dedol-hf/india-case-legal-rag huggingface dataset:
include  power  to amend the Constitution and  there  is  no
reason  to restrict the import of these words  by  excluding
amendment  of the Constitution from their ambit.  The  words
"perform  all  the  duties" in that article do  not  in  any
manner  cut down the power of Parliament under  article  379
because   article 13 (2) does not impose any duty. There  is
no conflict between exercising all the powers under  article
379  and  the prohibition in article 13  (2).  No  technical
meaning should be given to the word "difficulty" in  article
392 (1). The adaptation of article 368 is really an  adapta-
tion for the removal of difficulties.  The adaptation is not
of a permanent character.  This shows that the adaptation is
not an amendment and even if it is an amendment, it is so by
way of adaptation.  Article 13 (2) prohibits "laws"   incon-
sistent  with fundamental rights. It cannot  affect  article
368  since the word "law" in article 13 (2) refers to  ordi-
nary  legislative  enactments and not  constitution  making.
The argument that the Bill to amend the Constitution  should
be passed as introduced, without amendments, is  fallacious.
It  cannot be said that the Bill referred to in article  368
has  to be dealt with under a procedure different from  that
laid down for ordinary Bills in articles 107 and 108.  Arti-
cles  31-A  and 31B are not legislative in  character.   The
said  articles do not affect the scope of articles  226  and
32, for the power of the Court under the said two articles
95
remains unaltered. What has been done is to alter the
content of fundamental rights.
P.L.  Banerjee, Advocate-General of Uttar Pradesh (U.  K.
Misra and Gopalji Mehrotra, with him) for the State of Uttar
Pradesh  adopted the arguments of the  un.  Attorney-General
and added that articles 31-A and 31-B st do not  necessarily
stand or fall together; even if 31-B goes, 31-A will remain.
    T.L.  Shevde, Advocate-General of Madhya Pradesh (T.  P.
Naik, with him)for the  State of Madhya Pradesh adopted  the
arguments  of the Attorney General.  The Provisional Parlia-
ment  is competent to do all that the future Parliament  can
do.   The  adaptation  under article 392 does  not  seek  to
amend article 368.
    P.R. Dots, S.M. Bose S. Chaudhuri, N.C. Chatterjee, S.K.
Dhar and S.P. Sinha replied.
  1951.  October 5. The Judgment of the Court was  delivered
by
    PATANJALI  SASTRI J.--These petitions, which  have  been
heard  together,  raise  the common   question  whether  the
Constitution (First Amendment) Act, 1951, which was recently
passed by the present provisional Parliament and purports to
insert, inter alia, articles 31A and 3lB in the Constitution
Of India is ultra vires and unconstitutional.
    What led to that enactment is a matter of common  knowl-
edge.   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
96
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  Gov-
ernment,  with a view to put an end to all  this  litigation
and  to  remedy what they considered to be  certain  defects
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  Amend-
ment)  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  article
32 of the Constitution impugning the Amendment Act itself as
unconstitutional and void.
    The main arguments advanced in support of the  petitions
may be summarised as follows:
    First,  the power of amending the Constitution  provided
for under article 368 was conferred not on Parliament but on
the  two  Houses  of Parliament as a  designated  body  and,
therefore,  the provisional Parliament was not competent  to
exercise that power under article 379.
    Secondly,  assuming  that  the power  was  conferred  on
Parliament, it did not devolve on the provisional Parliament
by  virtue of article 379 as the words "All the powers  con-
ferred by the provisions of this Constitution on Parliament"
could  refer  only to such powers as are  capable  of  being
exercised  by  the provisional Parliament  consisting  of  a
single chamber. The power conferred by article 368 calls for
the  co-operative  action of two Houses  of  Parliament  and
could  be appropriately exercised only by the Parliament  to
be duly constituted under Ch. 2 of Part V.
    Thirdly,  the  Constitution  (Removal  of  Difficulties)
Order No. 2 made by the President on 26th January
97
1950,  in  so  far as it purports to adapt  article  368  by
omitting  "either House of" and "in each House" and  substi-
tuting  "Parliament" for" that House", is beyond the  powers
conferred  on  him  by article 392,  as  "any  difficulties"
sought  to be removed by adaptation under that article  must
be  difficulties in the actual working of  the  Constitution
during  the transitional period whose removal  is  necessary
for  carrying  on the Government. No such  difficulty  could
possibly  have  been  experienced on the very  date  of  the
commencement of the Constitution.
    Fourthly, in any case article 368 is a complete code  in
itself and does not provide -for any amendment being made in
the bill after it has been introduced in the House. The bill
in the present case having been admittedly amended in sever-
al  particulars  during its passage through the  House,  the
Amendment Act cannot be said to have been passed in conform-
ity with the procedure prescribed in article 368.
    Fifthly, the Amendment Act, in so far as it purports  to
take away or abridge the rights conferred by Part III of the
Constitution,  falls  within the prohibition of  article  13
(2).
