Case: Waman Rao and Ors Vs. Union of India (UOI) and Ors

Ceiling Amendment Acts were put in the Ninth Schedule as Items 157, 159 and 160. On November 24, 1976 the House of People (Extension of Duration) Amendment Act was passed extending the term of the Parliament for a farther period of one year. The 42nd Amendment Act was passed on November 12, 1976. The Lok Sabha was dissolved On January 18, 1977 and both the emergencies were revoked on March 21, 1977. 63. The question as to whether a proclamation of emergency issued by the President under Article 352(1) of the Constitution raises a justiciable issue has been argued in this Court from time to time but, for some reason or the other, though the question has been discussed briefly and occasionally, there is no authoritative pronouncement upon it. We do not propose to enter into that question in this case also partly because, there is good reason to hope that in future, there will be no occasion to bring before the Court the kind of grievance which is now made in regard to the circumstances in which the proclamation of emergency was issued on June 25, 1975. Section 48 of the Constitution (Forty-second Amendment) Act, 1976, which came into force on January 3, 1977, has inserted Clauses (2) to (8) in Article 352 which afford adequate insurance against the misuse of power to issue a proclamation of emergency. By the newly added Clause (3), the President cannot issue a proclamation under Clause (1) unless the decision of the Union Cabinet of Ministers that such a proclamation may be issued has been communicated to him in writing. Under Clause (4), every proclamation issued under Article 352 has to be laid before each House of parliament, and it ceases to operate at the expiration of one month, unless before the expiration of that period, it has been approved by a resolution of both the Houses of Parliament. Clause (4) provides that the proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the proclamation. 64. The question as to whether the issuance of a proclamation of emergency is justiciable raises issues which are not easy to answer. In any event, that question can more appropriately and squarely be dealt with when it arises directly and not incidentally as here. In so far as the proclamation of December 3, 1971 is concerned, it is not disputed, and indeed it cannot be disputed, that there was manifest justification for that course of action. The danger to the security of the country was clear and present. therefore, the attempt of the petitioners has been to assail the continuance of the state of emergency under that proclamation. From the various dates and events mentioned and furnished to us, it may be possible for a layman to conclude that there was no reason to continue the state of emergency at least after the formality of exchanging the prisoners of war was completed. But we are doubtful whether, on the material furnished to us, it is safe to conclude by way of a judicial verdict that the continuance of the emergency after a certain date became unjustified and unlawful. That inference is somewhat non-judicious to draw. Newspapers and public men are entitled to prepare public opinion on the need to revoke a proclamation of emergency. They have diverse sources for gathering information which they may not disclose and they are neither bound by rules of evidence nor to observe the elementary rule of judicial business that facts on which a conclusion is to be based have to be established by a preponderance of probabilities. But Courts have severe constraints which deter them from undertaking a task which cannot judicially be performed. It was suggested that the proclamation of June 25, 1975 was actuated by mala fides. But there too, evidence placed before us of mala fides is neither clear nor cogent. 65. Thus, in the first place, we are not disposed to decide the question as to whether the issuance, of a proclamation of emergency raises a justiciable issue. Secondly, assuming it does, it is not possible in the present state of record to answer that issue one way or the other. And, lastly, whether there was justification for continuing the state of emergency after the cessation of hostilities with Pakistan is a matter on which we find ourselves ill-equipped to pronounce. 66. Coming to the two Acts of 1976 by which the life of the Lok Sabha was extended, Section 2 of the first of these Acts, 30 of 1976, which was passed on February 16, 1976, provided that the period of five years in relation to the then House of the People shall be extended for a period of one year while the Proclamation of Emergency issued on the 3rd day of December, 1971 and on the 25th day of June, 1975, are both in operation. The second Act of Extension continues to contain the same provision. It is contended by the petitioners that the proclamation of December 3, 1971 should have been revoked long before February 16, 1976 and that the proclamation of June 25, 1975 wholly uncalled for and was mala fide. Since the precondition on which the life of the Parliament was extended is not satisfied, the Act, it is contended, is ineffective to extend the life of the Parliament. We find it difficult to accept this contention. Both the proclamations of emergency were in fact in operation on February 16, 1976 when the first Act was passed as also on November 24, 1976 when the second Act, 109 of 1976, was passed. It is not possible for us to accept the submission of the petitioners that for the various reasons assigned by them, the first proclamation must be deemed not be in existence and that the second proclamation must be held to have been issued mala fide and therefore non-est.