HIS HOLINESS KESAVANANDA BHARAT!

SRIPADAGALA VAR U

STATE OF KERALA April 24, 1973

(S. M. SIKRI, C. J., J. M. SHELAT, K. S. HEGDE, A. N.

GROVER, A. N. RAY, P. JAGANMOHAN REDDY, D. G.

PALEK.AR, H. R. KHANNA, IC K. MATHEW, M. H. BEG,

S. N. DWIVEDI, A.

K. MUKHERJEA

AND Y. V.

CHANDRACHUD, JJ.)

Constitution of India, 1950-Artick 368 before Constitution (Twenty Fourth) Amendment Act, 197!-Nature and scope of the amending power.

Article 13(2)-'Law' in 13(2) if includes amendment of the Constitution- Distinction between legislative power and constituent power.

Article 368-"Amendment" meaning of-"Amcndmcnt" if includes the power to abrogate the Constitution-If includes the power to alter the basic structure or frame-work of the Constitution,

Fundamental Rights-If amendment can take away or abridge the rights guaranteed in Part III.

Fundamental Righu--If inalienable natur31 rights so as to operate as restriction on the amending power.

Implied and inherent limitations-Power of amendment if subject to inherent or implied limitations.

Preamble-Nature-Preamble, if operates as a source of implied limitation on the power of amendment.

Constitution (Twenty Faurth) Amendment Act 1971-Validity of-Amend mrot if enlargement of the limits of the Amending power.

Article 368-lf there are inherent or implied limitations in the article .. amended.

Constitution (Twenty Fifth) Amendment Act, 1971-Validity of.

Section 2(a) & (b)-Substitution of 'amount' for 'compensation'-Exclusion of article 19(l)(f) to law in article 31(2)~1£ abrogates the basic structure of the Constitution-Meaning of 'amount'-Scope of judicial review of adequacy.

Section 3-lntroduction of new asticle 31C-Nature and object of the articlo- Article if abrogates the essential features of the Constitution-If amounts to delegation of amending power to state legislatures-Effect of Declaration-Nexus of law under the article to the directives in article 39(b) and (c), if subjedl to judicial review.

Directive Principles of State Policy-Importance in the constitutional schcmc- Rclation with fundamental rights. Property, right to-Nature of the right.

2 SUPREME COURT REPORTS [1973] Supp. s.c.R.

Constttutron (Twenty Ninth) Amendment Act, 1972-Validity of-Article 31B and 31A-lf interrelated.

Judicial Revietu-Limits of-Place of judicial review in the constitutional scheme. ·, Interpretation-Rules of Constitutional interpretation-Constituent Assembly Debates, relevancy of.

The question whether the fundamental rights set out in Part III of the C:Onstitution could be taken away or abridged by amendment of the Constitution was first considered by this Court in Sankari Prasad v. Union of India, [1952] S.C.R. 89. In Sankari Prasad the validity of the Constitution (First Amendment) Act 1951, was challenged. The First Amendment made changes in articles 15 and 19 of the Constitution and inserted articles 31A and 31B.

The principal contention was that the First Amendment in so far as it purported to take away or abridge the rights conferred by Part _III of the Constitution fell within the prohibition of article 13(2) of the Constitution.

The Court unanimously held that the word 'law' in article 13(2) was relatable to exercise of ordinary legislative power and not amendments to the Constitution and that the terms of article 368 were general to empower Parliament to amend the Constitution without any exception. The question came up again in Sajjan Singh v. State of Rajasthan, [1965] 1 S.C.R. 938, wherein the validity of the Constitution (Seventeenth Amendment) Act 1964, was challenged. The majority view in Sa; jan Singh was that article 368 plainly and unambiguously meant amendment of all provisions of the Constitution and that the ward •iaw' in article 13(2) did not take in Constitution Amendments.

Thereafter, in Golaknath v. State of Punjab, the Court, six against live, hdd that an amendment of the Constitution was 'law' within the meaning of article 13(2); therefore, if an amendment took away or abridged the fundamental rights it was void, that the Constitution First1 Fourth and Seventeenth Amendments abridged fundamental rights but were valid on the application of the doctrine of prospective overruling or acquiescence and that Parliament had no power from the date of the decision to amend any of the provisions of Part III so as to take away or abridge the fundamental rights.

One of the amendments affecting the right to propeny was the Constitution (Fourth Amendment) Act, 1955. The Amendment Act had enacted that no law providing for compulsory acquisition or requisitioning "shall be called in question in any Court on the ground that the compensation provided by that law is not adequate". The amendment was passed to get over the interpretation given by the Court in State of West Bengal v. Bela Baoerju, [1954] S.C.R. 674, to the word 'compensation' viz., just equivalent or full indemnification for the property expropriated. The effect of the amendment was considered by this Court in


[ 1967] 1 S.C.R. 255 the Coun struck down the Metal Corporation (Acquisition of Undertaking) Act 1965, because the principles for determining the: compens.ation laid down in the Act did not represent the just equivalent of the property taken.


KESAVANANDA f/, XEaALA 3

serious obstacles in giving effect to the directive principles of State policy incorporated in article 39".


Arguments were addressed mainly in W iit Petition No. 135 of 1970. In this Writ Petition the petitioner had challenged the validity of the Kerala Land Reforms Amendment Art 1969 and the Kcrala Land Reforms Amendment Act, 1971, for the .reason that some of the provisions thereof violated articles 14, 19(l)(f), 25, 26 and 31 of the Constitution. During the pcndency of the Writ Petition Parliament passed_ three constitution amendments, namely the Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendment Acts.

The Constitution Twenty Fourth Amendment Act amended article 368. It enacted that Parliament may, in exercise of its constituent power, amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down in that article. The other part of the amendment is that nothing in article 13 shall apply to any amendment under article 368°.

• Atticle 368 before amendment.

Procedure for amendment •f tho Constitution: An amendmont of Ibis Com titution may be initiated only by the introducion Of a Bill for the purpose in either House of Parliament. 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 1lhe members of that H""" present and voting, it shall bo presented to President for his auent and upon such assent beina: a:iven to the Bill. the Consti tution shall stand amended in accordance with the terms of the Bill.

Provided that if such amendment seeks to make any cban, ge in:-

(a) article 54, article 55, article 73, article 162 or article 241; or

(b) Chapter IV of Part V. Chapter V of Pan VJ, or Chapter I of Part XI, or

(c) any of the Lists in the Seventh Scbcdule, or

(d) the representation of States in Parliament, or

(e) thci 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 resolution to that effect passed by those Legislatures before the Bill making provisiori for such amendment is presented to the President for absent

Article 368 after amendment-Article 368 of the Constitution shall be re-num bered as clause (2) thereof, and

(a) for the marginal heading of that article, the following marginal heading shall be substi!uted, nomcly :- .. Power of Parliament to amend the Constitution and procedure therefor".

(b) before clause (2) as so re-numbered, the foHowing c1ause shall be insert ed, namely:- "Notwithstanding anything in this Constitution, Parliament may in exercise !l! its constuent PJ?We.r a.IJ?.end by way of di ti on, variation or repeal any prov1s1on of this Constitution 1n accordance with the procedure laid down in this article".

(c) in claus~ (2) aS so . re-numbered, for the words "it shall be prcsent.ed to the President for his assent and upon such assent being given to the Bill", the words "if shall be presented to the President who shall give bis assent to the Bill and thersupon" shall be substituted;

(d) after clause (2) as so re-numbered, the fo1lowing clause shall be inserted namely:-

"(3) Nothing in Article 13 shall apply to any amendment made under this articleu.

4 SUPREME COU1T REPOR'n (1973] Supp. S.C.R.

The Constitution Twenty Fifth Amendment Att amended article 31(2) and article 31(2-A). Section 2 of the Amendment Act substituted the word "amount" for the word "compensation" and excluded the applicatioo of article 19(1)(f) to a law under article 31(2). It was also made clear that no such law shall be called in question in any court on the groond that the whole or any port of such amount is to be given othlcrwise than in cash. Section 3 introduced new article 31C. It empowered Parliament and State Legislatures to enact law giving effect to the J;><>licy of the State towards securing the directive principles. in clause

(b} or cl. (c) of article 39 and no such law could be questioned on the ground that it took away or abridged any of the rights conferred by articles 14, 19 and

31. Further, the amendment laid down that

11no law containing a declaration that it is for giving effect to such policy shall be called in stion in any court on the ground that it docs not give effect to such policy' . The provisions of the article were not to be applied to a law made by the Legislature of a state unless such law received the assent of the President. The Constitution (Twenty Ninth). Amendment Act included the Kerala and Reforms Acts in the Ninth Schedule to the Constitution making them immune from attack on the ground of violation of the fundamental rights. The Petitioner challenged the validity of the three Constitution Amendment Acts.

HELD : (By Full Court) : Thie Constirution (Twenty Fourth) amendment Act, Section 2(a) md 2(b) of the Constirution (Twenty Fifth) Amendment Act and the Constirution (Twenty Ninth) Amendment Act arc valid.

By maj<>rity : .Per Hegdc, Ray, Jaganmohan Reddy, Palckar, Khanna, Mathew, Beg, Dwivedi, Mukhcrjea and Chandrachud, JI : The decision of the majority in Golaknath that the word "law" in article 13(2) included amendments to tlle Constitution and the article operated as a limitation upon the power to amend the Constitution in article 368 is erroneous and is overruled.

By majority: Per Ray, Palekar, Khanna, Mathew, Beg, Dwivedi and Chandrachud, JJ : The power of amendment is plenary. It includes within itself the power to add, alter or re.peal the various articles of the Constitution including those relating to fundamental rights.

By majority: Per Sikri, C.J. and Shelat, Hegde, Grover, Khanna, Jaganmohan Reddy and Mukherjea, JJ. (Ray, Palekar, Mathew, Beg, Dwivcdi and Chandrachud, JJ. dissenting) : The power to amend does not include the power to alter the basic structure or framework of the Constitution so as to change its identity.

By majority: Per Ray, Palekar, Khanna, Mathew, Beg, Dwivcdi and Chandrachud JJ. (Sikri, C.J. and Shelat, Hcgdc, Grover, Mukherjca, JJ. holding contra and Jaganmohan Reddy, J. leaving the question open) : The~ arc no inherent or implied limitations on the power of amendment under arttcle 368.

By majority: The first pa". ?£article 31C. is valid •• 'f!>e secod. part of the article, viz., "and no law conta1nmg a declaration that tt ts for giving ect o such policy s'Na,11 be called.~, qution. in any court on the ground that it docs not give effect to such policy 1s invalid.

[Sikri, C.J. and Shelat, Hegde, Grove.r and Mukherjca, JJ. hel4 both the parts of article 31C invalid.

Ray, Palekar, Mahew, Beg, Dwivedi and Chandrachud, JJ. held both the ports of the article valid.

'I "

K:ESAVANANDA V. El!RALA (Sikn, C.J.) s

Jaganmohan Reddy J, held the second part of the article invalid and the fust part of the article valid subject to the severance of the words "inconsistent

with or takes away" and the words "article 14" therein.

Khanna J. held the first part of the article valid and the second part invalid.]

Per Sikri, . C. /. : The Con; titution Twenty Fourth Amendment is valid, Section 2 of Constitttion Twenty Fifth Amendment is valid. Section 3 of Constitution Twenty Fifth Amendment is void. The Constitution Twenty Ninth Amendment is ineffective to protect the impugned sections if they abrogate or take away fundamental rights.

The Golaknath case (1967) 2 S.C.R. 762 did not decide the ambit of article 368 with respect to the powors of Parliament to amend Article 13(2) or to amend Article 368 itself. Nor did it determine the exact meaning of the expression "amendment of this Constitution". The leading majority did not express -any opinion on the contention that in exercise of the power of amendment Parliament cannot destroy the fundamental structure of the Constitution but can -0nly modify provisions thereof within the framework of the original instrument

for its better effectuation. The conclu.sion in Golaknath's case tl1at the power of the Parliament to amend the Constitution is derived from Article 245, 246 and 248 of the Constitution and not from Article 368 thereto and that amend

ment is a legislative process docs not survive for discussion any longer;. because, it was rightly admitted on behalf of the petitioners that the Constitution 24th Amendment Act, 1971, in so far as it tran.sfcrs the power to amend the Cons titution from the residuary entry (Entry 97 List I) or Article 248 of the Constitution to Article 368, is valid. In other words Article 368 of the Constitutioo as now amended by the 24th amendment deals not only with the procedure for amendment but also with the express powers of Parliament to amend the Constitution. It is not necessary to discuss the merits of the question whether amendment is 'law' within the meaninz of Article 13 as the same result follows in this case even if it be assumed in favour of the respondents that an amendment <>f the Constitution is not 'law' within Art. 13(2) of the Constitution. (p. 96].

I C. Golaknath v. State of Puniab (1967) 2 S.C.R. 672, Sri Sankari Prasad Singh Deo v. Union of India and State of BU.ar (1952) S.C.R. 89 and Saiian Singh v. State of Raiasthan (1965) 1 S.C.R. 933 discussed.

A. K. Gopa/an v. The State of Madras (1950) S.C.R. 88 at p. 100, referred to.

The expression 'Amendment of the Constitution' does not enable Parlia

ment to abrogate or take away fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity.

Within these limits Parliament can amend every article:

(i) ID construing the expression

1amendment of the Constitution' one mwt look at the whole scheme of the Constitution. It is not right to construe words in vacuum and then insert the meaning into article. [p. 101].

Bidie v. General Accident, Fire anti Life Assurance Corporation (1948) 2 All E.R. 995-998, Bourne v. Norwich Crematorium (1967) 2 All E.R. 576-578,

Towne v. Elsner 245 U.S. 418; 425-62 L. ed. 372-376 and obsecvations of Gwyer C.J. in The Central Provinces & Bmr Act 1939 F.C.R. at page 42 and Lord Wright in James v. Commonwealth of Australia 1936 A.C. 578 at page 613, relied oa.

6 SUPU:M! COUllT 11.EPORTS [ 1973] Supp. s.c.R.

In the Constitution the word 'amendment' or 'amend' has been used in various places to mean different things. In view of. the great variation of the phrases used throughout the Constitution it follows that the word 'amendment' must derive its oolou.r from Article 368 and the rest of the provisions of the Constitution. It is not intended. that the whole Constitution could be repealed. [p. 103, 107].

Mangal Singh v. Union of India (1967) 2 SCR 109 & 112 and Holmes v.

Tennison (10) L. ed. 579: 594, rdied on.

If on reading article 368 in the context of the Constitution the word 'amendment' is found to be ambiguous, one can refer to the preamble to find which construction would fit in with the preamble. Therefore, the preamble of our Constitution is of extreme impor-..ance and the Constitution should be read and interpreted in the light of the grand and noble vision exprcssocd in the preamble. The Court was wrong in holding in the Berubari's case that the preamble is not a part of the Constitution. It was expressly voted to be a part of the Constitution. In some cases limitations have been derived froril the preamble. [pp. 112, 114, 116].

Re. Berubari Union and Exchange of Enclave>

(1960) 3 SCR 250; 281-82, Golaknoth v. Punjab (1967) 2 SCR 762; 838 and 914, Behram Khurshed Pesikaka

v. The State of Bombay (1955) 1 SCR 613 at p. 653, In re. The Kera/a Education Bill 1957 (1959) SCR 995; 1018-1019, Saiian Singh v. State of Rajasthan (1965) I SCR 933, 968, Attomcy.General v. Prince Ernest Augustus of Hanover ( 1957) A.C. 436; 460 and State of Vicwria v. The Commonwealth 45 A.L.J. 251, referred to.

It is impossible to equate the directive principles with fundamental rights.

To say that Directive Principles give a directive to take away fundamental rights in order to achieve what is directed by the directive principles seems to be a contradiction in terms.

While our fundamental rights and directive .principles were being fashioned and approved by the Constituent Assembly on December 10, 1948 the General Assembly of the United Nations adopted a Universal Declaration of Human Rights. The Declaration may 'not be a binding instrument but it shows how India understood the nature of the human rights. In view of art. 51 of the directive principles this Court must interpret the language of the Constitution, which is after all a municipal law, in the light of the United Nations Charter and the solemn declaration subscribed to by India. [p. 123].

Corocraft v. Pan American Airways (1969) 1 All. E.R. 82, 87, referred to.

The work of the Advisory Committee and the Minorities Committee of the Constituent Assembly shows that no one ever contemplated that the fundamental rights appertaining to the minorities would be liable to be abrogated by an amendment of the COnstitution. The same is true about the proceedings in the Constituent Assembly. There is no hint anywhere that abrogation of minorities' rights was ever in the contemplation of the important members of the Constituent Assembly. In the context of the British. Plan, the setting up o'f Minorities Subcommittee, the Advisory Committee and the proceedings of these c.ommittces as well as the proceedings in the Constituent Assembly, it is impossible to read the expression "Amendment of the Constitution" as empowering Parliament to abrogate the rights qf minorities.

It is a sound rule of construction that speeches made by members of legislature in the course of debates rdating tQ the enactment of the statute cannclt be used as aids for interpreting any of the provisions of the statute. The same

.I !f

ll.S,1.VANiNJ>A V. KERALA (Sikri, C.J.) 7

rule must be applied to the provisions of the Constitution. The speeches can be relied on only in order to see if the course of the progress of a particular provision or provisions throws any light on the historical background or shows that a common understanding or agreement was arrived at between certain sections of the people. [pp. 13l, 133].

Stat< of Travancore.Cochin and Others v. Bombay Co. Ltd. (1952) SCR 1112; 1121, Adminittrator-General of Bengal v. Prem Nath (1895) 22 I.A. 107- Jl8, Gopalan's case (1950) SCR 88, Golaknath's case (1967~ 2 SCR 762; 792; 922, H. H. Maharaiadhiraia Madhav Rao v. Union of India (1971) 3 SCR. 9 and Union of India v. H. S. Dhillon (1972) 2 SCR 33, referred to.

The guarantee of fundamental rights extends to numerous rights and it could not have been intended that all of them would remain completely unalterable even if article 13(2) of the Constitution be taken to include constitutional amendments. A more reasonable inference to be drawn from the whole scheme of the Constitution is that some other meaning of 'Amendment' is more appropriate. This conclusion is also reinforced by the concession on behalf of the respondents that the whole Constitution cannot be abrogated or repealed and a new one substituted. In other words the expression •Amendment' of this Constitution docs not include a revision of the whole Constitution. If this is true then which is that meaning of the -\vord 'amepdment' that is most appropriate and fits in with the whole schieme of the Constitution. That meaning would be appropriate which would enable the country to achieve -a social and economic revolution without destroying the democratic structure of the Constitution and the basic inalienable rights guaranteed in Part III and without going outside the contours delineated in the Preamble. [p. 140].

The Bribery Com, nissioner v. Pedrick Ranasinghe (1%5) A.C. 172, MC- Cawley" v. The King (1920) A.C. 691, and In re. The Regulation and Control of Aeronautics in Canada (1932) A.C. 54 at p. 70, referred to.

The same conclusion is arrived at by another line of reasoning. In a written Constitution it is rarely that everything is said expressly. Powers and limitations arc implied from necessity or the scheme of the Constitution. The Solicitor General appearing on behalf of the Union of India conceded that implications can arise: from a Constitution, but said that no implication necessarily arises under the provisions of article 368. Reading the preamble, the fundamental importance of the freedom of individual, indeed its inalienability, the importance of the economic, social and political justice mentioned in the preamble, the importance of the directive principles-, the non-inclusion in article 368 or provisions like articles 52, 53 and various other provisions, an irresistible conclusion emerges that it was not the intention to use the word "amendment' in the widest sense. It was the common understanding that fundamental rights would remain in substance as they are and they would not be amended out of existence. It semis also to have been a common understanding that the fundamental features of the Constitution, namely secularisn1, democracy, and the freedom of the individual would always subsist in the wdfare state.

In view of the above reasons, a necessary implication a.rises that there are implied limitations on the power of Parliament, that the expression 'Amendment of the Constitution' has .conseq,,.ntly a timited meaning in our Constitution, and not the meaning suggested by the respondents. [pp. 141, 163; 164 ].

8 SUPREME COURT REPOllTS [1973) Supp, S.C.R.

The Bn"bery Commissioner v. Pedrick RllfUUinglie (1965) A. C. 172, Mangal Sinth v. Uniun of India (1967) 2 SCR 109112, Taylor v. The Attornry-General

of Queensland 23 C.L.R. 457, and In "· The Initiative and R<f.,...dum Acl

(1919) A.C. 935, applied.

Hawk• v. Smith 64 L. Ed. 871, Rhode Island v. Palmer 64 L. Ed, 946, Uniled States of America v. William H. Soragu1 (75) L. Ed. 640, Commissioner of Stamps, Straits Settlements v. Oei Tjong Swan (1933) A.C. 378; 389, Bank of Toronto v. Iambe (1887) 12 A.C. 575-587 and Th• State (at the prosecution of Jeremiah Ryan) v. Captain Michael Lennon and others (1935) Irish Reports

170, discinguishcd.

If the argument that there is no limit to the power of Parliament to amend the Constitution is accepted, Article 368 can itself be amended to make the Constitution completely flexible or extremely rigid and unamendablc.

If this is so a political party with a two-third majority in Parliament for a few years could so amend the Constitution as to debar any other party from functioning, establish totalitarianism, enslave the people and after having effected these purposes make the Constitution unamcndablc or cxucmcly rigid.

For the aforesaid reasons, one is driven to the conclusion that the expression "Amendment of this Constitution" in Article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the Preamble and the Constitution to carry out the objectives in the Preamble a, nd the Directive Principles. Applied to fundamental rights it would mean that while fundamental righis cannot be abrogated reasonable abridgements of fundamental rights can be effected in the public interest. It is of course for Parliament to decide whether an amendment is nec.essa_ry. The courts will not be concerned with the wisdom of the amendment. This meaning would enable Parliament to adjust fundamental rights in order to secure whiat the Directive Principles direct ro be accomplished, while maintaining the freedom and dignity of every citizen. [p. 164 ].

(ii) Amendment within the contours of the Preamble and the Constitution cannot be said to be a vague and unsatisfactory idea which Parliamentarians and the public would not be able to understand. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and the basic structure of the Constitution remains tlM! same.

Basic -structure may be said to consist of the following features: (a) Supremacy of the Constitution (b) Republican and democratic form of government (c) Secular character ofi the Constitution (d) Separation of powers bctwen the leigslaturc, the executive and the judiciary (c) Federal character of the Constitution.

The above structure is built on the basic foundation, that is, the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed. T~ above foundation and the above basic features arc easily discernablc not only from the Preamble but the whole scheme of the Constitution. [p. 165].

(iii) The provisions of articles 33, 358 and 359 and the uoe of the words 'rights conferred' in article 13(2) cannot support the proposition that some of the rights in Part III arc not natural or inalienable righu. India was a party to the Universal Declaration of Right1 and that declaration describes some fundamental rights as inalienable. Various decisions of this Court describe fundamental rights as 'natural rights' or 'human rigau'. [p. 167].

USAVANANDA I/, Jtl!RALA (Sikri, C.J.) 9

(iv) If Parliament hu power to pass the impugned amendment Acts, there . i1 no doubt that the wisdom of the policy of the Pai:liament cannot be questioned. jlut if the net result of the above interpretation is to prevent Parliament

from abrogating the fundamental rights or the basic structure outlined above it is impossible to appreciate that any uncertainty, friction or confusion will necessarily result. [p. 174]. ·

(v} It was righ<tly concedc, d that Parliament could validly amend article 368 to transfer the source of '1"ending power from List I Entry 97 to Article

368. The amendments indicating that the source of amending power will be found in article 368 itself and the amendment making it obligatory on the President to give his assent to anr. bill duly passed under the article were within the amending power of the Parliament. It is not necessary to go into the question whether Subba Rao, Chief Justice, rightly decided that the amending power was in List I Entry 97 or article 248 because nod:ting turns on it now.

It is not. legitimate to interpret article 368 as pehnitting Parliament to en larging its power to amend the Constitution. Clause ( c) of the proviso does not give any different power than what is contained in the main article. The meaning of the expression 'amendment of the .Constitution~ docs not change when one reads the provision. Article 368 can only be amended so as not to change its identity completely.

Parliament, . for instance could not make the Constitution uncontrolled by changing the prescribed two third majority to simple majority. Similarly it cannot get rid of the true meaning of the expression

~'Amendment of t1le Constitution" so as to derive power to abrogate fundamental righ.ts. If the words 'notwithstanding anything in the Constitution' arc designed to/widen the meaning of the word 'amendment of the Constitution' it would have to be held void as beyond the amending power. But they must not be read to mean this. They are inserted to get rid of the argument that article 248 and Entry 97 List I contains power of amendment. Similarly, the insertion of the words "in exercise of its constituent power only serves to exclude article 248 and Entry 97 List I and tmphasisc that it is not ordinary legislative rower that Parliament is exercising under .Article 368 but legislative pov,; er o amending the Constitution.

It cannot be said that if Parliament cannot increase its power of amendment clause ( d} of Section 3 of the 24th. amendment which makes article 13 inapplicable to an amendment of the Constitution would be bad. There was no force in this contCntion. Anicle 13(2) as it existed previous to the 24th amendment as interpreted by the majority in GolaJcnath' s case prevented legislatures from taking away or abridging the rigljts conferred by Article 13. In other words any law whi.ch abridged a fundmcntal _right even to a small extent was liable to be struck down. Under Article 368 Parliament can amend every article of the Constitution as long as the result is within the limits laid down in this judgment. The amendment of article 13(2) docs not go beyond the limits laid down 1:5ecau~ Parliament cannot even after the amendment abrogate or authorise abrogation or the taking away of fu!ldamental rights. After the amendment a law which. !las the effect of merely abridging a right while remaining within the limits laid down would not be liable to be struck down. [pp. 192, 193, 194].

Section 2 of the Constitution Twenty fifth Amendment Act, 1971, has been validly enacted.

There cannot be any doubt that the object of Section 2 of the Constitution Twonty Fifth Amendment Act is to modify the decision given by this Court in RUllOm Cavtuiief COOf'<' v. UtJi.on of India (1970) 3 SCR 530 where it was .held by ten judgos that the .Balling Companies (Acquisition and Transfer of

10 SUPREME COURT REPORTS [1973] Supp. s.c.R.

Undertakings) Act violated the guarantee of compensation under article 3!(2) in that it provided for giving certain amounts determined according to principles which were not relevant in the determination of compensation of the undertaking of the named Banks and by the method prescribed the amounts so declared could not. be .regarded as-· compensation. Since the word compensation has been deliberately omitted and substituted by the word 'amount' in the amended article 31(2), it is not possible to give to the word "amount" the figurative meaning, that is, the full value. Article 3!(2) postulates that in some cases principles may be laid down for determining the amount and these principles may lead to an adequate amount or an inadequate amount. So this shows that the vrord •amount' here means something to be given in lieu of the property to be acquirt.d but this amount has to and can be worked out by laying down certain principles.

The principles must then have a reasonable relationship to the property which is sought to be acquired. If this is so die amount ultimately arrived at by applying the principles must have some reasonable relationship with the property to be ; icquired, otherwise the principles laid down by the Act could hardly be principles within the meaning of Article 31 (2 ). Similarly when the alrtount is fixed by law the amount so fixed must ialso be fixed in accordance with some principles because it could not have been intended that if the amount is fixed by law, the legislature would fix the amount arbitrarily.

When the government places the legislation fixing the amount before the legislature it will have to show that it has been fixed according to some principles. These principles cannot be different from the principle which the legislature would lay down. The change effected by the amendment in article 31(2) is that a person whose property is acquired can no longer claim full compensation or just compensation but he can still claim that the law should lay down principles to determine the amount which he is to get and these principles must have a rational relation to the property sought to be acquired. If article 31(2) were to be interpreted as meaning that even an arbitrary or illusory or a grossly low amount could be given, which would shock not only the judicial conscience but the conscience, of every reasonable human being, a serious question would arise whether Parliament has not exceeded its amending power under article 368 of the Constitution. The substance of the fundamental right to property under article 31 consists of three things: First, the property shall be. acquired by or under a valid law; S"ondly, it shall be acquired only for a public purpose; and thirdly, a person whose property has been acquired shall he given an amount in lieu thereof, which is nor arbitrary, illusory or shocking to the judicial conscience or to the conscience of mankind. Parliarnent has no power under the article 368 to abrogate the fundamental rights but can amend or rer, ulate or adjust them in its. exercise of amending power without destroying them. Applying this to the fundamental right of property, Parlia. ment cannot c-n1power legislatures to fix an arbitrary amount or illusory amount or an amount th.at virtually amounts to confiscation, taking all the relevant circumstances of the acquisition into consideration. Same considerations apply to the manner of payment. It cannot be interpreted to mean that an arbitrary manner of payment is contemplated. If discretion is conferred it must be excr. ciscd reasonably. [pp. 195, 196, 197].

Robberts v. Hopu•ood (1925) A.C. 578; 590 and fames Laslie Williams v.

Haines Thomas (1911) A.C. 381, referred to.

Article 31 (2B), the effect of which is to make article l9(!)(f) inapplicable, cannot be said to be an unreliSonablc abridgement of right under article 19(1)(£).

While passing a law fixing principles, the legislatures arc bound to provide a procedure for the detenninatiori of the amount and if the procedure is arbitrary that provision may well be struck down under Article 14. [p. 199].

KE$AVANANDA v. KEllALA. (Sikri, C.J.) 11

Sec#on 3. of the Constitution Twenty Fifth Amendment Act, 1971, is vo; iJ as it dekgates power to legi'slatures to amend the Constitution. Articl~ 368 doi!s not enable Parliament in its Constituent capacity to delegaie ; u

function of amending the Constitut.,-on to another legislature or to itself in its ordinary legiilative capaa"ty.

The . expression 'notwithstanding anything contained in article 13' with which article 31C open• canMt mean that not only fundamental rights like article 19(1)(f) and article 31 arc excluded but funda:ncntal rights belonging to the .Minorities and religious groups are also excluded. The article purports to save laws which a State may make towards securing the principles specified in clause

(b) or (c) of article 39 from being challenged on the ground that the law is inconsistent with or takes away or abridges any of the rights conferred by articles 14, 19 or 31. This is the only ground on which they cannot be challenged. (p. 199].

The article. provides that if the law contains a declaration that it is for giving effect to such policy, it shall not be called in question in any court on the ground that it docs not give effect to such policy. In other words once a declaration is given no court can question the law on thegrou.nd that il has nothing to do with giving effect to the policy; whether it gives effect to

sOme other policy is irrelevant.

Further a law may contain some provision dealing with principles specified in clause (b) or (c) of article 39 while other sections may have nothing to do with it, yet on the language it denies any court power or. jurisdiction to go into this question.

In the f:tcc of the dcdaration this Court would be unable to test the validity of incidental provisions which do not constitute an essential and integral -part of the policy directed to give ef!cct to article 39(b) and article 39(c) (p. 200].

Article 31C dif!crs in nature from article 31A. In article 31A the subject maner of the legislation is clearly provided, namely, the acquisition by the State _pf any estate or any rights therein. [art. 31A(a) J Similarly the subject matter of legislation is specifically provided in clauses (b),' (c) and (d) of article 31A. But in article 31C the sky is the limit because it leaves it to each

State to. adopt measures towards securing principles specified in clauses (b) and (c) of article 39. The wording of articles 39(b) and 39(c) is vety wide.

The expression "economic system" in article 39(c) may well include professional and other services.

It would be difficult to resist the contention of the State that each provision in the law had been taken for the purpose of giving effect to the policy of the State. (pp. 201, 202].

In effect article 31C enables States to adopt any policy they like and •brogate article 14, 19 and 31 of the COnstitution at will.

Parliament cannot under article 368 abrogate fundamental rights. Parlia• ment equally cannot enable the legislatures to abrogate them. This provision enables legislatures to . abrogate fundamental rights and therefore must be declar.ed .unconstitutional. [p. 204],.

Article 368 of the C.Onstitution itself provides that amendment may be initiated only by the introduction of a bill for the purpose in either House of .Parliament ln _other word.s Article 368 docs not contemplate any <;>!her mode of amen\ll)lcn\ by Patli.ill)cllt aQ.d. it docs not equally contemplate Parliament to set up .ant body .to aq;.nd 'the C.Onstitution. It is ~IL settled , i, ii. India that Parliament canruit deltgate its essential legisl•tive functions. [p. 21Jof!!

12 SVPUMK coo.T llEPORTS (1973] Supp. s.c.a.

Since the State legislates under article 31C and the law abrogo, tes. or takes away fundamental rights, the11: cease to have any eflect. The amendment ii not then made by Parliament as the extent of the amendment is not known till the State legislates. It is when the State legislates that the extent of the abrogation or abridgement of the fundamental rights becomes clear. To all intents and purposes it seems that it is State legislation that effects an amendment of the Constitution. If it be assumed that article 31C does not enable the State to amend the Constitution then article 31C would be ineflective because the law which in effect abridges or takes away the fundamental rights would have been passed not in the form required by article 368, that is by two third majority of the Parliament but by another body which is not recognised in article 368 and would be void on that ground. [p. 210].

What article 31C does Is that it empowers legislature subject tn the condition laid down in article 31 C itself to take away or abridge the rights conferred by article ')4, 19 and 31. At any rate, if it is to be deemed an amendment of article 368 it is beyond the powers conferred by article 368 itself.

Article 368 docs not enable the Parliament to constitute another legislature to amend the Constitution in its exercise of the power to amend article 368 itself.

For the aforesaid reasons it must be held that section 3 of th~ Constitution 25th Amendment Act is void as it delegates power to the legislatures to amend the Constitution. [P. 211].

Akadasi. Padhan v. State of Orissa (1963) Supp. 2 SCR 691-707, R. C.

Coop.,. v. Union of lndU. (1970) 3 SCR 530-582, In re. lnitilllive nd Rql!1'en• dum Act (1919) A.C. 935, Attorney-General of Nova Scotia v. Attorney Genl!ral of Canada (1951) S.C.R.-Canada 31 Nadan v. The King (1926) A.C. 482, The

Queen v. Burah, 5 I.A. 178 (1878) 3 A.C. 889; 904; 905, and Mohamed Samsudeen Kariappl!r v. S. S. Vijesinluzl (1968) A.C. 717, 743, rcfcrrcd tn.

The Constitution Twenty Ninth Amendment Act is iectitJe to protect the impugned Acts if they abrogate or take away funda)nenllll rights:

The argument that article 31B is limited by what is contained in article 31A cannot be accepted. [p., 213].

State of Bihar v. Maharajadhiraja Sir Kameshwar Singh (1952) SCR 889; 914-15, Sibnath Banerii's case (1945) F.C.R. 19, Visweshwar Rao v. State of Madhya Pradesh (1952) SCR 1020-1037 and N. B. /eejeebhoy v. Assistant Collector Thana (1965) I SCR 636-6411, referred to.