    And  lastly, as the newly inserted articles 31A and  3lB
seek  to make changes in articles 132 and 136 in Chapter  IV
of  Part  V and article 226 in Chapter V of  Part  VI,  they
require  ratification  under clause (b) of  the  proviso  to
article 368, and not having been so ratified, they are  void
and  unconstitutional.  They are also ultra  vires  as  they
relate  to  matters enumerated in List II, with  respect  to
which  the  State legislatures and not Parliament  have  the
power to make laws.
    Before  dealing with these points it will be  convenient
to  set out here the material portions of articles 368,  379
and  392, on the true construction of which these  arguments
have largely turned.
    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
        13
98
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) articles 54, 55, 78,162 or 241, or
    (b)  Chapter  IV  of Part V, Chapter V of  Part  VI,  or
Chapter I of Part XI, or
    (c) any of the Lists in the Seventh Schedule, or
    (d)  the representation of States in Parliament,  or  (e)
the  provisions  of this article, the amendment  shall  also
require to be ratified by the Legislatures of not less  than
one-half  of  the States specified in Parts A and B  of  the
First Schedule by resolutions to that effect passed by those
Legislatures  before  the  Bill making  provision  for  such
amendment is presented to the President for assent.
  379.  (1) Until both Houses of Parliament have  been  duly
constituted  and  summoned. to meet for  the  first  session
under  the provisions of this Constitution, the  body  func-
tioning as the Constituent Assembly of the Dominion of India
immediately  'before the commencement of this'  Constitution
shall  be the provisional Parliament and shall exercise  all
the  powers  and  perform all the duties  conferred  by  the
provisions of this Constitution on Parliament.
    392. (1) The President may, for the purpose of  removing
any difficulties, particularly in relation to the transition
from the provisions of the Government of India Act, 1935, to
the  provisions of this Constitution, by order  direct  that
this Constitution shall, during such period as may be speci-
fied in the order, have effect subject to such  adaptations,
whether by way of modification, addition or omission, as  he
may deem to be necessary or expedient:
99
    Provided  that  no such order shall be  made  after  the
first  meeting of Parliament duly constituted under  Chapter
II of Part V.
*                 *                       *                *
    On the 'first point, it was submitted that whenever  the
Constitution  sought to confer a power upon  Parliament,  it
specifically  mentioned  "Parliament"  as the  done  of  the
power, as in articles 2, 3, 33, 34 and numerous other  arti-
cles, but it deliberately avoided the use of that expression
in  article  368. Realising that the  Constitution,  as  the
fundamental  law  of the country, should not  be  liable  to
frequent changes according to the whim of party  majorities,
the framers placed special difficulties in the way of amend-
ing  the  Constitution and it was a part of that  scheme  to
confer  the  power  of amendment on a body  other  than  the
ordinary legislature, as was done by article 5 of the Ameri-
can  Federal Constitution. We are unable to take that  view.
Various methods of constitutional amendment have been adopt-
ed  in  written constitutions, such as by referendum,  by  a
special  convention, by legislation under a  special  proce-
dure, and so on.  But, which of these methods the framers of
the  Indian  Constitution have adopted must  be  ascertained
from  the  relevant provisions of  the  Constitution  itself
without any leaning based on a priori grounds or the analogy
of other constitutions in favour of one method in preference
to  another.  We accordingly turn to the provisions  dealing
with constitutional amendments.
    Now,  the  Constitution provides for  three  classes  of
amendments  of  its provisions.  First, those  that  can  be
effected  by a bare majority such as that required  for  the
passing of any ordinary law. The amendments contemplated  in
articles 4, 169 and 240 fall within this class, and they are
specifically  excluded  from  the purview  of  article  368.
Secondly,  those that Can be effected by a special  majority
as  laid down in article 368. All constitutional  amendments
other than those referred to above come within this category
and  must be effected by a majority of the total  membership
of each
100
House  as well as by a majority of not less than two  thirds
of  the  members  of that House present and  a  voting;  and
thirdly,  those  that require, in addition to   the  special
majority   above-mentioned,  ratification  by    resolutions
passed by not less than one-half of the States  specified in
Parts A and B of 'the First Schedule.  This class  comprises
amendments  which seek to make any change in the  provisions
referred to in the proviso to article 368.  It will be  seen
that the power of effecting the first class of amendments is
explicitly  conferred on "Parliament", that is to  say,  the
two  Houses  of Parliament and the President  (article  79).
This  would lead one to suppose, in the absence of  a  clear
indication to the contrary, that the power of effecting  the
other  two classes of amendments has also been conferred  on
the same body, namely, Parliament, for, the requirement of a
different  majority,  which  is merely  procedural,  can  by
itself be no reason for entrusting the power to a  different
body.   An examination of the language used in  article  368
confirms that view.
  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 parliamentary  proce-
dure (of. article 107(1) 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 legislative  function  [article
107(2)]; and finally, the bill thus passed must be "present-
ed  to the President"' for his "assent", again a  parliamen-
tary  process through which every bill must pass  before  it
can reach the statute-book (article 111). We thus find  that
each  of  the component units of Parliament is to  play  its
allotted part in bringing about an amendment to the  Consti-
tution.  We have already seen that Parliament effects amend-
ments  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
101
effecting  the  second and third  categories  of  amendments
cannot make the amending agency a different body.  There  is
no force, therefore, in the suggestion that Parliament would
have been referred to specifically if that body was intended
to  exercise the power. Having mentioned each House of  Par-
liament  and the President separately and assigned  to  each
its  appropriate  part  in  bringing  about   constitutional
changes,  the makers of the Constitution presumably did  not
think it necessary to refer to the collective designation of
the three units.