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Thus, the main question arising before us has to be decided by applying the ratio of Kesavananda Bharati (supra), in its pristine formAs stated earlier, Article 31A was inserted in the Constitution by Section 4 of the Constitution (First Amendment) Act, 1951 with retrospective effect from the commencement of the Constitution12. By Section 7 of the Constitution (Forty-fourth Amendment) Act, 1978 the reference to Article 31 was deleted from the concluding portion of Article 31A(1) with effect from June 20, 1979, as a consequence of the deletion, by Section 2 of the 44th Amendment, of Clause (f) of Article 19(1) which gave to the citizens the right to acquire, hold and dispose of property. The deletion of the right to property from the array of fundamental rights will not deprive the petitioners of the arguments which were available to them prior to the coming into force of the 44th Amendment, since the impugned Acts were passed before June 20, 1979 on which date Article 19(1)(f) was deleted. It is tautologous to say so but, if we may so put it, the obliteration of the rights conferred by these Articles, which Article 31A(1)(a) brings about, is total and complete because, as the clear and unequivocal language of that Article shows, the application of these three articles stands totally withdrawn in so far as laws falling within the ambit of Clause (a) are concerned. It is no argument to say that the withdrawal of the application of certain articles in Part III in respect of laws of a defined category is not total abrogation of the articles because they will continue to apply to other situations and other laws. In any given case, what is decisive is whether, in so far as the impugned law is concerned, the rights available to persons affected by that law under any of the articles in Part III is totally or substantially withdrawn and not whether the articles, the application of which stands withdrawn in regard to a defined category of laws, continue to be on the Statute Book so as to be available in respect of laws of other categories. We must therefore conclude that the withdrawal of the application of Articles 14, 19 and 31 in respect of laws which fall under Clause (a) is total and complete, that is to say, the application of those articles stands abrogated, not merely abridged, in respect of the impugned enactments which indubitably fall within the ambit of Clause (a). We would like to add that every case in which the protection of a fundamental right is withdrawn will not necessarily result in damaging or destroying the basic structure of the Constitution. The question as to whether the basic structure is damaged or destroyed in any given case would depend upon which particular Article of Part III is in issue and whether what is withdrawn is quint-essential to the basic structure of the Constitution16. The judgment of this Court in Kesavananda Bharati (supra) provoked in its wake a multi-storied controversy, which is quite understandable. The judgment of the majority to which seven out of the thirteen Judges were parties, struck a bridle path by holding that in the exercise of the power conferred by Article 368, the Parliament cannot amend the Constitution so as to damage or destroy the basic structure of the Constitution26. Conscious as we are that though extraneous aids to constitutional interpretation are permissible the views of the mover of a Bill are not conclusive on the question of its objects and purposes, we will consider for ourselves the question, independently, whether the 1st and the 4th Amendments damage or destroy the basic structure of the Constitution in any manner. But before doing that, we desire only to state that these amendments, especially the 1st were made so closely on the heels of the Constitution that they ought indeed to be considered as a part and parcel of the Constitution itself. These Amendments are not born of second thoughts and they do not reflect a fresh look at the Constitution in order to deprive the people of the gains of the Constitution. They are, in the truest sense of the phrase, a contemporary practical exposition of the Constitution31. The First Amendment is aimed at removing social and economic disparities in the agricultural sector. It may happen that while existing inequalities are being removed, new inequalities