Article 368 does not enable the Parliament tn abrogate or take away fundamental rights. If this is so it does not enable Parliament tn do this by any means including the device of article 31B and the Ninth Schedule. This device of article 31B and the 9th schedule is bad in so far it protect statutes

even if they take away fundamental rights, Therefore, it is nea:ssary to declare that the Constitution (Twenty-ninth Amendment) Act, 1971 is incffcctive tn protect the impugned Acts if they take away fundamental rights. [p. 214 J.

Broadly speaking constitional amendments hihcrto made in. art!cle 19 and anicle 15 and the agrarian laws enacted by vanouo S12tes furnish illustration , f>f reasonable abridgement of fundamental rights in the public interest.

XESAVANANDA V. KllALA (She/at, J.) 13

Proprietary Articles Trade Ass0<iation v. Attorney General for Canada

(1931) A. C. 310; 317, and Att0<ney General for Australia v. The Queen and the Boilermakers' Society of Auttralia (1957) A.C. 288; 323, referred to.

The fact that it takes years before the validity of an enactment is finally determined is not a good reason to deprive pcnons of their fundamental rights.

There are other ways available to the government to expedite_ the decision.

It may, for example, propose ordinary legislation to enable parties to approach the Supreme Court for transfer of such cases to this Court for determination of substantial questions of interpretation of the Constitution. [p. 215].

She/at and Grover, JI:

The Constitution Twenty Fourth and Twenty Ninth Amendments arc valid. Section 3 of the Twenty Fifth Amendment must be declared un constitutional and invalid.

The decision in Golak, nath has become academic, for, even if it be assumed that the majority holding that the word 'law' in Article 13(2) covered constitu tional amendments was not correct, the result on the questions, wider than those raised in Golaknath, now raised before the Court, would be just the Same. [p. 217].

Though the power to amend cannot be narrowly construed and ertentlt to all the articles, it is not unlimited so as to include the power to abrogate or change the identity of the Constitution or its basic features.

Even if the amendint power includes the power to amend article 13(2), a question not decided in Golaknath, the power is not so wide as to £nclude

the power to abrogate or take away the fundamental freedoms.

While interpreting constitutional provisions it is necessary to determine t; heir width or reach ; in fact the area of operation of the power, its minimum and maximum dimensions cannot be demarcated or determined, without fully examining the rival claims. Unless that is done the ambit, content, scope and extent of the amending power cannot be properly and correctly decided.

The Constitution being supreme all the organs and bodies owe their existence to it. None can claim superiority over the other and each of. them has to function within the four corners cf the constitutional provisions. All the functionaries, be they legislators, members of the executive or the judiciary take oath of allegiance to the Constitution and derive their authority and jurisdiction _from its provisions. The Constitution has entrustedto the judicature in this Country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights. It is a written .and controlled Constitution. It can be amended only to the extent of and in accordance with the provisions contained therein, the principal provision being article 368. [pp. 220, 221].

With regard to the position of the judiciary the British model has been ' adopted inasmuch as the appointment of Judges both of the Supreme Court and of the High Court is kept free from political controversies. Their independence has been assured. But the doctrine of Parliamentary sovereignty as it obtains in England docs not prevail here except to the extent provided Tiy the Constitution.

The entire scheme of the Constitution is such that it ensures the sovereignty and integrity of the Collntry as a republic and the democratic way of life by parliamentary institutions based on free and fair elections. [p. 221). ·

14 SUPRP.¥E COuRT REPORts [1973] Supp. s.CJI.

The word 'amendment' has been used in the Constitution in various articles, .sometimes in a narrow and sometimes in a wider sense. The meaning of the word 'amendment' must be interpreted on the basis of its use in our own Constitution. It would be purely speculative or conjectural to rely on the use of the word 'amcnd 1 or 'amendment' in the C-onstitution of another Countty unless the entire scheme of amending section or article is also kept in mind.

The position which emerges from an examination of the speeches in the Constituent Assembly docs not lead to any clear and conclusive result.

The speeches show that our Constitution was to be an amendable one and much rigidity was not intended. (pp 228, 234 ].

It is not possible to accept the argument on behalf of the respondent that the word 'amendment' can have only one meaning. The word has several meanings and the Court will have to determine its true meaning as used in the context of article 368 by taking assistance from the other permissible aids to construction. A Constitution is not to be construed in any narrow and pedantic sense. A broad and liberal spirit should inspire those whose duty is to interpret it. (pp. 234, 235].

In re C.P. & Berar Sol-es of Motor Spirit & Motor Lubricants Taxatjon Act~ 1938, [1939] F.C.R. 18, Attorney General for New So#th Wales v. The Brewery employees Union of New South Wales etc., (1908] 6 CL.R. 469, 611-012, fames

v. Commonw<alth of Australia, (1936] A.C. 578 and Bidis v. General Accident, Fire and Life Assurance Corporation, (1948]2 All E.R. 998, referred to.

Apart from the historical backgronnd and the scheme of the Constitution the use of Preamble has always been made and is permissible i£ the word 'amendment' has more than one meaning. The Constitution makers gave to the Preamble the pride of place. It embodied in a solemn form all the ideals and aspirations for which the Country had struggled during the British regime and a Constitution was sought to be enacted in ac.cordaru:c with the gcniw of the Indian people. It is not without significance that the Preamble was passed only after the draft articles of the Constitution had been adopted with such modifications as were approved by the Constituent Assembly. The Preamble was, there~ fore, meant to embody in a very few and well-defined words the key to under~ standing of the Constitution. [pp. 235, 236].


Commissioner of Income-tar Rajasthan [ 1959] Supp. 1 S.C.R. 528, In re Kera/a Education Bill, 1957, (1959] S.C.R. 995, Rer v. Hm, (1949) Dom. L. R. 199, john Switzman v. Freda Elbing & Attorney General of tAe Prov; nce of Qubec, (1957] Canada L.R. 285, 326 (S.C.), Re Alberta Statutes, (1938]


It hardly makes any substantial difference whether the Preamble is part of the Constitution or not. The Preamble serves several important purposes.

Firstly, it indicates the source from which the Constitution comes, v; z,, the people of India. Next, it contains the enacting clause which brings into force the Con!ltitution. In the third place, it declares the great rights and freedoms which the people of India intended to secure to all citizens and the basic type of

KESAVANANllA v, KllALA (She/at, J,) 15

government and polity which was io be established. Fr<lm aft these, if any provision of the Constitution had to be interpreted and if the expressions used therein were ambiguous, the preamble would certainly furnish valuable guidance in the matter, particularly when the question is of the correct ambit, scope and width of a power intended to be conferred by article 368. [p. 242].

The contention that the Preamble can be varied, altered and repealed is an extraordinary one. It. QJ.3.Y be tru.e about ordinary statutes but it cannot possibly be sustained in the light of the historic background, the Objectives Resolution which formed the basis of the Preamble and the fundamental position which the Preamble occupies in our Constitution. It constitutes a land.mark in India's history and sets out as a matter of historical fact what the people of India resolved to do for moulding their future destiny. It is unthinkable that the Constitution makers ever conceived of a stag.c when it would be claimed that even the Preamble could be abrogated or wiped out. [p. 242]. ·

Where two constructions arc possible, the Court must adopt that which will C..'lsure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well-established provisions of existing bw nugatory.

The conscqucnccs and effect of suggested construction have to be taken into account as 'has been frequently done by this Court [p'. 244].

State of Punjab v. Ajaib Singh, [1953] S.C.R. 254, 264, Liyanage v. The Queen [1967] I A.C. 259, The Bank of Toronto v. Lambe (1887) 12 A.C. 575, referred to.

It is not for the Courts to enter into the wisdom or policy of a p3rticular provision in a Constitution or a statute, That is , Jor the Constitution makers or the Parliament or the legislature. But it is well settled that the real consequences can be taken into account while judging.width of the power. TheCourt cannot ignore the consequences to which a particular constructltin can lead while ascertaining the limits of the provisio_ns granting the power. [p. 245].

The amending body has been created by the Constitution itself. It can only exercise those powers with which it has been invested and if that power has limits it can be exercised only within those limits.

Article 368 cannot be so amended as to remove these limits nor can it be amended so as to take away the voice of the States in the amending process. If the Constitution makers arc inclined to confer the full pc>wC1'. of a Constituent Assembly, it could have been easily provided in suitable terms. !f however the original power was limited to some extent it could not be enlarged by the body possessing the limited power. That being .so even where an amending power is expressed in wide terms it has to be exerct.cd within the framework of the eon.titution. It cannot abrogate the Constitution or frame ill.new Constitution or alter or change the essential elements of the constitutructure. It cannot be overlooked tha~ the basic theory of our Constitution •is that "Pouvoir Constituent" is vested in the people and was exercised for and on their behalf by the Constituent Assembly for the purpose of framing the Constitution. [p. 251 J. •

. The true distinction between controlled and uncontrolled constitution lies not. merely in the difference. in. the procedure of amendment but in the fact tha1 in tontrolled Constitutions the Constitution has a higher status by whose touch'. stone the validity of a law made by the legislature and the organ set up by it is subjea.d to the process of judicial review.' Where there is a 'e'Jin

16 SOPIWdJI COtJllT llEPOllTS [ 1973] Supp. s.c.11.

Constitution which adopts the (irwnble of smereignty in the people then: is, firstly no question of the law-making body being a sovereign body, for that body possesses only those powers which are conferml on it. Secondly, however representative it may be it cannot be equated with the people. This is specially so where the Constitution contains a Bill of rights for such a Bill imposes restraints on that body, that is, it negates the equation of that body with the people. [p. 252].

The meaning of the words "amendment of this Constitution" as used in the article 368 must be such as accords with the true -intention of the Constitution makers as ascertainable from the historical background, the Preamble, the entire scheme of the Constitution, its structure or framework and the intrinsic evidence in various articles including article 368. It is neither possible to give it a narrow meaning nor can such a wide meaning be given as will enable the amending body to change subsrantially or entirely the structure and identity of the Consti tu ti on. The concession by the respondents that the whole constitution cannot be abrogated or repealed and a new one substituted supports the conclusion that the widest possible meaning cannot be given to it. [p. 255].

Bribery Commissioner v. Pedrick, (1965] A.C. 172, 193-94, Rhode Island v.

A. Mitchel Palmet, 64 L. Ed. 946, /. /.Dhillon v. R. W. Gloss, 65 L. Ed. 994, United States v. William H. Sprague & William /. Howey, 75 L. Ed. 640, 644, Howard /oseph Whitehill, 19 L. Ed. 2nd 228 and Hawi{e v. Smith, 64 L. Ed. 871, referred to.

There is ample evidence in the Constitution itself to indicate that it creates a system oi checks and balances by reason of which powers are so distributed that none of the three organs can bccoJ; ne so predominant as to disable the others from exercising and discharging powers and functions entrusted to them.

Though the Constitution does not lay down the principle of separation of powors in all its rigidity as is the case in the United States Constitution, it cnvisaaes such a separation to a degree as was found in RanasingAe's case. The judi.Clal review provide(! expressly in the Consaitution by article 226 and 32 is one ol. the features on which hinges the system of checks and balances. Apart from that the necessity for judicial decision on the competence or otherwise of an Act arises from the very federal nature of a Conscitution. The function of inter pretation of a Constitution being thus assigned to the judicial power of the State the question whether the subject of a law is within the ambit of one or more powers in lcgislaturej conferred by the Constitution has always been a question of interpretation of the Constiaution. It may be -added that at no stage the' respondents contested the proposition that the validity of , a Constitution amendment can be the subject of review by this Court. Judicial review cannot be undemocratic in our Constitution because of the provisions relating to the appointment of Judges, the specific restrictions to which the fundamental rights are made subject, the deliberate exclusion of the due process clause in article 21 and the affirmation in article 141 that Judges declare but no< make law. To this may be added the none - rigid arncndatory process which authorises by means of two third majority and the additional requiremcot of ratification. [p. 278].

Bribery Commissioner ~. Pedrick RanasingAe, [1965] A.C. 172, Attorney General for the Commonwealth of Australia v. Colonial Sugar, [1914] A. C. 237 and West v. Commissioner of Tara#on (N.S.W.) (1936-37) C.L.R. 657, relied on.

Case law discussed.

The correct approach to the question of limitation which may be implied in any legislative provisions including a constitutional document hao to be made from the point, of view of interpretation. It is not a novel theory

XESAVANANDA fl, KEllALA (She/at, J.) 17

or doctrine which has to be treated as innovation of those who evolve heterodox methods to substantiate their own thesis.

The argument that there arc no implied limitations because there are no exptcSI limitations is • contradiction in terms. The implied limitations can only arise where there arc no express limitations. The contention that no implications can be read in an. amending power in a Constitution must be therefore repelled. [p. 279].

The whole scheme underlying the Constitution is to bring about economic and r.ociai changes without taking away the dignity of the individual. Indeed the same has been placed on such a. high pedestal that to ensure &eedom etc. from infringement has been justicfable by the highest court in the land. The dictum of Da~ C.J., in Kera/a Educllhon Bill "points the true picture in which there must be harmony between Parts III and IV ; indeed the picture will get distorted and blurred if any vital provision out of them is cut out or denuded of its identity. [p. 280].

The basic structure of the Constitution is not a vague concept and the apprehensions expressed on behalf of the respondents that netither the citizen nor the Parliament would be able to understand it are unfounded.

If the historical background, the Preamble, the entire scheme of the Constitution, the relevant provisions thereof including Art. 368 arc kept in mind there can be 110 difficulty in discerning that the following can be regarded as illustrating the basic clements of the constitutional structure :

(I) The supremacy of the Constitution; (2) Repulillcan democratic form of

government and soverignty~ the Coon try; ( 3) Secular and federal character of the Constitution ; ( 4) Demarcation of power between the legislature, and executive and the judiciary ; (5) The dignity of individual secured by the various freedoms and basic righu in Part III and the mandate to build a welfare State contained in Part IV and ( 6) The unity and the integrity of the nation. (p. 280].

The 24th Amendment does no more than to clarify in express language that which was implicit in the unamended article 368 ahd it docs not or cannot add to the power originally conferred thereunder.

'fhc entire discussion from the point of view of the meaning of the ec:prcssion "amendment' as implied in article 368 and the limitations which arise by implication leads to the result that the amending power under attidc 368 i• neither narrow nor unlimited. On this footing the , validity of the 24th amend ment can be sustained if article 368 as it originally -stood and after the amendment is read in the above manner. The insertion of article 13( 4) and 368 and other provisions made will not a!Iect the result, vis., that the power in article 368 i• wide enough to permit amendment of each and every article of the Constitution by way of addition, variation or repeal so long as its basic clements arc not abrogated or denuded of their identity. [p. 281 ].

Sectioo 2 of the 25th Amendment is ••lid

Clause (2) of article 31 as substituted by s. 1 of the 25th Amendment doe. llot abrogate any basic clement of the Constitution nor docs it denude it of it. identity because- .

(a) the fiution or the detemiination of the 'amount' under that article has

to be based on oorne norm or principle which must be relevant for die purpme of arriving at t1i" amount payable in respect of the property acquind or requisitioned ; :!,-'6 S.C. tlld<-/13

18 SUPREME COURT REPORTS [ 1973 J Supp. s.c.R.

(b) the amount need not be the market value but it should have a reasonable

relationship with the Value of such property ;

(c) the amount should neither be illusory nor fixed arbitrarily;

{d) though the courts arc debarred from going into the question of the

dcquacy of the aout and would give due weight to legislative Judgment, the cxam1natton of all the matters in (a), (b) and (c) above is open to judicial review.

As regards clause (2B) inserted in article 31 which makes article 19(1)(!) inapplicable, there is no reason trJ suppose that for determination of the amounr 'OD. the rinciplcs laid do, vn in the law any such procedure will be provided which will be unreasonable or opposed to the rules of natural justice. [pp. 291 292]. ,

Section 3 of Constitution Twenty Fifth Amendment is unconstitutional and

involid

The validity of section 3 of the 25th Amendment cannot be sustained because the said article suffers from two vices.

The first is that it enables abrogation of the basic clements of the Constitution inasmuch as the fundamental rights contained in articles 14, 19 and 31 can be completely taken away and, secondly,

the power of a1nendmcnt contained in article 368 is of a special nature which has been exclusively conferred on Parliament and can be exercised only in the

manner laid down !n that article.

The same could not be delegated to any other legislature in the Country.

Section 3 must therefore be declared to be: wnconstitutional and invalid. [ p. 292 J.

The 29th Amendment is valid

Tne question whether the articles included in the Ninth Schedule by that amendment or any provision of those Act abrogates any of the basic elements of die constitutional structure or denudes them of . their identity will have to be examined when the \'alidiry of those Acts comes up for consideration,

Hegde and Mukherjea, /l.

The Constitution 1'wc-nty Fourth and Twenty Ninth. mcndments arc v•lid. Section 2 of the Constitution Twenty Fifth Amendment is valid. Section 3 of the Constitution Twenty Fifth Amendment is invalid.

The power to amend the Constitutjon u-lt.Jer"Art. 368 a.r it stood before its amendment empoweed, the Parliament by foll<>wing the form an4 manner laid down in that ':Article, to amend each nd et1dy Article and

each and every Part of the _Constitutjon.

The view taken in Sankari Pi-asad's case, Saifan. Singh'~ case as well as Gol.alf..nath' s case that the .(>f?r-"Cr .to amend is to be found in article 368 is thC -correct view. It is difficult to accept the view that the power to amend the

CPnstitritiOO is 'not to bC fou'nci even by necessary implication in article 368 but mst 'he !ound c1sc\vhere .. Our .Constitutioh .makers, whq were _keenly

conscious of the importance of the provision relatiflt~ to the amendment of the .Constitution and .dbated that question for several days would not have !cf! this in>portant power . :hidden in Entry 'Y7 or ,, ist I leaving it to the of'! cha~ of the, courts locating that power in that Entry. The reasoning in suppo; t of the view fails to give due weight ti>, the fact that the <l!'°!cisc of th~

power under arti<lc 245, 2~6 anc 248 is "sub!l!<:t.' ta the, pt'OV!OJOn$, of , th!S Constitution". Most amendments of the Const1t\1t1on .must nccqrily .un?IJge,

!K.ESAVANANDA ,,. KERALA (Hegde, J.) 19

on one or the other of the existing provisions of the Constitution, Article 248 as well as the Lists in the 7th schedule merely deal with the legislative wer and not with the amending power. [p. 299].

Article 368 docs not expressly i:onftr the power to amend; the power is necessarily implied in the article.. The Article contains both the power and the procedure for an1cnding the ConstitUtion.

The article opens by saying "An a1nend1ncnt of the Con!-.titution" which means an amendment of each and every provhion an<l part of the Constitution. There is nothing in that article to restrict its scope. If article 3~$. is read by itself, there could be no doubt that the power of an1<.:ndr.nent implied in that article can reach each and every article as well as every part of the Coostitutfon. [pp. 299, 300].

Th< exprmion 'law' in Articl< 13(2) <v<n b<for< Art. 13 was ammd<d

by the 24th Amendment Act did not include amendments to the Constitution.

A Constitution is cxprc.tcd tc endure for a long time. Therefore, it must necessarily he elastic. Society cannot be placed in a strait jacket. When society grows, it~ requirements change. The Constitution and the laws may have to be changed to suit those needs. No single gcn¢ation can bind the cOurse of generations to come.

Hence every Constitution wisely drawn up provides for its own amendment. [p. 305].

To implement the duties imposed on the State' under Part IV, it may be necessary to abridge in certain respects the rights conferred on the citizens or, individuals under Part Ill, as in the case of incorporation , of .clause 4 in Article 15 to benefit the backward classes and Scheduled Castes and Scheduled Tribes and the amendment of Artkle 19(2) with a view to maintain effectively public order and friendly relations \.vith foreign States.

Hence; the ar)lending power should not be construed iri a narrow or pedantic man&cr~ The .power, must receive a broad and libcr~.l interpretation. How large it Should be is' a qpcs-- tion that requires closer examination. Both on priniplc as -well as on the language of Anide 3~ it was impossible to aq::cdc to the contention that no right guaranteed by Part III, can be abridged. [p. '305].

It is not cle:ir why the Drafting Committee deleted the reference to the amendment of the Constitution in Article 13(2). It is possible that they were of the opinion that in view of the plain 'language of' the provision relating to the amendment of the Constitution, that is draft Article 304, it was unnecessary. to provide in Article 13(2) that the amendment of the .Constitution docs not .c.; qme within its scope •

. ThiS Court i11 alvs reluctant to overrule its lier. decisios.

There must be compciling reasOns for overruling an earlier decision of this Court.

There are already conflicting decisions as to the scope . of Article 36$.

As for back as ll, in Sankari &asad's case, this Court took. the view .that. the

pOer of amendment confcireq under article. 368 . included 'in itself the power

to abridge a.nd take away the fundamental. right. incorporated in Part 'III of the 'Constitution. The correctness of that view was hot cha1lcngcd:. in several

oth~.r de.cisio~S~. Th~~ same. VeW wa' taken in Sii'!n. Singh's 'rJse. 'That view ws negatived i.n GOlQknath'.j'c:asc by a very .arrbw majority:, [p. 3061. ·

. ·.One other. circumsiilnccs of' grt signifitanecifthat the first ·; t; n1en<lmertt to the Constitution was carried out by the prl>V!Sli>nal Par!Wlien~ which. eon' •isted of the very members who were the members of th~ C<instituent Assembly.

20 SUPREME COURT llEPOl\TS [1973} Supp. s.c.a.

It should be remembered that members of the Constitucot Assembly continued as the members of the provisional Parliament till the general election in 1952.

They must have been :nvarc of the intention with which article 368 was enacted. [p. 306].

Though the power to amend the Constitution untler Article 368 is • very wide power, it does not include the power to destroy or emascuate the basic elements or the fUndamental features of the Constitution.

Since the word ament.hncnt in Article 368 is not a word of precise import and has not been used in various articles and parts of the Constitution to convey always the same precise meaning it is necessary to cake the aid of other relevant rules of construction to find out. the intention of the Constitution-makers.

If the nature of the power granted is clear and beyond doubt the fact that it may be misused is '"'holly irrclcvat. But, if there is a reasonable doubt as. to the nature of the powe:: granted then the Court has to rake into consideration the consequences that might ensue by interpreting the same as an unlimited power. Since the word 'amendment' has more than one meaning it is necessary to examine the consequences of accepting the contention of the Union and the States. [p. 313].

It is difficult to ac\:cpt the contention that our Constitution makers after making in1mrnsc. sacrifices for achieving certain ideals made provisions in the Constitution itself for the destruction of those ideals.

There is no doubt as men of experience and round political knowledge they must have known that social, econon1ic and political changes are bound to come with the passage of time and the Constitution must be capable of being so adjusted as to be able to respond to those new demands. Our Constitution is not amere political document. It is essentially a social document.

It is based on a social philso phy and every social philooophy like every religion has two main features, namely, basic and circurnc; tantial.

The former remains constant but the latter is subject to change.

The core of religion always remains constant but the practices associated with it may change.

Likewise a Constitution like ours contains certain features which arc so csscntial that they cannot be changed or

destroyed. In any event it cannot be destroyed from within. In other words, one cannct legally use the Constitution to destroy itself.

Under Article 36S the amended Constitution must remain "the Constituti'on"- whiCh means the original Constitution. \Vhcn we speak of the 'abroation

1 or 'repeal' of the Constinnion we do not refer to any form but to substance. If one or more of the basic features of the Constitution arc taken away to that extent the Constitution is abrogated or repealed.

If some other provisions inconsistent with those features arc incorporated it cannoll still remain the Constitution referred to in Article 368. The personality of the Co. ·•titution must remain unchanged. [p. 314].

It is also necessary to bear in mind that the power to amend the Constitution -is conferred on Parliament, a body constituted und"cr the Constitution.

The people as such are not associated with the amendment of the Constitution.

The Preamble shows it i< the people of this country who conferred this Coosti tution on themselves. The statement that the people of this country conkrrcd the Constitution on themselves is not open to challenge before the Court. Its factual corrtttncss cannot be gone into by this Court which again is a creature of the Constitution. n •• facts set out in the preamble have to be acuptcd hr this Court u correct. [ p. 315 J.

USAVANANDo\ II. ULU-4 (Hegde, J.) 21

When a power to amend a Constitution is given to the people its contents can be construed to be larger than when that power is given to a body ' constituted under that Constitution.

Two-thirds oI the members of the twe Howes of Parliament nrcd not neccasarily represent even the majority of the people of this country. Our electoral system is such that even a minority of vOO:rs can elect more than 2/3 of the members of the either House of Parliament.

That is seen from our c:xpericncc in the st. That apart, our Constitution wat framed on the basi~ of consensus and not on the basis of majority votes. It provides for the protection of the minorities. If the majority opinion is taken as the guiding factor then the guarantee given to the minorities may )>ecomc valueless.

It is wcllknown that the representatives of rhc minorities in the Constituent .Assembly gave up their claim for special protection which they were demanding -in the past because of the guarantee of the Fundamental Rights.

Therefore, the contention en behalf of the Union and the States that the two third nujority -of the members of the two houses of Parliament arc always authorised to speak on behalf of the entire people of this country is unacceptable. [p. 315].

Implied limitations on the power conferred under a statute constitute a general feature of all statutes. The position cannot be different in the case of powers conferred under a Constitution. A grant of power in general terms or even in absolute terms may be qualified by other express provisions in the same enactment or may be qualified by the implications in the context or even by

oonsiderations arising out 0£ what appears to be the general scheme of the statute.

Several of the powers conferred under our Constit•Jtion have been held to be subject to implied limitations though those powers arc expressed ift general terms or even iu bsolute terms. The amending power is one of he powers conferred under the Constitution whatever the nature of that power might be. [pp. 316, 317].

It is clear that the amending power under article 368 is also subject to in1plied H1nitations.

The contention that a power to amend the Constitution cannot be subject to any implied limitation is negatived by the observations of the Judicial Committee in the Bribery Commissioner v. Rana Singhe. [p. -318].

The position as rerds the ascertainment of basic clements or fundamental features of the Constitution can by no means be more difficult than the dif& .. culty of the legislature<; to determine before hand the constitutionality of legislation made under various other heads. Argument based on the difficulties likely to be faced by the legislatures arc of very little importance and they arc essentially arguments against judicial review. [p. 320].

Under our electoral system it is possible for a party to get two thir• majority in the two houses of Parliament even if that party does not get an absolute majority of votes cast at the election. That apart, when a party goes to election it presents to the electorate diverse programmes and holds out

'Yarious promises.

The programmes presented or the promises held out need not necessarily include proposals for amending the Constitution.

During the gcntral elections to Parliament in 1952, 1957, 1962 and 1967 no proposal to amend the Constitution appears to have been placed before the electorate, Even when proposals for an1C'ndment of the Constitution arc placed before the c:lcctoratc, as was done by the Congress party in 1971, the proposed amendments arc not usually placed before the electorate.

Under the!< circumstances the claim. that the electorate had given a mandate to the party to amend the Constttution in any particular manner is unjustified.

Further a parliamentary

22 SUPREME COUaT REPORTS [1973] Supp. s.c.R.

democracy like ours functions on the basis of the p:lity system.

The mechanics of the opcracion of the party system as well as the system of

Cabinc~ goyernmcnt are such that the people as a whole can have little 'ontrol in the matter of detailed law making. [p. 321].

11ic assertion that either the majority of the members of Parliament or even two third member~ of Parliament can speak on behalf o! the nation has no basis in fact. Indeed it may he possible for the ruling party to carry through important constitutional amendments even atcr it has lost the confidence of the electorate. Members of the Lok Sabha arc elected for a !<rm of five years, 1'hc 1uling party and its members may or may not enjoy the confidence of the electorate throughout their time of office ; therefore it will not be correct to say that whenever Parliament amends the Constitution it must be held to have done it as desired by the people. [p. 321 ],

There is a further fallacy in the contention that whenever the Constitution is amended we should presume that the amendment in question was made ia

order to adapt the Constitution to respond the growing needs of the people.

By using the amendment power it is theoretically possible for Parliament to extend its own life indefinitely a<: also to amend the Constitution in such a manner as to make it eiLlicr JcJr.lily or practically unamcndable ever afterwards.

The power which is capable of being used against the people themselves cannot he considered as a power exercised on behalf of the people or in their intere9t.

On a careful consideration of the various aspects of the case it must be held that Parliament has no power to abrogate or emasculate the basic clements or fundamental features of the Constitution such as the sovereignty of lndit, the democratic character of our polity, thC unity of the country and the essential

features of the individual freedoms secured to the citizens. Nor has the Parliament the power to revoke the mandate to build a Welfare State and egalitarian society.

These limitation' arc only illustrative and not c:r:baustivc.

Despite these limitations there can be no question that the amending power is a wide power and it reaches every article and every part of the Constitution to fulfil the obligations imposed on the State. It can also he used to reshape tl-.e Constitution within the limits mentioned earlier to make it an effective instrwncnt for social good.

It is not possible to agreewith the contention that in order to build J Welfare State, it is necessary to destroy some of the human freedoms. That, :it li.ny rate, is not the perspective of our Constitution.

Our C"nstitution envisages that the State should wihout delay make available to all the citizens of the Country the real benefits of those freedoms in a democratic way.

Human freedoms arc lost gradually and imperceptibly and their destruction is generally followed by authoritarian rule. That is what history has taught us. Struggle between liberty and power is eternal. Vigilance is the price that we, like every other democratic society, have topay to safeguard the dcmocradc values enshrined in our Constitution. Even the best of .fOVernments

arc -not averse to have 1nore and more power to carry out their plan and programmes which they rnay sincerely believe to be in public inf.crest, but freedom once lost is hardly regained except by revolution. Every encroachment on freedoms sets a pattern for further encroachments. Our Constitutional plan is to eradicate poverty \Vithout destruction of individual freedoms.

In the result the contention of the petitioners that the word 'amendment' in article 368 carries with it certain limitations and further that the power conferred under article 368 is subject to certain limitations must he upheld though that power is quite large. [p. 322].

DSAVANANDA "· XEIW.A (Hegae, J.) 23

Th< 241h Am.,.Jm.,.t did not . ffllarc• th< amffldinc pow.r o/

Parliaent. It merely made erplicit what was implicit in th~ original ArticltJ Henee it is valid.

Since Article 368 as it originally stood comprehended both power as well as procedu1e to :upend the Constitution, the change effected in the marginal note has no significance. The power though . described as constituent power still . continues to be: an amending poWer and therefore the content of power has not \!ndergonc any~ change. 1 he power conferred under the original article being a lirnited powr to amend the Constitution the constituent power to amend Constitution rerred to in the amended article must also be held to carry with it tPe limitations to which that power was subjected earlier. The new words 'addition',

1variation' or' 'repeal' only prescribe the modes or manner by which an 'amcndmct' may be madd, but they do not determine the scope of the power of 'amendment'.'. The provision in the new article that the President shall not withhold hi• as9Cllt cannot be said to have damaged or destroyed any basic elementS of the Constitution.

In fact under our Constitution the President is only a Constitutional head. He has to act on the advice of the cabinet.

There is no possibility of the Constitution being amended in opposition to the "'ishes of the 'cabinet.

Aniclcs 13( 4) and 368(3) make explicit what was implicit. Parliament . cannot acquire a power which it otherwise doca not possess. Clause ( c) to the proviso of article 368 does not confer a power on Parliament to enlarge its own power. The : powCr to amend the Constitution as well as the ordinary procedure to an1end any part of the Constitution was contained in the main part of the Constitution. The proviso merely places further restrictions on the procedure to amend the Articles mentioned therein. Lim.itations on the power to amend the Constitution would operate even when Article 368 is amended. A lllnitcd

power cannot be used to enlarge the same power into an absolute power.

Parliament .cannot do indirectly what it cannot do directly. }ience the mere claim in the statement of objects and reasons to certain power docs not go to show that Parliament either endorsed that claim or could have conferred on itself such a poWer.

It must be deemed to have exercised only such powe:r as it possses. It is he well accepted rule of construction that if a provision is:

reasop.ably capable of two interpretations the court must accept that interpretation which makes the provision valid. If the power conferred on Parliament to, dmend the Constitution under article 368 as it originally stood is a limited power Parliainent cannct enlarge the scope of that power.

For these reasons the scope of Parliament's power to amend the Consti:. tu ti on fir any part thereof must be held to have remained as it was before the 24th Amendment notwithstanding the alterations made in the phraseology of Article 368. [pp. 325, 326, 327].

Th< newly substitut<d Articl< 31(2) Jo<S not d<stroy th< right tr1 property -b.cauS< (i) th< fixation of 'amount' und.r that articl< should haV< reasonabl< r.Zationship with th< valu< of th< prop'1'ty acquir.J qr r.quisi• tioned; (ii) the principlu laid down must b< rd<vant fqr th< purpose of arriving at th< 'amount' payabl< in mp.ct of th< propmy acquired or r.quisitioned; (iii) th< 'amount' fixed should not b< illusory; and (iv) the sam• should not b< fi"d arbitrarily.

The question whether the 'amount' in quc.stion has been fixed arbitrarily or the <amc is illuso1Y or 1hc principles laid down for the determination of the same arc relevant to the subject matter of acquisition or requisition as about the

24 SUPREME coon REPOUS [1973] Supp. s.c.a.

aime when the property in question is acquired or requisitioned arc open to judicial review.

But it is no more open to the court to consider whether the 'amount' fixed or to be determined on the buis of the principles laid down i1 adequate, [p. 356].

Clause 2(b) of rh• 25rh Am•ndm<nt Act which incorporaud Arlie/, 31(2B) is also valid as it did not damage or destroy any essential features of th1 Conslitution. [p. 356].

Clause (3) of the 25th AmenJ.ment Act which introduced into the Constitution Artillt 31C is invalid for two reasons i.e. (i) it wa1 beyond the amending

power of Parliament in so far as the amendment in question permits Jestruc tion of several basic elements or fundamental features of C.onititution and

(ii) it tmpowtrs the Parliamept and the State Legislatives to pro tanto amend certain human freedoms guaranteed to the citizens by the exercise of their ordinary legislativ. pow.r. [p. 356].

The 29th Amendment Act is valid but the Acts which were brought into the IXth Schedule -by that amendment or any provision in any of them abrogate tany of the basic clements or essential features of the Constitution will have to be examined when the validity of those Acts is gone into. [p. 357].

Ray, /.-The Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments arc valid.

Law in arlic/e 13(2) means laws .na;:UJ by th< Ugis/atatur< subject to the provj1ions cf the Constiturion.

An amendment of the Coostitution is not 'law' tvithin th• meaning of articl• 13(2). Amendment of the Constitution is Mn exercise of Constituent power.

The Constitutional mandate in article 368 does not admit or provide any tcopc fa< any conflict with any other article of the Constitutioo. The legality

of an amendment is no more open to attack than of the Constitution itself.

