legislatures and it was their constitutional infirmity if any which was being cured by the device adopted in article 31B read with the Ninth Schedule the amendment being only of the relevant provisions of Part III which were compendiously put in one place in article 31B
Parliament could alone do it under article 368 and there was no necessity for any ratification under the proviso for amendment of Part HI is not entrenched in the proviso
847 E In curing the infirmity of the said laws Parliament was not encroaching on the exclusive legislative powers of the States because only Partiament could card the infirmity
For the same reason the fact that the laws in question were State laws did
not make ratification obligatory 847 G A limited meaning cannot be given to Art 368 because of the possibility of abuse of the power
The check is not in the courts but in the people who plect members of Parliament
848 F The power of amendment contained in a written federal constitution is a safety valve which to a large extent provides for stable growth and makes violent revolution more or less unnecessary
The fact that in the last sixteen years a large number of amendments  could be made and have been made is due to the accident that one party has been returned by electors in sufficient strength to be able to command Special majorities which are required in article 368 not only at the Centre but in all the States
But that is no ground for limiting the clear words of article 368
850 C D E xiiThough the period for which Sankari Prasad s case has stood unchallenged is not long the effects which have followed on the passing of State laws on the faith of that decision are so overwhelming that the decision should not be disturbed otherwise chaos will follow
This is the fittest possible case in which the principle of stare decisis should be applied 851 G Keshav Mills Company Ltd V Commissioner of Income tax   referred to
xiiThe doctrine of prospective overruling cannot be accepted in this country
The doctrine accepted here is that courts declare law and that a declaration made by a court is the law of the land and takes effect 773 from the date the law came into force
It would be undesirable to give up that doctrine and supersede it with the doctrine of prospective overruling
852D F Moreover a law contravening article 132 is void ab initio as held by this Court in Deep Chand s case and Mahendra Lal Jaini s case
In the face of these decisions it is impowible to apply the doctrine of prospective overruling to ordinary laws
If constitutional law is to be treated as ordinary law the same principle applies
If however it is not treated as law  under article 132 then there is no necessity of applying the principle of prospective overruling for in that case the amendment under article 368 does not have to be tested under article 132
852 G H 853 B Deep Chand vs St ate of Uttar Pradesh 1959 Supp 2 SCR 8 and Mahendra Lal Jaini vs State of Uttar Pradesh 1963 Supp 1 SCR 912 referred to
Per Bachawat J i Article 368 not only prescribes the procedure but also gives the power of amendment
It is because the power to amend is given by the article that by following its procedure the Constitution stands amended
The proviso is enacted on the assumption that the several articles mentioned in it are amendable but for the proviso they would have been amendable under the main part
There is no other provision in the Constitution under which these articles  can be amended
904 D Articles 4 169 Fifth Schedule Part D and Sixth Schedule Para 21 empower the Parliament to make amendments to certain parts of the Constitution by law and by express provision such law is deemed not to be amendment for the purpose of article 368
All other provisions of the Constitution can be amended by recourse to article 368 only
No other article confers the power of amending the Constitution
904E F ii The power to amend the Constitution cannot be said to reside in article 248 and List 1 item 97 because if amendment could be made by ordinary legislative process article 368 would be meaningless
Under the residual power the Parliament has no competence to make any law with respect to any matter enumerated in Lists II and III of the 7th Schedule but under article 368 even Lists 11 and III can be amended
Moreover a law passed by residual power is passed by virtue of article 245 and must be subject to the provisions of the Constitution so that it cannot derogate from the Constitution or amend it
Such a law would be void
905 C P iii Article 368 gives the power of amending this Constitution 
This Constitution means every part of the Constitution including Part ITT and article 132
Thus article 132 is also within the reach of the amending power
Instead of controlling article 368 it is controlled by that Article
906 C D H iv The contention that a constitutional amendment under article 368 is a law within the meaning of article 13 must be rejected
The distinction between the Constitution and law is so fundamental that the Constitution is not regarded as a law or a legislative act
The Constitution mean  the Constitution as amended
An amendment made in conformity with article 368 is a part of the Constitution and is likewise not law
Save as expressly provided in articles 4 169 Fifth Schedule Part D and Sixth Schedule para 21 no law can amend the Constitution and a law which purports to make such an amendment is void
It is for this reason that article 368 avoids all reference to law making by the Parliament
There 3 Sup
CI67 4 774 are
also material differences between the ordinary law making procedure and the procedure under the Article