may arise marginally and incidentally. Such marginal and incidental inequalities cannot damage or destroy the basic structure of the Constitution. It is impossible for any Government, howsoever expertly advised, socially oriented and prudently managed, to remove every economic disparity without causing some hardship or injustice to a class of persons who also are entitled to equal treatment under the law. Thus, the adoption of family unit as the unit of application for the revised ceilings may cause incidental hardship to minor children and to unmarried daughters. That cannot, in our opinion, furnish an argument for assailing the impugned laws on the ground that they violate the guarantee of equality. It seems to us ironical indeed that the laws providing for agricultural ceilings should be stigmatised as destroying the guarantee of equality when their true object and intendment is to remove inequalities in the matter of agricultural holdings32. The Note of the Panel set up by the Planning Commission in May 1959 on the adoption of family unit as the unit of application for the revised ceilings and the counter affidavit of Shri J.G. Karandikar, Deputy Secretary to the Government of Maharashtra show the relevance and efficacy of the family being treated as the real operative unit in the movement for agrarian reform. Considering the Indian social milieu, the Panel came to the conclusion that agricultural ceiling can be most equitably applied if the base of application is taken as the family unit consisting of husband, wife and three minor children. In view of this expert data, we are unable to appreciate how any law passed truly for implementing the objective of Article 31A(1)(a) can be open to challenge on the ground that it infringes Articles 14, 19 or 3133. For these reasons, we are of the view that the Amendment introduced by Section 4 of the Constitution (First Amendment) Act, 1951 does not damage or destroy the basic structure of the Constitution. That Amendment must, therefore, be upheld on its own merits34. This makes it unnecessary to consider whether Article 31A can be upheld by applying the rule of stare decisis. We have, however, heard long and studied arguments on that question also, in deference to which we must consider the alternate submission as to whether the doctrine of stare decisis can save Article 31A, if it is otherwise violative of the basic structure of the Constitution35. Thus, the constitutional validity of Article 31A has been recognised in these four decisions, sometimes directly, sometimes indirectly and sometimes incidentally. We may mention in passing, though it has no relevance on the applicability of the rule of stare decisis, that in none of the three earlier decisions was the validity of Article 31A tested on the ground that it damaged or destroyed the basic structure of the Constitution. That theory was elaborated for the first time in Kesavananda Bharati (supra) and it was in the majority judgment delivered in that case that the doctrine found its first acceptance36. Though Article 31A has thus continued to be recognised as valid ever since it was introduced into the Constitution, we find it somewhat difficult to apply the doctrine of stare decisis for upholding that Article42. These decisions and texts are of high authority and cannot be overlooked. In fact, these decisions are themselves precedents on the binding nature of precedents43. It is also true to say that for the application of the rule of stare decisis, it is not necessary that the earlier decision or decisions of long standing should have considered and either accepted or rejected the particular argument which is advanced in the case on hand. Were it so, the previous decisions could more easily be treated as binding by applying the law of precedent and it will be unnecessary to take resort to the principle of stare decisis. It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis. therefore, the reason why Article 31A was upheld in the earlier decisions, if indeed it was, are not germane for the purpose of deciding whether this is a fit and proper case in which to apply that rule44. But, there are four principal reasons why we are not disposed to invoke the rule of stare decisis for deciding upon the constitutionality of Article 31A. In the first place, Article 31A breathes its own vitality, drawing its sustenance from the basic tenets of our Constitution. Its unstated premise is an integral part of the very making of the Constitution and it holds, as it were, a mirror to the ideals which inspired the framing of the Constitution45. The second reason why we do not want to resort to the principle of stare decisis while determining the validity of Article 31A is that neither in Shankari Prasad (Supra) nor in Sajjan Singh (Supra), nor in Golak Nath (Supra) and evidently not in Kesavananda Bharati (Supra) was the question as regards the validity as such of Article 31A raised or decided. As stated earlier, Shankari Prasad (Supra) involved the larger