Case: Sankari Prasad Singh Deo Vs. Union of India &amp; Others

2. What led to that enactment is a matter of common knowledge. The political party now in power, commanding as it does a majority of votes in the several State legislatures as well as in Parliament, carried out certain measures of agrarian reform in Bihar, Uttar Pradesh and Madhya Pradesh by enacting legislation which may compendiously be referred to as Zemindary Abolition Acts. Certain zemindars, 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 at Patna held that the Act passed in Bihar was unconstitutional while the High Courts at Allahabad and Nagpur upheld the validity of the corresponding legislation in Uttar Pradesh and Madhya Pradesh respectively. Appeals from those decisions are pending in this Court. Petitions filed in this Court by some other zemindars seeking the determination of the same question are also pending. At this stage, the Union Government, with a view to put an end to all this litigation and to remedy what they considered to be certain defeats brought to light in the working of the Constitution, brought forward a bill to amend the Constitution, which, after undergoing amendments in various particulars, was passed by the requisite majority as the Constitution (First Amendment) Act, 1951, (hereinafter referred to as the Amendment Act). Swiftly reacting to this move of the Government, the zemindars have brought the present petitions under Art. 32 of the Constitution impugning the Amendment Act itself as unconstitutional and void.

Reasoning: 9. Somewhat closely allied to the point discussed above is the objection based on the bill in the present case having been passed in amended form, and not as originally introduced. It is not correct to say that Art. 368 is a "complete code" in respect of the procedure provided by it. There are gaps in the procedure as to how and after what notice a bill is to be introduced, how it to be passed by each House and how the Presidents assent is to he obtained. Evidently, the rules made by each House under Art. 118, for regulating its procedure and the conduct of its business were intended, so far as may be, to be applicable. There was some discussion at the Bar as to whether the process of amending the Constitution was a legislative process. Petitioners counsel insisted that it was not and that, therefore, the "legislative procedure" prescribed in Art. 107, which specifically provides for a bill being passed with amendments, was not applicable to a bill for amending the Constitution under Art. 368. The argument was further supported by pointing out that if amendment of such a bill were permissible, it must be open to either House to propose and pass amendments, and in case the two Houses failed to agree, the whole machinery of Art. 368, would be thrown out of gear, for the joint sitting of both Houses passing the bill by a simple majority provided for in Art. 108 in the case of ordinary bills would be inapplicable in view of the special majority required in Art. 368. The argument proceeds on a misconception. Assuming that amendment of the Constitution is not legislation even where it is carried out by the ordinary legislature by passing a bill introduced for the purpose and that Arts. 107 to 111, cannot in terms apply when Parliament is dealing with a bill under Art. 368, there is no obvious reason why Parliament should not adopt, on such occasions, its own normal procedure, so far as that procedure can be followed consistently with statutory requirements.The argument that a power entrusted to a Parliament consisting of two Houses cannot be exercised under Art. 379 by the Provisional Parliament sitting as a single chamber overlooks the scheme of the constitutional provisions in regard to Parliament. These provisions envisage a Parliament of two Houses functioning under the Constitution framed as they have been on that basis. But the framers were well aware that such a Parliament could not be constituted till after the first elections were held under the Constitution. It thus became necessary to make provision for the carrying on, in the meantime, of the work entrusted to Parliament under the Constitution. Accordingly, it was provided in Art. 379 that the Constituent Assembly should function as the provisional Parliament during the transitional period and exercise all the powers and perform all the duties conferred by the Constitution on Parliament. Art. 379 should be viewed and interpreted in the wider perspective of this scheme and not in its isolated relation to Art. 368 alone. The petitioners argument that the reference in Art. 368 to "two Houses" makes that provision inapplicable to the provisional Parliament would equally apply to all the provisions of the Constitution in regard to Parliamentary action and, if accepted, would rob Art. 373 of its very purpose and meaning. It was precisely to obviate such an argument and to remove the difficulty on which it is founded and other difficulties of a like nature in working the Constitution during the transitional period that the framers of the Constitution made the further provision in Art. 392 conferring a general power on the President to adapt the provisions of the Constitution by suitably modifying their terms. This brings as to the construction of Art. 392.11. It will be seen that the purpose for which an adaptation may be made under that article is widely expressed. It may be made for the purpose of removing "any difficulties". The particularisation of one class of difficulties which follows is illustrative and cannot have the effect of circumscribing the scope of the preceding general words. It has been urged, however, that the condition precedent to the exercise of powers under Art. 392 is the existence of difficulties to be removed, that is to say, difficulties actually experienced in the working of the Constitution whose removal would be necessary for carrying on the Government, such as for instance, the difficulties connected with applying Arts. 112, 113, etc., in the