907 B F 908 D H If a constitutional amendment creating a new fundamental rights and incorporating it in Part III were a law it would not be open to the Parliament by a subsequent amendment to abrogate the new fundamental right for such an amendment would be repugnant to Part 111
But the conclusion is absurd for the body which enacted the right can surely take it away by the same process
909 E Marbury vs Madison  2 LEd 60 and Riley vs Carter  referred to
v There is no conflict between articles 132 and 368
The two articles operate in different fields the former in the field of law the latter in that of constitutional amendment
910 B vi The non obstante clause in article 35 does not show that the article is not amendable
The non obstante clause is to be found also in articles 2581
364 369 370 and 371A
No one has suggested that these articles are not amendable
910 D vii The words fundamental  used in regard to rights in Part III and the word guaranteed in article 32 do not mean that the said rights cannot be amended
The constitution is never at rest it changes with the progress of time
The scale of values in Parts III and IV is not immortal and these Parts being parts of the Constitution are not immune from amendment under article 368
910 F G The impugned amendments to be Constitution were made to meet the situations created by decisions of this Court and to carry out urgent agrarian reforms
If it is held that the rights conferred by Part III cannot be abridged or taken away by constitutional amendments all these amendments would be invalid
The Constitution makers could not have intended that the  rights conferred by Part III could not be altered for  giving effect to the policy of Part
Nor was it intended that defects in Part III could not be cured or that possible errors in judicial interpretations of Part III could not be rectified by constitutional amendments
913 D E viii It cannot be said that the people in exercise of their sovereign power have placed the fundamental rights beyond the reach of the amending power
The people acting through the Constituent Assembly reserved for themselves certain rights and liberties and ordained that they shalt not be curtailed by ordinary legislation
But the people by the same Constitution also authorised the Parliament to make amendments to the Constitution
In exercise of the amending power the Parliament has ample authority to abridge or take away the fundamental rights under Part III 915 B C Merely because of possibility of abuse the power cannot be denied
916 H Webb vs Outrim and amalgamated Society of Engineers 
The Adelaide Steamship Company Limited  Ors   referred to
ix The main part of article 368 gives the power to amend or make changes in the Constitution
A change is not necessarily an improvement
Normally the change is made with the object of making an improvement but the experiment may fail to achieve the purpose
916 A Livermore vs E G Waite LRA 312 and National Prohibition case
  referred to
77 5 x The best exposition of the Constitution is that which it has received from contemporaneous judicial decisions and enactments
No one in Parliament doubted the proposition that fundamental rights could be amended when the First Amendment Act of 1951 was passed
The concept of amendability was upheld in section Krishnan  Ors
vs State of Madras  decided in 1951 in Sankari Prasad decided in 1952 and Sajjan Singh decided in 1964
918 C D xi There is no provision in the Constitution for calling a convention for its revision or far submission of any proposal for amendment to the referendum
918 G xii The impugned amendments affected articles 226 and 245 only indirectly and did not require ratification under the proviso to article 168
919 D H In validating the impugned laws Parliament was not encroaching on the State List
It was only validating the said laws and such constitutional validating was within its competence
920 C E xiii The abolition of Zamindari was a necessary reform
It is the First Constitution Amendment Act that made this reform possible
 No legal argument  can restore the outmoded feudal Zamindari system
What has been done cannot be undone
The battle for the put is lost
921 B C If the First Fourth Sixteenth  Seventeenth Amendments Acts are void they do not legally exist from their inception
They cannot be valid from 1951 to 1967 and invalid thereafter
To say that they were valid in the past and Will be invalid in the future is to amend the
Constitution
Such a naked power of amendment is not given to the Judges and therefore the doctrine of prospective overruling cannot be adopted
921 D E It is not possible to say that the First and Fourth Amendments though originally valid have now been validated by acquiescence
If they infringe article 132 they were void from their inception
If these ammendments are validated by acquiescence the Seventeenth Amendment is equally validated
B xv The contention that Dr Ambedkar did not regard the fundamental rights as amendable is not supported by the speeches in the  Constituent Assembly
922 C D Per Ramaswami Ji In a written Constitution the amendment of the Constitution is a substantive constituent act which is made in the exercise of the sovereign power through a predesigned procedure unconnected with ordinary legislation
The amending power in article 368 is hence sui generis and cannot be compared to the law making power of Parliament pursuant to article 246 read with Lists II and Ill It follows that the expression law  in article 132 cannot be construed as including an amendment of the Constitution which is achieved by Parliament in exercise of its sovereign constituent power but must mean law made by Parliament in its legislative capacity under article 246 read with I List I and III of the 7th Schedule