question as to whether constitutional amendments fall within the purview of Article 13(2) of the Constitution. It was held that they did not. In Sajjan Singh (Supra), the demand for reconsideration of the decision in Shankari Prasad (Supra) was rejected, that is to say, the Court was not inclined to consider once again whether constitutional amendments are also comprehended within the terms of Article 13(2). Golak Nath (Supra) raised the question as to where the amending power was located and not whether this or that particular amendment was valid. In none of these decisions was the validity of Article 31A put in issue. Nor indeed was that question considered and decided in any of those cases. A deliberate judicial decision made after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, and the precedent by long recognition may mature into stare decisis. But these cases cannot be considered as having decided, reasons apart, that the 1st Amendment which introduced Article 31A into the Constitution is valid46. Thirdly, the history of the Worlds constitutional law shows that the principle of stare decisis is treated as having a limited application only. Justice William Douglas said in New York v. United States 326 U.S.572 590 [1946] that it is a wise policy to restrict the principle of stare decisis to those areas of the law where correction can be had by legislation. Otherwise, the Constitution loses the flexibility which is necessary if it is to serve the needs of successive generations. It is for that reason again that Justice Frankfurter said in U.S. v. International Boxing Club 348 U.S.[1955] that the doctrine of stare decisis is not an imprisonment of reason. Older the standing of a decision, greater the provocation to apply the rule of stare decisis. A possible mischief arising out of this position was pointed out by Justice Benjamin Cardozo in MacPherson v. Buick Motor Co. N.Y. 382 [1916] by saying that precedents drawn from the days of travel by stage-coach do not fit the conditions of travel today. And alive to that possibility, Justice Brandeis said in State of Washington v. W.C. Dawson & Co.[1924] 264 U.S. 219 that stare decisis is merely a wise rule of action and is not a universal, inexorable command. The instances in which the court has disregarded its admonition are many. In fact, the full form of the principle, stare decisis et non quieta movere which means to stand by decisions and not to disturb what is settled, was put by Coke in its classic English version as : Those things which have been so often adjudged ought to rest in peace. Such being the justification of the rule, it was said in James Monore v. Frank Pape 5 L. Ed. 2nd U.S. 492that the relevant demands of stare decisis do not preclude consideration of an interpretation which started as an unexamined assumption. We have already pointed out how the constitutional validity of Article 31A has to be deemed to have been upheld in Shankari Prasad (supra) by a process of inferential reasoning, the real question therein being whether the expression law in Article 13(2) includes law made in the exercise of constituent power47. The fourth reason is the one cited by Shri Tarkunde that on principle, rules like stare decisis should not be invoked for upholding constitutional devices like Articles 31A, 31B and 31C which are designed to protect not only past laws but future laws also. Supposing Article 31A were invalid on the ground that it violates the Constitutions basic structure, the fact that its validly has been recognised for a long time cannot justify its protection being extended to future laws or to laws which have been recently passed by the legislature. The principle of stare decisis can apply, if at all, to laws protected by these articles, if those laws have enjoyed the protection of these articles for a long time, but the principle cannot apply to the articles themselves. The principle of stare decisis permits the saving of laws the validity of which has been accepted or recognised over the years. It does not require or sanction that, in future too, laws may be passed even though they are invalid or unconstitutional. Future perpetration of illegality is no part of the doctrine of stare decisis48. Our disinclination to invoke the rule of stare decisis for saving Article 31A does not really matter because e have upheld the constitutional validity of that Article independently on its own merits51. While dealing with the validity of Article 31A we have expressed the view that it would not be proper to invoke the doctrine of stare decisis for upholding the validity of that article. Though the same considerations must govern the question of the validity of Article 31B, we would like to point out that just as there are significant similarities between Articles 31A and 31B, there is a significant dissimilarity too. Article 31A enables the passing of laws of the description mentioned in Clauses (a) to (e), in violation of the guarantees afforded by Article 14 and 19. The Parliament is not