The opening part of unamended article 368 tliz., "[aJn amendment ot this constitution may be initiated" and its concluding part before the proviso viz., "''the Constitution shall stand _amended" show clearly that the whole con,.

titution can be an1ended and no part of the Constitution is excluded freril .amendment.

Therein lies the distinction between the Constitution and ordinary la\v, The distinction lies in the criterion of validity.

The validity .of an ordinary law can be ques.tioned and when questioned it must be justified by reference to a higher-law. In the case of the constitution the validity is inhetent and lies within itself.

The constitution generates its own validity; the validity lie'! in the social fact of its acceptance by the community. There is a clear demarcation between ordinary law made in exercise of legisl3tivc power and constitutional law made in exercise of constituent power.

There~ fore, the power to amend a constitution is different from the power to amend ordinary law.

The distinction bct\veen legislative power and constituent power is vital in a rigid or controlled constitution, because, it is that di,. tinction which brings in the doctrine that a law ultra vjres the constitution is void.

When Parliament is engaged in the amending process it is not legislating; it is exercising a particular power which is sui generis lx-:stowed 11rn it by the amending clause in the Constitution.

Thus, an amendment

<1 the Constitution under article 368 is constituent 'law' and not 'law' within the meaning of article 13(2) and law as defined in article (13)(3)(a).

Law in article 13(2) could only mean that law which needs validity from

...

DSAVANANDA "· DlALA (Iav J.) 25

a higher source . and which can and ought to be regarded as invalid when it comes in conSict with higher law. It cannot possibly include a law which

ii self validating and which is never invalid. The distinctio~ ~cn constituent and legislative power is brought out by the feature in a r1g1d constitution that the amendment is by a different procedure than that by which ordinary law may be altered.

The amending power is therefore said to be a recreation of thC Constituent Assembly every time Parliament amends the Constitution in accordance with article 368. [pp. 364, 365; 374].


McCawley v. King, [1920] A.C. 691 and Bribery Commissioner v. Ped rick Ramuinghe, [1965] A.C. 172, held inapplicable.

Article 368 in the unamended form contains power as welJ as self executjng procedures which if followed by the p:escribed authorities, would result in an

11mn1dment of the Constitution. The power to amend meant the fJOWer to add •lter or repral any provision of the Constitution. The power is unlimited so long di the re.iult is an amended .Constitution, that is to say, an organic instrfli.. rnent which /'1'0vides for the making, interpretation and implementation of Jaw. Under proviso (2) to the unamended article the power of amendment

could be increa.sed, There are no express or implied limiiations on the power· of amendment.

There is no distinction between essential and non-essen.titlt features of th~ ConstitutiOn to raise any impediment to the exerciie of th< power of amendment. The Preamble does not operate as a limitation on th1 power of amendment .

., Amendment is a form of growth of the Constitution and the term 4amendment' connotes definite and formal processes of constitutional change.

These processes of change are the evolution of the Constitution.

The force of tradition and custom and judicial interpretation may all affect the organic structure of the State. The object of amendment is to sec that the constitution is prerved. Rebellion or revolution is an illegal channel of giving expression to change.

The "consent of the governed" is that each generation has a right to establish its own law.

The people expressed in the Preamble gave the Constitution including the power to amend the constitution to the bodies mentioned in article 368.

These bodies represent the people.

If a Coristitution provides the method of amendment that method alone is 1egal.

Any method other than the method provided in article 368, as for example, ..convening constituent Assembly or Referendum would be revolutionarr.

Article 368 restricts only the procedure or the manner and form required for amendment but not the kind or character of the amendment that may be made.

The deliberative and restrictive processe) "!nd 1 procedure. ensure a. change i~ the nstitution in an orderly fashion 1n order to give expression to social necessity and to give permanence to the Constitution .. [pp. 374, 392].

The xprssion "amendment of this Constitution" has a clear substan tive mcan1ng 1n te ontcxt of a written constitution and it means that any

art of '!>~ Constitution can be amended by changing the samr. by variation, add1t1on or repeal.

The words

4'amendmcnt .of this Constitution may be initiated" and the words

1'the Constitution shall -stand amended in ac~ cordancc with the terms of the Bill" in article 368 indicate that the wurd

26 SUPREME COURT REPORTS [1973] Supv. s.c.R.

amendment is used in an unambiguous and clear manner.

The word'

1amcnd' is used in a Constitution to denote any kind of change. The various. amendments which have already been made to the Constitution indicate that. provisions have been added varied or repealed.

The meaning and sco.pe ot the amending power j,, in the object and necessity for amendment .tn a. \Vrittcn Constitution i.e. for changing the Constitution in an or?crly manner and for making changes in the fundamental law or organic la\V . t.o change the fundamental or basic principles in the Costitution. The background in which ar.ticlc 368 was enacted by the Constltutcnt Assembly has an important aspect on the meaning and scope of the power of amendment ..

The Constituent Assembly made no distinction between essential and nonessential features.

No one in the Constituent Assembly said that fundamental rights could not be amended.

Even in the debate on. the Constitution: First Amendment Act no one doubted the power of Parliament to amend fundamental rights.

Proceedings in the Constituent Assembly show thatt the whole Constitution was . taken in broad perspective and the amendments suggested fell under three categories providing for simple majority, or tw0< thirds majority, or two-thirds majority and ratification by the States.

These different procedures were thought of to avoid rigidity.

The conclusion is that the meaning of the word 'amendment' is wide and not restricted •. If there arc no limitations on the power it is the whole power. [pp. 391, 396, 397~ 398].

There are no inherent or implied limitations on the amending povrer ..

The theory of inherent and implied limitations on the amending po\"lrer is based on the assumption of a narrow and restricted meaning of the word 'amendment' to suggest that the basic features or the essential features of the democratic republican character of the Constitution cannot be damaged and destroyed.

This Court in Berubari case f(1960) 3 S.C.R. 250] said that the Preamble has never been regarded as the source of any substantive power, because such po'vcrs are expressly granted in the body of the Constitution.

This Court said,

11What is true about powers is equally true about prohibitions and limitations".

The petitioner's contention that the Preamble is not a part of the Constitution, and so, being unalterable, other provisions which gave effect to the Preamble cannot be amended has no force.

The contention that the Preamble is not a part of the Constitution is nUllified by the petitioner's reference and reliance on the Preamble as the source of all inherent limitations. The Preamble in a Constitution refers to the frame of the Constitution at the time of the Preamble and, therefore, it can possibly have no relevance to the Constitucn.t power in the future when that constitution itself can be changed.

The position would be the same so far as the preamble is concerned whether the constituent power is exercised by the amending body provided for by the people themselves in the Constitution or by referendum, if so provided for in the Constitution.

Clear constitutional provisions nre imperative both on the legislatures and the cour:ts.

Where a constitutional provision is comprehensive in scoand leaves no room for interpretation the Court is without power to amend add to or detract from the constitutional provision or to create exceptions thereof bf implication \Vhere the people express themselves in careful and measured terms in fran'l ing the Constitution and they leave little to implications, amendments or

ch.anes in the existing order or conditions cannot be left to inserting imltcations by. reference to the. preamble which is an expression of the intention at the time of the framing of the Constitution.

The power to arnend' the Constitution is, therefore, not restricted and controlled by the PrCamblc .. [pp. 401, 402, 404, 405].

USAVANANDA I/, KERALA (Ray, J.) 27


A.C. 436 and Htnmng Jacobson v. Commonwtalth of Mauachusettus, 197 U.S. 11 referred to. ,

The theory of implied limitations is a subtle attempt t~ annihilate the a~ mativc power. of amendment.

The maxim expressum facit cessare tacztum 1• one of the salutary principles of statutory construction. [p. 406).

R. v. Burah, 3 A.C. 889, Wtbb v. Outrim, [1907] A.C. 89, Fielding v., Thomas, [1896) A.C. 66, Whittman v. Sad/tr, [1910] A.C. 514, referred to.

The entire approach of the pcthioncr to the power of amcdcnt . contained in article 368 ignores the fact that the object of the Const1tut1on tS , tc> provide £Or the organs of state like the judicature, legislature and the cxecut:ivc for the governance of the Country. Great and wide powers arc conferred , for

the governance by great sovereign countries and such powers cannot be withheld on ihc ground that they may be used externally or oppressively. \".ell settled principles of construction in interpreting constitutions preclude limiting the language of the Constitution by political, juristic or social concepts indcpcn• dcntly of the language of the constitution to be interpreted. [pp. 406, 407].

Dttp Chand v. Statt of Uttar Pradtth, [1959) Supp. 2 S.C.R. 8, Quun v.

Burah, [1887] 5 I.A. 179, A11ornty Gtntral for Ontario v. Attorn•y Gtntral for Canada, [1912] A.C. 571, Gopalan Cm, [1950] S.C.R. 88, Kuh•an M•dha••~ Menon v. State of Bombay, [ 1951 J S.C.R. 228 and Bmoari Lal Sharm• case, 72 I.A. 57, rcfcfrcd to.

All provisions, 0£ the Constitution arc essential and no distinction can IJe. m<!dc between essential and non-essential features from the point of view of amendment unless the makers of Constitution make it expressly clear in the Constitution itself.

The theory of implied and inherent limitation!! cannot be allowed to act as a boa constrictor to the clear and unambiguou!I power af amendment. When certain restrictions arc imposed in article 368 it is not in tended that other undefined restrictions should be imposed by implication. The provisions Of the Constitution, in the Hght of historical background and special problems of the Country will show that no provision can be considered non essential.

The character of the provisions which are , amendable under the

rovisq to article 368 itself shows that the petitioner's submission that cssen tzal features arc unamcndablc is a baseless vision. To find out essential or non-essential features is an eXercise in irqponderables. If there are no indicationr in the Constitution as to what the essential features arc, the task of amend mcnt of the Constitution becomes an unpredictable and indeterminate task.

There must be an objective standard by which it can be predicted as to what is essential and what is not csseniial. If Parliament cannot judge these features Parliament cannot amend the Constitution, [pp. 407, 408, 409, 410].

There is no foundation for the analogy that just as Jucigcs test reason ablcncss in law the judicial mind will find out the essential features on the test of reasonableness.

Reasonableness in law is treated as an objective criterion.

28 SUPREME COUJ.T REPOP.TS ( 1973) Supp. S.CJl,

hccausc reason inheres in man as rational being.

The crucial point i1 that in_ contradistinction to the American Constitution where rights arc couched in wick j,?encral terms leaving it to the Courts to evolve necessary limitations, our Constitution limited it by precise words of limitation. [p. 410].

Gopalan case, referred to

When article 368 speaks of changes in the provisions of the Constitution/ as arc set out in els. (a) to {d) of the proviso it is manifest that the makers .. of the Constitution expressed their intention with unerring accuracy that fca~· lures which can broadly be described as federal features, and from that point of view essential features, could be amended. The proviso confers that_ power with relation to the judiciary, die executive and the legislature, none of which could be said to be non-essential.

The contention about unamendability of essential features do not take into consideration that the extent and character oi any change in the provisions of the Constitution is to be determined by legislatures as amending bodies under article 368 and as representatives of the people in a democracy and it is not the function of the courts to make any such determination. (pp. 411, 412].

The 24th amendnlent made explicit what the judgment in Shankari Prasad and the majority judgment in Sajja• Singh and the dissenting judgment in Golak Nath said, namely, that Parliament has the cons'tituent power to amend the Constitution.

Certain obscrvatious in Golaknath raiScd a doubt as to the meaning of the word 'amendment'. The 24th amndment has expressly clarified that doubt. [p. 413]. .

Article 368 in the unamended term contained power as well as self execut ing procedures which if followed by the prescribed authorities would result in an amendment of the constitution. The ··-words

11Constitution shall stand amended" in article 368 will exclude a simple repeal, that is, without substituting anything in place of the repealed Constitution.

An amendment of the Constitution is an amendment of some thing which provides a system according to which a state or a nation is governed. {p. 414].

An amendment of the Constitution is to make fundamental changes in the Constitution.

Fundamental or basic principles can be changed.

However radical the change the amendment must provide for the mode in which the:: state is constituted or organised.

The. power of amendment is unlimited so long as te resul~ is an amended ontitution, tat is to say, an organic instrun1ent '-'1h1ch pro.vides for the making interpretation and implemen_tation of law. [p. 415].

The question whether under proviso ( e} to the unamended article 368 the power of amendment could be increased has to be answered in the affirmative.

First, under article 368 proviso ( e) any limitation on the power of amendment alleged to be found in any other article of the Constitution can be removed.

Secondly, judicial decisions show that by amending the article conferring the power of amendment a greater power to amend the Constitution can be obtained than was conferred by the original article.

Thirdly, the power to a.mend the amending power must include the power to add, alter or l'!Cpcal any part of that article and there is no reason why the addition cannot confer a power of amendment which the authorities named in article 368 did not possess. [pp. J!l5, '416].

Ryan's case, [1935] Ir. Rep. 170 and Ranasinghe's case, [1965] A.C. 172, f'eferred to.

KESAVANANDA ti. lillALA (Rily, }.) 29

The contention that the people reserved the power to themselves 'to amend the essential features of the Constitution and if any such amendment were to be made it should be referred to the people by refrcndum is without merit.

If essential features could be amended by the people the very fact that the Constituent Assembly did not include referendumas one of the methods of amendments and the fact that the Constitution -makers excluded no part of the Constitution from amendment establishes that the amendment of a written Constitution can be legally done only by the method prescribed by the Constitution. If the method of referendum be adopted for the purpose of amendment that would be extra-constitutional or revolutionary. The amending body represents the will of the people. Therefore as long as article 368 may be amended under proviso ( e) any amendment of the Constitution by recourse to referendum would be revolutionary.

The concept of popular sovereignty is well settled in parliamentary democracy and it means that the people express their will th.rough their representatives elected by them at the general election as. the amending body prescribed by the Constitution. [p. 418].

TJaerc is intrinsic evidence in the provisions of Part III itself that our Constitution docs not adopt the theory that fundamental rights arc natural right> or moral rights which every human being is at all times to have. The basic concept of fundamental right is a social one and it has a social functiona These rights arc conferred by the Constitution. The nature of the restrictions. on fmdamcntal rights shows that there is nothing natu.ral about those rights.

The Constitution is the higher law and it attains a form which makes possible the attribution to it -of an entirely new set of validity, the validity of a statute emanating from the soverign people.

Invested with statutory form and implemented by judicial review the higher law becomes juristically the n1ost fruitful foe the people. [p. 419, 421].

BASheshar Nath v. CJ.'f., Delh~ [1959] Supp. I S.C.R: 528, referred to.

If the power of amendil)ent of the Constitution is co-extensive with thepower of the judiciary to invalidate laws, the democratic pr0ttss anO the coordinate nature of the great departments of State arc maintained. The process harmonises with the theory of our Constitution that the three great departments of' State the legislature, the judiciary and the exo:; utive arc co-ordinate and none is superior to the other. If the power of amendment does not contain any limitation and if the power is denied by reading into the Constitution inherent limitations to. extinguish the validity of all amendments on the principle of csscn~I features of the Constitution which arc undefined and unttrmed, the Courts will have to lay down a new Constitution. The framers of the Constitution id. no~ put any limitation on the amending power because the end of a Constitu!lon IS the safety, the greatness and du~ well-being of a

people. Changes in the Constitution serve these great ends and carry out the real purposes of the Constitution •. [pp. 422, 423].

'The doc!rine of ronscquences has no application in ronstruing a grant of power ronfcrred by a Constitution. 1be argument that the O>nstitutioa of India could be subverted or dcstr?Ycd ., Uight have hortativc appeal but it is not "!'!'portable by the a~ expcflcncc in our ntry. The two basic postulates ID democracy are faith ID human reason and faith in human nature. There is no hi11hcr faith than faith in the aClllOCrltic process. Bctwccn 1951 when this Court rcc.opiicd in Shinklri PNJllJ unlimit<d power of. ainendment till

30 SUPREME COURT REPORTS (1973] Supp. S.C.ll.

.Golaknath decision in 1967 the normal democratic process functicd .; ts provided by the Constitution.

In considering a grt of power the wides~ meaning should be given to the words of the power 1Il order to effc_ctuate 1t fully.

The two exceptions to this rule are : first, in order to reconolc powers cx- , c:lusively conferred on different legislatures, a narrower meaning ca~ be gven .to one of the powers in order that both may operate as fully a.t is possible.

Second, technical terms must be given their technical meaning even thoug? it is narrower than the ordinary or popular meaning.

The theory of conscquen- . ce:.: i! misconstrued if it is taken to mean that considerations of policy, wisdom and social or economic policies arc included in the theory of consc.qucnccs.

If power is conferred which is in clear and ambiguous language and docs not admit of more than one construction there can be no scope for narrowing the clear meaning and width of the power by .considering the consequences of the exerciSC' of the power and by so reading down the power. The very :basis of parliamentary democracy is that the exercise of power is always subject to the popular will and control. The theory of implied and inherent lirnita tions is a repudiation of this democratic process. [pp. ~24, 425, 426].

Vacher & Sons v. London Soci.iy of Composirors, [1913] A.C. 107, C. P. & Berar case, [1938] F.C.R. 18, Province of Madras v. Governor-General, 72 I.A. 93, State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd., [1959] S.C.R. 379, Attorney General for Ontario v. AttC"'ney General for Dominions, [1912] A.C. 571, Bank of Toronto v. Lambe [1887] 12 A.C. 575, Bihar Land Reforms case, [1952] S.C.R. 889, Grundt case, [1948] Ch. 145, Rori v. lllison,

[1930] A.C. l, Demscl/e Howard v. I/Unoi1 C1'11tral Rail Road Co., 207 U.S. 463, Lochner v. New York, 198 U.S. 45; 49 L.Ed. 937, referred to.

The amending provisions in the Constitutions of the United States, Canada, Australia, Ireland and Ceylon and judicial decisions on the power -of amend ment in those Countries do not lend support to the submissi.ons that a restricted meaning should be attributed to the word 'amendmcne and that implied and inherent limitations should be read into the meaning and power of amend ment. [p. 426].

Rhoile Island v, Palmer, 253 U.S. 350; 64 1. Ed. 947, Hawke v. Smith, 253 U.S. 221, Lesser v. Garnett, 258 U.S. 130, United States v. Sprague, 222 U.S.

716, referrd to.

Initiative and Referendum case, [1919] A.C. 935, Switzman v. Elbing, 1957 Canada La_; v. Reports 285, Rer v. Hess [1949] 4 Dominion Law Reports 199, Saumur v. City of Quebec and Attorney G1'11cral of Quebec, [1953] D.L.R. 641, Chabot v. School Commissioners of La.morandiere and Attorney General for Quebec, [1958] 12 D.L.R. 796, Hodge v. Queen, 9 App. Cas. 117, Re Alberta Legislation, [1938]. 2 D.L.R. 81, Taylor v. Attorney General of Queensland, 23 C.L.R. 457, Victoria v. Commanwealth, 45 Australian Law Journal 251 Amalgamated Society of Engineers v. Adelaide Steamship Co. ftd., [1920] 2S C.L.R. 129, Moore If'" Ors. v. Attorney General for the Irish Free State & ()rs,, Jl935] A.C. 484, Liyanage v. Queen [1967] l A.C., 259, Kariapur case, [1968] A.C.

71~, Ranasinghe cse, [.1965] A.C. 172, lbrclebbe case, [1964] A.C. 900, ex

plamed and held mapphcable. ·

The word "amount" in article 31(2) after the Twenty Fifth Ame"dmcnt means sum. of money. The, prin_ciple which tnay. he acted .upon Ir; the legi~ lature tn fix•nt t/Je amou'lft m11y include considerations of social juitice. f11r1,

KESAVANANDA V. KERALA (Ray, ).) 31

ill and Part JV of the Constitution touch and modify each other.

The ade- -quacy of amo#nt fixed on the principles specified or the manner as. to hocv _such amount is to be given otherwise than in cash -:annot be the sub1ect mutter .of iudicial review-Article 31(2) is self contained and articles 31(2) and 19(1) (f) are mutually exclusive-Article 31(2) is to be read with articles 31A. -31B and 31C-Article 31C is an application of the princJ'ples underlying articls

31(4) and 31(6) and 31A to the sphere of industry-The article creates a.legis- J11tive field with reference to the object of legislation. In removing restnctwns Of Part Ill in respect of a latv undt-r article 31C there is no delegation of any power to amend the Constitution-Courts can go_ into th~ gestion_ '!"hethr legislation containing a declaration has nexus tvtth the directive prinetples in .article 39(b) and (c).

The framers of the Constitution envisaged social structure which would .avoid the acquisitive economy of private capitalism and the regimentation . of totalitarian State.

The Constitution -was framed with the object of effecting social revolution and the core of commitment to social revolution lies in Part Ill and Part IV of the Constitution. The directive principles are also fundamental and they can be effective only if they arc to prevail over the fundamental rights of a few in order to subscrve the common good and do not allow the economic system result in the common detriment.

A fundamental right may be regarded as fundamental by one generation; it may be consi- -dered to be inconvenient limitation upon legislative power by another. Popular soYcreignty means that the interest which prevails must be the interest of the mass of men.

If rights are built upon property those who have no property will have no rights.

Therefore the state has to balance the interest of the individual with the int<rest of the society. [pp. 441, 445].

The word 'amount' in article 31(2) after the Twenty fifth Amendment is to be read in the entire cllocation of words. In article 31(2) the use of the word "amount" in conjunctiQn with payment in cash sho\VS that a sun1 _ of money is being spoken of.

The quantum cannot be a matter of judicial review.

If the legislature docs not fix the amount but specifics the principles for determinig the amoun~ the relevancy of the principles cannot be irnpugned nor can the reasonableness of the principles be impeached. Any attempt to find out :as to v.hy the particular amount is fixed or how that amount has .been fixed by law will be examining the adequacy which is forbidden by the Constitutional m2.Ildate.

The quantum of the amount if directly fixed by the law and the principles for its quantification arc matters for legislative judgment. In fixing the amount the legislature will act On the . general nature of the legislative pD\YCr. _ The principle which may be acted upon by the legislature , in fixing the -amount may include considerations of social justice.

Considerations of socl justice . will incl1J:dc the relevant directive priiiciple, particularly .under article 39(b) a.nd (c). Article 19(1~(£) is excluded from article 31(2) m order to m.ake article 31(2) self contained. The right to hold property ca.nnot_.o-cxi.st. with the rigt of e state to acquire property. That is why article 31(2) is to be read with articles 31A, 31B and 31C all the articles being under the h<ading "Right to property". [pp. +17, 448]. '

There w; is_ no flexibili~- of. social interest _in article 31(2) as it originally stood. Every , cncCpt of social. interest became .Irrelevant by the scope of. article n(2}. It is this miSthief which was sought to be remedied by the. 25th Amendmel)-t. Part III an.d IV of the' Constitution touch , arid modify each other~ They are l)t parallel to each other. Diflcrent legislation. will bring in different

social printiples; ThC.C will not be permi,.il>le without social content operating

SUPREME. COUll.T REPOKTS fl973J Supp, S.C.L

in a Bexbl~ manner, That is why in the 25th Amendment article 31(2) is ded to ehmmate the concept of market value £or pr ty

.,.L . den · d opcr wuu.:u 11 acqwrc oJ rcquis1t1onc . If compensation tncans an amount de•·· d · '- f social ti th 11 be =mme on prmc1pies o JUS ce ere WI general harmony between Parts Ill and JV, [p. 455].

Dissenting view in the Bank Nationalisation case, affinp.ed.

F. N. Rana v. State of Gujarat, [1964} 5 S.C.R. 294 and S. N. Nantli v.

State of West Bengal, A.LR. 1971 S.C. 961, referred to.

The pre.eminent feature of article 31C is that it protccu only law. Law in article 31C must have the same meaning as it bas in other articles, gene~ rally, namely, a statute passed by the legislature.

The article is inextricably bound up with article 39(b) and ( c) because the purpose and the phraseology in both the articles are essentially identical. Law contemplated in article 31C will operate on the ownership and control of the material resources of the com~ munity to be distributed as best, tcT subservc comrilon good. In order to decide whether a statute is within article 31C the Court may examine the nature and character of legislation and the matter dealt with as to whether there is any nexus of the law to the principles mentioned in articles 39(b) and. {c). If .it appears that there is no nexus between the legislation and the Objectives and principles mentioned in article 39(b) and (c), the legislation will not be within the protective umbrella. The Court can tear the veil to decide the real nature of the statute if the facts and circumstances warrant such a course. [pp. 450, 451, 452].

The moson for excepting Articles 14, 19 and 31 from article 31C is the same as in article 31A. The exclll9ion of article 14 is to evolve new principla of equality in the light of the directive principles. The exclusion of article 19 is on the footing that laws which ate to 1ive effect to directive principles will constitute reasonable restrictions on the individual's liberty. The exclusion of Article 31(2) is to introduce the consideration of aocial justice in the matter of. acquisition. Directive Principles arc not limited to agrarian rcfomu. Directiw Principles are necessary for the uplift and growth of industry in the Country. [p. 452].

Article 31C creates a legislative field with reference to the object of legislation. The article substantially operates in the same manner in the industrial sphere a• article 31A operates in the agrarian sphere. The problem. arc similar in nature though of di£!i, rent magnitude. The article is an application of the principles, underlying articles 31(4) and 31{6) and 31A to the sphere of industry [p. 453].

Jn removing restrictions of Part Ill in respect of a law under articl~ 31C there is no delegation of any power to amend the Constitution. M a .....tr of the 25th ; mendment the existing legislative field is £reed from the fetten of some provisions of Part III on the legislative power. A class of legislation can be identified and the legislative field can be carved out from the <>peratlolr of fundamental righu or. some of those can be excluded by a provision of the Constitution.

The entire process of of the legislative field from the orration of some of the articles relating to fundamental righu is the manda• o the Constitution. [pp. 453, 454 ].

The successive amendmenu of the Constitution mordy carried out the principle embodied in article 31 clauses ( 4) and ( 6) that i.pialioa designed to secure public good and to implement the difecti•et unolrt atticle 39(b) and ( c) •hould have priority over individual rights and cltal t1-fcrc fundamenr.i rights were to be suborcfm= to Oit'eCtlves Oii S- ,..U.,.. {p 4~}.

XESAVANANDA .V. Ell!RALA 33

The <onclusivene,. of the declaration ini.oduccd by the Twenty-fifth Amendment in a law unda article 31C is to be appreciated in the entire context of article 31C. The declaration is for the purpose of excluding the process of evaluation of: legislation on a consideration of the virtues and defects with a View to seeing if the laws have led to the result intended. If aquestion arises as to whether a piece of legislation with such declaration has nexus with the directive principles in article 39(b) and (c), the Court can go into the question for the purpose of identification of the legislative measure on a consi~ deration of the scope and object and pith and substance of the legislation. [pp. 458, 459)

State of 'West Bengal v. Bela Banerjee, [1954) S.C.R. 558, Dwarkadas Shrinivas v. Sholapur Spg. & W•g.'Co. Ltd .. [1954) S.C.R. 674, Babu BarkJa Thakur

v. State of Bombay, [1961) I S.C.R. 128 and Smt, Somavanti l!t Ors. v. The State of Punjab, [1963) 2 S.C.R. 774, referred to.

The inclusion of Kera/a Act 35 of 1969 and the Kera/a Act 25 of 1971 in the Ninth Schedule by the Constitution Twenty Ninth Amendmrot u valid-Article 31B is independent of article 31A.

(Mathew, )., concurring) : The validity of the Twentyninth Amendment lies within narrow compa9S. Article 31B has lfcn f<"ld by this Court to be a valid amendment. It has also been held to be an inllependent provision. The rticle has no connection with article 31A and, therefore, the contention cannot be accepted that before the Acts can be included in the Ninth Schedule the requirements of article 31A arc to be complied with. [p. 460)

Jeeji' Bhoy v. Assistant Collectar, [1965). I S.C.R. 616 and Bihar Li.ntl Reforms ease, [1952) s, C.R. 889.

J•ganmohan Reddy, J.: The Constitution Twenty Fourth Amendment is valid. Section 2 of Constitution Twenty Fifth Amendment is valid. The new article 31C introduced by Constitution Twenty Fifth Amendment is .valid only if the words "inconsistent with or takes away or", the words

"Article 14'" and the declaration portion are severed.

The Constitudon Twenty Ninth Amondment is valid. [pp. 555, 556)

What the leading majority in Golaknath did not decide was whether article 368 it>Clf could be amended under the proviso of that article conferring a power to amend the whole constitution. "The ratio of the decision in the Goltzknath case is that an amendment under article 368 is 'law' within the meaning of article 13(2) and tllat under Article 368, Parliament could not amend the Constitution to take away or abridge any of the fundamental rights conferred by Part III uf the Constitution. That question will , assume importance if this Court comes to the conclusion that Parliament cannot amend art. 368 under proviso (e) thereof to take away or abridge any of the fundamental rights or amend article 13(2) making it subject to an amendment under article 368.

If such a power exists, the question whether an amendment in article 368 is a 'law' within the meaning of article 13(2} may not prima faci~ be of significance.

There arc, two aspects to this problem. First, whether 'law' in article 13(2} includes an amendment of the COnstitution under article 368; and secondly if this Court holds that 1aw' in article 13(2) does not include' an amendment under article 368, then the question would be, has the Constitution Twenty Fourth Amcndm.; nt, purported to exercise a power not granted under article 368; or, in other words, arc there any implied limitations to the amending power under Article 368. [pp. 462-'180]

3-36 S.C. lndla/13

34 SUPREME COURT REPO~TS [1973] Supp. s.c.R.

On the construction filaced on articles 12, 13 and other provisions of Part Ill

nd a;, tile 36~, article 1~(2) does. not place an embargo on article 368. !Aw tn artzd~ 13(2) ts that wluch may be made by the ordinary legisla ttve organs. [p. 480 J

Article 13(2) does not place an embargo on article 368 for amending any rights in Part Ill. To limit the extent and ambit of the power under article 368 in which there is no reference to a law, by including within the ambit of the definition of law in article 13(3)(a) for purposes of article 13(2) an amendment effected under article 368, is to restrict the power of amendment by a strained construction or to impute to the framers of the Constitution a lack of respect to the amending power by making the bar of article 13(2) applicable to it by mere implication when in respect of minor instruments they were careful enough to include them in the definition of 'law'.

A consideration of the conspectus of the various rights in Part III when read with article 13(2) would

prohibit the taking away or abridging of these sights by a law made by the Parliament, by the legislature of a State, or by executive action. This conclusion v1ill be substantiated if article 13(2) is read along with each of the articles in Patt Ill. The object of incorporating article 13(2) was to avoid its repetition in each of the articles conferring fundamental rights. Jn reading the articles in Part III with article 13(2) the words

1law' 'in accordance with law' or 'authority of law' clearly indicate that 'law' in article 13(2) is that which may be made by the ordinary legislative organs. The assumption of Hidayatullah J. in Golaknath that the word 'State' in article 12 would mean all the agencies of the Govern

ment jointly or separately is not justified. The prohibition in Article 13(2) is against each of them acting separately. The framers of the Constitution distin guished the 'Constitution' from 'law' or 'laws' making evident their intention by using the word 'law' in contradistinction to the 'Constitution' indicating thereby that the word 'law' wherever referred to mean only, ordinary l.egisla

tive la\v, while 'Constitution' means somCthing distinct from it. Article. 13(2) has .a purpose and that purpose is to emphasize the importance and the commanding position of the fundamental rights. (p. 480]

The Court, in a constitutional matter, where the intent of the framers of the Constitution as embodied in the written Constitution is to be ascertained, should look into the proceedings and the relevant date including any speech which may throw light on ascertaining it. Unlike a statute, a Constitutio!1 is a working instrument of Government; it is drafted by people who wanted It to be a national instrument to subserve successive generations. The various stages of the Constituent Assembly proceedings, while considering the draft articles 8 and 304, corresponding to articles 13 and 368 respectively, woll:ld show tat attempts were made to introduce amendments to both these articles to danfy that the embargo in article 13(2) does not apply to an amendment. made under article 368. Besides, it would appear from the proviso to draft article 8. before it was deleted, if read with clause (2) of the a.rticle, as also from the note showing the purpose for which it was incorporated that . the law referred to therein was a legislative law. It could not by any. stretch of language be co-?s-- trUed as including an amendment under draft a.rttde ~04, bc; causc, the proviso was making the restriction in clause (2) of article 8 1nappltcable to the State from making any la~ for the removal. o~ any inequlity, ?ispari 1ty, isadvantac or discrimination arising out of any existing law. If State nd law have be given a particular meaning in the proviso the same mean.1ng has to be. riv.en to th'em in clause (2) and since the proviso, clearly envisages .a lcgis at.Ive law it furnishes the key to th~ interpretation ?f the _word law 1n cl. (2) of draft article 8 that it is also a legislative law that 1s therem referred. (pp. 475-480]

ltl!SAVANANDA fl, KEl!ALA 35

(On view taken and having rzgard to the maJonty decision in Golaknath that the power of amendment is to be found in article 368 itself his Lordship did not consider it necessary to go into the question whether :he leading maiority in Golaknath was right in finding the power of amendment in the residuary entry 97 bf List I of Schedule VII]. [p. 480]

Sankoiri Prasad v. Urtian ff India & State of Bihar (1952] S.C.R. 89; Saijan Singh v. State of RajtMthan; [J96J] (1) S.C.R. 933, Gopalan v. State of Madras

(1950 J S.C.R. 87 referred tO.

The word 'amendment' iq Att. 368 docs not include repeal. Parliament could amend Art. 368 and Art. 13 and also all the fundamental rights. Though

the power of amendment is wide, it is not wide enough to totally abrogate or cm3sculatc or damage any of the fundamental rights or the essential clements in the basic structure of the Constitution or of destroying the identity of the Constitution. Within these limits, Parliament can amend every article of the Constitution. Parliament cannot under Art. 368 expand irs power of amendment so as to confer on itself the power to repeal or abrogate the Constitution or damage, emasculate or destroy any of the fundamental rights or essential elements of the basic structure of the Constitution or of destroying the identity of the Constitution.

The Twenty fourth Amendment has not changed the nature anQ scope of the amending power as it existed before the Amendment. (pp. 497-512]

This Court has during the last over two decades forged an approach of its own and set out the rules applicable to the interpretation of the Contitution.

There is no constitutional matter which is not in some way or the other involved with political, social or economic questions and if the Constitution makers have vested in this Court a power of judicial review, and while so vesting, have given it a prominent place describing it as the heart and soul of the Constitution this Court will not be deterred from discharging that duty merely because the validity or otherwise of the legislation will affect the political or social philosophy underlying it. The basic approach of this court has been and must always be, that the legislature has the exclusive power to determine the policy and to translate it into law, the constitutionality of which is to be presumed. In this regard the legislature, the executive, as well as the judiciary are bound by the paramount instrument. The bona fides of all the three of them has been the basic assumption and though all of them may be liable to error it can be corrected in the manner and by the method prescribed under the Constitution and subject to such limitations as may be inherent in the instrun1ent. When Courts declare law they do not mortgage the future with intent to bind the interest of the unborn generations to come.