It is also clear on the same line of reasoning that law in article 132 cannot be construed so as to include law  made by Parliament under articles 4 169 392 5th Schedule Part 1 and 6th Schedule para 21
The amending power of Parliament exercised under these Articles stands on the same pedestal as the constitutional amend ment made under article 368 so far as article 132 is concerned
930 H 931 E ii The language of article 368 is perfectly general and empowers Parliament to amend the Constitution without any exception whatsoever
776 The use of the word fundamental  to describe the rights in Part III and the word guaranteed  in article 32 cannot lift the fundamental rights above the Constitution itself 931 F H iii It is unreasonable to suggest that what article 368 provides is only the mechanics of the procedure for amendment and not the power to amend
The significant fact that a separate part has been devoted in the Constitution for amendment of the constitution and there is only one Article in that Part shows that both the power and the procedure to amend are enacted in article 368
Again the words the Constitution shall stand amended in accordance with the terms of the Bill in article 368 clearly contemplate and provide for the power to amend after the requisite procedure has been followed
932 C E iv The power of constitutional amendment cannot fall within articles 246 and 248 read with item 97 of List I because it is illogical and a contradiction in terms to say that the amending power can be exercised subject to the provisions of the Constitution as the power under these articles must be
933 B v There is no room for an implication in the construction ofArt
If the Constitution makers wanted certain basic features to be unamendable they would have said so
933 G H State of West Bengal vs Union of India 1964 1 SCR 371 and In re The Berubari Union and Exchange of Enclaves  referred to
The concepts of liberty and equality are changing and dynamic and hence the notion of permanency or immutability cannot be attached to any of the fundamental rights
The adjustment between freedom and compulsion between the rights of individuals and the social interest and welfare must necessarily be a matter for changing needs and conditions
The proper approach is therefore to look upon the fundamental rights of the individual as conditioned by social responsibility by the necessities of the society by the balancing of interests and not as pre ordained and untouchable private rights
934 E 935 C vi It must not be forgotten that neither the rights in article 31 nor those in article 19 are absolute
The purposes for which fundamental rights can be regulated which are specified in cls
2 to 6 could not have been assumed by the Constitution makers to be static and incapable of expansion
It cannot be assumed that the Constitution makers intended to forge a political strait jacket for generations to come
Today at a time when absolutes are discredited it must not be too readily assumed that there are basic features of the Constitution which shackle the amending power and which take precedence over the general welfare of nation and the need for agrarian and social reform
936 B 937 C vii In construing article 368 it is essential to remember the nature and subject matter of that Article and to interpret it subjectae materies
The power of amendment is in point of quality an adjunct of sovereignty
It is in truth the exercise of the highest sovereign power in the State
if the amending power is an adjunct of sovereignty it does not admit of any limitations
937 D viii If the fundamental rights are unamendable and if article 368 does not include any such power it follows that the amendment of say article 31 by insertions of articles 31A and 31B can only be made by a violent revolution
It is doubtful if the proceedings of a new Constituent Assembly that may be called will have any legal validity for if the 777 Constitution provides its own method of amendment any other method will be unconstitutional and void
490 A B George section Hawke vs Harvey C Smith  and Feigenspan vs Bodine  referred to
ix It is not permissible in the first place to assume that in a matter of constitutional amendment there will be abuse of power and then utilise it as a test for finding out the scope of the amending power
In the last analysis political machinery and artificial limitations will not protect the people from themselves
941 F G State of West Bengal vs Union of India 1964 1 SCR 371 and American Federation of Labour vs American Sash  Door Co   referred to
x What the impugned Act purports to do is not to make any and legislation but to protect and validate the legislative measure passed by different State legislatures
This was within the legislative competence of Parliament
942 F Leser vs Garnett   National Prohibition Cases  and United States vs Sprague   referred to
Articles 226 and 245
were not directly affected by the impugned Act and therefore no ratification by the State Legislatures was necessary
942 D H 945 D A K Gopalan vs State of Madras   Ram Singh  Ors
vs State of Delhi  Anr
   Express Newspapers Pvt Ltd vs Union of India  Atiabari Tea Co Ltd vs State of Assam  and Naresh Shridhar Mirajkar vs State of Maharashtra   referred to
xi Even on the assumption that the impugned Act is unconstitutional the principle of stare decisis must be applied to the present case and the plea made by the petitioners for reconsideration of Sankari Prasad s case and Sajjan Singh s case must be rejected
948 D E On the landings it was not necessary to express an opinion on the doctrine of prospective overruling of legislation