required, in the exercise of its constituent power or otherwise, to undertake an examination of the laws which are to receive the protection of Article 31A. In other words, when a competent legislature passes a law within the purview of Clauses (a) to (e), it automatically receives the protection of Article 31A, with the result that the law cannot be challenged on the ground of its violation of Articles 14 and 19. In so far as Article 31B is concerned, it does not define the category of laws which are to receive its protection, and secondly, going a little further than Article 31A, it affords protection to Schedule-laws against all the provisions of Part III of the Constitution. No act can be placed in the Ninth Schedule except by the Parliament and since the Ninth Schedule is a part of the Constitution, no additions or alterations can be made therein without complying with the restrictive provisions governing amendments to the Constitution. Thus, Article 31B read with the Ninth Schedule provides what is generally described as, a protective umbrella to all Acts which are included in the schedule, no matter of what character, kind or category they may be. Putting it briefly, whereas Article 31A protects laws of a defined category, Article 31B empowers the Parliament to include in the Ninth Schedule such laws as it considers fit and proper to include therein. The 39th Amendment which was passed on August 10, 1975 undertook an incredibly massive programme to include items 87 to 124 while the 40th Amendment, 1976 added items 125 to 188 to the Ninth Schedule in one stroke52. The necessity for pointing out this distinction between Articles 31A and 31B is the difficulty which may apparently arise in the application of the principle of stare decisis in regard to Article 31B read with the Ninth schedule, since that doctrine has been held by us not to apply to Article 31A. The fourth reason given by us for not applying the rule of stare decisis to Article 31A is that any particular law passed under Clauses (a) to (e) can be accepted as good if it has been treated as valid for a long number of years but the device in the form of the Article cannot be upheld by the application of that rule. We propose to apply to Article 31B read with the Ninth Schedule the selfsame test53. We propose to draw a line, treating the decision in Kesavananda Bharati (supra) as the landmark. Several Acts were put in the Ninth schedule prior to that decision on the supposition that the power of the Parliament to amend the Constitution was wide and untrammelled. The theory that the parliament cannot exercise its amending power so as to damage or destroy the basic structure of the Constitution, was propounded and accepted for the first time in Kesavananda Bharati (supra). This is one reason for upholding the laws incorporated into the Ninth schedule before April 24, 1973, on which date the judgment in Kesavananda Bharati (Supra) was rendered. A large number of properties must have changed hands and several new titles must have come into existence on the faith and belief that the laws included in the Ninth schedule were not open to challenge on the ground that they were violative of Articles 14, 19 and 31. We will not be justified in upsetting settled claims and titles and in introducing chaos and confusion into the lawful affairs of a fairly orderly society54. The second reason for drawing a line at a convenient and relevant point of time is that the first 66 items in the Ninth Schedule, which were inserted prior to the decision in Kesavananda Bharati, (Supra) mostly pertain to laws of agrarian reforms. There are a few exceptions amongst those 66 items, like items 17, 18, 19 which relate to Insurance, Railways and Industries. But almost all other items would fall within the purview of Article 31A(1)(a). In fact, items 65 and 66, which were inserted by the 29th Amendment, are the Kerala Land Reforms (Amendment) Acts of 1969 and 1971 respectively, which were specifically challenged in Kesavananda Bharati (supra). That challenge was repelled55. Thus, in so far as the validity of Article 31B read with the Ninth schedule is concerned, we hold that all Acts and Regulations included in the Ninth Schedule prior to April 24, 1973 will receive the full protection of Article 31B. Those laws and regulations will not be open to challenge on the ground that they are inconsistent with or take away or abridge any of the rights conferred by any of the provisions of Part III of the Constitution. Acts and Regulations, which are or will be included in the Ninth Schedule on or after April 24, 1973 will not receive the protection of Article 31B for the plain reason that in the face of the judgment in Kesavananda Bharati (supra) there was no justification for making additions to the Ninth schedule with a view to conferring a blanket protection on the laws included therein. The various constitutional amendments, by which additions were made to the Ninth Schedule on or after April 24, 1973, will be valid only