The Courts have a duty and h3.ve indeed the-.power to re-examine and restate the law vvithin the limits of its interpretative function in the fulness of the experience during \Vhich it was in force so that it conforms with the socio-economic change and the jurisprudential outlook of that generation. The difficulty which foreign cases or even cases decid'ed within the Commonwealth, where the common Law forms the basis of the legal structure of that unit, is that they are more often than not concerned with expounding and interpreting provisions of law which are not in pari materia with those we arc called upon to consider.

The problems which confront those courts in the background of the state of the society! the socia~ and. ccopomic set up, tI1C requirements of people with a totally different ethic, philosophy, temperament and outlook differentiate them from the problems. and out}ook which confront the courts in this country. It is not a case of shutting out hght where that could profitably enlighten and benefit us •. The concern is rather to safeguard against the possibility of being blinded by it. [pp. 4,85-4"87]

36 SUPREME COUllT REPGRTS [1973] Supp. s.c.11.

In re. The C•ntral Provinces and Berar Act No. XIV of 1938 [1939] F.C.R. 18, Special Reference I of 1964 [1965] I S.C.R. 413, at 487 referred to.

The facts that the Preamble professed in unambiguous terms that it ;., the people of India who have adopted, enacted and "given to themselves tht.

Constitution"; that the Constitution is being acted upon unquestioned for the last over twenty three years and every power and authority is purported . to be exercised under the Constitution; and that the vast majority of the people have, acting under the Constitution, elected their representatives to Parliament and the State legislatures in five general elections, make the proposition indisputable that the source and the binding force of the Constitution is the sovereign will of the people of India. 0<1 this assumption no state need have unlimited powet

and indeed in federal politics no such doctrine ;., sustainable. [p. 494) ·

The amending power is a facet of the Constituent power but not the whole of it. The power under article 368 after the amendment ;., still described as amending power.

The Twenty Fourth Amendment makes this explicit because it did not want a. doubt to linger that because the same body, namely, Parliament makes both the ordinary law in terms of the grant in article 245 to 348 an.cl an amendment in terms of article 368, it should not be considered that both these are legislative law within the meaning Of art. 13(2). On the view taken that article 13(2) is confined only to the ordin"l)' legislative laws and not one made under article 368, the addition of clause (1) to article 368 in so far as it declares that when Parliament exercises the power un4cr that provision, it exercises its ccinstitucnt poWer and makes u:plicit what was implicit.

The amendmeot, therefore, makes no change in the position which prevailed before the amendment. It is not DCCC"'"')' to consider the q11Cstion of the existence or non-existcnc.c of implied or inherent limitations, bcca\lSC if the amending power is wide and plenary, those limitations can be ovC1ITiddcn as indeed the non-ob slant. clause in the amended clause (I) of article 368 was intended to subserve that <"1d. What has ID be considered is whether the word tamendment' is wide enough tO' confer a plenitude Of power including the power to repeal or abrogate. The outstanding question, then is, what is e meaning of the word 'amendment' ?-whether it has wide or a restricted meaning, whether it includes repeal or revision and whether having regard to the other provisions of the Constitution or the c.ontext of the word 'amendment' in article 368 itself it has a restricted meaning, so as not to roofer a power to damage or destroy the essential features of the Constitution. If the word 'amendmeot' has a restricted meaning, has that power been eolargcd by the use of the word• "amend by way of addition, variation or repeal" or do dtcy mean the same u amendment ? If they arc wider than amendment, could Parliament in cxcrcioe of its amending power in article 368 enlarge that power I [pp. 495, 496]

It is necessary ID ascertain from the background of our national aspirations, the objectives adopted by the Constituent Assembly as translated into a worliing organic instrument which established a sovereign democratic Republic with a Parliamentary system of Government, whcreunder individual rights of citizens, the duties 1Dwards the community which the State wa< enjoined to discharge the diffusion of legislativ< power between Parliament and State Legislatures

and the provision for its amendment, etc, are provided tor. All tht:se. aspects were sought to be well balanced as in a ship built for fair weather as wcll as for foul, Thi• then will Ix: the proper approach •. The recognition of the trWsia that power corrupts and aoolutc power corrupts absolutely has been the wt.dam that made practical men of cicpcricnoe in not only drawing up a written constitution limiting power of the legiolativc organs hut in s"UNnt to all citizens

ltESAVANANDA ti, KERALA 37

certain basic rights against the State. If the faith in the rulers is so great and the faith in the people to curb excessive exercise of. power or abuse of it is ""

potent, then one needs no elaborate Constitution, because, 11ll that is required is to make Parliament omnipotent and omni-sovereign. This the framers did not do and hence the question will be wheJier by an amendment under Art. 368 Parliament can effect a metamorphosis of power by making itself the supreme sovereign. It is against abuse of power that a constitutional structure of power relationship with checks and balances is devised and safeguards provided for whether expressly or by necessary implication. The question is whether there are any such in our constitution, and if so, whether they can be damaged or destroyed by an amending power. (pp. 506, 507]

The substitution of the word "'amcndm.cnt' by the expression

1amcnd by way of addition, variation or repeal' maK.Cs no difference as it bears the same meaning as the word "amendment". It is apparent from the meaning of the' word

11amcndment" that it does not include repeal or abrogation nor is it the same as revision. A repeal of a provision of. law is different from the repeal of the law itself. The Constitution itself has, in various articles, made a distinction between the amendment of the law and repeal of .the law. The word 'amendment' as used in article 368 does not connote a plcntitudc of power. The word, read with the other provisions, indicates that it is used in the sense of empowering a change in contradistinction to destruction which a repeal or abrogation

would imply. Art. 368 empowers only a change in the Constitution as is evident from the proviso which requires that where the provisions specified in . clauses (a) to (e) have to be amended they have to be ratified by thP resolution of not less than one half of the Legislatures of the States. This proviso furnishes a key to the meaning of the word 'amendment' that they can be changed without dcstroving them jusu the same way as the entire Constitution cannot be abrogated :ttid new Constitution substituted therefor. The amplitude of the power of amendment in Art. 368 cannot be enlarged by amending power under proviso ( e) to Art. 368. [pp. 508 to 512]

Goiaknath v. State of Punjab (1967] 2 S.C.R. 762, Queen v. Burah, 1877-78 P.C. 179 referred to; Rhode Island v. Palmer (National Prohibition Case) 64

L. ed. 946 explained.

If the entire Constitution cannot be abrogated, can all the provisions of the Constitution leaving the Preamble, or one article, or a few articles of the original Constitution .be repcabl and in . th~ place other provsion~ placed, v1hcrcby the entire structure of the Coosa.tun.on, the power rclanonsh1p inter se three Departments, the federal character of the tau;, "?d the rights .of t.hc citizens vis-avis the State arc abrogated and new mstJ.tunons, power relationsh1ps and the fundamental features substituted therefor I Such an attempt would equally amount to abrogation of the Constitution, because any such , ev;; cise of the er

will merely !cave the husk and will .amount to the subsl:!tutton of an cnttrely new Constitution which it is not denied, cannot be done under art. 368. (p. 512]

The Preamble to the Constitution dcclareo the purposes and objectives which the Constitution is intended to subservc. The Preamble ill furnish a guide to the construction of the statute wh<rc the word~ are bius or elcavend where the words are unambiguous to aid a comtruetton which ~

~O! to absurdity. W)icrc preamble cvcys a clcai; and definite d'J..i:e w:'~ , prevail over the cnact.tng words which are relaucly oblCUtC or "! which fits the words are capable of more than one constrUCllOll, the constrUction &'I d the preamble may be preferred. In in re Beruhari Union ca~ court~ to refer to and consider the view that the p"amble can be to

38 SUPREME COURT :RE~ORTS [1973] Supp. s.c.R.

the nature, extent and d1~ applicatio~ of the pocrs or that the preamble can be resorted to prevent obY10UJ absurdity or to a direct overthrow of the intention expressed therein. [pp. 512 to 516]


If a Constitution is considered as a mechanism or an organism or a piece of Constitutional engineering it must have a structure or a composition or a base or a foundation. The clements of the basic structure arc indicated in the preamble and translated in the various provisions of the preamble. There is nothing vague or unasccrtainablc in the preamble. The edifice of our constitution is built-upcm and stands on several props; remove any one of them, the Constitution collapses.

These are: (I) Sovereign Democratic Republic; (2) Justice social economic and political; (3) liberty of thought expression, faith, belief and worship; (4) Equality of status and of opportunity. Each one of these is important and collectively they assure a way of life t.o the people of India which the Constitution guarantees. If any of these clcrncnts is withdrawn the structure wil not survive and it will not be the same constitution nor can it maintain its identity if something quite different is substitutc:d in iu place which the sovereign will of the people alone can do. What then are the essential features or the basic elcmcnu comprising t™' structure of the constitution need not be considered in detail as thclc will fall for consideration in any concrete case where they arc said to have been abrogated and made nion-cxistcnt. A sovereign democratic republic, parliamcn~ tary democracy and the three organs of the State certainly constitute the basic structure. In the sense in which Sovereign Democratic Republic is understood it cannot be said that the structure of the Constitution as an organic instrument establishing Sovereign Democratic Republic as envisaged in the preamble will remain the same if Part lII and IV or either of them are totally abrogated. [pp. 517, 518]

T~ object of the fundamental rights is to ensure the ideal of political democracy and prevent authoritarian rule, while the object of the Directive Principles of State Poljcy is to establish a welfare state where there is econon1ic and social freedom without which political democracy has no meaning. What is implicit in the Constitution is that there is a duty on the courts to interpret Constitution and the laws to further the Directive Principles which under article 37 are fundamental in the governance of the country. To say that the Directive Principles give a directive to take away fundamental rights seems a contradiction in terms. There is no rationale in the argument that the Direstive Principles can only be given cfftct to if fundamental righu arc abrogated. The interest cf the community and of the •ociety can be adjusted without abrogating, damaging, emasculating or destroying the fundamental rights in such a way 11 to amo\lnt

to abrogation of these righu. The guarantee in clause 4 of Article 32 could be conceived of only against amending power, for no ordinary law can suspend a right given by the Constitulfon unless permitted by the Constitution itself. When clause 4 of Article 32 does 11ot even permit suspension of the right under Article 32 except as otherwise provided in the Constitution, that is, by Article 359, it is highly unthinkable that by an amendment this right could be abrogated.

This pivotal feature of the Fundunental Rights demonstrates that this basic structure cannot be damaged or destroyed. When a remedy cannot be abrogated, it should follow that the fundamental rights cannot be abrogated for the reason that tht existence of a remedy would be meaningless without the rigku. [pp. 518-520]

KESAVANANDA I/. x.nALA. 39

Sectir>n 2 of Twenty Fifth Amendment ;, •a/id

Ever since the Constitution (Fourth Amendment) Act this Court hat con• sistendy held that where what i' given in lieu of expropriating property of a citiun is illusory, arbitrary, or cannot be regarded as compcnation, and bears no reasonable relation to the property acquired, the Coun can go into it, and, secondly, where principles arc Jixed for determining the compensation, it can examine the quostion whtrhet they arc relevant to the oubject-matter nf the acquiaition. Tlic position has not in any way been alfcctcd by the amendment b1 merely mbstituting the word 'amount' for 'compensation'. If the amount is

illusory or arbitrary and is such that it shocks the conscience of any reasonable man, and bears no reasonable relation to the value nf the property acquired, the Court is not precluded from aamining it. The legisla~, even in cases where it Jixci an amount for the acquisition or requisition of a property, must be pre sumcd to have fixed it on some basis, or applied some criteria or principles to detenninc the amount so fixed, and, therefore, where the law is challenged on .the ground of arbitrariness, illusoriness or of having been based on irrelevant

principles or any other ground that may be open to challenge by an expropriated

owner, the Court will have to go into these questions; this will be so even in

respect to the manner of payment. [pp. 523, 524 J

Clause (2B) provides that "nothing in sub.clause (f) of clause (1) of article 19 shall affect any ouch law as is referred to clause (2)"; Docs this mean that the fundamental riglit to reasonable restriction of ploccdural nature under article 19(l)(f) available is abrogated• or dcstroycdl The answer to this would depend upon what is the meaning to be given to the word "affect". Two constructions are possible; one is that article 19(1)(f) will not be available at all to an expropriated owner under a law ol acquisition made under article 31(2), secondly cl. (2B) is intended to provide that the law of acquisition or requisition will not be void on the ground that it abridges or affects the right under article 19(1)(£).

The second construction is more in consonance with the amendment, because what the amendment provides for is that that article 19(1)(£) shall not affect any such law and this would imply that the bar against the application of article 19(l)(f) to ouch a Jaw may vary from a slight or partial encroachment to total prohibition or inapplicability. But since an amc11dmcnt cannot totally abrogate a fundamental right, it can only be read bv the adoption of the doctrine of "sevcrability in application" and accordingly clause (2B) must be held to be restricted only to the abridgement of, as distinct from abrogation, destroying or damaging the right under Article 19{l)(f). That apart there is nothing in cl. (2B) to prohibit principles of natural justice which arc part of the law of the land wherein the rule of law reigns supreme, from being applicable when the liberty of the individual or his property' is affected by a law. [pp. 524 to 526]

R. C. Cooper v. Union of India, [1970) 3 S.C.R. 530, Si.u of W111 Bento/

v. Mn. Bela Banerjee, [1954) 3 S.C.R. 558, P. 'Vajrau1lu Mudaliar

v. Sp"iol De['flly Collector, MadrGJ & Anr., [1965) 1 S.C.R. 614, Union of India v. Thi Mel41 Corpowion of Indio Lid., onil Anr. [1967] 1 S:C.R. 255, Sldlt of Guj11r111


Board of Wiirk1, 14 C.B. (N.S.) 180, referred to

New Art. 31C is only valid if the words. "inconsi<tent with or takes away or", the words

11artide 1-t" and the declaration portion "and no law containing a" decalaration that it is for giving effect! to "such policy shall be called in question in any court" on the gr:ound that it doc~ not give e~ to "such

policy" arc severed, u they arc scvcrabl~. What remains after severing can be

40 SUPRE1'IE COURT REPORTS ( 1973 j Supp. S.CJl.

operative and effective on the interpretation given .. to the applicability of Art !' . and 31, so as to enable laws made under Art. 31C to further the directives enshrined in Art. 39 (b) & (c). [p. 553]

The Directives under Art. 39(b) and (c) arc wide and indeterminate. It is !"'ccssary to keep in nind the :"'de field of governmental activity enjoined in article 39(b) and (c) m dctermmmg the racb of the means to achieve the ends and the impact of these means on the fundamental rights which article 31C affects, Though. the Cour~ have no function in the evaluation of the policies of the State or 1n dcterm1.n1ng whether they arc good or bad for the community, they have, however, in examining the legislative action taken by the state in furthering the ends, to ensure that the means adopted do not conflict with the provisions of the Constitution within which state action has to be confined. [pp. 535, 536]

Article 31C has four elements: (i) it permits the legislature to make a law giving effect to article 39(b) and (c) incontistnll with any of the rights conferred by arts. 14, 19 and 31; (ii) it permits the legislature to make a law giving effect to article 39(b) and Art. 39(c) tak, ing away any of the rights conferred by Arts. 14, 19 and 3); (iii) it permits the legislature to make a law giving effect to art. 39(b) and (c) abridging any of the rights conferred by articles 14, 19 and 31; and (iv) it prohibits the calling in question in any Court such a law, if it contains a declaration that it is for giving effect to the policy of State towards securing the principles specified in clauses (b) and (c) of Art. 39, on the ground that it does not give effect to such a policy of the State.

The first clement would be u/trJJ vim the amending power conferred by article 368 if it compreh.., ds within it th'< damaging or dcJtruction of the fundamental rights. The second, namely, taking aw•y of the fundamental rights would be llhra vim the amending power, for, taking away of these fundamental rights is synonymous with destroying them. The third, namely, abridging of these rights is not the same thing as damaging and the validity will have to be examined and considered separately in respect of each of the fundamental rights.

An abridgement ceases to be an abridgement when it tends to af!cct the basic or

essential content of the right and reduces it to a mere right only in name and in such a case it would be ultra vires the power under article 368. In so far as article 31C authorises or permits abridgement of the rights conferred by article 19 it would be intra vires the amending power as thereby damaging or emasculating of these rights is not authorised. (pp. 537, 53&]

The guarantee of equality in article 14 has ina>rporated the principle of 'liberty' and 'equality' embodied in the Preamble to the Constitution. Two con cepts are inherent in this guarantee, one, of 'equality before the law', a negative one, and the other, equal protection of the laws, a positive one. The i.mpoct of the negative content on the positive aspect has not so far been clearly diicetned in the decisions of this Court which has been mostly concerned with the pooitiV1'

upect. [pp. 538, 539]

The lifting of the embargo of Art. 14 on any law made by. Parliament or the ugislaturc of a State under Art. 31C would abrogate that right aler.

It may be that the objective of article 39(b) and (c) may form a basis of classification depending on the nature of the !aw1 the for which it was enacted and the impact wliich it has on the rightl of ciazen; but the right to equality before the law and equal protec:tion of laws in article 14 cannot be disembowelled by classification. In so far as the abric!Fncnt of the right con fierred by article 14 is concerned it would be ""'- ,,;,.,, for the reason that • mere violation of this right amounts to taking away ot damagini the right. It is clear that the very nature of the objectiva in article 39 (b} and (c) is mch

ltESAVANANDA V, KJ!llALA 41

"1-t ltticle 14 ii in•pplicable. The only purpooe which the exclusion of article

14. will serve would be to facilittte arbitrariness, inequality in distribution or to eiiable the conforment of patronage. The right under article 14 will only be

avtilable to the .P"rson or clHs of persons who would be entitled to receive 'the benefiu of dutribution under the law. In fact the availability of article 14

in respect of ltws under trticle 31C would ensure 'distributive justice' or -economic justice which without it would be thwarted. In this view of article

31C vis+vis Azt. 14, tny tnalogy between article 31C and art. 31A which is •ough.t to be drtwn is milconceived, bectuse, under the latter provision the -exclusion of Art. 14 was necessary. to protect the subject-matter of legislation

permissible thereunder in respec( of compensation payable to the expropriated owner. Further, in article 31A the exclusioh of art. 14 was confined only to .acquisition etc. of the property and not to the distribution aspect which is not the subject-matter of that article, whereas, the exclusion of art. 14 affects distri- 'bution which is the subject-matter of article 39(b) and (c). It cannot be presumed that Parliament by exercising its amending power under art. 368 intended to confer a right on Parliament and the legislatures of the states to discriminate persons similarly situated or deprive them 0£ equal protection of laws. The objectives sought '-<> be achieved under article 39(b) and (c) can be achieved even if th-. wotds "article 14" is severed. [pp. 540 to 544]

The law under article 31C will only operate on

11matcrial resources" "concen tration of wealth" and "means of production", therefore, the rights i~ article

19(1)(•) to (e) would have no relevance and arc inapplicable. [p. 549]

In so far as article 31(2) is concerned section 2 of the Twenty Fifth Amendment Act has already abridged the right conttined in articles 31(2) and a further abridgement of this right authorised by article 31C may trnount in a given case to the destruction or abrogation of that right and it may then have to be considered in each c;:asc whether a particular law provides for such an

mount as would constitute an abrogation or the emasculation of the right under article 31(2) as it stood before the Constitution (Twenty Fifth) Amendment.

IPP 549, 550]

[On the fourth element his lordship agreed with the reasoning and conclusion of Khanna ). in so far it related only to the severence of the part relating to the d":laration.] [p. 550]


The first part of article 31 C may be held to be intra 111'rts the amending power only if those portions of the article which makes it ultra viret the amend illg power are severed from the rest of it. The portions that may h; ave to be tevered arc the words

0is inconsiJtcnt with or takes away, or 0 and the words Marticle I 4" and part dealing with declaration by reason of. which judicial review k eK<hded. The oeverability of these portions is permissible in view of the

42 SUPREME COURT REPORTS [ 1973] Supp. s.c.11.

principles laid down by this Court in R. M. D. Chamerbaugwalla v. Usion of lnd1a. In the result, on the construction of article 31C after severing the portions' indicated, s. 3 of Twenty Fifth Amendment is valid. [p. 550]


State of Madhya Pradesh v. Ranojirao Shinde & Anr., [1968) 3 S.C.R. 489, distinguished.

[On the view taken, his lordship did not find it necessary to consider the question whether article 31C delegates the power of amendment to the State Legislatures and Parliament.] [p. 537]

The Constitution (Twenty Ninth) Amendment is valid.

But whether the Acts which were brought into the Ninth Schedule by that

amcdmcnt or any provision in any of them abrogate ay of the basic clements or essential features of the Constitution will have to be examined when the validity of those acts is gone into. Further, the contention that article 31B is intimately connected with article 31A is unacceptable and must be rejected. [pp. 554, 556]

Palekar, /. The Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendment Acts are valid. [p. 632 J

The power and procedure for amendment of the C<>nstitution were contained in the unamended Article 368. The proceu which bring about the result of amendment of the Constitution is the exercise of Constituent power.

[pp. 561, 566, 632]

The Constitution is n:ot an indigenous product. When our Constitution was framed in 1949 the framers of the Constitution knew that there were two COil trastcd types of democratic Constifutions in vogue in the world-one the

1Bezible' type which could he amended by the ordinary procedure governing the making of a law and the other the 'rigid' type which could be so amended but required a special procedure -for its amcniJment, From the special provision made in article 368 for the arri, e:ndment of the Constitution it follows that our Constitution is a rigid or controlled constitution because the Constituent Assembly has 'left a special direction a1s to how the Constitution is to be amended'. In view of article 368 when the special procedure is successfully followed, the proposed amendment automatically becomes a part of the Constitution or, in other words, it writes itself into the Constitution. The Constitution of India gives specine powers of ordinary, legislation to the Parliament and the State legislatures In respect of well demarcated subjects. Since the result of following the special procedure under article 368 is the amendment of the Constitution the process which brings about the result is known as the exercise of constituent power by the bodies associated in th~ , task of amending the Constitution. Therefore, when the Parliament and the State legislatures function in accordance with. article 368 with a view to amend the Constitution, they exercise constituent power as dis- tinct from , their , ordinary legislative power under Articles 245 to 248. Article 3~8 is not entirely procedural, The clear mandate that on the procedure being followed

,,,

IU!SAVANANDA v. KEllALA (PaJekar, J.) 4~

the proposed amendment shall become part of the Constitution is the substantivcpart of the article. Then:fore, the special power to amend the Constitution is too

be sought in article 368 only and not elsewhere. [pp. 558 to 563]

Automobile Tra1"port Ltd. v. State of Roiasthan, [1963) 1 S.C.R. 491 and Mc Cawley v. The King, 1920 A.C. 691, referred to. '"

[The view of the leading majority in Golai{nath that the power to amend the Constitution is to be found in article 248 read with the entry 97 List I held incorrect.) [pp. 565, 566)

By describing the power as 'Sovereign' Constituent power it is not the intcn tion to declare that legal sovereignty lies in this or that body. The word 'sovereign' is used as a convenient qualitative description of the power to high light its superiority over other powers conferred under the Constitution. The word, therefore, simply stands as a description of a power which is superior to every one of the .other powers granted to its instrumentalities by the Cons~ tution. The amplitude and effectiveness of the constituent power arc not impaired because it is exercised by this or that representative body or by the people in a referendum. And, the power to amend does not become more or less in content according to the nature of the body which makes the amendment. The people thcnisclvcs having withdrawn from the process of amendment and entrusted the task to the Parliament, instead of to any other representative body, it is obvious that the power of the authorities designated by the Constitution for amending the Constitution must be co-extensive with the power of a convention or a Constituent Assembly, had that course been permitted by the Constitution.

The raiton d'etre for making provision for the amendment of the Constitution is the need for orderly change. Between the two coordinatesJ namely, the need for orderly government and the demands for orderly change, boili in accordance with the Constitution., the makers of the Constitution provide for its amendment to the widest possible limit. Whichever way one looks at the amending power in a Constitution there can be hardly any doubt that the exercise of tliat power must correspond with the amplitude of the power unless there are express or necessarily implied limitations on the exercise of that power. The meaning of the wotd 'amendment of the Constitution' cannot be less than ' 1amcndment" by way of addition variation or repeal, of any provision of the Constitution which is the clarification of that expression accepted by the Constitution Twenty Fourth Amendment. [pp. 567 to 573)

Dodge v. Woolsey, (1866] 18 How 331 at 348, United States v. Sprague, 282 U.S. 716, Hawke v. Smith, 253 U.S. 223, British Coal Corporation v. The King, 1935, A.C. 500 and Edwards v. Attarney-Qeneral for Canada, 1930 A.C. 124, 136, referred to.

The grant of power under artitle 368 was plenary, unqualified and without any limitations except as to the special proceJure to be followed. [pp. 603, 604, 632]

.. The range of a!"edment was 'this Constitution' 'which meant all the provmons of the Constltutton. If any part of the Constitution was intended to be excluded from the operation of the power to amend it would have normally fonnd a place in or below article 368. When the people, through the Con•tituent Assembly, granted the power to amend, they made no reservations in favour of the 'people. When the Constituent Assembly directed that amendments of the Constitution must be made by a prescribed method they necessarily excluded CVCl'f other method of amending the Constitution. The grant of power under uticlc-

44 SUPREME COURT REPORTS [1973) Supp. s.c.R.

368 is plenary, unquaiified and without any limitations except as to the speeial procedure to be followed. All provisions in a Constitution must be conceded the

same character and it is not possible to say that one is more, important and the other is less important. If the object of a Constitution is orderly government and orderly change in accordance with the law, it must be conceded that all Constitutions whether Bexible or rigid, must have the power to amend the Constitution to the same degree. The amending power in a rigid constitution may, therefore reach all provisions whether important or unimportant, essential .or non-essential. Ha"Ving regard to the object of providing an amendment clause in a modern Constitution amendment must stand for alteration or change in its provisions. That thi~: was intended is clear from the wording of article 368. The proviso to the article clearly implies that an amendment under the article seeks to make a change in the provisions of the Constitution. Having regard to the importance of the tmcnding clause in our constitution an amendment contcm~ plates changes in the provisions of the constitution which are capable of being effected by adding, altering or repealing them, as found necessary from time to time. Thus, so far as: the wording of article 368 itself is conccrnC'd there is nothing in it which limits the power of amendment expressly or by necessary implication.

Consequences of wrccklcss use of power are political in character with which the court is not <:onccrned.

Consequences may be considered in fixing the scope and ambit of a power where the text of the statute creating the power is unclear or ambiguous, Where, it is clear and unambiguous courts have to implement the same without regard to consequences good or bad. just or unjust. [pp. 582 to 585]

Edwards v. Lesueur, South Western Reporter Vol. 33, 1130, Livermore v.

Waite, 102 Ca, 118, Er-parte Dillon, 262 Federal Reporter 563 decided in 1920, Dillon v. Gloss, 65 Law edn. 994. Er-parte Mrs, D. C. Kerby, 103 Or. 612. Sklte

v. Cor, 8 Ark. 436, Downs v. City of Birmingham, 198-Southern Reporter, 231, Schneiderman v. United Skltes of Amef'ica, 87 Law ed. 1796, Rhode ls/and v.

Palmef', 64 Law ed. 946, Ullmann v. United Skltes, 100 Law ed. 511, Whitehill

v. Elkins, 19 Law ed. 2d. 228, State v. Fulton, 124 N.E. 172 and Vacher's case 1913 A.C. 107, referred to.

• Article 13(2) did not operate as an erpress limikltion on the amending power. Amendment of th( Constitution is not 'law' within tAe munint .of artide 13. [pp. 591, 632] i

The Constitution or its amendment is neidier a law ln force within the meaning of article 13(1) continued under article 372(1) nor can it bC regarded as a 'law' made by the State within the meaning of article 13(2). The bat under article 13(2) is not merely against law but a law made by the State, The de6nition of the word 'state' includes all organs or agencie1 operating under the Constitution owing superior obligation to the Constitution. It would be, therefore,

wrong to identify 'state' in article 13(2) with anything more than the instrumentl created or adopted by the Constitution and which are required to work in conformity with the Consti, tution. By its very definition a body or set of bodies .exercising sovereign Constituent power, whether in a 'Bexible' or in a 'cipf

Constitution, is not a governmental organ owing supreme obli,-ti.on to the .Constitution. The body or bodies operate not under the Constitution but over

the Constitution. They do no~ while amending the Constitution, function u governmental organs and therefore cannot be regarded as the StallO for the put pose of Part III of the Constitution. If fudamental rights in Part , III were, !"'" amendable nothing would have been caner than to make a specific pnmnon about it i~ Part XX which dealt specifically with the subject ol amendment of the Constitution. [PP• 586 to 591]

KESAVANANDA f). KERALA (Palekar, J.) 45

Sri Venkataramana v. The State of Mysore, [1958] S.C.R. 6115 and Rana Singhe's case, [1965] A.C. 172, referred to.

[The decision of the majority in Golaknath that Constitution Amendment is 'law" within the meaning of article 13(2) held incorrect.] [p. 597]

There were no implied or inherent limitations on the amending power under the unamended article 368 in .its operation Ot1er the fundamental nghts~ T/kre can be none after its amendment. [p. 632]

Th~ Twenty Fourth Amendment docs no more than give effect ta PadiamCnt's acceptance of the view taken in Sank_ari Prasad's case, the majority in Sajjan \Singh's case and the minority in Golak. Nat!l's c:asc with regard to_ the amen<llng power in relation to fundamental rights.

It is clarificatory of the orimnal atide 368.

What was implicit in Article 368 is now made explicit and the, _csncc of Articles 368 is retained. Therefore there can be no objection to the Z4th Amendment on the ground that any essential feature of the C.ons\itution . is affected. Since article 13(2) docs not control an amendment of the C:onstitun it follows that any an1endment of the Constitution cannot be challenged on that ground and that would be true not only of tht 24th Amendment but also the 25th Amendment and the 29th Amenoment.

It may appear as ry odd at while the framers of the Constitution did not think it necessary to expressty. exclude even one provision of the Constitution from being amended they still i/ltcnded that this Court as the guardian of the Constitution should make pas of it unamendable by implying limiu.tions on the amending powct\ This Court cannot constitute itself a guardian against change constitutionalq. effccte<l. [pp. 598, 599]

So far as the right to prope:rty is concerned the Constitution in a.rticle 39(b) and (c) expressly declared ·\ts determination, in the interest of common good, to break up concentration of\lth and means of production in every form and to arrange for redistribution: , of ownership and control of the material resources of the community. If anything in the Constitution deserves to be called an essential feature this determination is one.

That is the Central issue in this case. In a real sense concentration of wealth in the form of agricultural lands was broken and community resources were distributed.

Article 31(4)(6) and article 31A clearly show that community interests were regarded as supreme and those articles were only a step in the implementation of the Directive Principles in article 39(b) and (c). The object of the 25th amendment is the same viz., implementation of article 39(b) and (c ).

In principle there is no difference in article 31A and the new article 31C inserted by the 25th Amendment. From the conclusion that the power of amendmenr I'Clnains unqualified by whomsoever it is exercised it .follows that there can be no implied or inherent limitations on the amending power. And, where

power is granted to amend the amending power there is DQ limit to the extent this may be done. It may be curtailed or enlarged. Article 368 permits the amendment . of all the provisions of the Constitution expressly and if that power is to be cut down by something that is said in soriie other provision of the Constitution the latter must be clear and specific.· Where the tezt is clear apd unambiguous there can be no recourse to the context or the ochcme of the Act ; nor can the context or the scheme be utilised to makt ambiguous what is clear and unambiguous.

The word 'amendment' used in the contcJ:t of a Constitution is clear and unambiguous. [pp. 600 to 609J

SUPREME COUllT REPOllTS [ 1973] Supp. s.c.11.

State of Bihar v. Kameshwar Singh, (1952) S.C.R. 889, Rayn v. Lannox, 1935 Jrish Reports, 170, Moore v. Attorney General for the Irish Stai., 1935 A.C. 484, Warburton v. Loveland, [1831) II Dow & Clark, 480, Bttntky v.

Routherham, 1876-77, 4 Ch.D 588 (592), Reg v. Burah, [1878) 3 App. (a) 889, Attorney-GenerraZfor the Province of Ontario v. Attorney.General for Dominion of Canada [1912] App. Cas. 571, Webb v. Outrim [1907) A.C. 81, The Amalgamated Society of Engineers v. The Adelaide Steamship Company Limii.d and .oth""s, 28 C.L.R.' 129, The Berubari Union and Exchange of Enclaves, [1960)

(3) S.C.R. 250 and Secretary of State v. Maharajah of Bobbili, 43 Madras 529, 536 (P.C.), referred to.

Fundamental rights are not inalienable natural rights. Articles 13 and 32 -show that fundamental rights are rights which the people have 'conferred' upon themselves.

Even the rights conferred arc not in absolute terms.

They arc hedged in and .restricted in the interest of the general public> public order, public 1norality, security of the State, and the like which show that social and political considerations are more import.ant in our organised society.

The core philosophy of the Constitution lies in social, economic and political justice.

The Directive Principles of State policy which the Constitution commands should be fundamental in the governance of the Country require the State. to direct its policy towards securing to tht: citizens adequate means of liveli~ hood. The mandate in article 39 is as importanc for the state aito maintain individual freedoms.

It is always a continuous endeavour of the State having the common good of the people at heart. So to harmonize the Directive Principles and the fundamental rights that so far as property rights arc .ccncerned, the unlirnited freedom to hold it would have to undergo an adjustn1ent to the demands of the State Policy dictated by the Directive Principles. The attribute of 'scaredness' of property vanishes in an egalitarian society.

Once this is accepted and deprivation and expropriation arc rcCog nised as inevitable in the interest of a better social organisation in which the reality of liberty and freedom can be more widely achieved the claim made , on behalf of property that it is an inmutable natural right loses force.

Nor is it correct to describe the fundan1ental rights, including the right to property, as rights reserved by the people to themselves. What the Constitution confer~ red was made revoc:i1ble, if necessary by the a1nendatory process. [pp. 593 to 596, 600 to 603]

No implied limitations c:, an be inferred. from the Preamble. The Preamble is a part of the Constitution and is amendable under article 368.

The subn1ission that the fundamental rights arc . ..an elaboration of the Preamble is an overstatement and a half truth. Most of the fundamental rights may be traced, to the principles of Liberty and Equality mentioned in the Preamble.

But whereas the concept~· of Liberty and Equality are mentioned in absolute terms in the Preamble the fundamental rights including the several freedoms arc not couched in absolute terms. They reflect the concepts of Liberty and Equality in a very attenuated form with several restrictions imposed in the interest of orderly and peaceable Government. The Preamble read as a whole docs not contain the implication that in any genuine implementation of the Directive Principles a fundamental right will not suffer any diminution. Nor is there anything in the preamble to suggest that the power to amend the fundarncn!al right to property is cut down.