transitional period. But, the argument proceeds, constitutional amendments cannot be said to be necessary during that period. Besides, amendment of the Constitution is a very serious thing, and hence, by providing that both Houses must deliberate and agree to the amendment proposed and pass the bill by a special majority, the Constitution has purposely placed difficulties in the way of amending its provisions. It would be fantastic to suppose that, after deliberately creating those difficulties, it has empowered the President to remove them by a stroke of his pen. We see no force in this line of argument. It is true enough to say that difficulties must exist before they can be removed by adaptation, but they can exist before an occasion for their removal actually arises. As already stated, difficulties are bound to arise in applying provisions, which, by their terms are applicable to a Parliament of two Hocses, to the provisional Parliament sitting as a single chamber. Those difficulties, arising as they do out of the inappropriateness of the language of those provisions as applied to the provisional Parliament, have to be removed by modifying that language to fit in with the situation created by Art. 379.There is nothing in that article to suggest that the President should wait, before adapting a particular article, till an occasion actually arose for the provisional Parliament to exercise the power conferred by that article. Nor is there any question here of the President removing by his adaptation any of the difficulties which the Constitution has deliberately placed in the way of its amendment. The adaptation leaves the requirement of a special majority untouched. The passing of an amendment bill by both Houses is no more a special requirement of such a bill than it is of any ordinary law made by Parliament. We are, therefore, of opinion that the adaptation of Art. 368 by the President was well within the powers conferred on him by Art. 392 and is valid and constitutional.Although "law" must ordinarily include constitutional law, there is a clear demarcation between ordinary law, which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power. Dicey defines constitutional law as including "all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the State." It is thus mainly concerned with the creation of the three great organs of the State, the executive, the legislature and the judiciary, the distribution of governmental power among them and the definition of their mutual relation. No doubt our constitution makers, following the American model, have incorporated certain fundamental rights in Part III and made them immune from interference by laws made by the State. We find it, however, difficult, in the absence of a clear indication to the contrary, to suppose that they also intended to make those rights immune from constitutional amendment. We are inclined to think that they must have had in mind what is of more frequent occurrence, that is, invasion of the rights of the subjects by the legislative and the executive organs of the State by means of laws and rules made in exercise of their legislative power and not the abridgement or nullification of such rights by alterations of the Constitution itself in exercise of sovereign constituent power. That power, though it has been entrusted to Parliament, has been so hedged about with restrictions that its exercise must be difficult and rare. On the other hand, the terms of Art. 368 are perfectly general and empower Parliament to amend the Constitution, without any exception whatever. Had it been intended to save the fundamental rights from the operation of that provision, it would have been perfectly easy to make that intention clear by adding a provide to that effect. In short, we have here two articles each of which is widely phrased, but conflicts in its operation with the other. Harmonious construction requires that one should be read as controlled and qualified by the other. Saving regard to the considerations adverted to above, we are of opinion that in the context of Art.13 "law" must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that Art. 13 (2) does not affect amendments made under Art. 368.14. It Only remains to deal with the objections particularly directed against the newly inserted Arts. 31A and 31B. One of these objections is based on the absence of ratification under Art. 368. It was said that, before these articles were inserted by the Amending Act, the High Courts had the power under Art. 226 of the Constitution to issue appropriate writs declaring the Zemindari Abolition Acts unconstitutional as contravening fundamental rights, and this Court could entertain appeals from the orders of the High Courts under Art. 132 or Art. 136. As a matter of fact, some High Courts had exercised such powers and this Court had entertained appeals. The new articles, however, deprive the High Courts as well as this Court of the power of declaring the said Acts unconstitutional, and thereby seek to make changes in ch. 4 of Part v and ch. 5 of Part VI. It was therefore submitted that the newly inserted articles required ratification under the proviso to Art. 368.The other objection that it was beyond the power of Parliament to enact the new articles is equally untenable. It was said that they related to land which was covered by Item 18 of List II of the Seventh Schedule and that the State legislatures alone had the power to legislate with respect to that matter. The answer is that, as has been stated, Arts. 31A and 31B really seek to save a certain class of laws and certain specified laws already passed from the combined operation of Art.13 read with other relevant articles of Part III. The new articles being thus essentially amendments of the Constitution, Parliament alone had the power of enacting them. That the 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. The question whether the latter part of Art. 31B is too widely expressed was not argued before us and we express no opinion upon it.