if they do not damage or destroy the basic structure of the Constitution56. That leaves for consideration the challenge to the constitutional validity of the unamended Article 31C. As we have stated at the beginning of this judgment, Article 31C was introduced by the Constitution (Twenty-fifth Amendment) Act, 1971. Initially, it sought to give protection to those laws only which gave effect to the policy of the State towards securing the principles specified in Clauses (b) and (c) of Article 39 of the Constitution. No such law could be deemed to be void on the ground that it is inconsistent with or takes away or abridges the rights conferred by Articles 14, 19 and 31. The concluding portion of the unamended article which gave conclusiveness to certain declarations was struck down in Kesavananda Bharati, (supra)But, with respect to the learned counsel, the effort is fruitless because the question as regards the validity of Article 31C is no longer res integra. The opening clause of Article 31C was upheld by the majority in Kesavananda Bharati (Supra) and we do not quite see how the petitioners can be permitted to go behind that decisionIt is well-known that six learned Judges who were in minority in Kesavananda Bharti (Supra) upheld the first part of Article 31C, which was a logical and inevitable consequence of their view that there were no inherent or implied limitations on the Parliaments power to amend the Constitution. Khanna,, J. did not subscribe to that view but, all the same he upheld the first part of Article 31C for different reasons. The question of validity of the Twenty-fifth Amendment by which the unamended Article 31C was introduced into the Constitution was specifically raised before the Court and the arguments in that behalf were specifically considered by all the six minority Judges and by Khanna, J. It seems to us difficult, in these circumstances, to hold that no common ratio can be culled out from the decision of the majority of the seven Judges who upheld the validity of Article 31C. Putting it simply, and there is no reason why simple matters should be made complicated, the ratio of the majority judgments in Kesavananda Bharati (Supra) is that the first part of Article 31C is valid58. Apart from this, if we are right in upholding the validity of Article 31A on its own merits, it must follow logically that the unamended Article 31C is also valid. The unamended portion of Article 31C is not like an unchartered ship. It gives protection to a defined and limited category of laws which are passed for giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39. These clauses of Article 39 contain directive principles which are vital to the well-being of the country and the welfare of its people. Whatever we have said in respect of the defined category of laws envisaged by Article 31A must hold good, perhaps with greater force, in respect of laws passed for the purpose of giving effect to Clauses (b) and (c) of Article 39. It is impossible to conceive that any law passed for such a purpose can at all violate Article 14 or Article 19. Article 31 is now out of harms way. In fact, far from damaging the basic structure of the Constitution, laws passed truly and bona fide for giving effect to directive principles contained in Clauses (b) and (c) of Article 39 will fortify that structure. We do hope that the Parliament will utilise to the maximum its potential to pass laws, genuinely and truly related to the principles contained in Clauses (b) and (c) of Article 39. The challenge made to the validity of the first part of the unamended Article 31C therefore fails59. A small, though practically important, clarification seems called for at the end of this discussion of the validity of Article 31A, 31B and 31C. We have held that laws included in the Ninth Schedule on or after April 24, 1973, will not receive the protection of Article 31B ipso facto. Those laws shall have to be examined individually for determining whether the constitutional amendments by which they were put in the Ninth Schedule, damage or destroy the basic structure of the Constitution in any manner. The clarification which we desire to make is that such an exercise will become otiose if the laws included in the Ninth Schedule on or after April 24, 1973 fall within the scope and purview of Article 31A or the unamended Article 31C. If those laws are saved by these Articles, it would be unnecessary to determine whether they also receive the protection of Article 31B read with the Ninth Schedule. The fact that Article 31B confers protection on the schedule laws against any provisions of Part III and the other two Articles confer protection as against Articles 14 and 19 only, will make no real difference to this position since, after the deletion of Article 31, the two provisions of Part III, which would generally come into play on the question of validity of the relevant laws, are Articles 14 and 19Apart from these challenges to the various constitutional amendments, the petitioners