The Preamble, it is noW well settled, can neither increase nor decrease the power granted in plain and clear words in the enacting parts of a statute. [pp. 609 to 613)

A Constitution is an organic instrument continuously growing in utility - and the question of its repeal never arises as long as orderly change is poasible.

XESAVUANDA v. (Palekar, J.) 47

It is the nature and character Of the Constitution as a growing, organic, penna-

11ent iovcrcign instrUmcnt of . government which exclude the repeal of the Constitution as a : wqolc and not the nature and character of the amending power. [p. 619]

If it is the Court that is to decide what arc the essential and nonessential provisions, what stable standard will guide the Court in deciding which provision is -sscntial and- which -is not essential. The difficulty assumes pttr proporti0n when an amendment is challenged on the ground that the core of an essential feature· is either damaged or destroyed.

Apart from the difficulty in determining where the 'core' of an 'essential feature' lies, fantastic Fults may follow . in working the Constitution.

The Court cannot be .mvitcd to determine the spirit of the Constitution. When concepts of social

or economic jD; Sticc arc _ offered for our examination in theii interaction on .provisions rclatirig 'to right to property, mancrs traditionally left to legislative; .policy :and wisdom, we are bound to flounder 'in labyrinths to the .character of which we have ncnuflicicnt gilidcs." [pp. 620-022]

. . . .On a conlideration therefore, of the nature of the amending power and , the unquali6ed mannel' in which it is given in article 368 of the Constitution .it is impossible to imply. any !imitations on the power to amend the fuda

m:cntal . rights. Since there arc no limitations express or implied, on 'the amending power it must be conceded that all the amendments which are in

qon must be deemed to be valid. The Court cannot question their policy 'or tll•ir wisdom. [p. 625]

.. State of Bihizr v. Kameshwar Singh, [1952] S.C.R. 889, Ryan v. Lennox, '[193H Irish J?eports, 170, Moore v. Attorney General for the Irish Stat<,

·[19~5, J1.C. 484, Warburton v. Loveland, [1831] II Dow & Clark, 480 Bentley

~. ; Rptherha,,,, [1876-77] 4 Ch. D .. 588, 592, Reg v. Burah, [1878] 3 App. Cas .

.-'.8~, . -Attorney.General for the Province of Ontano v. Attorney-Genal for the

Dominion of Canada, [1912] App. Cas. 571, Webb v, Outrim; [1907] A.C. 81, The Amalgamated Society of Engineers v. The Adelaide Steamship Company .:Limited rmd Ors., 28 C.L.R. 129, .The Berubari Union and Exchange 'of


Victoria v; The Corn, monwealth, 45 A.L.J.R, 251, distinguished.

Don John Francis Douglas Liyanage & Ors v.

The Queen, and Rana- ·.nng, he's case, [1965] A.C. 172, held inapplicable.

Section of 2 of the Constitution Twenty Fifth Amendment Act is valid. [pp. 625, 626]

A_n :'-mcndmt to the Constitution cannot become invalid because the

nstutlon authnscs th~ legislatures to fix an 'amount' or to specify the principles .on, which t?e. amount' .is .to be detcrmind instead of fixing the . compcnsauon or spec1fy1ng the prmc1ples for determining 1compensation'. All that the amendment has done is to negative the interpretation put by this Court on t?e c:onept of copcnsation. Whether a particular law fixes an amount \Vh1ch. ts illusory . or 1s otherwise a fraud on !X>Wer denying the fundamental nght to receive an amount specifically conferred by clause (2),

48 SUPREME COURT REPORTS ( 1973) Supp. S.C.Jt,

will depend upon the law when made and is tested on the basis of clause (2).

The possibility of abuse of a power given by an amendment of the Constitution is not deterrn.inative of the validity of the amendment. The new clause 2R excluding the application of article 19(1)(£) to a I.aw referred

IC> in clause (2) of article 31 is merely a restatement of the law laid down by thif Court after the Constitution came into force. [p. 626]

Bank of Toronto v. Lambe 1887, Vol. XII- Appeal Cases 575, 586-587 and Sitabati Debi & Anr. v. State of w .. ,, Bengal & Anr. (1967] 2 S.C.R. 949, referred to.

Article 3IC included by section 3 of the Constitution Twenty Fiftlt Amendment Act is valid.

\Vhat is saved by article 31C is a law i.e. a law made by a competent legislature and since r.he article comes under the specific heading 'Right to property' in Pan III the law must involve right to property.

The effect of the first part of article 31C is the same as if a proviso had been inserted

1 below 2rticle 13(2) or each of the several articles 14, 19 and 31 excluding their application to the particular types of law mentioned in article 31C. If the law docs not genuinely purport to give effect to the specified directive principles it will not be secure against the challenge under articles 14, 19 and 31. [pp. 627, 628]

Article 31C docs not prevent judicial review.

What the court will have to consider is whether it is a law which can reasonably be described as a law gi, ing effect to the policy of the state towards securing the aims of article- 39(b) or (c). That i~ an issue which is distinct from the other issue whether the law does not -give effect to the policy of the state towards securing the said aims.

A law reasonably calculated toserve a particular aim or purpose may not actually serve that aim or purpose; and it is this latter issue whicD is excluded from judicial review.

In that view of the true nature of article- 31C it cannot be said that the amendment is invalid. [pp. 629 to 631]

Beautharanis v. lllinois 343 U.S . .250, Charles Russell v. The Queen, 188? (VUI) Appeal Cases 829 (838.840) and Attorney-General v. Queen. lns#rtmcr Co. 1878 (3) Appeal Cases, 1090, referred to.

The Constitution Twenty Ninth Ameodment Act is valid. [p. 632)

The argument that unless the Acts included in the Ninth Schedule rela ted to agrarian reforrns the protection of article 31B will not be availablehas been rejected by this Court previously.

The T\vcnty Ninth Amendment is Ilot different from several similar amendments made previously by which statutes were added from time to time to the Ninth Schedule and whose validity has been upheld by this Court, [p. 632]

N. B. feeieebhoy "· Assistant Collector, Thana (1965] I S.C.R. 636, referred t<J.

Khanna, /. : The Constitution Twenty Fourth Amendment -is valid. The amendment made in article 31(2) by the Constitution Twenty Fifth Amendment is valid. The first part of article 31C introduced by the Constitution Twenty Fifth Amendment is valid.

The second part of article 31C viz., :•and no

h'1\V containing a declaration that it is for giving effcc~ to such po!tcy 1hall be called in question in any court nn the ground that tt does not give effet to stich policy" is invalid and therefore has to be struck down~ The Consn-- tution Twenty Ninth Amendment Act is valid. (pp. 759, 760]

KESAVANAND+\. ti. llRALA (Khllnna, J.) 49

Article . 368 before Constitution Trve.nty Fourth Amendment eonldio not only the procedure for the amendmeoJ of the Conttitution INt also confers the power of amending the Constitution. [p. 757]

The words in Article 368 "The Constitution shall stand amended in accordance with the terms of the bill" clearly indicate that the article provides not 1ncrcly the procedure for amending the Constitution but also contains the power to amend Article 368. By the very nature of things the power to amend the Constitution cannot be in the residuary entry in a federal constitution, because, the power to amend the Constitution will also include the power to alter the distribution of subjects mentioned in different entries. Such a power cannot obviously be a legislative power.

Irrespective of the source of power the words in Article 368. that "the Constitution shall stand amended" indicate that the process of making amendment prescribed in article 368 is a

11elf-exccuting process.

The article shows that once the procedure prescribed in that article has been complied with the end product is the amendment of the Constitution. [pp. 646-648[

The word "law" in Artii:le 13(2) does not in<!lude an amendment of tb~ Constitution. [p. 758]

An amendment of the Constitution made in accolldance with Article 368 docs not constitute "law" for the purpose of article 13(2).

The word "law", although referred to in a .large number of other articles of the Constitu- 'tion, finds no mention in article 368. What follows as a result of the compliance with Article 368 is an amendment of the Constitution and not law in the ocnse of ordinary legislation. There is a clear distinction betw<cn statutory

law made in exercise of legislative power and constitufional law made in curcise of _constituent power.

A Constitution is a famdamcntal and basic law and provides the authority under which ordinary law is made.

If it had been the intention of the framers of the Constitution that the law in article 13 would also include constitutional law including laws relating to the amendment of the Constitution, it is not explained as to why they did not e>pressly so state in clause (a) of article 13(3). . The Constitution itself contains indications of the distinction between the Constitution and the laws framed under the Constitution.

It is difficult to accede to the contention that even though the framers of the Constitution put no express limitation in Article 368 on the power to make amendment, they curtailed that power by

imlica.tion under article, 13(2) .. In. order to find the true scope of article 13(2) m the context of 1ts possible unpact on the power of amendment it

should not be read in isolation but should be read along with article 368.

The rule of construction is to read the actual words used

11not in vacuo but as occurring in a single complex instrument' ln whiCh one part may throw light on another".

A combined reading of article 13(2) and article 368 clearly points to the condusion that the cxtinguishment or abridgement of fundamental rights contained in Part III of the Constitution is not beyond the amcndary wer conferred by article 368.

The alleged conflict between ~~ articles ts apparent d ot real because the two provisions operate m different filds and deal w; th diflc.rct bjects. Article 368 is independent and self.ainta1ned. If there " any ltm1ta11on on the power of amendment it must be found in article 368 itself which is the sole fountalli-hcad of power to amend, and not in other provisions dcaling with ordinary legislation. [pp. 655 to 660] Tiie United Pt'Ollin"s v. Mn. Aliqa Begum & On [1940] 2 F.C.R. 110; /.,, us v. Commonwe.W. of Australia, [l9J6i >.£. 578, Rfemd to.

4-36 S.C. India/73

50 SUPREME COURT REPORTS [1973] Supp. s.c.L

Tiie pou1er of amendment undeir unamended article 368 does not inc/uje the power to abrogate the Constitution nor does it include the (JOwer zo alter the basic structure or frame-work of the Constitution.

Subject to the retention of t/Je basic structure or frame-work of the Constitution the power of amendment is plen'11'y and includes within itself the power .to

amend the variou! articles of the Constitution, including those relating to fundamental rights as u1ell as those which may be said to relate to essential features. No part of a fundamental right can claim immunit1 from amendatoty process by being described as the essence ar core of that right.

The powerof amendment would also include within itself fhe power to add to alter or repeal the various articles. [pp. 758, 759]

There are no words in Article 368 to indicate that a limitation was intended on the power of making amendment of Part III with a view to take .away or abridge fundamental rights.

The words "the Constitution shall stand amended" plainly cover the various articles of the Constitution. It is

difficult in the face of those clear and unambiguous words to exclude from their ope_ration the articles relating to fundamental rights. It is an elemental rule of c.onstruction that while dealing with a Constitution every word is to be expounded in its plain obvious and cominonsense unless the context furnishes some ground to control, qualify or enlarge it and there li:annot be imposed upon the words any recondite meaning or any extraordinary gloss.

It has not yet been erected into a legal maxim of Constitutional construction that words are meant to conceal thoughts. It cannot be said that the framers <>f the Constitution deliberately used words which cloaked their real intention \vhen it would have been so simple a matter to make the intention clear beyond any possibility' of doubt.

There is clear indication that the drafting Committee was conscious ef the need for having express provision regarding limitation on the power of amendment in case such limitation was desired.

This is clear from article 305 of the draft Constitution which immediately followed article 304 corresponding to article 368 of the Constitution as finally

cloptcd. The speech of Dr. Ambcdkar made on September 17, 1949 while dealing with the provision relating to amendment of the Constitution makes

it clear that the divided the various articles of the Constitution into three .categories.

There was nothing in his speech to show that apart from the three categories of articles there was a fourth category of articles contained in Part III which was not amendable and as such could not be the subicct <if amendment.

The Constitution (First Amendment} Act, 1951, which abridged and amended certain fundamental rights contained in article 19, was

passed by the provisional parliament which had also acted as the constituent assembly for the drafting of the O>nstitution.

The First Amendment is a contemporaneous practical aposition of the power of amendment under article 368.

The contemporaneous practical exposition furnished considerable d in resolving the doubt in construing the provision of the article. [pp. 648 to 653] Queen v. Buran, [1878] 3 Appeal Cam 889 and William Mcpheron v.

Robbert R. Blac/r.er, 146 U.S. !. referred to.

This Court has now accepted the view in its decisions since Golak Natli'l <ase that the speeches made in the Constituent Assembly can be r; c£errcd to :while dealing with the provisions of the Constitution. The speeches can be referred to for finding the history of the Constitutional provision and the background against which the provisions were drafted. The speeches cannot form the basis for construing the provisions of the Constitution. [p. 654]


KESAVANANl>A v. llllALA (Kh1111na, J.) 51

The amending clause is the most important part of a Constitution. Upon. its existence and truthfulness. th3; t is, its correspondence with real and natural conditions, depend• the question as to whether the State shall develop with peaceable continuity or shall suffer alternations of stagnat:ion, retrogression .and revolution. The framers of our Constitution were conscious of the desirability o! rc.:ondling the urge for change with the need for continuity.. They were not oblivious of the phenomenon writ large in human history that change

ithOut cClntinuity can be anarchy ; change with continuity can mCan progress ; and continuity without change can mean no progress.

The Constitution makers have, therefore, kept the balance between the danger of Aaving an unamendable constitution anda constitution which is easily amendable. No generation has monopoly of wisdom nor has any generation a right to place fetters -on future gene.rations to mould the machinery of Govern ment and the laws according to their requirements. The grant of power of amendment is based upon the asswnption that as in other human affairs, so ja. constitutions, there are no absolutes and that the human mind can never reconcile itself to fetters in its quest for a better order of things. I£ it is not permissible under article 368 to so amend the constitution as to take away or abridge the fundamental rights in Part III the conclusion would follow that the only way to take away or abridge fundamental rights is to resort to extra constitutional methods like revolution.

Between peaceful amendment through means provided by the constitution and the extra constitutional .method with it.s dangerous potentialities the former method is to be preferred. [pp. 663 to 670]

The consequences which would follow from the acceptance of the view that there is no power under article 368 to abridge or take away fundamental rights would be chaotic. It is one of the well settled rules of construction that if the words of a statute arc in themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature.

It is also well settled that where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working ot the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system.

These principles of construction apply with greater force 'vhen dealing with provisions of a Constitution. As the language of article 368 is plain and unambiguous it is not possible to read therein a limita ti on on the power of Parliament to amend the provisions of ~Part III of the Consutution so as to abridge or take away fundamental rights. It is also not permissible in the face of the plain language of article 368 to ascertain by 3.ny process akin to speculation the supposed intention of the constitution makers. If .the words are plain and free from any ambiguity the constitution makers should be takeh to have incorporated their intention in those words.

Collector of Customs, Baroda v. DigviidJingh; i Spinning & Weavin.f! Mil/J Ltd .• [1962] l S.C.R. 896, referred to. [pp. 670 to 671]

The argument that an amendment of Part III is possible by making a law for convening a Constituent A .. ssembly or for holding a referendum cannot be accepted. If Parliament by a two third majority in each house and by follo, ving the procedure laid down. in article 368 cannot amnd Part III of the Constitution so as to take awayor abridge fundamental rights it is difficult to understand how the same Parliament can by law create a body which can make the requisite amendment.

If it is not within the power of Parliament to take away or abridge fm!damental rights even by a vote of the. two thirds majority in each hou, se, would it be permissible for the same Parliament to enaet l•gislation under entry 97 List I of the Seventh Schedule by simple

S2 SUPREME COURT REPORTS [ 1973] Supp. s.c.11..

majority for creating a Constituent Assembly in order to take away or abridge fundamental rights. A body created by Parliament cannot have a power greater than those vested in thC'. Parliament. If something is impermissible, it would continue to be so even though two steps are taken instead of one for bringing about the result which is not permitted. Again, the argument that provisions cculd be made for referendum is equally facile.

Our oonstitution makcn rejected the method of referendum.

In a country whctc there arc religious and linguistic minorities, it was not considered a proper method of dccidirig vital issues. Thus apart, it is not permissible to resort to the method of refcren. dum unless there be a constitutional provision for such a course in the amend mcnt provision. The selection of the method of amendment having been made by the Constituent Assembly it is not for the Court to express preference for another method of amendment. There is no warrant for the proposition that since the amendments under Article 368 arc brought about by the prescribed 111ajority of the two houses of Parliament and in certain cases arc ratified by the State Legislatures and since the amendments arc not brought about through referendum or passed in a Convention, the power of amendment under article 368 is on that account subject to limitation:;. [pp. 671-078]

G<t>Tge S. Hawkes v. Hervey C. Smith, 64 L Ed. 871, f?Aode lslanJ v.

Mitchell, 64 L Ed. 946 and United States v. Sprague, 282, U.S. 716, referred to.

Parliament cannot be denied the power to amend the Constitution as te take away or abridge the fundamental rights by complying with the procedure of article 368 because of any supposed fear or possibility ol! the abuse of power.

That power may be abwcd furnishes no ground for denial of its existence. The

fact that a prescribed majority of the peoples' representatives is required for bringing about the amendment is itself a guarantee that the power would not be abused. The best safeguard against the abuse or extravagant use of power is public opinion and not a fetter on the right of people's rcprcscntatives to change the constitution by following the procedure laid down in the . Constitution itself. For seventeen years from 1950 till 1967 when Go/aknath case was decided the accepted proposition was that Parliament had the power 1D amend Part Ill of the C.onstitution so as to take away or abridge fundamental rights.

Despite the possession of that power no attempt was made by Parliament to ta.kc away or abridge fundamental rights relating to cherished values like liberty of person and freedom of expression. If it was not done in the past why should it be assumed that the majority of members ot Parliament, in future, would acquire sudden aversion and dislike for these values-.

Then: is a vital distinction between vesting of power, the exercise of the power and the manner of its exercise. What is in issue is whctlicr, on a true cOnstruction of article 368, Parliament has or .has not the power to ainend the Constitution so as to take away or abridge fundamental 'rights. The answer should be in the affirmative as long as the basic structure of the Constitution is retained. [pp. 678 to 682]

Prividence Bank v. A.lpheus Billings, 29 U.S. 514, /ohn L. Rapier, E:rpart•, IS U.S. 93, Bank of Toronto and Lambe, 12 A.C. 575 Mauouri Kansu ond Texas Railway Co. v. May, 194 U.S. 267, n:ferrcd to.

The power to amend under article 368 docs not include the power to completely abrogate Constitutio'.' and rcplac; c it by an entirely new Consti!"ti?n. -.. An1endment" of the Constituuon necessarily contcmolatcs that the Constitunon has not to be abrogated but only changes have to be made in it. The word "amendment" postulates that the old Constitution survives without loss of its identity despite the change and continues even though it has been subj~ t.o alb:rations. The retention of the old Constitution means retention of the bu1c

IWAVANANl>A ti. K.EllALA (Khanna, J.) 53

1tn1ctUre or frame-work of tho old Con1titution. Although it is pumissiblo 11Dder the power of amendment to elJect changes howsoever important and to adapt tho 1ystem to the requiremenu of changing conditiono, it ii not putnissible

te touch the foundation or to alter the basic institutional pattern. The words "amendment of tho Con•titution" with all their wide sweep and amplitude cannot have the effect of destroying or abrogating tho buic llr\lcturc or framework of the Constitution. It would not be competent under the garb of

amendment, for instance, to change the democratic Government into dicta tot .. ship or hereditary monarchy, nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the State according to which the State shall not decriminate against any citizen on the ground of

religion only cannot likewise be done away with. Provisions regarding the amendment does not furnish a pretence for subverting the slr\lcture of the Constitution nor can article 368 be so conslr\led as te embody the death wish of the Constitution or provide sanction for what may perhaps be called iu lawful Hara Kiri.

The words "amendment of this Constitution" and "the Constitution shall stand amended", in article 368 show that what is amended , is the existing Constitution and what emerges as a result of amendment is not a new and different Constitution but the existing Constitution though in an amended form.

Subject to the retention of the basic structure or framework of the Constitution the power of amendment is plenary and would include within itself the power to add, alter ot repeal the various article including

thOlC relating to fundamental rights. "Amendment" in article 368 has been used to denote change. This is a clear from the opening words of the proviso, to ortide 368. The word 'change' has a wide amplitude and would necessarily cover case of repeal and replacement of earlier provisions by new provisions of

different nature. The denial of such a broad and comprehensive power would introduce such rigidity in the Constitution as might break the Constitution must contain ample provision for experiment and trial in the task of administration.

It is not a document for fastidious dialectics but the means of ordering the life of a , people. It has its roots in the past, its continuity is rcftcctcd in the present and it is intended for the unknown future. [pp. 685, 686,

688-690, 693]

The Court in judging the validity of all amendment would not enter into the arena of controversy but would concern itself with the question as to whether the constitutional requirements for making the amendment have been satisfied.

An amendment of the Constitution in compliance with the procedure prescribed by Article 368 cannot be struck down by the Court on the ground that it is a change for the worse. [ p. 694]

A. K. Gopa/an v. State of Madras, [1950] S.C.R. 88, British Coal Corporalion v. The King, [1935] A.C. 500 Lochn.,. v. New York [1904] 198 U.S. 45 and Ferguson v. Skrupa, [1963] 372 U.S. 726, referred to.

So far as the expression

11essential features" means the basic. structure or irame-work of the Constitution the power to amend does not include within f the power to change the basic structure or frame-work of the Constitution.

The di!ercntiation between fundamental right and the essence or core of that

funen~.1 right !• an over-refinement which is not permissible and cannot otand JUd1C1al scrutmy.

The essence or core of a fundamental right must in e nature or things its integral part and cannot claim a status or protection di!ercnt from and higher than that of a fundamental right of which it ii oupposcd to be the essence or core. There is also no objoctive standard to ':1ctcnninc as to what is the core of fundamental right and what distinguishes

It from the periphery. The absence of such a standard is bound to introduce

54 SUPllEME COUl.T -TS {1973] Sapp. $.C.R.

uncertainty in a matter of so vital an importance .as the amendment of the Coostitution.

The provisions of the Constitution "'garding the power of making amendment arc clear and unambiguous and contain no limitation OD that power. [pp. 706, 707]

Thn-e art no implied or inhe1ent limJ'tations 01J the power of amendmetlt apart from those which inhere anli are impliCit in the tv<lf'd "amendment".

The power ca.nnot be re1trictetl by reference to natural cw hUman righ't;. [p. 759] So far as the limitation which flows by necessary implication from aa express provision of the. Constitution is concerned, the concept derives its 'force and is founded upon a principle of interpretation of statutes.

In the absence of any compelling reason it may be said that a constitutional provision is not exempt from the operation of such principle. It is not possible to disccr.a in the language of article 368 or other relevant articles any implied limitation on the po, vcr to make amendment contained in that article.

So far as the limita tion based upon higher values which are very dear to the human heart aml arc considered essential traits of civilised existence is concerned, one obviout objection which must strike every one is that the Constitution of India is one of the lengthiest Constitutions of the World. If it was intended that limita tions should be read on the power of making amendment the question would necessarily arise as to why the framers of the Constitution refrained from txpressly incorporating such limitation on the power of amendment in the Constitution itself.

The theory of implied limitation is based on a doctrinaire approach and not on what is essential for the purpose of construing and working a constitution, viz., a pragmatic and practkal approach. As the concept of implied limitations on the powerof amendment based on higher values is not based upon some express provision of the constitution, it must be regarded as el'sentially nebulous.

Th~ concept has no definite contours and its acceP" tancc would necessarily introduce an elcmeat of uncertainty and vagueness in a matter of so vital an importance as that pertaining to the amendment of the Constitution. It is difficult to accede to the submission that the framers of the Constitution, after having made such detailed provision~ for different subjects, left something co be decided by implication, that in addition to what was said there were things which were not said but which were intended to be as effective as things said.

The quest for things not said but which were to be as effective as things said, would take us to the realm of speculation and theorising and must bring in its wake the uncertainty which inevitably is there in all such spe1:ulation and theorising. Natural rights have no proper

place outside the Constitution and the statute. Independently of the Constituuon and the laws of the State, natural rights can have no legal sanction and cannot be enforced. The binding force of Constitutional and statutory -provisions can not be taken away :o.or can their amplitude and width be restricted by irivoking the concept of natural rights. The. rights, as such, cannot be deemed to be supreme or of superior validity to the enactments made by the State and not subject to the amendatory process. The power to amend the provisions of the Constitution relating to fundan1cntal rights cannot, therefore, be denied by describing the fundamental rights as natural rights or human rights. [pp. 695 te

700, 728 to 735J


Ct. &ports 285 (Canada), Attorney General of Novo Scoha v. Attorney Generol of Canada, [1950] Sup. Ct. Reports 31 (Canada) Bribery Commi., ioner •· Pedrick.. Ran• Singh< [1965] A.G. 172, Mccawley v. The King, 1920 A.G. 691 Attorney Generdz for N.S.W. v. Trethowan, [1932]. A.G. 256 and State of Victoria v. Commonwealth, 45 A.I.J.R. 251, held mappltcable.

• '

KESAVANANDA "· ltEllALA (Khanna, J.) 5S

Liya,,.te v. The Qwem, [ 1'66] AU E.ll.. 650, distinpished.

Notionol Prohibition Cose, 65 L. Ed. 994, fermish Ry .. v. Coptain Mich•el Leoon, (1935] A.C. Irish Reports 170 and Moore & Ors v, Attorney Generol for Irish Free Srate, [1935) A.C. 494, re£emd to.

A part from the part of the Preamble which relates to the basic structure or frame-worfr. of the Constitution, the Preamble 4oe1 not restrict the power of amen4mmt. [p. 759]

The Preamble docs not control the power of amendment. There is positive evidoncc in the debates of the Constituent Assembly to show that the Preamble is part of the Constitution. As preamble is part of the Constitution its provi lions other than , those relating to the basic structure or framcwork, it may well be argued, are as much subject to the amendatory process contained in article 368 as other parts of the Constitution. If the Preamble itself is amendable its provision other than those relating to basic structure cannot impose any implied limitation on the power 0£ amendment. The principle of construction. is that reference can be made to preamble for purpose of construing when the words of a. statute or constitution arc , ambiguous and admits of two alternative constructions.

When the language of a section or article is plain and suffers from no ambigriity or obscurity, no gloss can be put on the words of the section or article by invoking the Preamble. The preamble cannot confer any power per sc : it can never amount, by implication, to an enlargement ot any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution.

Its true office is to expound th~ nature ad CXtcnt and application of the powers actually conferred hv the Constitution and not substantively to create them. [pp. 710-713]

In re. The Berubari Union and Erchange of Enclaves, [1963]

S.C.R. 250 and Att<>rney General v. H.R.H. Prin<e Ernest, (1957] A.C. 436, referred to .

. Right to fJroperty doet not pertain to basic structure or framework of tlle

Constitution. ·

Although the Preamble gives a prominent place to securing the objective of

socia~ economic and politkal justice to the citizens there is nothing in it which gives primacy to claims of individual right to property over the claims of social, cc.onomic and political justice. There is no clause or indication in the Preamble -which stands in the way of abridgement of right to property for occuring socia~ economic and political justice. Indeed the dignity of the individual upon which also the preamble . has laid stress can only be assured by . 1eeuring the objective of social, economic and political justice. The Directive Principles embody a commitment which was imposed by the Constitution

maker~ on the State to bring about economic and social regeneration of the tteminj! millions who arc steeped in poverty, ignorance and social backwardncs1.

They incorporate a pledge to the coming generations of what the state would try to u.sher in. The stress in the impugned amendments to the Constitution upon changing the economic structure by narrowing the gap between the rich and the poor is not a recent phenomenon. This has been the objective of the national leaders since before the dawn of independence and was one of the undorlying . reasons for the first and fourth Amendments of the Constitution.

The approach adopted was that there should be no reluctance to abridge or

rcgulat• the fundamental right to property if it wu felt necessary to do so

56 SUPREME COUP.T REPoRTS [1973] Supp. s.c.R.

f.or changing the economic structure , and to attain the objectives contained ia the Directive Principles. So far u the quCJtion is concerned u to whether the right to property can be said to pertain to ba1ic llructure or frame-woik ef the Constitution the answer should plainly be in the neptive. Basic 11rUC!Ufe or frame-work indicates the broad outlines of , the Co.Dsatution while the riabt to property is a matter of detail. [pp. 716 to 720]

Parliament can by amendment of Ille ConnilUtion enlar1e ill °""' power1.

Amendment of the Constitution, in the very nature of things, can mult jn the conferment of powers on or the enlargement of powers of one of the organs of the State. There is nothing in the Constitution which prohibill or in an} other way prevents the enlargement of powers of Parliament as a result of constitutional amendment and such an amendment cannot be held to be

impermissible or beyond the purview of article 368.

Article 368 itaclf gives, inter .Jia, the power to amend article . 368 . and an amendment of arliclc 368

which has been brought about in the manner prescribed by that .. article would not suffer from any constitutional or tegal infirmity. [pp. 721 to 723]

/ermish Ryan v. Mischael Lennon, [ 1935] Irish Reports 170, referred to.

The Constitution Twenty Fourth Amendment Act 111111 ('llll<d in aecortanu

with the pro<edu~ laid down in Artick 368 of .Ille, C0111ti1Ution 111 it existed bef<>re the passing of the said, Act. The Aci doe1 nor suffer from

any infirmity and 111 such is valid. [l'P 737, 759]

The amendmenll in article 31(2) and the addition of d. 2(B) of the Constitution Twenty Fifth Amendment Act are permissibk under tll'#, Z, 368 and are, theref<>re, valid. [pp. 739, 741, 759]

The amendment made in atticle 31(2) by substituting the word "amount" for the word "compensation" is necessarily intended toget over the difficulty caused by the use of the word "compensation". What.ever may be the connotation ol the word 'amount' it would not affect the validity of the amendment made in article 31(2). There is no infirmity in the changes made in article 31(2). [p. 739]


3 S.C.R. 530, referred to.

By the addition of cl. (2B) the amendment seeks. to overcome the effect of the decision of this Court in R. C. Cooper v. Union of India, [19701 3 S.C.R.

530 that article 19(1)(£) and 31(2) arc not mutually exclusive.

The change made by the addition of clause (2B) in atticle 31(2) is permissible un.dcr article 368 .and cannot be held to be invalid. [ p. 741]

The first part of artick 31C introduced by ConstilUtion Twenty Fifth Amendmeal i1 valid. [p. 759]

The first part of article 31C is similar to article 31A except in respect o! the subject matter.

Both articles 31A and 31C deal with right to ptaperty.

The objective of article 31C is to prevent concentration of wealth and means of production :ind to ensure the dillribution of ownership and the aintrol of the material resources of the community for the common gi>od.

Article 31C is thus essentially an extension of the principle accepted in article 31A. Article 31A having been held to be valid during all these years its validity

I I

KESAVANANDA "· KllllALA (Khanna, J.) 57

ainnot now be questioned on account of the doctrine of start Je, isis. The

pound which sustained the validity clause (!) of Article 31A would equally .. stain the validity of the first part of article 31C. (pp. 743, 744]

Sankari Prasad v. Union of India, (1952 JS.C.R. 89 and Lmer v. Garnet, 258 U.S. 130 referred to.

The second part of article 31C contains the seed of nauonal disintegration and is invalid on the grounds: (i) It giv<S a carte blanche to the kgislllture to make any Jaw (liolotive of artkkt 14, 19 and make it immune

from attack by inst1ting tJie requisite declaration. Article 31C taken along with its second part, gives in effect the power to the legislature, including a State Legislature to amend the Constitution in important respects; and

(ii) it goes beyond the permissible limits of what constitutes amendment under article 368 since the exclusion of even limited judicial rtview strikes at the basic structure of the Constitution. [pp. 759, 760]

The effect of the second part of article 31C is that even though a law is in substance not in fustherence of the objects mentioned in articles 39(b) and (c) and has only a slender connection with those objects, the declaration made by tile legislature would stand in the way of a party challenging it on the ground that it is not for the furthcrcncc of those objects, A power is thus conferred to make a declaration in rcspcc_t of any law made in violation of the provisions of articles 14, 19 and 31', and, in further powering the state

legislature to make laws immune from attack on the ground of being violative of articles 14, 19 and 31 by inserting the requisite _declaration, the authority vested with the power to make amendment under Uticle 368 has in cffCct delegated or granted the power of amendment in important respect to a state legislature.

The power of amendment being of such vital importance c.an neither be delegated nor can those vested with the authority tCJ amend abdicate that power in favour of another body.

Article 31C taken along with the second part relating to the declaration departs from the scheme of article 31A,

becaui..e, while the protection afforded by article 31A is to laws ma~~ or specified subject the immunity granted under article 31C can be a\. ... ucd of even by laws which have not been made for the specified objects.

Judicial review is an integral part of the constitutional system. It is open to the authority amending the Constitution to exclude judicial review regarding the , validity of an existing statute. It is like-wise open to the authority to exclude judicial review regarding the validity. of a statute which might be enatctcd by the legislature in ture in respect of a specified subject. In such an event judicial review is not excluded for finding whether the statute has been enacted in respect of the specified subject. Both the above types of Constitutional amendments arc permissible under article 368. What is not permissible is a third type of Constitutional amendment according to which the amending authority not merely exclude judicial review regarding the validity of a statu~ which might be enacted by the legislature in future in respect of a specified ... bjcct, but also exclude judicial review for finding whether the statute enactea

by the legislature is in respect of the subject for which judicial review has been excluded. The position under article 31C is that though judicial review has been excluded by the authority making the Constitutional amendment the law in respect of which judicial review has been excluded is one yet to be passed by the legislatures. In view of the conclusive nature of the declaration it would be straining the language of article 31C to hold that a court can, despite the requisite declaration, go into the question that it docs not give effect to the policy of the State to\vards securing the principles. specified in

58 SUPll!ME OOURT RJ!PORTs [1973] Supp. s.c.a.

clauses {b) or {c) of article 39. Therefore, the second part of article 31C goes beyond the permissible limit of what constitute amendment under arti(:le 368 and strikes at the basic structure of the Constitution, The second par, t of the article and its invalidity will not affect the validity of the remaining part. [pp. 745 to 756] The Constitution (Twenty Ninth) Amendmmt Act does not •uf]er from any infirmity and as such is valid. [p. 760]

The oontcntion that articles 31B and 31A arc linked together and that only such enactments can be included in the Ninth Schedule as falf within the ambit of article 31A was repelled by this Court in fuieebhoy v. Assistant Co/. lector, Thana (1965] I S.C.R. 636.