    Apart  from  the intrinsic indications  in  article  368
referred  to above, a convincing argument is to be found  in
articles  2,  3, 4, 169 and 240. As  already  stated,  under
these articles power is given to  "Parliament" to make  laws
by  a bare majority to amend certain parts of the  Constitu-
tion;  but  in each case it is laid down that  no  such  law
should be deemed to be an amendment of the Constitution "for
the purpose of article 368."  It would be quite unnecessary,
and  indeed  inappropriate, to exclude these laws  from  the
operation of article 368, which  requires a. special majori-
ty,  if the power to amend under the latter article was  not
also given to Parliament.
    Somewhat closely allied to the point discussed above  is
the  objection based on the bill in the present case  having
been passed in an amended form, and not as originally intro-
duced.   It  is  not correct to say that article  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 is to be passed by
each House and how the President's assent is to be obtained.
Evidently,  the rules made by each House under  article  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.   Peti-
tioners' counsel insisted that it was not, and that,  there-
fore, the "legislative procedure" prescribed in article 107,
which specifically
102
provides  for a bill being passed with amendments,  was  not
applicable  to  a bill for amending the  Constitution  under
article 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  ma-
chinery of article 368 would be thrown out of gear, for  the
joint  sitting of both Houses passing the bill by  a  simple
majority provided for in article 108 in the case of ordinary
bills would be inapplicable in view of the special  majority
required in article 368.  The argument proceeds on a miscon-
ception.  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 articles 107 to 111 cannot in terms apply when  Parlia-
ment  is dealing with a bill under article 368, there is  no
obvious  reason  why Parliament should not  adopt,  on  such
occasions,  its own normal procedure, so far as that  proce-
dure  can be followed consistently with  statutory  require-
ments.   Repelling  the contention that a  Local  Government
Board conducting a statutory enquiry should have been guided
by  the  procedure of a court of justice, Lord  Haldane  ob-
served in Local Government Board v. Arlidge(1):
"Its (the Board's) character is that of an  organisation
with executive functions.  In this it resembles other  great
departments  of the State. When, therefore,  Parliament  en-
trusts it with judicial duties, Parliament must be taken, in
the  absence  of any declaration to the  contrary,  to  have
intended  to  follow the procedure which is its own  and  is
necessary  if  it is to be capable of doing its  work  effi-
ciently."
    These  observations have application here.  Having  pro-
vided for the constitution of a Parliament and prescribed  a
certain procedure for the conduct of' its ordinary  legisla-
tive business to be supplemented by rules made by each House
(article 118), the makers of the Constitution must be  taken
to have intended
(1) [1915] A.C. 120.
103
Parliament  to  follow that procedure, so far as it  may  be
applicable,  consistently  with the  express  provisions  of
article 368, when they entrusted to it the power of amending
the Constitution,.
    The  argument  that a power entrusted  to  a  Parliament
consisting two Houses cannot be exercised under article  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 Parlia-
ment 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
article 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.  Article  379
should be viewed and interpreted in the wider perspective of
this scheme and not in its isolated relation to article  368
alone.  The  petitioners'  argument that  the  reference  in
article 368 to "two Houses" makes that provision  inapplica-
ble to the provisional Parliament would equally apply to all
the  provisions of the Constitution in regard to  Parliamen-
tary  action and, if accepted, would rob article 379 of  its
very  purpose and meaning. It was precisely to obviate  such
an  argument  and to remove the difficulty on  which  it  is
rounded  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
article  392 conferring a general power on the President  to
adapt the provisions of the' Constitution by suitably  modi-
fying  their  terms. This brings us to the  construction  of
article 392.
    It will be seen that the purpose for which an adaptation
may be made under that article is widely
104
expressed.  It may be made for the purpose of removing  "any
difficulties".   The particularisation of one class of diffi-
culties  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 article 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 articles 112, 113,  etc.,  in  the
transitional period.  But, the argument proceeds,  constitu-
tional 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  diffi-
culties 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 Houses. 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 article 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
105
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 article 368 by the  Presi-
dent was well within the powers conferred on him by  article
892 and is valid and constitutional.
    A more plausible argument was advanced in support of the
contention that the Amendment Act, in so far as it  purports
to take away or abridge any of the fundamental rights, falls
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." The argument was  put  thus:  "The
State"  includes Parliament (article 12)and "law"  must  in-
clude  a  constitutional amendment.  It was  the  deliberate
intention  of the framers of the Constitution, who  realized
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.  It is not uncommon  to
find  in  written constitutions a declaration  that  certain
fundamental rights conferred on the people should be  "eter-
nal  and inviolate" as for instance article 11 of the  Japa-
nese Constitution. Article 5 of the American Federal Consti-