have also challenged the validity of the Constitution (fortieth Amendment) Act, 1976, by which the Amending Acts 21 of 1975, 41 of 1975 and 2 of 1976 were placed in the Ninthmay be recalled that the Principal Act was amended by these Amending Acts. The normal term of five years of the Lok Sabha was due to expire on March 18, 1976 but, its life was extended for one year by the House of the People (Extension of Duration) Act, 1976. Yet another Act was passed by the Parliament, The House of the People (Extension of Duration) Amendment Act, 1976, by which the term of the Lok Sabha was further extended by another year. The 40th Amendment was passed by the Lok Sabha on April 2, 1976 during its extended term. Since by the aforesaid two Acts, the life of the Lok Sabha was extended while both the proclamations of emergency were in operation, the petitioners challenge the proclamations of the state of Emergency, dated December 3, 1971 and June 25, 1975 as also the two Acts by which the term of the Lok Sabha was extended. The 42nd Amendment inserted Clauses 4 and 5 in Article 368 with effect from January 3, 1975. Which was also during the extended term of the Lok Sabha. That Amendment too is challenged for that reason. We have struck down that amendment unanimously by our judgment in Minerva Mills (supra) for the reason that it damages the basic structure of the Constitution. Thus, we are now left to consider the validity of :(1) The Promulgation of the state of Emergency by the proclamations dated December 3, 1971 and June 25, 1975;(2) The House of the People (Extension of Duration) Act, 1976;(3) The House of People (Extension of Duration) Amendment Act, 1976, and(4) The Constitution (Fortieth Amendment) Act, 1976The validity of all these is inter-connected and the focus of the challenge is the aforesaid proclamations of Emergency62. A list of dates has been furnished to us by counsel in support of their argument that the emergency declared on December 3, 1971, could not legitimately be continued in operation for a period of more than six years. On December 3, 1971 the President issued the proclamation of emergency in face of the aggression by Pakistan, stating that a grave emergency existed whereby the security of the country was threatened by external aggression. Both the Houses of Parliament approved the proclamation on the 4th, on which date the Defence of India Act, 1971, came into force. The Defence of India Rules, 1971, framed under Section 22 of the Defence of India Act, came into force on the 5th. On December 16, 1971; the Pakistani forces made an unconditional surrender in Bangladesh and on the 17th the hostilities between India and Pakistan came to an end. In February 1972, General Elections were held to the State Assemblies. On August 28, 1972 the two countries entered into an agreement for the exchange of prisoners of war, and by April 30, 1974 the repatriation of the prisoners of war was completed. On August 16, 1974 the Presidential Election was held in India. On June 25, 1975 came the second proclamation of emergency; in the wake of which a notification was issued under Article 359 on June 27 suspending the enforcement of the fundamental rights under Articles 14, 21 and 22. On February 16, 1976 the House of People (Extension of Duration) Act was passed. The normal term of the Lok Sabha expired on March 18, 1976. On April 2, 1976, the Lok Sabha passed the 40th Amendment Act by which the Maharashtra Land Ceiling Amendment Acts were put in the Ninth Schedule as Items 157, 159 and 160. On November 24, 1976 the House of People (Extension of Duration) Amendment Act was passed extending the term of the Parliament for a farther period of one year. The 42nd Amendment Act was passed on November 12, 1976. The Lok Sabha was dissolved On January 18, 1977 and both the emergencies were revoked on March 21, 197763. The question as to whether a proclamation of emergency issued by the President under Article 352(1) of the Constitution raises a justiciable issue has been argued in this Court from time to time but, for some reason or the other, though the question has been discussed briefly and occasionally, there is no authoritative pronouncement upon it. We do not propose to enter into that question in this case also partly because, there is good reason to hope that in future, there will be no occasion to bring before the Court the kind of grievance which is now made in regard to the circumstances in which the proclamation of emergency was issued on June 25, 1975. Section 48 of the Constitution (Forty-second Amendment) Act, 1976, which came into force on January 3, 1977, has inserted Clauses (2) to (8) in Article 352 which afford adequate insurance against the misuse of power to issue a proclamation of emergency. By the newly added Clause (3), the President cannot issue a proclamation under Clause (1) unless the decision of the Union Cabinet of Ministers that such a proclamation may be issued has been communicated to him in writing. Under Clause (4), every