There is no cogent ground to take a different view. [p. 757]

Mathew, f. : The Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments arc valid. [pp. 856, 857]

The dec, Jion .in the Golaknath ca1e that Parliament haJ no power to amend fundamental rights in such a way as to take away or abridge them wru wrong. The pow"' to amend under article 368 as it stood before the Twenty Fourth Amendmnit was plenary in character and extended to all provisions •f the Constl:tution. The Twenty Fourth Amendment did not add anything to

the content of ortl'cle 368 as it stood before the amendment. The amendment is d"laratory in character except as regards the compulsory nature of the astent of the President to a Bill for amendment. Under the article as amended all th1

provisiont of the Con1titution can be amended by way of addition, variall'on or repeal. The only limita#on it that the Constitution cannot be refealed or abrogated in the exercise of the power of Rmendment without substituting • mechanism by which the State is constituted and Mganised.

That limitation flowt from the language of the article itself. r p. 857]

Although the word amendment has a variety of meanings we have to ascribe to it in the article a meaning which is appropriate to the function te be played by it in an instrument apparently intended to endure for ages te rome and to meet the various crises to which the body politic will be subject.

The nature of that instrument demands awareness of_ certain presuppositioo.

The Constitution has no doubt its roots in the past but was designed primaily

for the unknown future. No existing constitution has reached its final form and shape and become, as it were, a fixed thing incapable of further growth. In interpreting a Constitution the Court should avoid a narrow and pcndanbc approach. Everything turns upon the spirit in which a Judge approaches the question before hiin. The words he must construe arc, generally speaking, mere vessels in which he can pour nearly anything he will. Seeing therefore that it is a "Constitution that we arc expounding" and that the Constitution makcn had before them several Constitutions where the word "amendment" " "alteration" is used to denote plenary power to change the fundamentals of the Constitution, the word amendment cannot be given a narrow meaning; but being a familiar c:xprcssion it was used in its familiar ,.J.cgal sense. The power to amend under that article included the power to add any provision to the- Constitution, to alter any provision, substitute any other provision in its plaoe and delete any other provision. But, when the article said that on tht bill far the amendment of the Constitution receiving the President's assent "the Coutitution shall stand amended" it seems to be fairly clear that a simple repe81 or abrogation of the Constitution without substituting anything in the place of the repealed Constitution would be beyond the soope of the amending power, for it, a Constitution were simply repealed it would not st.and amended. [pp. 766 to 769f

KESAVANANDA v. KERALA (Khanna, J.) ;)9

Sankari Prasad v. The Union of India, [1952] S.C.R. 89, Saiian Singh •· The State of Rajasthan, [1965] I S.C.R. 93.l, Golaknath v. State of Punjab, (1967] 2 S.C.R. 762, Rhodt Island v. Polmer, 253 U.S. 360, State (At the Prosecution of Jeremiah Ryan and Others) v. Captain Michsel Lannon and Others,

[1935] Irish Reports 170, Re the Central Provinces and Berar Sales of Motar Spirit and Lubricants Taxation Act, 1938, etc. [1939] F.C.R. 18, The Queen

v. Buroh [1878] 3 A.C. 889, 904-905, Attorney General for Ontario v. Attorne7 Gen<ral for Canada (1912] A.C. 571 at 583, referred to.

In a rigid Constitution there is a limitation upon the power of the legislature by something outside itself. There is a greater law than the law of dit: ordinary legislature and that i$ the law of the Constitution which is of superior obligation nknown to a flexible Cons.titution.

If a special procedure is prescribed by the Constitution for amending it, different from the procedure for pas<ing the ordinary law, then the Constitution is rigid. [p. 770]

Artile 368 as it stood before the Twenty Fourth Amendment contained not only the procedure but also the substantive power of amendment. As the article laid down a procedure different from the procedure for passing ordinary law our Constitution is a rigid one and the power to amend a Constituent power.

The vital distinction between Constitutional law and ordinary law in a rigid Constitution lies in the criterion of the validity of the ordinary law.

An ordinary law, when questioned, must be justified by reference to the higher law embodied in the Constitution; but in the case of a Constitution its validity is, generally speaking, inherent and lies within itself. Once it is realised that a Constitution differs from law in th.at a law is valid only if it is in conformity with the Constitution and that the body which makes the ordinary law ii not sovereign, but derives its power from the Constitution, an amendment to the Constitution has the same validity as the Constitution itself, although the question whether the amendment has been made in the manner and form and within the power conferred by the Constitution is always -justiciable. Just as an ordinary law derives its validity from its conformity with the Constitution, so also, an amendment of the Constitution derives its validity from the Cons titution. An amendment of the Constitution can be ultra vires just as an ordinary law can be. [pp. 769, 771, 772]

The word law in Article 13(2), in the context could only mean an ordinary law. If the power to amend was to be found within article 368 and not under Article 248 read with entry 97 of List I of the Seventh Schedule, it stands to reason to hold that the Constituent power for amendment of the Constitution .is distinct from Legislative power. The legislative power of Parliament under entry 97 of List I of the Seventh Schedule is exclusive and the power to amend cannot be located in that entry because in respect of the matters covered by the proviso to. article 368 Parlia1nent has no exclusive power to amend the Cont~ titution. Apart, 'the power to amend a rigid Constitution not being an ordinary legislative power but a Constituent one, it would be strange that the Constitution n1akers put it su/J..silentio in the residuary legislative entry. Article 368 was

clear that when the procedure prescribed by the article was followed, wluit resulted was an amendment of the Constitution. The article prescribed a proce dure different from the legislative procedure prescribed in article 107 to 111 read with article 100. [pp. m-7751

There is a distinction bctwccn a general power to legislau: and a poto lcgislat<: by special legislative procedure and the result of the exercise ti the two powers are different. Mc Cawley v. The King and The Bribery Com

missioner v. Pedrick Rana Singhe do not •how that the power to amend tile

60 SUPREME COUJ!.T REP?llTS [ 1973] Supp. s.c.ll.

<Anstitution is a legislative power. The substance of the decision in Ra~• SingAe's case is that though the Ceylon Parliament has plenary power ,. ordinary legislation, in the exercise of its Constituent power it was subject

to the special procedure laid down in s. 29{4). The decision therefore makes a clear distinction between lcgisl_ativc and Constituent powers. Again, there is no analogy between power of amendment in Omada which is le&islativc in

character and the power of amendment under article 368 which is a Constituent power. Under a Controlled C-onstitution like ours the power to amend cannot. be a legislative power; it can only be a Constituent power. [pp. 776-779)

The argument that if fundamental righu were intended to be amended in such a way as to abridge or taken them away considering the paramount importance of the rights the procedure required by the proviso to article l68 would have been made mandatory overlooks the purpose of the proviso. The purpose of the proviso is that rights, powers and privileges of the States or their status as states should not be taken away or impaired without their participation to some extent in the amending process. [p. 779)

Golaknath case [ 1967] 2 S.C.R. 762, held incorrect.

Mc Cawley v. The King [1920) A. C. 691, The Bribery Commissioner •· Pedrick Ranasinghe [1964) 2 W.L.R. 1301; [1965) A.C. 172, explained.

Contemporaneous practical exposition is a valuable aid to the mcllDing of a provision of the Constitution or a statute. The Constitution (First Amendment} Act amended the Fundamental rights under Article 15 and 19 in such a way as to abridge thCJn, Even the strong opponents 0£ the amendments never made a

whisper of a suggestion in their speeches that fundamental rights were not amendable. If the debates in the Constituent Assembly can be looked into to understand the legislative his::ory of a provision of the Constitution including its derivation, that is, the various steps leading upto and attending its enactment to ascertain the intenon of the makers of the Constitution, it is difficult to see why the debates arc inadmissible to throw light on the purpose and gmcral intent of the provision. After all, legislative history only tends to reveal the legislative purpose in enacting the provision arid thereby sheds light upon legislative intent. That it was Dr. Ambedakar's view that all the articles could be amended is clear from his speeches in the Constituent Assembly. He refuted the suggestion that fundamental rights should be absolute and unalterable.

The framers of the Constitution would have specifically provided for an cxccption in article 368 if they wanted that the fundamental rights should not be amended in such a way as to take away or abridge thctn. [pp. n9 to 785]

A. K. Gopalan v. The Stat< of Madras, [1950) S.C.R. 88, StaJ< of Tr•uan- "'..Cochin and Oth'ers v. The Bombay Co. Ltd. etc., [1952)

S.C.R. 1112, Golaknath Case, [1967) 2 S.CR. 762, 791 Madhav Rao v. Union of India, [1971) 3 S.C.R. 983, Union of India v. Harbhaian Singh Dhillon, [1971) 2 S.C.C. n9,

n:ferrcd to.

It was necessary to incorporate article 13{2) in the Constit""'"' to indicate the extent of the invasion of the fundamental right which w-t•ld make the impugned law void. Every limitation upon a fundamental right would ot be an abridgement of it. Whether a specific law operates to abridge • s1>ecilically

given fundamental right cannot be answered by any dogma whcthe~ of • priori assumption or of mechanical jurisprudence. The Court ust amvc at a value judgment as to what it is that is to be protected from abr1dgc_mcnt and then it must make a further value judgment as to whether the law impugned

XESAVANANl>A "· KUALA (Mathew, J.) 61

rally amounts to an abridgancnt of that right. In this process the Court will

have to look to the Direclive Principles in Part IV to sec what exactly is the conientof the fundamental right. The Court would generally be more astute

to protect personal rights than property rights. [PP: 785, 786]

.A.. _K. Gopalan v. State of Madras, [1950] S.C.R. 88 .

. .'TAtrt .,., no implied or inA~I limitations upon the power of •"""""""' uildtr .Fticle 368. [p. 857]

. The basic premise of the argument that there are inl¥orcnt and implied limitations is that the ultimate legal sovereignty under the Constitution resides in the peaple. The Constitution was framed by an assembly elected indirectly on .. A limited , franchise. and . the Assembly did not represent the vast majority ol the people of the Country. It does not follow that because the people of India dld. not frame the .. Constitution or ratify it, the Constitution has no legal validity. If the legal source for the validity of the Constitution is not that it was framed by the people, the amending provision bas to be construed on its own nguagc without reference to any extraneous c.onsidcration as to whet.her tlie people did or did not delegate all their Constituent power to the amending body or that. the people reserved to themselves the fundamental rights. Even on the assumption that it was the people who framed the Constitution could it be said that after the Constitution was fra.m<d the people still retain and

can exercise their sovereign constituent power to amend or modify the basic slriicture or the essential features of the Constitution by virtue of their legal sovereignty I [pp. 78&.790]

Seeing however that the people have no constitutionill or legal powa assigned to than under the Constitution and that by virtue of their political supremacy, they can unmake the Constitution only by a method not sanctioned by the ; uridical order, namely, revolution, it is difficult to agree that the kglll

soverdgnty under the Constitution resides in the people or that as the ultimate legal sovereign the people can constitutionally change the basic structure of the Constitution even when the Constitution provides for a specific mechanism for its amendment.

If sovereignty is said to exist in any sense at all it must exist in the amending body. Under the Constitution the people have delegated the power to amend the instrument which they created to the amending body.

It was in the exercise of the constituent power that the people framed the COnstitution arid invested the amending body with the power to amend the very instrument they created with a superadded power to amend that very 1'9Wer. The instrument they created, by necessary implication, limits the further curcise of the power by them, though, not the possession of it. There is a

distiction between possession of a right or power and the exercise of it.

The people having delegated the power of amendment that power cannot be esercised in any way other than that prescribed nor by any instrumentality otl\er than that desinated for that purpose by the Constitution. The Constint .power is the power exercised in establishing a Constitution, that .is, the fundamental decision on tcvolutionary reasons tcr the org:anisation and limitation of a new. Government. From this Constituent oowcr must be distinguished die. amending ·~r which_ changes an existing Constitution in form provided bf. the. Constitution itself. for the amending power is itself . a constituted

aulhority. To. say that a nation can still exercise unlimited constituent power • having framed a constitution vesting plenary power of amendment under ir'in'.•, ... para. te l?od.Y is only to say that the people have the political power t9 #9se the ei<istiiig order by means of a revolution. But this doctrine cannat

62 SUPREME COUltT REPORTS [ 1973 J Supp. s.c.l.

be advanced to t"lacc implied limitations upon the amending power provided in a written constitution.

It is only in a revolutionary sense that one can distinguish between Constituent power and amending power. It is based on the assumption that the constituent power cannot be brought within the fram.e-

~; ork of the Constitution. The proposition that an unlimited amending authority

cannot make any basic change and that the basic change can be made only by a revolution is something extra legal nt> Court can countenance. Under the Indian Constitution the original sovereign-the people-cread by the amending clause of the Constitution a lesser sovereign almost co-extensive in power with itself. It might be open to the amending body to amend article 368 itself and provide for referendum or any other method for ascertaining the will ot the people in the matter of amendment of fundamental rights or any other provision of the Constitution. If the basic and essential features of the Constitution can be changed only by the people and not by a Constitutional authority like the Amending body, was it open to the amending body, or would it be open to the amending body today to amend article 368 in such a way as to invest the people with that power to be exercised by ferendum or any otlier popular device ? [pp. 791 to 796]

Mc Cu/loch v. Maryland, [1819] 4 Wheat 316, State of Wen Bmgal "· Union of India, [1961] I S.C.R. 371, 396-398, Chii/iolm v. G<Drgia, [1793] 2 Dallas 419, 470'471, Huth v. Clarks [1890] 25 Q.B.D. 391, 395; Dodge"·

Woolsey [1856] 18 How. 331, 348, and Cohens v. Virginia, 6 Wheat (19 U.S.) 264, 381, referred. to.

The Preamble is part of the Constitution. That being so there ;. no valid reason why the preamble cannot be amended. The broad concepts of justicosocial, economic and political, equality and liberty thrown large upon the canvas of the preamble as eternal verities are mere moral adjudication with only that content which each generation must pour into them anew in the light of its own experience. An independent judiciary cannot seek to fill them from its own bosom. If it were to do so, in the end it will o:asc to be independent. For a country struggling to build up a social order for freeing its teeming millions from the yoke of poverty and destitution, the Preamble cannot, afford any due to the priority value of these concepts inter se. And, for makini the experiment for building up the social order which the dominant of the community desires, these delphic concepts can offer no sol11noo in

respect of their priority value as among themselves. They olfcr no guide in what proportion should each of them contribute, or which of them sha\dd

suffer subordination or enjoy dominance in that social order. How then am one of them operate as implied limitation upon the power of amendsiicllt wbcA lhe object of th<: amendment' is to give priority value to the otbel' Of et.bal ,

[jip; 796 to ?!leJ

Betubari Case [1960] 3 S.c.R. 250, 281, 282; Aod'1'10fO v. Dful• 6 'Wi. 204; 206 U.S. 1821; referred to.

The theory of implied limitation propounded might .;;, vi~.~ <hat "it is an interpretation of the Constitution depending , Oil an ; n, plicldaii which is formed on. vague, .indiyidu"; i nption of the lpirit of the: ~' Whenever the quesaon of unphed limitaaon upon the power of ....,;,,~~· was raised courts have not countenanced the contention.- There is. no tO think that the word 'amendment' was used in any narrow 9CllSC in articlt1l.

and that the power to amend un<IQthat article was in an1 wa1 limi. , . • there is power the fact tha. t it might be. obuse. . cl is 110 ground .fm. cuainJ .~ iti. width. Tb< <~111il>n that if.fh, e ·~. t() , ainell'I fliiltal • 14 such a way as to take away or abridge them ;. to Vest in Parliament, rt-w.iui.r

KESAVANANDA ~. JCER.\LA (Mllthew, J.) 63

•ing about , catastrophic conscqucnus has an air of unreality when tosted In lhe light of what has happened between 1951 when S•nlc.ari PrasaJ's case recognised the power of the Parliament to amend the fundamental rights and 1967 ,.bcn the Gol./r..1lllth case was decided.

It should be remembered that Parliament when it exercises its power to amend fwidamental rights is as much the pardian of the liberties of the people as the Courts. [pp. 799 to 814]

Rhode Island v. Palmer, 253 U.S. 350, explained.

Leser v. Garnetl, 258 U.S. 130, U. S. v. Sprague, 262 U.S. 716, Sch•eiderman Y, U. S. 320 U.S. 118, 137-145, U. S. v. Dennis, 183 Federal Reporter 2d. 201,

Ind Whiuhill v. Elkins, [1967] 189 U.S. 54, 57, referred to.

Ryan's case, [1935] Irish Reports, 170, Moore v. Ateorney General for the lri1h Stat<, [1935] A.C. 448, referred to.

Liyanag< v. The Queen, [1967] 1 A.C. 259, explained.

Web v, Outrim, [1907] A.C. 81 (P.C.) referred to,

Alberta Prm Case, [1938] 2 D.L.R. 81, Saumur v. City Quebec, [1953] 4 D.L.R. 641, &. th< Initiative and Referendum Act, (1919) A.C. 935, 945, A. G. Ontario v. A. G. Canada, [1912] A. C. 571, Shannon v. Lower Mainland D.; ry Products Board, [1936] A.C. 708, Taylor v. Attorney General of Qu=i"

lond, 23 C.L.R. 457, held inapplicable.


Victoria v. Commonwealth, 45 Australian Law Journal, 251 and Amalga- ••14d Society of Engineers v. Adelaide Suamship Co. Ltd. [1920] 28, C.L.R. 129, referred to.

Queen v. Burah, [1878] 3 A.C. 889, held inapplicable.

Mc Culloch v. Marylanil [1819] 4 Wheaten 316, Essendon Corporation v.

Cril<rion Theatres, [1947} 74 C.L.R. 19-22 and State of West Bengal v. Union

II/ India, A.I.R. 1963 S.C. 1241, referred to.

Vacher •nd Sons v. London Society. of Compositors, [1913] A.C. 107, at p. 121 & 128, Bank of Tot"onto v. Lambe, [1887] 12 A.C. 575', 586, Ez-parte

Crostman, 267 U.S. 120, 12, referred to.

To appreciate the argument that there is inherent limitation on the power oi Parliament to amend fundamental rights it ;. ncceosary to undcrstatld the

source from which these rights arise and the reason for their fundamentalness.

Natural rights are those rights which arc appropriate to man as a rational and moral being and which are necessary for a guod life.

Although called 'rights' they arc per se enforceable in Courts unless recognised by the positive law of a State. The word 'right' has to be reserved for those claims rccog

ailed and protected by law. There arc rights which inhere in human beings .Lcausc they arc human beings; whether you call them natural rights or by

lllJle other appellation is imruaterial. As the Preamble indicates, it was to ..auc the basic human rights !\kc liberty and equality that the people gave - thetnse!Yes the Constitution and these basic rights are an essential feature w tho Constitution; the Constitution was also enacted by the people to sc.curc jlistile;, ,, political, .ocial . and economic. Therefore, the moral rights embcidied , in Part IV of the Constitution arc equally an essential feature of it, the only

64 SUPiEMJ! COUJ.T llEPOllTS [1973) Supp. S.CJl,

differeace being that the moral rights embodied in Part IV arc not spocilically enforceable as against the State by a citiun in a Court of law in case tho State fails lo implement its duty ; but nevertheless, they are fundamental in tho governance of the country and all the organs of the State, including the judiciary, are bound to enforce tloose directives. The Fundamental Rights themselves haft .no fixed content ; most of them are mere empty vessels into which each generation must pour its content in the light of its pcricncc. Rcstrictiom, abridgement, curtailment, and even abrogati9n of these rights in circumstanca,

not visualized by the Constitution makers might !xcomc ncc.cssary; their claim to supremacy or priority is liable to be overborne at particular stages in the history of the nation by the moral claims embodied in Part IV. Whether at a particular moment in the history of the nation, a particular Fundamental Right should have priority over the moral claim embodied in Part IV or mWt yield to them is a matter which must be left to bC decided by each gencratioa in the light of its experience and its values. And, if Parliament, in its capacilJ as the Amending Body, decides to amend the Constitution in such a way. • to take away or abridge a Fundamental Right to give priority value to d!e moral claims embodied in Part IV of the Constitution, the Court cannot adjudge the constitutional amendment as bad for the reason that what was intended to be subsidiary by the Constitution makers has been made dominaat.

Judicial review of a constitutional amendment for the reason that it gives priority value to. the moral claims embodied in Part IV over the Fundamental Rights embodied in Part III iJ impermissible. Many of the articleJ, whether .ia Part III or Part IV, represent moral rights which they have recognis<d • .inherent in every human being in this country. Taking for granted that, ..,.

and large Fundamental Rights arc the extensions, permutations and combinations of natural rights in the sense explained, ft docs not follow that then: ii any inherent limitation by virtue of their origin or character 'in their bcins taken away or abridged for the common good. The source from which tbao rights derive their moral sanctiOn and transcendental character, namely, IS

natural law, itself recognlzes that natural rights are only prim11 fad• rip. liable to be taken away or limited in special circumstances for scCuring higher values in a society or. for it.s common good.

But. the responsibility ol.

Parliament in taking away or abridging a Fundamental Right is an aweoomo one and whenever a question . of constitutional amendment which will ha.,. the above effect comes up for consideration, Parliament wt be aware this they are the guardians of the rights and liberties of the people in a 2IU*"' degree than the courts, as the Courts cannot go into the validity o1 diio amendment on any substantive ground. [pp. 814 to 836]

State of W•st B.ntal v. Subodh GopaJ (1954) S.C.R. 58i, 596, Bas•hisNir Nath v. Commission.,. of Jm:om• Tar, Delhi, "'" [1959] Supp. 1 S, C.R. 521, 605, State of Miuiras v. Cham{Nlkam [1951) S.C, R. 525, Rom., A Tn.fM! J: State of Madras, [1950] S.C.R. 594, State of Bihor v. Shailahala D"1i [l952J s.c.R. 654, LJch,,.,. v. New York 198 U.S. 45, State of Madras v. V. G. R..,. [1952] S.C.R. 597, foint Anti-Fascist &fugee Committe• v. Me GraiJ. 341 t/'.S. 123, Munici[Nll Committee v. The State of Punjab

[1969) 3 S.C.R,:4471 4~, Collator of CYstoms v. Sampathu [ 1962] 3 S.C.R. 786, 816, Abbqs v. Uni<>*~ India [1971) 2 S.C.R. 446, 470, Quamhi v. S141te of Bih11r. [1959J S.C.R. , Namth v. State of M11Aarasl11ra [1966) 3 S.C.R. 744, C.,.,... v. T'!"'l 177 J.1 442., 447, referred tD.

Thus, there were no apress or implied limitations upon the . poooer a Parliament to amend the Fundamental Rights in such a ""'Y u tD er damage eYen the core or essence of the ripu. Tbe 24th A""""-t.. " .

KESAVANANDA v. Kl!RALA (Mathew, J.) 65

its language, makes it clear beyond doubt. Ju the majority decision in the Golaknath case negatived the constituent power of the Parliament to amend the Fundamental Rights in such a way as to take away or abridge them which,. according to the Amending Body, was wrong, the Amending Body passed the amendment to make it clear that the power to amend is located in the article, that it is a constituent power and. not a legislative power as held by the majority decision in the Golaknath case, that the power is plenary in character and that article 13(2) is not a bar to the amendment of the Fundamental Rights in such a way as to take away or abridge them under article 368. That the object of the amendment was declaratory in character is clear from the statement of Objects and Reasons for the Amendment. - An Amending Body can in the exercise of its power to amend, if the power to amend is plenary, make an amendment in order to make clear what was implicit in the article and correct a judicial erri>r in the interpretatioa of the article. [pp. 836, 837]

Even if it be assumed that the actual power for amendment under the arti<:le was limited, the article gave the Amending Body a potential power, to cnlarp or contract the limit of the actual power. The potential power, when exe1cise.d by the Amending Body, makes the actual power either enlarged or contracted, (p. 837]

The word 'amount' in article 31(2) as amended by Constitution Twenty Fifth Amendment does not convey the idea of tlflJ norm. The fixation of the amounf or the principle for determining the amoum is 11 matter within the absolute discretion of the Parfument or the State l<gi1latwes. The Court cannot go into the question whether the omount fized by law or the prfn ... ciple; laid down for determining the amount is adequak M relevant. [p. 846]'.

It is a mistake to speak of property as jf it were an institution having a. fixed content constantly remaining the same; whereas, in reality it has assumed most diverse forms and is still susceptible to great unforeseen modifications. It is necessary to distinguish at least three forms at private property ; (I) property in durable and non durable consumer goods; (ii) property in the mean• of production worked by their owners; and (iii) property With means of produc=. tion not worked or directly managed liy the owrs, especially th<! accumulations. of masses of property of this kind in the band& of a relatively narrow class..

While the first two forms of property can be justified as nccesaary conditios. of a free and purposeful life, the third =-· For this type of property Hive•. power not only over thing>, but through t:Nngs ovu pc:nons. It is open io.. the charge made that any form of propetty whieh givts man power over nw>

is not an instrument of freedom, but, of "'rvitude. AJ>y defence of the right to own and hold property must essentially be the defence of a wclJ distributed. property and not an abstract right that can, in practice, be cxerciS<d only by the few. [pp. 840, 841] ·

When property is acquired for implementing the directive principles under article 39(b) or 39{c), is there an ethical obligation upon the State to pay tlte

full market value? AJl adequate theory of social justice should enable one ta. draw the line between justifiable and unjustifiable cases of confiscation.

The whole purpose of the amendment is to exclude judicial review of the question· whether the 'amount' fixed or the principle laid down by law is adequate or relevant. Fixation of the amount or the laying clown of the principles for fixing it is left to the absolute discretion of the Parliament or the St.au: Legislatures ?n .the asis of con;; ide:ati~s of social justice. And, the principle of social JUsllce will not furmsh 1ud1aally manag<able st1ndards either for testing the adequacy of the amount on the n:levmcy of the principle. [pp. 842 to 846]

S-36 S.C. India/71

66 SUPREME COURT REPORTS [1973] Supp. s.c.R.

[His lordship did not find it necessary to go into the question whether a law fixing an amount which is illusory or which is a fraud on the Constitution can be struck down by Court. [p. 847]

The declaration vizualized by article 31C that the law gives effect to the policy of the State towards securing the principles specified in article 39(b) and (c) of the Constitution would not oust the jurisdiction of the Court to go Jnto the question whetherthe law gives effect to the policy. The jurisdiction of Parliament or the- State legislatures to incorporate the declaration in a law is conditioned upon the circumstance that the law is one few giving

ffect to the State policy towards securing the aforesaid pnnciples. [pp. 854, 855]

If the 24th amendment which enables Parliament to make an amendment of the fundamental rights in such a way as to take away or abridge them is valid, what is there to prevent Parliament from enacting a Constitutional amendment making it possible for Parliament or state , legJ; latures to pass laws for implementing the Directive Principles specified in article 39(b) and 39(c) which would be immune from attack on the ground that those laws violate articles 14, 19 and 31 I Article 31C is a proviso to article 13(2) in that it enables Parliament or State Legislatures to pass laws of a particular type which would not be deemed to be void even if they violate the provisions of articles l4, 19 and 31. Artic:le 31C merely carves out a legislative field with reference to a particular type of law and exempts that law from the ambit of article 13(2) in some respects. Merely because a law passed by the Parliament or the State Legislatures to give effect to the policy of the State towards securing the Directive Principles specified in article 39(b) and { c) in pursuance to valid legislative entries in the appropriate lists, might violate the fundamental rights under article 14, 19 and 31 and such a law is deemed not void by virtue of article 31C, it would not follow that article 31C has invested Parliament in its legislative capacity or the State Legislatures with power to amend the Constitution. It is not for the Court to prescribe for the society or deny the right of experimentation to it within very wide limits. [pp. 854, 855]

A law which will never give effect to the State policy towards securing the principles in article 39(b) and article 39(c) will enjoy no immunity if any of its provisions violates these articles. The legislative jurisdiction to incorporate a declaration that the law gives effect to the policy of the State is conditioned upon the circumstance that the law gives effect to the policy of the State towards securing the directive principles specified in article 39(b) and (c). The declaration can never oust the jurisdiction of the court to see whether the law is <inc for giving effect to such a policy, as the jurisdiction of the legislature to incorporate the declaration is founded on the law being one to give effect to the policy of the State towards securing these principles. In order k> decide whether a law gives. effect to the policy of the State towards Securing the Directive Principles specified in articles 39(b) or (c) a Comt will hawe to examine the pith and substance, the true nature and character ofthe law as also its design and the subject matter dealt with by it together \vith its object and scope. [pp. 855, 856]

Beg. /: Concurring with Ray. Palekar, Mathew and Dwivedi, II: The Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments are valid. [pp. 885, 886]

We should approach the questions placed before us from the pragmatic angle of the changing nC.ds of social and economic orders visualised by those who were or are the final judges of those needs in exercise of the constituent power. [p. 882]

XESAVANANDA V. KERALA (Beg, J.) 67

It is clear from lhe Preamble as well as the provisions of Part III and IV uf our constitution that it seeks to express the principle SaluJ Pofuli Supre'ma

Lex. In other words, the good of the mass of citizens of our country is lilic supreme law embodied in our constitution. The voice of the people king through the Constituent Assembly, constituted a new "Republic" which w'as both "Sovereign and Democratic... It sought to secure the noble objectives laid

down in the Preamble primarily through both the fundamental rights foun~ in Part lII and the Directive Principles of State Policy found in Part IV of th¢ Constitution. It would not be correct to ch', aracterisc the fundamental rights 3$:

merely the means and the directive principles as the ends of the endeavours of the people. lndecd, from the point of vieVf of the Preamble both fundamental rights and directive principles are means of attaining the objectives which were meant to be served both by the fundamental rights and Directive principles.

Perhaps, the best way of describing the relationship between the two would be to look upon the Directive Principles as laying down the path of the country's progress towards the obiectives stated in the Preamble, with fundamental rights as limit of that path, like the banks of a flowing river, which could be amended or mended by displacements, replacements or curtailments or enlargements of any part according to the needs of those who are to use that path. A careful reading of the debates in the Constituent Assembly leads to this premise or assmuption. If the path needed widening or narrowing or changing the limits could be changed. The nlandate of article 37 is primarily addressed to the Parliament and State legislatures. But in so far as courts of justice can indulge in some judicial law making, within the interstices of the Constitution or any statute before them for construction, the Courts too are bound by th.is mandate.

Another valid and significant distinction is that whereas the fundamental rights are 11conferred" upon citizens with corresponding obligations of the State, the Directive Principles lay down specific duties of the State organs. In conferring fundamental rights freedom of individual citizens, reviewed as individuals, were sought to be protected, but in giving specific directives 'to state organs, the needs of social welfare, to which individual freedoms may have to yield, were put in the forefront. A reconciliation between the two is to be always attempted whenever this is reasonably possible. But there could be no doubt, in cases of possible conflict, which of the two had to be subordinated, when found embodied in laws properly made. [pp. 861 to 865]

Motilal v. Government of the Stale of Ullar Pradesh, A.LR. 1951 S.C. 257, 296; Balwanl Rai v. Union of India, A.I.R. 1968 All. 14, referred to.

There is a well known distinction between "political sovereignty" and "legal sovereignty". Legally the British Parliament transferred the whole of its legal sovereignty over the people and territories of this Country to the Constituent Assembly. Thus legal sovereignty was vested in the Constituent Assembly whereas the people of India may be said to be only politically "sovereign".

The political sovereign operated outside the ambit of law, yet, made its impact and effect felt upon the legal sovereign, the Constituent Assembly. In recognition of this fact and to bring out that it was really speaking on behalf of the people of India the Constituent Assembly began the Preamble with the words 11we the people of India". This meant nothing more than that the Constituent Assembly spoke for the people of India even though it was vested with the legal authority to shape the destiny of the Country. through the Constitution framed by it. There is not to be found, anywhere in the Constitution, any transfer of legal sovereignty to the people of India. The Constitution is the 'legal sovereign recognised by courts although the ultimate political sovereignty reside in "the people".

The sovereignty of the Constitution is a "Eca:ture

68 SUPREME COURT REPORTS [ 1973] Supp. s.C.R.

inherent in a genuine whole". It is not vested in all its aspects in any one of the three organs of the State, but, may be divided between them. The Constitution divides or distributes legal sovereignty into three branches or organs of the State-the Legislative, the Executive and the Judicature.

The sphere 0£ sovereignty of each is sought to be so demarcated by our constitution that the "genuine whole" appears in the form of three intersecting circles.

In. those portions of these circles where the judicial power intersects the legislative and the executive powers, the judicature acts as the supervisor or guardian of the Constitution and can check legislative or executive action. But in the remaining parts of the two intersecting circles of the legislative and executive spht:res, the two other branches are supreme legally just as the judicature is in its own.

The judicature is the ultimate testing authority, as the guardian of the Cons~ titution, in so far as the ordinary law making is conceri1ed. In the sphere of primary fundamental law of the Constitution lies also the amending power contained in article 368 of the Constitution over which the control of the judicature is limited to seeing that the form and manner of the amendment is properly observed. [pp. 865-870]

Dicey, Law of the Constitution, Tenth edn. p. 73; Ernest Barker, Principles of Social and Political Theory 59, 61~3; Laski; Grammar of Politics 296-297, referred to.

The Constitqtion is based on the assumption that it is a means of progress of all the people of India towards certain goals. The direction towards which the nation is to proceed is indicated but the precise methods by which the goals arc to be attained ar~ left to be determined by the State organs of the future. One generation has no right to tie down future generation to its own vie\vs or laws even on fundamentals. We cannot infer from anything in the language of the unamended article 368 any distinction beyond that found in the more difficult procedure prescribed for amendment of certain articles between

moe and less basic parts of the Constitution. The function of the amending provision must necessarily be that of an instrument for dynamic and basic 1 changes in the future visualized by the Constitution makers. The constitutional function with which the judiciary is entrusted is to see that the chosen vehicle does not leave the chartered course or path or transgress the limits prescribed by the Constitution at a particular time. [pp. 871, 872]

In a Constitution like ours we must strongly lean against a construction 1Vhich may enable us to hold that any part of the Constitution is exempt from the scope of article 368 as originally framed. Without express words in article 368 itself to that effect it is not possible to preswne or infer the presence of any causus omisus. Article 13(2) is meant to deal with ordinary laws or the functions of the Parliament and of State legislatures in their ordinary law making capacities. Even if it be assumed that because 'law' is not exhaustively defined by article 13(3) of the Constitution, the term 'law' used there could include the law of the Constitution, another principle of construction apply.

Even a prior general provision followed by an express provision dealing with a particular type of law could reasonably exclude the particular and special from the purview and scope of the general. It is immaterial if the general provision precedes the provision containing a special law. [pp. 873 to 877]


KESAVANANDA v. KERALA (Dwivedi, J.) 69

[The majority view in Golaknath held erroneous.] [p. 885]

The only 'implied' limitation which can be read into the word

1amcndmcnt' <ls "perhaps" necessarily implied, or, as part of the meaning of the word "''amendment" is the one so characterised by Wanchoo, J. in Golaknath case.

In other words it may not include the power of completely abrogating the Constitution at one stroke. It, however, seems wide enough to erode the Constitution completely siep by step so as to replace it by another. [p. 877]

We do not today conceive of public good or progress in terms of "'movement from status to contract", but in terms of a movement for control -of economic and other kinds of powers of exploitation by individuals. The -emphasis today is upon due performance of their social obligations by individuals before claiming any right, however fundamental or important it may be, because, rights and duties are correlative. [p. 883]

The Constitution is the principal and the source of all constitutionally valid power and authority in the eye of law. Therefore, there can be no question "Of delegation of power of amendment. The declaration contemplated by article 31C is like a certificate given after considering the relevancy of the principles •pecified in article 39(b) and (c) and, therefore, the jurisdiction of ihe Court is not ousted.

The Courts can still consider and decide whether the declaration is really good or a mere pretence attached to a colourable piece of legislation or to a law which has no bearing on or nexus with the principles found in article 39(b) and (c). [pp. 880, 884]

Dwivedi, /.: The Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments are valid. [p. 938] ·

At bottom the controversy in these cases is as to whether the meaning of the Cons!itution consists in its being or in its becoming. The Court is called upon to decide whether it is a prison house or a free land or whether it speaks for the few or for the many. TP 888)

The Constitution of India reflects the hopes and aspirations of the people Qf India, emerging from colonial economy in the second half of the 20th -century. Cons!itutions framed 'in the past for organising political democracy -cannot serve as a safe guide in construing the .constitution of India framed for ushering in social and economic democracy. The Constitution bears the imprint <Jf the philosophy of our National Movement for Swaraj. The National Movement was committed (1) to wqrk for social ei::onomic and political equality <>f the weaker sections of the people; (2) to disperse concentration of wealth in any form in a few hands and ( 3) to acquire property in accordance with law. The men who took leading part in framing the Constitution were animated by these noble ideals. They embodied them in the Preamble to the Constitution; they proliferated them in the Directive Principles of State Policy; they gave ihem ascendency over the rights in Part III of the Constitution (See Articles 15(3), 16(4), 17, 19(2) to (6), 24, 25(a) and (b), 31 (4) (5) and (6)). They made them "fundamental" in the governance of the Country. They are "vital

principles" for, when, translated into life, they will multiply the number of owners of fundamental rights and transform liberty and equality from a privilege into a universal human right. It will be legitimate to bear in mind the pre-emptive significance of Part IV in understanding the Constitution. [pp. 888 to 8921

70 SUPREME COURT REPORTS [!973] Supp. S, C; R,

Ruidence of amending power

Despite the marginal note to article 368 which indicates that Article 368 is prescribing the procedure for amendment, sevcal considerations clearly sho:w that the amending power is located in article 368. The power cannot reasonably be located in Entry 97 of List I of Schedule Vil read with article 248 of the Constitution.

Article 368 provides specifically for a procedure for amending the constitution and when the prescribed procedure is followed

11the Constitution shall stand amended in accordance with the terms of the Bill". Who can bring about a certain result may truly be said to have the power to produce that result.

Power to amend the Constitution is accordingly necessarily implied in article 368. The procedure prescribed in arJcle 368 is the exclusive procedure for amendment of the Constitution. The word 'only' in article 368 rules out all other procedures for amendment. [pp. 892 to 894]

Natur~ of amending power

The amending power conferred by article 368 is a constituent power and not a legislative power. The framers of the Constitution made a distinction between "legislative power" and "constituent power".· Broadly speaking

1cons tituent power' determines the frame of primary organs of Government and establishes atithoritative standards for their behaviour.

In its ordinary sense legislative power means power to make laws in accordance with those authori .. tative standards. Legislative power determines the form of secondary organs of Government and CStfl, blishes subordinate standards for social behaviour. The

ubordinatc standards arc derived from the authoritative stindards established by the constituent power. The distinction between constituent power and legifo lativc power in a controlled constitution proceeds from the distinction Oetween the law making procedure and the constitution amending procedure.

Our Constitution is of a hybrid pattern. [t is partly controlled and partly uncontrolled.

When any part . of the Constitution is amended by following the legislative procedure the amendment is the result of exercise of the legislative po\vers ; when it is amended through the procedure prescribed by article 368, the> amendment is the result of the exercise of the constituent power. [pp. 894 to 896}

In re: Th< Dtlhi Laws Act, [1951] S.C.R. 787, 812, referred to.

Dominion of amending power

The Phrase "amendment of this Constitution" is the nei've-centre of article

368. It is determinative of the dominion as well as the magnitude of the amending power, The words "this Constitution" embrace the entire Constitution. The Preamble is part of the Constitution. Thus the amending power can amend each and every provision of the Constitution including the Preambleand Part III. [pp. 896, 897]

Magnitude of the Amending Power

The framers of the Constitution enacted article 368 for several l't2sons.

First, the working of the Constitution may reveal errors and omissions which could not be foreseen by tlicm. Second, the Court's construction of the Constitu tion may not correspond with the Constitution makers' intention or may make the process of orderly government difficult.

Third, the Constituent Assemblr which framed the Constitution was not eleetcd on adult franchise and was in fact not fully representative of the people. The Constitution makers conferred wry wide amending power on Parliament because it was believed that Parlia~ ment elected on adult .franchise would be fully representative of the entire>

' '

KESAVANANDA fl; KERA.LA (Dwivedi, J.) 71.

people and that such a Parliament should receive a right to have a fresh look

at the Constitution and' to make such changes therein as the entire people whom it represents desire. Fourth, at the apex of all human rights is the right of self preservation.

Self preservation implies mutation, that is,. adaptation to changing environment. Article 368 is thus shaped by the philosophy that every generation should be free to adapt the Constitution to the social, economic and politicaL conditions of its time.

The nature, object and history of the amending power and the context of article 368 leave little room for doubt that the word jamcndmcnt' includes the power of repcal, ing or abrogating each and every provision of the Constitution. It may be that Parliament may

not be able to annihilate the entire Constitution by one stroke of pen. But it can surely repeal or abrogate all provisions of Part III. The amending power in article 368 is unlimited and uncorifincd as the power of Constituent Assembly.

Indeed it may truly be <aid that Parliamc.nt acts as a Constituent Assembly.

State of Madras v. Champakam Dorairaian, [1951] S.C.R. 525 and Kamerhwar Singh v. State of Bihat', A.l.R. 1951 Patna n, referred to. [pp. 897 to 903]

Meaning of 'law' in Article 13(2)

There is a distinction between Constitution and

1law 1 • The context of the word 'law' in article 13(2) docs not show that it includes an amendment of the Constitution made under article 368.

The Constitution itself makes a distinction between 'Constitution' and 'law'.

The functional difference in making a legislative law and an amendment of the Constitution likewise'" explains the basic difference in the procedure prescribed in articles I 07 to 111 and in article 368. An expansive construction of the word 'law' in article 13(2) would permanently rule out the lawful making of structural reforms in cl= social, economic and political frame of the Country. The Constitution makers must have intended that when a conflict arises between the rights in Part

III and the obligation of the State in Part IV that conflict may be resolved by an amendment of the Constitution under article 36a. The provisions of the Constitution show that fundamental rights may be taken away or abridged for the good of the people. The Constitution makers did not regard the rights mentioned in Part Ill as 'sacrosanct' or as 'inalienable' and 'inviolable' or as. immutable. The rights in Part Ill arc down right man made. [pp. 903 to 912]

State of Madras v. Smt. Champakam Dorairaian, [1951 J S.C.R. 525, S.

Krishnan v. State of Madras, [1951] S.C.R. 621 and Basheshar Nath v. Commis sioner of Income Tax, [1959] Supp. I S.C.R. 528, 604, 605, referred to.

There arc no inherent and implied limitations on amending power in article 368. The magnitude of the amending power is to be measured by the

purpose which it i1 designed to achieve than by the structure of Parliamcnl.

Under the Constitution some legislative powers arc not subject to any inherent

end implied limitations. Nor can implied limitations be spelt out of the vague emotive generalities of the Preamble. The Preamble is neither the source of power nor of limitations on power. Thescheme of article 368 is to recreate

the primary organs of state and to redefine, rcdcmarcate and rclimit their powers and functions if and when it becomes imperative to do so for the good of the people.

Accordingly it must plainly have been the intention of the Constitution makers that article 368 should control and condition rather than

be controlled and conditioned by other provisions of Constitution. The Cons titution makers who were familiar with English Constitutional history

72 SUPREME COURT REPORTS [1973] Supp. s.c.R.

could not conceivably have left undetermined the test of distinguishing the ci:scntial features from the non-essential features or their core.

The test is writ large in article 368 itself. Every provision of the Constitution which may be amended only by the procedure prescribed in article 368 is an essential feature of the Constitution, for it is more set than legislative laws. The test is the rigid procedure.

The more rigid the procedure the more essential the provisions amendable thereby.

Thus the provisions specified in the proviso to article 368 are more essential th.an the rights in Part III. Article 368 places no express limits on the amending power. Indeed it expressly provides for its own amendment. It is not permissible to enlarge constructively the limitations on the amending power. Courts are not free to declare an amendment void because in their opinion it is opposed to the spirit supposed to pervade the constitution but not expressed in words. [pp. 912 to 919)


Judicial Ret1iew of Constitut£onal amendments

From Gopalan to Golaknath the Court has shifted from one end to the other end of the diagonal, from Parliament's supremacy to its own supremacy.

At the Centre of the Court's legal philosophy there is the rational free will of the individual.

This philosophy has entailed the subservience of the Directive Principles of State Policy to the Fundamental rights. Article 31(4) (5) and (6) -establish beyond doubt that the Constitution makers intended to give ascedancy to the Directive Principles of State Policy over the fundamental rights. The 'Constitution does not recognise the supremacy of this Court over Parliament.

The Court may test legislative laws only on the touchstone of authoritative no'rms established by the Constitution.

Its procedural limitations aside, neither article 368 nor any other part of the Constitution has established in explicit language any authoritative norms for testing the substance of a Constitutional amendment. Structural socio-political value choices involve complex and complicated political process.

This Court is hardly fitted for performing that function.

Judicial review of Constitutional amendments will blunt the peoples vigilance, articulateness and effectiveness. Unhedged amending, power will not endanger the interests of the religious, linguistic and cultural ininorities in the Country. Judicial review will only isolate the minorities from the mainstream of the democratic process. The argument of fear is not a valid argument. While construing the Constitution it should -be presumed that power will not be abused.

In the absence of explicit mandate the Court should abstain from strlking down a Constitutional amendment which makes an endeavour, to ·"wipe out every tear from every eye". In so doing the court will not be depart ing from but will be upholding the national tradition, [pp. 919 to 924;

State of Madras v. V. G. Row, [1954] S.C.lt. 591, Virendra Singh and Ori.


Laws Act, [1950] S.C.R. 519. State of West Bengal v. Anwar Ali Sarkar, '[1951] S.C.R. 747, 1079. referred to

KESAVANANDA v. KERALA (Dwivedi, J.) 73

The Twenty Fourth Amendment

Except as regards the assent of the President to the Bill everything else 1n :the 24th Amendment was already there in the unamended article 368. Accord ingly the amendment is really declaratory in nature.

It removes the doubts a.st on the. amending power by the majority judgment in Golaknath.

Even assuming -"that the restrictions imposed by Article 13(2) and inherent and implied limitations were a part of the body of article 368 these restrictions are now removed by Parliament, for, they will fall within the an)bit of the word "amendment". The phrase "notwithtsanding anything in this Constitution" on the newly added cl. ( 1) of article 368 . is apt to sweep away all those restrictions. In the result the amending power is now free of the incubus of article 13(2) and inherent and implied limitations. [pp. 924 to 926]

Section 2 of Twenty Fifth Amendment As the word compensation found place in the old article 31(2) this Court held that the principles should be relevant to compensation, that is, to the just equivalent of the property acquired.

That word is no more there now in article 31 (2). The notion of the relevancy of the principles of compensation is jettisoned by section 2.

Obviously, where the law fixes the amount it cannot be questioned in any court on the ground that it is oot adequate, that is, not equal to the value of the property acquired or requisitioned. The legislative choice is conclusive.

It would follow that the amount determined by the principles specified in the law is equally unquestionable in Courts. It is not permissible to import in the amended article 31(2) the notions of 'arbitrary amount' or 'illusory amount' or 'fraudulent amount'.

Although the amended article 31(2) will abrogate the right of property it is constitutional as it falls within the scope of the 24th amendment. [pp. 926 to 931]

State of West Bengal v. Mrs. Bela Baneri", [1954] S.C.R. 558, Vairavelu

v. Special Veputy Collector, Madras, [1965] I S.C.R. 614, Union v. Metal Cor


Section 3 of the Twenty Fifth Amendment Under article 31C the Court still retains power to determine whether the law has relevancy to the distribution of the ownership and control of the material resources of the community and to the operation of the economic system and concentration of fwealth and means of production. If the court finds that the law has no such relevancy, it_ will declare the law void if it offends the provisions of articles 14, 19 and 31.

The second part of article 31C excludes judicial review "on the ground that [the law] does not give effect to such policy".

So, the law cannot be challenged on the ground that "the means adopted by the law arc not sufficient to subserve the common good and prevent common detriment.

In other words, the sufficiency of the law's <:fficacy alone is made nonjusticiable. [pp. 931 to 934 J

Assuming that the Parliament may not delegate the Constituent power, Article 31C does not authorise the State legislatures and the Parliament as a legislative body to amend any part of the Constitution. The true nature and character of article 31C is that they arc in partial eclipse as regards laws having

elevancy to the principles specified in article 39(b) and (c). Article 31C is 10 thic nature of a saving clause to articles 14, 19 and 31. The effect is brought about directly and immediately by the choice of the Constituent power expressed in article 31C itself and not by the laws which claim its protection. [pp. 934 to 936]

74 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.


[On the contention that nationalisation of property IS not contemplated by the word 'distributed', his lordship did not express any final opinion on the meaning of word 'distributed' in article 39(b). He observed: [A] nationalised property is vested in the State. Throug1' the State the entire people collectively may be said to own property.

It may be said that in this way the ownership of the nationalised property is distributed amongst the people represented by the State.] [pp. 936, 937)

Constitution Ttuenty Ninth Amendment

The argument that article 31B is inextricably connected with article 31A and accordingly any law which is included in the Ninth Schedule sh.ould be connected with agrarian reforms has been rejected by this Court. [pp. 937, 938]


Jce1bhoy v. Assistant Collector, Thana, (1965] 1 S.C.R. 636, 648, referred to.

Chandrachud, /. : The Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendment Acts are valid. [p. 1000]

The Constitution Twenty Fourth Amnd, nent merely clarifies what itJas true law. Article 368 before the Twenty Fourth Amendment contained the power as weiJ as procedure for amendment of the Constitution. Article

13(2) took in only ordinary laws, not amendments to the Constitution effected under article 368.

The power of amendment of the Constitution conferred by the then article 368 was wide and unfettered; it reached every part and provision of the Const:'tution.

The decision in Golaknath that Parliament had no power to amend the Constitution so as to abrogate or take away fundamental rights is incON"ect. There are no inherent Jimita tions on the amending power in the sense that the amending hotly lacks

the power to make amendments so as to damaie or destroy the essential featum or the fundomenta/ principles of th• Constitution. [pp. 999', 1000]

The whole matter before the Court is truly sui gcnms. [p. 940]

The leading majority judgment in Golaknath did not decide whether article 368 itself could be amended so as to confer a power to amend every provision of the Constitution.

The case was decided on the basis oi the un amended article 368.

The question whether fundamental rights could be taken away by amending article 368 was not before the Court. Abo, the question whether in future Parliament could, by amending article 368 assume the power to amend every part and provilion of the Constitution wa1 not in issue before the Court. The observation in the leading majority judgment putting restraints on .the future power of Parliament to take away fundamental rights cannot, therefore, constitute the ratio of the majority judgment. The view taken by the majority of Judges in Golaknath was that article 368 pm• cribed not merely the procedure for amendment but conferred the power to amend the Constitution and the amending power could not be traCed to the Residuary Entry 97 of List !, Schedule VII read with articles 245, 246 and 248 of the Constitution. [pp. 960, 961 J

(i) The various shades of meaning of the ord ·mendment' may app!y differently in different contexts.

In the context 1n whtch that word. rs 1n article 3681 it is neither ambiguous nor amorphous but has a definite unporl.

IWAVANANDA ti. K.EllALA (Chandrachud, J.) 75

The proviso to article 368 furnishes intrinsic evidence to show th•t the word 'amendment' is used in that article, not in a narrow and insular sense but is,. intended to ha.ve the widest •mplitudc. The words "such amendment" obviously means '•mendment' referred to in the main body of article 368 and thus the article itself envisages that the amendment may take the form of 'change'.

Paragraph 7 of Part D of the Fifth Schedule and paragraph 21 of the Sixth Schedule also furnish similar evidence of the meaning of the word 'amendment'. . Two things emerge from these provisions of the Schedules. First, the concept

of 'amendment' as shown by clause ( 1) of the Schedules takes in 'addition, vuiation or repeal' an, d secondly that an amcndmcntl even by way of "addition, variation or repeal" would fall within the terms of article 368. It is expressly

excepted from the scope of that article so that it may not fall within it which it otherwise would. Besides, the legislative history does not justify an inference that the word amendment was used in the draft article 304 in order to curtail the scope of the amending power. It is important that five out of eleven Judges in Golaknath took the view that the word 'amendment' must be given a wide meaning. The leading majority did not consider that question on the ground .that so. far as fundamental rights were concerned the question could be answered on a narrower basis. Thus the word 'amendment' in article 368 has a dear and definite import and it connotes a power of the widest amplitude to make additions, alterations or variations. The power is so wide

tliat it. exprellly confers a power by clause (e) of the proviso to amend the amending power itself.

No restraint having been imposed on the power to am.end the amending power, it is unnecessary to seek better evidence of the width of the power of amendment under our Constitution. The power of amendment i; a safety valve and having regard to its true nature and purpose

it must be construed . as being equal to the need for amendment. The rule of

atrit construction is out of place in a Constitutional Act and a "construction most beneficial to the widest possible amplitude" of its powers must be adopted. [pp. 964 to 967]

(ii) The Constitution is the fundamental or basic law and it is a law of superior obligation to which the ordinary law must conform. Unless cons~ titutional. law was , expressly included in article 13(~)a). it would fall outs.ide the purview of article 13(2). The fundamental d1Stmc11on between Constltu tional law and ordinary law lies in the criterion of validity. In the case of Constitutional law its validity is inherent; in the case of an ordinary law the Talidity has to be decided on the touch-stone of the Constitution. The majority view in Goloi(nath did not on the construction of art. 13(2), accord due importance to. thi. • s essential distinction between legislative power and the constituent .power.. The distinction between 'Bexible' and 'rigid' constitutions brings Into sharp focus the true distinction between legislative and Constituent power.

This is the diltinction which was . not given due importance by the majority ill the .GolawA case, .. In a rigid Constitution the power , to make law is the pus,. of which the legislative and constituent powers arc the speci.,, the dilfcrcritia being the procedure for amendment.

If the procedure is ordinary the powc~ ia. legislative; if it is special, the pawcr is constituent. Thus, in a rigid or controlled corutitution like the Indian Corutitution a law amending !11C Constitµtion .is made in the exercise of a constituent power and partakes fully of . the character of constitutional law. Laws passed under the Constitution of which the validity is to be tested on the anvil of the Constitution are the only laws which fall within the terms of article 13(2).

An amendment of the . Constitution within the terms of article 368, not being law within the meaning . .ol article 13(2), cannot become void on the ground that it take. •way or a!>rid~ the rights oonferred by Pan III. [pp. 970 to 973]

MeCafllley v. TAe King, [1920] A.C. 691, referred to.

76 SDPIUlMll .comi!r IUlPORn [1973] Supp . .&.e.ll.

(iii) 1t is diBicuk to accept the argument that inherent limitations should be read into the amending power oo the . ground that fundamental rights are natural rights which inhere in every mn. There is intrinsic evidence in Part III <Jf the Constitution to show that the theory of natural rights was not recognised by the framers of the Constitution, Citizens and non-citizens possess and arc entitled to exercise certain rights of high significance ·for the -sole tcason that they are conferred upon them by the Constitution. The natural rights theory stands, by and large, repudiated today. The notion that societies and govetnments find their sanction on a supposeil contract between independent individuals and that such a contract is the sole source of political obligation is now regarded as untenable. The Preamble is a part and a provision of the Constitution.

Therefore the cootention that the Constitution cannoJ be amended .o as to <lestroy the pramble is untenable. [pp. 973 to 976]

Venkataramana Devaru and Ors. v. The State of M)IStwe, antl Ors. [1958] S.C.R. 895, 919 view contra in Beru Bilri case, [1960j 3 S.C.R. 250, diwnu:d .lf'an.

The absen" of an cxpr.ess prohibition is highly relevant for inferring that there is no implied ptohihitiao. h is not open r.o the Cowts to dceLate an Act void O:I?- the ground that it is opposed to a 'spirit' supposed to prcvade the constitution, but not manif.csted in words.

The importance of the cirCJJ.mlltance that the language of ar.ticle 368 admits of no doubt or ambiguitJ is

that such a language leaves no scope for implications unless in the autext of. the entire instrument in which it occurs such implications bcromc coropulsi'& The context docs not merely mean the position of a word to be COD$l1'UCd jp the collocation of words in which it appears, but it also mcam the cootext of the times in which a fundametal instrument falls to be construed. An impor tant rule of construction which has a direct bearing on the submiS1ionJ ot die

petitioner on .inherent limitation's is that if the text is explicit it is conclusive alike in what it directs and what it forbids.

The consequences of a particular construction, il the text .be explicit, can !Mvc no impact on the construction o!. a constitutional provision.

No provision incorporated in 3 Constitution .at t1JP time of its origina1 enactment can ever he struck down as unconstitutiOllll.

The same test rnnst apply to what be.comes a part of that con.stitution by .' • subsequent axpcndment provided that the conditions on which alone , sucb amendments can be made arc strictly compiled with..

Amendments, in .. nsc, pulsate with the itality of the Constitution itself. Trusi in lhc elected

representatives is the orner-stone of a .dcmoqacy. When that trust f~Us

vcrything £.ails. _ The true .sanction against p0litical c_ t'lmes lies in the _ he~

and minds of men, It is there that liberty is insured. The truo object "the amendments, now under challenge, is to confer upon' the comitnuility . •

large the blessings of liberty.

The argument is th:.at Par1iament may mi:Jl~ the provis.ions of Part Ill, but not_ so as to damage or .destroy the cor'c;.'of 'th!·. rights or the core of the essential principles of the eonstj:tion. ~'r~ ·~ formidable difficulties in evolving a, n objective standard_ to , termine w ''t would constil\ltc the core and what the peripheral layer of die euctial ·rrJip1cf of the Constitution.

The two are inscparabte. The cases Qearintt .9r> inlicrcf, t <>r implied limitations cited from the United States, Canada, &strlia, Sou~

Africa and Ceylon do not show that the .theory of implied and il\hcroDt limiC tations has rcoeived a wick recognition. [pp. 977 to 986]

Queen v. BuraA, I.A. 178, 195, Bombay v. Nauratan Das /aitha Bai, fl!m1 2 S.C.R. 51, 81~ Sardar lnder Singh ~· State of RajasJhan, [1957] S.C.11. 616-17, Golapan s case, [1950] 6.C:R. 88, m, ifohau Malhao ll1.mi>n'1 ctur, {19)1] S.C.R. 228, 231,. V..,:A.,. do Sont "· /..<Jlufon S.O,, y; l/f .tors,·

USAVANANDA 11. ltERALA ( Chmidracht"l, J.) 77

[1913] A.C. 107, 112, 117, 121, Attorn<y General for Ontario v. Attorney General for Canada, [1892] A.C. 571, Providence Bank v. Alpheus Billings, L. Ed. 939, 957, Locher v. New Ywk, 49 L. Ed. 937, Bank of Toronto v. Lambe, [1887] A.C. 573, 586, State of .Bihar v. Kameshwar Singh, [1952] S.C.R. 889, 936, 937, Collector of Customs, Baroda v. Digvijaisinghji Spinning & Weaving Mills Ltd., [ 1962] 1 S.C.R. 896, 899, Stati of West Bengal v. Union of India, [ 1964] 1 S.C.R. 371, 407, Essendon Corporation Case, [ 1947] 74 C.L.R. 1, 19, referred to,

(iv) The debat<15 of the Constituent Assembly are not admissible as aid• to construction of constitutional provisions. It is hazardous to rely upon parlia mentary debates as aids to statutory construction. The safest course is to gatherthe intention of the legislature from the language it uses. Therefore Parliamen tary proceedings can be used only for a limited purpose as explained in Gopalan's case. [pp. 998, 999]

Gopalan's case, [1950] S.C.R. 88, 11(), Stat< of Travancore Cochin and Anr.


Section 2(a} and (b) of the Twenty Fifth Amendment are ••lid. [p. 1000]

Though Courts have no power to question a law described in article 31(2) substituted by s. 2(a) of the Twenty Fifth Amendment Act on the ground that the amount fixed or determined for compufsory acqulsition or rcquisitiol'l is not adequate or that the whole Or any part of such amount is to be- vcn otherwise than in caslii, Courts have the power to question such a law (i) if the amount fixed is illusory; or (ii) the principles,. i£ 'any are stated, for determining the amount arc wholly irrelevant for fiution of the amount; or-

(iii) if the power of compulsory acquisition or requisition is exercised for a collateral purpose; or (iv) if the law of compulsory acquisition or requisition offends the principles of the Constitution other than the one. which . is expressly excepted undcc article 31(2B) introduced by secdon 2(b) of the Twenty F'ifth

Amendment Act, namely article 19(1)(f); or (v) i£ t1'e law is in tire mlture of a fraud on the Constitution. It must be added by way of cxplanatiorr that i£ the fixation of an amount is shown to depend principles bearing on social good it rnay not be possible to say that the prmciples arc irrelevant.

 [pp. 987 to 989]

SeetiOtJ 3 of t!e Twenty Fifth Amendment Act ">llich mtrorlucetl article 3lC into the C()flstitation is valid.

The Constitution accords a place of pride to fundalncntal rights and a. place of permanence to the Directive Principles of State Policy.

The basic object of conferring freedoms on individuals is the ultimate achievement of the ideals set out in Part IV. A circumspect use of the freedoms guaranteed by Part III is bound to subscrvc the common good. But, voluntary submission to restraints is a phil0sophcr's dream. Therefore article 37 enjoins the state to

apply the directive principles in making laws. The freedoms of a few have to be abridged in order to ensure the freedoms of all. [pp. 991, 992]

Article 31C operates substantially in the same way as article 31A hal operated in the agrarian sphere.

In fact article 31C is a logical , extension al the principles underlying article 31(4) and (6) and article 31A.

Article 31C does not dclegal!C the amending power. The true natute and character of article 31C is that it identifies a class of legi!lation and cumpts it from the operation of articles H, 19 and 3.1. The lal'l!Or PQit of artide 31C does not exclude the jurisdiction , f .. Court to dewminc whcthc1 doe law is far

78 SUPREME COURT REPO, RTS ( 1973 j Supp. S.C.R.

!l'vmg. effect to the policy of the state towards securing the principles specified m arl!cle 39(b) or (c). Laws passed under article 31C can be upheld only and only if there is a direct and reasonable nexus between the law and the Directive Principles expressed in article 39(b) or (c). [pp. 994 to 997]

The Twenty Ninth Amendment Act it valid. ·

The validity of article 31B has been accepted in a series of dcas1ons of this Court. These cases have consistently held that article 31B is not governed by. article 31A.

The Twenty Ninth Amendment must accordingly be held vahd. [p. 997] ·

State of Bihar v. Kameshwar Singh, [1952] S.C.R. 889, Visweshwar Rao

v. The State of Madhya Pradesh, [1952] S.C.R. 1020 and N. B. /eejeeQhoy v.


A; jliiawata For the PetitiQflers : The crucial question tor decision is the true ambit of the amending power. The question can be decided either on the ground of the meaning of the word 'amendment' in the unamended article 368 or on the ground of inherent and implied limitations or on both the grounds since they converge on the same point.

The unamended article 368 was subject to article 13(2). Amendment of the Constitution is law and therefore, any law which contravenes ndamcntal rights is void.

Article 368 did not prevail over or override article 13. The bar in article 13(2) is imposed against the State i.e. against the totality of all the forces of the State.

The Preamble makes it clear that the . object of the Constitution is to secure basic human freedoms. This guilrantcc will be meaning


[1967] 3 S; C.R. 377, 385, Behram Kurshid Pesikak.a

v. State of Bombay, [1955] I S.C.R. 613, 651, 654. The proceedings before the Constituent Assembly support the petitioner's viewpoint. C.A. Debates, Vol. IV, pp. 415-416, 465, 466, Vol. IX p. 1661". A creature of the Constitution cannot poSsibly possess the power to create or recreate the Constitution. Therefore, resort could not be had to article 368 to expand the power of amendment. It is imperative to consider the consequence of the plea of limited power and also the plea of limitless power. The test of the true width of a power is not hOw probable it is that it may be exercised but what can possibly be done under it. Ma:rwtlls Interpretation of Statutes 12 Edn. 1969 p. 105-106. Where the statute is ambiguous or susceptible to more than one meaning the c.onstruction which tend to make the statute unreasonable should be avoided. Crawford Oii Comtruction of Statutes 1940 cdn. pp. 286-290. Questions of OOJ1stitutinnal construction arc in the main governed by the same general principles whieh controt-"m uocrtaining the meaning of all written instruments particularly statutes. Comtitutions arc general and many of the essentials whieh Constitutions ttoat are impliedly

K.ESAVANANDA U. KERALA 79

controlled or dealt with by them and implication plays a very important part in constitutional construction. What is implied is as much a part of the instrument as what is expressed.· A Court may look at the hi, story of tlie times and examine the state of things existing when the Constitution was framed.

Proceedings of conventions and debates are of limited value as explaining doubtful phrases. Am.,.ican /urisprudence, 2nd Vol. 16, article 5 pp. 231-232, article 72 p. 251, article 287 pp. 270-71. The word "amendment" may have three meanings: (i) It may mean to improve or better, to remove an error, the quality of improvement being oonsidered from the standpoint of the basic philosophy underlying the Constitution; (ii) it may mean to make changes which may not fall within the first meaning but which do not alter or destroy

ay of the basic or essential features of the Constitution and (iii) it may mean to make changes in the Constitution including changes falling outside the second meaning.

The first is to be preferred.

The second is a possible construction. The third is to be ruled out. Under article 368 as it stood prior: to the amendment there were implied and inherent limitations on the power of amendment. The word "amendment" would preclude the power to alter or destroy the essential features and the basic elcmCnts and the fundamental principles of the Constitution. The Constitution is given by the people unto themselves. The power to decide upon amendments is given to the five year parliament which is a creature of the constitution. Article 368 docs not start with the non-abstante clause. The itrticlc uses the word 'amendment' simplici'ter.

Less significant amendment powers in other parts of the Constitution use the words

04add, alter, . repeal or vary" in addition to the word "amendment" as will appear in article 31B, 35(b), 252{2), 372, 372A(2), Para 7 Schedule 5,

Part 21, Schedule 6. On a wide construction of the word "amendment" all fundamental rights can be taken away by the requisite majority whereas much Jess significant matters require the concurrenCc of at least half the states under the proviso to article 368.

The Preamble is not a part or provision of the Constitution. Berubari case, [ 1960] 3 S.C.R. 250. Therefore the preamble cannot be amended under article 368. If the Preamble is unalterable it necessarily follows that those features of the Constitution which arc necessary to give effect to the Constitution arc unalterable. Fundamental rights arc intended to give effect to the Preamble. They cannot therefore be abridged or taken away. The principle of inherent or implied limitations on power to amend a controlled Constitution stems from three basic_ features. First, the ultimate legal sovorcignty resides in the people. Secondly, Parliament is only a creature of the Constitution. Thirdly, the power to amend the Constitution or destroy the

essential feature of the Constitution is an application of ultimate legal sovereignty. The essential features arc (i) the supremacy of the Constitution; (2) the Sovereignty of India (3) the integrity of the Country; (4) the democratic way of life; (5) the republican form of government; (6) the guarantee of basic human rights elaborated in Part III o£ the Constitution; (7) A secular state;

(8) a free and independent judiciary; (9) dual structure of the Union and the States; (10) the balance between the legislature, executive and the judiciary; ( 11) a parliamentary form of government as distinct from the Presidential form of government; (12) article 368 can be amended hut cannot be amended to

empower Parliament to alter or destroy any of the essential features of the Constitution, make the Constitution literally unamendable, make it generally amendabk by a bare majority in Parliament, confer the power of amendment i:ither expressly or in effect on the state legislatures, and delete the proviso ii1,1d deprive the States of the power of ratification which is today available to

th~ in regard to certain amendments.

• The•• Coiistltutioti Twenty Fourth amendment is illegal and void on three ds : First, by substituting the words "amend by way of addition, variatiOD

so SU1'REMI! COURT BEPORTS [ 1973 j Supp. S.c.R.

or. repeal" in place of the word

11amcndmcnt" in article 368 the power is widened. Secondly the 24th amendment makes explicit that when Parliament makes a cOnstitutional amendment uqdcr article 368 it acts in exercise of constituent power.

Third, it. has provided bY amendment in article 13 and 368 that the power in article 13(2) against abridging or taking away of the fundamental rights. shall not apply to any amendment under article 368. The Twenty Fourth Amendmcir. is therefore to be construed as empowering the Parliament t~ exercise .full cons.tituent power of the people vesting in Par~ ment the ulumatc legal sovcrcignty of the people and authorising Paruamcnt

to alter or destroy all or any of the essential features, bask elcmcnu and funcJa. mental principles of the Constitution. In the alternative, if the Constitution Twenty Fourth Amendment is valid it can only be on a reading down of tbc. amended provisions of article 13 and 368 which reading would preserve the original inherent and implied limitations.

Even after the 24th amendment Parliament will have no power to alter or destroy the essential feature& of the Constitution.Hindu Women's Right to Property 4e1, [1941) F.c.R. 12, 21).32.

R. M. D. Chamarbaugwalla v. Union of India, [1957] S.C.i. 930,. 931).3~.

Kedroath v. Stme of Bihar, (1962) Supp. 2 S.C.R. 769, 810-11, Arora v. so/ UP., [1964] 6 S.c.R. 784, 797, Shah & Co. v. Stall of MaAllTashtra, '19671 3 S.C.R. 466, 4n, SeshammaJ ~-State of Tamil Nadu, [19n] 2 S.C.C. 11, 22, 15.

Fundamental rights ate among: ti..- dSential features of the< Corutitudoo; Though the .... ntial features aoold be amended !ht rore of the .,..atial features ooold not be amended. Tlllll dottrine of implied or iabmnr limitatiom has received recognition in dcmo<ra~ constillltions. Ranui•, Ms a.., [1965] A. C. Jn, Taylor v. Attoniey General of Quenuland, 23 c.LJl. ID, l'ktomt Y. Commonw,./th, 45 Aust. I..J. 251, Ryan's case, 1935 Ir. !!<op. 170, Li10nt1t• v.