proclamation issued under Article 352 has to be laid before each House of parliament, and it ceases to operate at the expiration of one month, unless before the expiration of that period, it has been approved by a resolution of both the Houses of Parliament. Clause (4) provides that the proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the proclamation64. The question as to whether the issuance of a proclamation of emergency is justiciable raises issues which are not easy to answer. In any event, that question can more appropriately and squarely be dealt with when it arises directly and not incidentally as here. In so far as the proclamation of December 3, 1971 is concerned, it is not disputed, and indeed it cannot be disputed, that there was manifest justification for that course of action. The danger to the security of the country was clear and present. therefore, the attempt of the petitioners has been to assail the continuance of the state of emergency under that proclamation. From the various dates and events mentioned and furnished to us, it may be possible for a layman to conclude that there was no reason to continue the state of emergency at least after the formality of exchanging the prisoners of war was completed. But we are doubtful whether, on the material furnished to us, it is safe to conclude by way of a judicial verdict that the continuance of the emergency after a certain date became unjustified and unlawful. That inference is somewhat non-judicious to draw. Newspapers and public men are entitled to prepare public opinion on the need to revoke a proclamation of emergency. They have diverse sources for gathering information which they may not disclose and they are neither bound by rules of evidence nor to observe the elementary rule of judicial business that facts on which a conclusion is to be based have to be established by a preponderance of probabilities. But Courts have severe constraints which deter them from undertaking a task which cannot judicially be performed. It was suggested that the proclamation of June 25, 1975 was actuated by mala fides. But there too, evidence placed before us of mala fides is neither clear nor cogent65. Thus, in the first place, we are not disposed to decide the question as to whether the issuance, of a proclamation of emergency raises a justiciable issue. Secondly, assuming it does, it is not possible in the present state of record to answer that issue one way or the other. And, lastly, whether there was justification for continuing the state of emergency after the cessation of hostilities with Pakistan is a matter on which we find ourselves ill-equipped to pronounce66. Coming to the two Acts of 1976 by which the life of the Lok Sabha was extended, Section 2 of the first of these Acts, 30 of 1976, which was passed on February 16, 1976, provided that the period of five years in relation to the then House of the People shall be extended for a period of one year while the Proclamation of Emergency issued on the 3rd day of December, 1971 and on the 25th day of June, 1975, are both in operation. The second Act of Extension continues to contain the same provisionWe find it difficult to accept this contention. Both the proclamations of emergency were in fact in operation on February 16, 1976 when the first Act was passed as also on November 24, 1976 when the second Act, 109 of 1976, was passed. It is not possible for us to accept the submission of the petitioners that for the various reasons assigned by them, the first proclamation must be deemed not be in existence and that the second proclamation must be held to have been issued mala fide and therefore non-est.67. These then are our reasons for the order which we passed on May 9, 1980 to the following effect :(1) The Constitution (First Amendment) Act, 1951 which introduced Article 31A into the Constitution with retrospective effect, and Section 3 of the Constitution (Fourth Amendment) Act, 1955 which substituted a new Clause (1), Sub-clause (a) to (e), for the original Clause (1) with retrospective effect, do not damage any of the basic or essential features of the Constitution or its basic structure and are valid and constitutional, being within the constituent power of the Parliament(2) Section 5 of the Constitution (First Amendment) Act 1951 introduced Article 31B into the Constitution which reads thus :31B: X X X X X68. In Keshvananda Bharati 1973. Suppl .SCR 1 decided on April 24, 1973 it was held by the majority that Parliament has no power to amend the Constitution so as to damage or destroy its basic or essential features or its basic structure. We hold that all amendments to the Constitution which were made before April 24, 1973 and by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are valid and constitutional. Amendments to the Constitution made on or after April 24, 1973 by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of the Parliament since they damage the basic or essential features of the Constitution or its basic structure.