Queen, [1967] 1 A.C. 259, Mangal s; ngh v. Union of lmila,.'[1%7J 2 $.CR; 109, Cooley on Constitutionlll Limitations) PP; 36, 37, Skin.nu, 18 Mich. L. Rev, Marbury William, 33 Harv. L Rev. The' Initiative to IUftrmJum '""' [19191

A.C. 35, Swilzman v. Elbing, [1957] Canada L. !!<op. 285, &it v. Hm [1949) 4 D.L.R. 199, Sa#ml4f v. Cay of (i#/N< 1111d Ammr; a.-aJ of QuNI:, [1953) 4 D.L.R, 6-tl, Chabot v. S<hool Cf1ffJmi1n'oturr, [195&] 12 D.L.IL 796. The Constitution ii giV<n. hr tLt "'°""' in tho of tboir -..eignty - themselves. [1954) S.C.R. 5~1, 555, [1%0) 3 S; CJl. 250, 281-32. The fnndo. mental rights arc m•rdy the esprasi<!o of the. batic freedoms resenod by the people for r.htmselvcs. T 1967) 2 S.C.R. 762, 7'>2, [1950] S.C.R. 88; 196. If .cbe freedoms arc reserved by the people for thtmsdtts all the fwlctiomrics. aod agencies under the CollStitution bave to rcspt<t t1'ooe boo.duns and a jyprnlwils

no functionary or agtncy can dentoy those freedoms. ·

Apart from article 13(2} fundamental rights are ba.!Cd on Uni.ersal .. Ikc:- laration of Human Rights. They are inaliellable natural rights. nMnfore mo, are outside the scope of amendment. West Virgina Boartl of EtluellliMJ v~ '8""'* nette, 1943 87 L. Ed. 1628, 1638, Everson v. B-d of Edr1eation, 330 U.S. l; 28, /oint Anti Fa<ist JUf. Comm. v. McGrath, 341 U.S. 123, 1711 , if,,,.,;,,;,• Comm. Assrx:. v. Douds, 339 U.S. 382. ·

The ground for holding the Twenty Fifth Amendment illeg:d mcf wic! is that even if the 25th aniCndment is held to be valid it can only be Oil rcstricred interprctatios of the power of amcndmcnt confcmd on, Parlianient by article 368 as altered by 24th amendment<, 'The rcstrid<d initt)>mation would be that even after the 24th amendmcnt, and evcn if the bot ol arcidc . 13(2) was validly lifted, the inherent and implied limitations continue ID iluach.

ID Parliament's """"'"'*' po'Rr under Mticilo 368 with die reoulc, tliat (a)

KESAVANANDA V. KERALA 81

Parliament would, have no power to alter damage or destroy the essential {oaturcs of the Constitution and (b) each fundamental right being an csscntial

feature of the Constitution, no constitution amendment can damage or dcstreyy the .., a: ar core of the fundamental rights. The right to property is one of the essential features of the Constitution.

The intrinsic value of the right, its necessity for the m<aningful exercise of various other fundamental rights and its importance to the proper functioning of the Constitution as a whole leave no doubt that right to property is one of the basic clements of our Constitution • .Article 31(2) as a result of Constitution T\Venty Fifth Amendment will empower thC State to fix an amount on a basis which. need not be disclosed even to the members of the legislatnrc which posses the law and which may have no relation to ,.the value ; Of the PfOpcrty SQught to be acquired. Since "amount" is not a legal concept at all, unlike "Coiµpcnsation", there is no basic norm by re£crenoc to which the relevance or irrelevance of principles can be judged. The amended. article 31 in substance and effect authorises confiscation of any citizens• property. Such a law which has nothing to do with concentration of wealth and pcrtnits any citizens property to be . virtually confiscated involves destruction of the essence or core of the right to property. Article 31(2) has nothing to do with estates, 1.amindaris, Land Reforms or 3:grarian reforms which are specifically dealt with by article 31A and to which article .31(2). is wholly inapplicable. The other amendment of article 31 (2) that the amount' need not be paid in cash is in effect compounding the injustice.

When article 19(5) permits roasonablc restrictions the only object of making article 19( 1) ( f) in


Article 31C destroys the core or csscnce of scveral esscntial features of the Constitution. There is a vital distinction between cases where the fundamental right> arc amended to iicrrnit laws to be validly passcd which would have been 'Toid before the amendment and cases where the fundamental rights' remain unamended but the laws which are void as offending those rights arc validated by a legal fiction that they shall not be deemed to be void. The question is not one merely of legislative device.

The law in the former case is constitutional in roality whereas in die latter casc the law is unconstitutional in roality but is deemed by a fiction not to be void. The result is that laws which violate the Constitution arc validated and there .is a repudiation of the Constitution. If article 31C is valid it would be permissible to Parliament to amend the Constitutio11 so as to declare all laws to be valid which arc passed by Parliamen:

r State Legislatures in excess of lCgislativc competence or which violates basic human rights enshrined in Part III or the freedom of inter-slate trade in article

301. Article 31C gives a blank charter to Parliament and the State Legislatures

to defy the , constitution or damage or destroy the supremacy of the Constitution.

Thc article subordinates fundamental rights to Directive Principles. The Dirtttive Principles contained in Part N arc the ends of the endeavours or the people to achieve the constitutionally desired social order; the fundamental rights contained in Part III are the permissible means to achieve that end. One of the essential features of the Constitution is that the right to enforce the fundamental right> is guaranteed (Article 32). The Directive Principles arc not to enforceable. The fundamental rights arc clear cut and precise in contrast to the vague contours of the Directive Principles. To abrogate the fundamental rights when giving effect to the Directive Principles is to destroy one of the ascntial features of the Constitution. When an amendment of a single fnnda- 1111111tal right would require a majority .of at least twl> thirds of the members .

6-36 s.c. lndia175

82 SUPREME COURT REPORTS [1973] Supp. s.c.11..

of Parliament present and .voting, a law within article 31C which overrides and violates several fundamental rights can be passed by a simple majority.

Every fundamental right is an essential feature of the Constitution and article 31C purports to take away a large number of those fundamental right!. ft provides for the wholesale smothering of various rights which are independent of the right to property and arc totally irrelevant to the Directive Principles laid down in article 39(b) or (c). The essence or core of the right to move the Supreme Court is gone when the fundamental rights arc made uncnfbrccablc for the purpose of giving effect to the Directive Principles and at the same time the Court is precluded from considering whether the law is such as can possibly secure the Directive Principles in question. No State Legislature can amend the fundamental rights or any part of the Constitution. It is one of the essential features of the Constitution that it can be amended only in the "form and manner" laid down in article 368 and according to that article's basic theme. Trethowan's case, [ 1932) A.C. 526. This. essential feature is repudiated by article 31C which empowers state legislatures to pass laws which virtually involve a repeal of the fundamental rights. In substance the power of amendment of the Constitution is deelgatcd to all the State legislatures. This is not permissible under article 368.

[ 1919] A.C. 935, 945 (P.C.), [ 1967] 2 S.C.R, 650, 653-54, 659-60, [ 1951] Canada Law Reports 31, 37-38. Fundamental rights under articles 14, 19 and 31 which arc sought to be amended by article 31C arc necessary to make n.eaningful specific rights of minorities which arc guaranteed by articles 25 to 30. These guarantees arc essential features of the Constitution. The implication of the proviso to article 31(2) introduced by the 25th amendment is that if property is acquired in cases other than those of minorities an amount can be fixed which restricts or abrogates any of the fundamental rights. If a law violates the right of the minorities under articles 25 to 30 such a law would be no law. Therefore, deprivation of property under such a law would violate article 31(1) .. But the 25th amendment by article 3lC abrogates article 31(1) and minorities can be deprived of their properties, held privately or on public charitable or religious trusts, by law which violates articles 25 to 30. Thus article 31 C has built in mechanism for the dissolution of true dcmocracY that India has been so far, cessation of the rule of law. disintegration of the nation and the birth of a totalitarian regime.

Article 31B as originally inserted had intimate relation with agrarian reforms because at that stage article 31A dealt --0nly with agrarian reforms:

fhc words "without prejudice to the generality of the provisions contained in article 31 A" point to this connection.


718. Madhava Rao Scindia v. Union of India, [ 1971] 3 S.C.R. 9. The observation of the majority in Golaknath about the future exercise of power by Parliament arc clearly abiter. No ratio can be found in Golaknath which is binding on this Court. Salmond's Jurisprudence, 12 ed. 183. The basis of the judgment in Golaknath was the construction. put on the .unmnded article 368.

That basis having disappeared the reasoning of the ma1onty Judgment cease to apply.

If Golaknath is a binding. decision o? the question now before this Court that decision should be rcconS1dered. Articles 304 and 305 of the Draft CoDJtitution which would have thrown considerable light were not considered in ·

Kl!SAVANANDA f/, KE1lALA 83

-any of the judgments, The decision of the Privy Council in Ranasinghe's case


the .proviSo did not receive full consideration in Golaknath. If the 24th. amendment is valid the validity of the subsequent amendments cannot be questioned.

The unamended article 368 has to he interpreted according to settled principles -0£ construction. The spirit of the Constitution must be gathered from the language used. Keshava Madhava Menon v. State of Eombay, [1951] S.C.R. 228, 232. Rajasuryapa} Singh v. State of U.P., [1952]

S.C.R. 1056, 1067 (Mahajan, J.). A broad and liberal spirit must inspire those whose duty it is to interpret the Constitution. The Cout cannot stretch the language in the interests of any legal or constitutional theorr. In re: C. P. & Berar Act, XIV of 1938, [1939] F.C.R. 18, 36 (Gwyer, C.J.) referred to with approved in Gopalan's ca", [1950] S.C.R. at p. 120. The language of article 368 raises no question about the applicability of article 13(2). The words 'amendment of this Constitution' mean amendment of the Constitution of India and would include article 368 itself. The proviso provides :£or such amendment.

The <JUestion of location of power of amendment is immaterial. When the prescribed procedure is followed the Constitution stands amended.

What results is not 'law' but a part of the Constitution. The Court cannot pronounce any part of the Constitution invalid. The expression "amendment of this Constitution" has a clear and substantive meaning in the context of a written Constitution. It means the power to add, alter or repeal any part of the Constitution. The object of the provision for amendment is to change the fundamental or ha.Sic

principles of the Constitution.

Otherwise, the Constitution can be changed only by extra constitutional methods or by revolution. Short of substituting a new Constitution for the present Constitution all parts of the Constitution can be amended. The words of articlC 368 arc clear and unambiguous. They place no express limitation. Therefore no extrinsic aids to construction arc necessary.

To say that the framers of the Constitution could not have intended that fundamental rights should be abrogated or abridged by amendment is to assume a supposed intention and then construe article 368 to effectuate that intention. The words "amendment of this Constitution" do not mean repeal or abrogation of the Constitution. The scope of amendment could not be so wide as to create a vacuum by abrogating the rest of the Constitution leaving nothing behind to amend. Short of creating such a vacuum the power is wide enough to cover a replacement of the present Constitution. Constituent power is different from legislative poWer and when constituent power is given it is , exhaustive leaving nothing uncovered. Liyange's case, [1967] 1 A.C. 259.

The amending. power under article 368 is a constituent power and not ordinary legislative power.

Wn a constitution is uncontrolled there is no distinction between legislative power and constituent power. McCaw/ey v. The King, [1920]

A.C. 691, 703.

Our constitution is a controlled constitution because the un~ amended article 368 prescribed a special procedure for amending the Constitution.

Such a Constitution is the supreme or fundamental law because an ordinary law made under it cannot amend the Constitution Ranuinghe'1 case [1965]

A.C. 194.

There can he no standard outside the Constitution by reference to which the validity of its provisions can he judged. Sankari Prasad and Saii•• Singh rightly recognised th~ vital distinction between legislative and constituent

84 SUPREME 'COURT fuoRTS [1973] Supp. s.c.i;'

power. They rightly held that 'article 13(2) applied to legislative power and / not to constuent power. Ranasinghe's. case on which the leading majority in - Golaknath's case reliCd 'shows the effect of the words "subject to -the provisions,/ of the Constitution" when they qualify the power to make laws in the context of a. provision corersponding to article 13(2) and in the context of a power to amend the Constitution by a special procedure. If the Privy Council in Ranasinghe's case spoke of the power to amend as a legislative power or po\.ver of law making, that was because s. 29 of the Constitution of Ceylon appears under the sub-heading "Legislative power and procedure". --The Privy Council noted the marked distinction between an ordinary law and an amendment of the Constitution by distinguishing a power to make a law by a bare majority from a power to make a law under the Coristitution by a different legislative process.

Ranasinghe's case bolds that fundamental right could not be taken away by a law passed by a bare majority; but eould be taken away by amending the Constitution with the requisite majority. On well settled principles of construction an interpretation which would effectuate the intention of the framers of the 'C6nstitution ought to be preferred to that which would defeat that intention. All suggestions as regards implied liffiitations on the power -to amend have been brushed aside by the U.S. Supreme Court by observing that where the intention is clear there is no room for construction and no excuse for interpolation or addition. U. S. v. Sprague, 282 U.S. 716, 731, Rhode Island

v. Palmer, 253 U.S.· 350, 384 .. , ·

.")" The language of article 368 is_ clear and unambiguous and requires no extrinsic aids to construction.

Questions of policy are not for the courts to decide. Emperor v. Benoari Lal Sarma, 72 I.A. 57, Gopalan's case, (1950] S.C.R. 88, 277.

Discussions of the Constituent Assembly are equally imrmissible aids . to legal construction. Tire Preamble throws no light on the amendability or otherwise of fundamental rights.

In amending the Constitution the amending body acts in the character and capacity of a conv_ention expressing the supreme will of the sovereign people and is unlimited in. its power save by the Constitution. Ex parte Kerby, 36 A.L.R. (Ann) 1451. The argument that amendments which touch the rights of the people must be by convention has been rejected by the U.S. Supreme Court ..

Article V of the U.S. Constitution is unambiguOus and where the intention is clear there is no room for conStruction. Rhode Island v. Palmer, 253 U.S. 350,

U. S. v. Sprague, 282 U.S. 116. Principles of the Constitution can be changed under article V.

Schneiderman v. United States, 320 U.S. 118.


The backgrou.nd in which article 368 was enacted by the Constituent Assembly show that any limitation -on the amending power was never in controversy. The only controversy was regarding the degree of flexibility of an amendment of all the provisions of the Constitution. The theory of implied and inherent limitations is based on a narrow and restricted meaning of the word

1amendment' to suggest that basic features or the essential features of the Constitution cannot be damaged or destroyed. Preamble is an integral part of the statute .. The Preamble can be repealed. Craies on Statute, 6th Edn. 200.

XESAVANANDA ti. KERALA 85

Htdsbury 3rd edn. Vol. 36 p. 570. An amendment of the Constitution cannot be held to be void on the ground of repugnancy to some vagu~ ground of inconsistency with Preamble.


[1957] A.C. 436. Power is not conferred by the Preamble but must be found in the Constitution. Since 1951 when Sankari Prasad recognised unlimited power of amendment till the decision in GolaJcnath, in 1967, normal democratic

roccss of the departments of the State fl!nctioned as provided by the Coo .. tltut1on.

The test of the existence 'of unlimited amending power is not the possible abuse of the power. Only if the words are ambiguous regard can be had the .consequences of the exercise of the power. Where more than one meaning ts possible the Court must give the construction which will ensure the harmonious working of the Constitution. Queen v. Burah, [1878] 3 A.C. 889. If the court is to

fid ut each time the essential features or the core of the fundamental rights that

w~U introduce chaos. Words conferring legislative power should be given their widest meaning. This rule applies a forticri to constituent power. Ryan's case,

[1935] Ir. Rep. 170. If the positive power of "amendment of this constitution" in article 368 is restricted by raising th~ walls of essential features or oorc of essential features the clear intention of the Constitution makers will be nullified.

None has the power to say that any single provision is more essential than another or that the amending power under article 368 does not operate on any provision on the ground of alleged essentiality. When article 368 provides fo< "amendment of this Constitution" it means the whole constitution including every provision.

There is no foundation for the analogy that just as judges test reas.lnableness in law, judicial mind will find out the essential featufcs on the test of reasonableness. Reasonableness is an objective criterion because reason inheres in man as a human being. Proviso (e) to article 368 expresses a clear and deliberate intention of the Constituent Assembly that apart from providing for a less rigid amending formula the Constituent Assembly took care to avoid the controversy in the United States as to whether express limitations on Atticlc V of the U.S. Constitution itself rogarding equal suffrage of the states in the Senate could be amended, or the controversy in Australia as to whether section 28 of the Commonwealth Constitution itself could be amended since there was no express limitation on such amendment. The Constituent Assembly provided in Cl. ( e) to article 368 express and specific power of amendment of article 368 itself. The amending body under article 368 represents the will of the people. The concept of popular sovereignty is well settled in parliamentary democracy.

It means that the people express their will through their representatives elected by them at the general election as the amending body prescribed by the Constitution. In a democracy the majority has the right to embody its opinion in laws subject to the limitations imposed by the Constitution. It has the unlimited power to remove these limitations. Lochner v. New York, 49 L. ed. 937.

The amending power must be coextensive with the Power of Court to invalidate laws.

There is intrinsic evidence in Pai: III itself that our Constitution does not adopt the theory that fundamental rights arc natural rights or moral rights which every human being i.s at all times to have.

They are only social rights "conferred" on citizens by civilised •oc!cty at a given time and are therefore susceptible to change from time to tune (See article 19, 33, 34, 358, 359 and 13(2)). The unambiguous meaning of amendment could not be destroyed to nurse the theory of implied limitations.

The theory is a repudiation of democratic process. Implications of limitation of power ought not to be imported from general concepts but "!'ly from ~X press or necessarily implied limitatios (i.e. implied limitation without which

' 86 SUPREME COURT REPORTS (1973] Supp. s.c.R.

a constitution cannot be worked). McCawley v. The Kini, [1920] A.C. 691.

The Canadian decisions cited relate only to the legislative competence of provincial legislatures to affect civil liberties like free speech, religion or to legislate in respect of criminal matters. They are not relevant for deter mi n1ng the amending power under the Constitution. So far as civil rights in Canada arc concerned it is noteworthy that the Canadian Bill of Rights, 1960, makes the rights therein dcfeasible by an express declaration that an Act of Parliament shall operate notwithstanding the Bill of Rights.

If Shanti/al Mangaldas case had not been overruled in R. C. Cooper v.

Union of India there would have been no necessity of amending article 31(2).

If the word 1compensation' as it stood prior to the 25th amendment must mean equivalent in value in cash, then, concentration of wealth will remain unchanged and justice, social economic and political amplified in articles 39, 41, 42, 43, 45, 46 and 47 will be thwarted.

Directive principles have to be effectively implementtd in order to achieve the readjustment of social order. The Twenty Fifth Amendment protects law in one respect, namely, the amount payable to the owner is no longer to be measured by the standard of equivalent in value of the property acquired. The fixing of the amount or alternatively specifying the principles for determining that amount is entirely within the judgment of the legislature and the whole object of the amendment is to exclude judicial review which had been introduced by the courts on the basis of the concept of compensation.

In fixing the. amount the legislature will act on some prin ciplc. This is not because of any obligation arising frdm art. 31(2) but from the general nature of legislative power itself.

Whatever the subject or the nature of legislation, it always proceeds on a principle, it is based on legislative policy.

The principle may include considerations of social justice.

Judicial review on the ground of inadequacy of the

14amount" and the manner of payment is excluded by express language.

No other question is excluded.

Article 31C is an application of the principle underlying article 31 ( 4 ), 31(6) and 31A to the sphere of industry.

Article 31C creates a legislative field with reference to the object of legisla~ tion. The object of inserting article 31C is to free certain kinds of laws from the limitation on legislative power imposed by conferment of fundamental rights by Part Ill. As those rights arc justiciable under article 32 the only way of doing so is to exclude judicial review of legislation in respect of those la'°''S, The fear of discrimination is allayed by three safeguards.

First and foremost is' the good sense of the legislature and the innate good sense of the community.

The second is the President's assent. The third is th.at in appropriate case it can be found as to whether there i9 any nexus between the law and the Dircc tive Principles sought to be achieved. The law enacted under article 31C will operate on "material resources", uconcentration of wealth" and umeans of production".

The legislative effort would generally involve (i) nationalisation of the material rcsources of the community and (ii) imposition of c.ontrol on the production supply and distribution of the products of key industries and essential commodities. It therefore impinges on a particular kind of cconol'IJ.!C system only.

Article 31C docs not delegate power to legislatures to amend the constitution.

There can implied amendment of the Constitution. Kariapper

v. Waie Sinha, [1968] A.C.R. 717, 743.

This case was heard on the following dates : October 31, 1972, November I to 3, 6 to 7, 9, 13 to 16, 22 to 24, 27 to 30, 1972; IJ.ccmbcr 4 to 8, 13 to 14, 18 to 21, 1972; January 8 to 12, 15, 17 t0 19, 22 to 25, 29 to 31, 1973; February 1 to 2, 5, 12 to 13, 15 to 16, 19 to 21, 23, 26 to 28, 1973; March 1 to 2, 12 to 14; 15 to 16, 22 to 23, 1973.

86a

ORIGINAL JURISDICTION: Writ Petition No. 135'of 1970 . • Petition under Article 32 of the Constitution of India for the en forcement of fundamental rights.

WITH

Writ Petitions Nos. 351 and 352 of 1972.

WITH

Writ Petitions Nos. 373 and 374 of 1972.

AND

Writ Petition No. 400 of 1972.

For the Petitioner (in W .P. No. 135/70) : M/s, N. A. Palkhivala, C. K. Daphtary, M. C. Chagla, Sol~ Sorabji, Anil B. Divan and K. T.

Haridranath, Senior Advocates, (M/s. j. B. Dadachanji, B. G. Murdesh war, Anwarulla Pasha, Ravinder Narain, 0. C. Mathur, S. Swarup and S. I. Thakore, Advocates with them).

For Respondent No . . I (in W. P. No. 135/70) : Mr. H. M. Seervai, Advocate-General for the State of Maharashtra and Mr. M. M. Abdul Khadar, Advocate-General for the State of Kerala, (M/s. T. R. Andhyarujina and K. M. K. Nair, Advocates, with them).

For Respondent No. 2 (in W.P. No. 135/70): Mr. Niren De, Attorney-General of India and Mr. Lal Narain Sinha, Solicitor-General of India, (M/s. R. N. Sachthey, Ram Panjwani and Miss Sumitra Chakravarty, Advocates, with them).

For the Advocate-General, State of Andhra Pradesh (in W. P. No. 135/70) : Mr. P. Ramachandra Reddy, Advocate-General for the State

of Andhra Pradesh, (M/s. T. V. S. Narasimhachari and P. Parameshwara Rao, Advocates, with him). ·

For the Adovcate-General, State of Assam (in W. P. No. 135/70) : Dr. J. C. Medhi, Advocate-General for the State of Assam and Mr.

Moinul Haque Chowdhury, Senior Advocate, (Mr. Naunit Lal, Advocate, with them).

For the Adovcate-General, State of Bihar (in W. P. No. 135/70) : Mr. Balbhadra Prasad Singh, Advocate-General for the State of Bihar (Mr. U. P. Singh, Advocate with him).

86b

For the Advocate-General, State of /ammu and Kashmir (in W .P_ No. 135/70) : M/s. Y. S. Dharmadlllkari, Advocate-General and J. P.

Bajpai, Dy. Advocates.

For the Advocate-General, State of Madhya Pradesh (in W. P. No. 135/70) : M/s. Y. S. Dharmadhikari, Advocate-General and J. P. Bajpai, Dy. Advocate-General for the State of Madhya Pradesh, (Mr. I. N.

Shroff, Advocate, w; th them).

For the Advocate-General, State of Maharashtra (in W .P. No. 135/70) : Mr. H. M. Seervai, Advocate-General for the State of Maharashtra, M/s. T. R. Andbyarujina and S. P. Nayar, Advocates, with him).

For the Advocate-Genera/, State of Manipur (in W .P. No. 135) : M/s. R. N. Sachthey and S. K. Nancly, Advocates.

For the Advocate-Generd, State of Meghalaya (in W.P. No. 135/

70) : Mr. Nirendra Mohan Lahiri, Advocate-General for the State of Megha!aya, (Mr. D. N. Mukherjee, Advocate, with him).

For the Advocate-General, State of Mysore (in W .P. No. 135/70) : Mr. R. N. Byra Reddy, Advocate-General, State of Mysore, (M/s.

Chandra Kant Urs, Govt. Advocates, Mysore and M. Veerappa, Advocate, with him).

For the Adovcate-General, State of Nagaland (in W .P. No. 135/

70) : Mr. S. K. Ghose, Advocate-General, State of Nagaland, (M/s.

Naunit Lal, H. K. Serna and A. R. Barthakar, Advocates, with him).

For the Advocate-General, State of OriJsa (in W .P. 135/70) : Mr.

Gangadhar Rath, Advocate-General, State of Orissa, (M/s. Gobind Das and B. Parthasarathy, Advocates, with him). l For the Advocate-General, the State of Puniab (in W .P. No. 135/ ~

70) : Mr. R. N. Sachthey, Advocate.

For the Advocate-General, Stae of Raiasthan (in W .P. No. 135/

70) : Dr. L. M. Singhvi., Advocate-General, State of Rajasthan, (M/s.

K. Baldcv Mehta and Sobhagmal Jain Advocates, with him).

For the At!tlOCate-General, the State of Tamil Nadu (in W.P. No. 135/70) : Mr. S. Govind Swaminatha, Advocate-General, State of Tamil Nadu, (M/s. A. V. Rangam, N. S. Siram and Miss A. Subhahini. Advocates, with him).

For the Advocate-General, State of Uttar Pradesh (in W.P. No. 135/70) : Mr. S. N. Kakkar, Advocate-General, State of Uttar Pradesh. (Mr. 0. P. Rana, Advocate, with him).

For Intervener No. 1 (in W.P. No. 135/70) : Mr. Binaya~ Banerjee, Senior Advocate, (M/s. Somen Bose, Suprakash Baneqee a.nd G. S. Chatterjee, Advocate, with him).

86c

For the Intervener Nos. 2 anJ 3 (in W .P. No. 135/70) : M/s. G. B; Raikar, S. S. Javali, R. L. Roshan and H. K. Puri, Advocates.

For Intervener Nos. 4 to 6 (in W .P. No. 135/70) : M/s. D. M. iParulekar, C. K. Ratnaparkhi and A. G. Ratnaparkhi, Advocates.

For Intervener Nos. 7 & 8 (in W .P. No. 135/70) : Mr. Mahindra Nath Ghosh, Senior Advocate, (M/s. Sommcn Bose, Soi\endra Sckhar Roy and G. S. Chatterjee, Advocates, with him).

For Intervener No. 20 (in W. P. No. 135/70) : Miss Lily Thomas, Advocate.

For Intervener No. 9 (in W.P. Nos. 135/70 & 373/72) : Mr. Anil Diwan, Senior Advocat:c, (M/s. J. B. Dadachanji, S. I. Thakorc, P. M.

Danekar, D. M. Popat, M. L. Bhakta, Ravinder Narain and 0. C.

Mathur, Advocates.

For Intervener No. 10 (in W .P. Nos. 135/70 & 373/73f :· MJs.

N. A. Palkhivala and Basudev Prasad, Senior Advocates, (1!K/s., J. 'B.

Dadachanji, S. I. Thakore, P. M. Dandekar, D. M. Popat, M. L.

Bhakta, Ravinder Narain and 0. C. Mathur, Advocates, with them).

For Intervener Nos. 11 to 19 (in W .P. Nos. 135/70 & "173/72) : M/s. N. A. Palkhivala and Anil Diwan, Senior Advocates, (M/s. S. I.

Thakore, P. M. Dandekar, D. M. Popat, M. L. Bhakta, J. B. Dadachanji, Ravinder Narain, 0. C. Mathur and S. Swarup, Advocates, with them) .

.. , For the Petitioner (in W .P. No. 351/72) : M/s. N. A. Palkhivala, M. C. Chagla and Soli Sorabji, Senior Advocates, M/s. B. G. Murdeshwar, J. B. Dadachanj~ Ravinder Narain, 0. C. Mathur, S. Swarup and A. G. Meneses, Advocates, with them).

For the Petitioner (in 1 W .P. No. 352/72) : Mr. Soli Sorabji, Senior Advocate, (M/s. B. G. Murdeshwar, J. B. Dadachanji, Ravindcr Narain,

0. C. Mathur, S. Swarup and A. G. Meneses, Advocates, with him).

For Respondent No. 1 (in W .P. No. 351/72) : M/s. Nircn De, Attorney-General of India and Lal Narain Sinha, Solicitor-General of India and D. P. Singh, Senior Advocate, (M/s. G. l. Sanghi, R. N.

Sachthcy and B. D. Sharma, Advocates, with them), For Respondent No 1 (in W .P. No. 352/72) : (M/s. Nircn De, Attorney-General of India, Lal Narain Sinha, Solicitor-General of India and D. P. Singh, Senior Advocate, (M/s. R. N. Sachthcy and B. D.

Sharma, Advocates, with them).

For the Advocate-General, State of Andhra Pradesh (in W. P.

Nos. 3;1-352/72) : Mr. P. Ramachandra Reddy, Advocat:c-Gcneral, State of Andhra Pradesh, (M/s. G. Narayana Rao and P. Paramcshwara Rao, Advocates,. with him).

86d

For the Advocate-General, State of Bihar (in W .P. Nos. 351-352/ i2) : Mr. Balbhadra Prasad Singh,. Advocate-General, State of Bihar,.

(M/s. Radha Raman, Jai Narayan and U. P. Singh, Advocates, with. him).

For the Advocate-General, State of Manipur (in W .P. Nor. 351-· 352/i2) : Mr. N. Ibotombi Singh, Advocate-General, State of Mnipur,.

(M/s. S. K. Nandy and R. N. Sachthey, Advocates, with him).

For the Advocate-General, State of Orissa (in W .P. Nos. 351-352/ i2) : Mr. Gangadhar Rath, Advocate-General, State of Orissa, (Mr_ G. S. Chatterjee, Advocate, with him).

For the Advocate-General, State of Punjab (in W .P. Nos. 351- 352ji2) Mr. R. N. Sachthey, Advocate .

. , For the Intervener No l (in W .P. No. 351/72) : Intervener appearaf in person and later Mr. Basudeo Prasad, Senior Advocate, (Mr ..

N. N. Sharma, Mvocate, with him).

For the .Intervener No. 2 (in W .P. No. 351/72) : M/s. Santok: Singh and V. Mayakrish, nan, Advocates.

For the Petitioner (in W.P. No. 373/72) : Mr. C. K. Daphtary,.

Senior Advocate, M/s. R. N. Banerjee, J. B. Dadachanji, Ravinder Narain, 0. C. Mathur, P. C. Bhartari and S. Swarup, Advocates, with, him). '

For the Petitioner (in W.P. No. 374/72) : M/s. M. C. Chagla and C. K. Daphtary, Senior Advocates, (M/s. R. N. Banerjee, J. B. Dadachanji, Ravinder Narain, 0. C. Mathur, P. C. Bhartari, S. Swarup and' Mrs. N. A. Palkhivala, Advocates, with them).

For Respondent No. 1 (in W .P. No. 373/72) : M/s. Niren De,.

Attorney-General of India, Lal Narain Sin~1a, Solicitor-General of India and M. K. Ramamurthy, Senior Advocate, (Mr. R. N. Sachthey, Advocates, with them).

Fo1 Respondent No. 1 (in W.P. No. 374/72) : M/s. Niren De, Attorney-General of India, and Lal Narain Sinha, Solicitor-General of India (M/s. R. H. Dhebar, R. N. Sachthey and B. D. Sharma, Advocates, with them).

For the Petitioner (in W.P. No. 400/72) : M/s. N. A. Palkhivala and C. K. Daphtary, Senior Advocates, (M/s. R. N. Banerjee, J. B.

Dadachanji, Ravinder Narain, 0. C. Mathur, P. C. Bhartari and S.

Swamp, Advocates, with them).

For Respondent No. l (in W.P. No. 400/72) : M/s. Niren De, Attorney-General of lnrlia, Lal Narain Sinha, Solicitor-General of India, (M/s. R. N. Sachthey, S. P. Nayar and S. N. Prasad, Advocates, with. them).

Tm FoLLOWING JuDGEMENTS WEllE DELIVERED: 87

Sna1, C. J. : I propose to divide my judgment into eight parts.

Part I will deal with Introduction; Part II. with interpretation of Golakhnath' case ; Part III with the interpretation of the original article 358, as it existed prior to its amendment ; Part IV with the validity of the Constitution (Twenty-fourth Atnendment) Act; Part V with the validity of s. 2 of the Constitution (Twenty-fifth Amendment) Act; Part VI with the validity of s. 3 of the Constitution (Twenty-fifth Atnendment) Act; Part VII with Constitution (Twenty-ninth Amendment) Act; and Part VIII with .conclusions.

PART I-Introduction

All the six writ petitions involve common questions as to the validity of the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments of the Constitution. I may give a few facts in Writ fetition No. 135 of 1970 to show how the question arises in this petition. Writ Petition No. 135 of 1970 was filed by the petitioner on Match 21,

J.970 under Article 32 of the Constitution for enforcement bf his fundamental rights under Articles 25, 26, 14, 19(1)(£) and 31 of thc- Constitution. He prayed that the provisions of the Kerala Land Rorms Act, 1963 (Act 1 of 1%4) as amended by the Kerala Land Reforms

(Atnendment) Act 1969 (Act 35 of 1969) be declared unconstitutional, ultra vires and void. He further prayed for an appropriate writ or order to issue during the pendency of the petition. This Court issued rule' nisi on March 25, 1970.

During the pendency of the writ petition, th~ Kerala Land Reforms (Amendment) Act 1971 (Kerala Act No. 25 of 1971) was passed which received the assent of the President on August 7, 1'971. The petitioner filed an application for permission to urge additional grounds and to impugn the constitutional validity of the Kernla Land Reforms (Amendment) Act 1971 (Kerala Act No. 25 of 19'll). ·

In the meantime, the Supreme Court by its judgment datqd April 26, 1971 in Kunjukutty Sahib v. State of Kerala( 1 ) upheld the majority judgment of the Kerala High Court in V. N. Narayanan Nair v. State of Kerala(2) whereby certain sections of the Act were struck dwn.

(1) {1972] S.C.C. 364 (Civil Appeals Nos. 143, 203-242, 274 & 309 of• 1971). judgment dated April 26, 1971.

( 2 ) A.LR. 1971 Kerala 98.

118 SUPREME COURT JlEPOllTS ( 1973] Supp. S, CJl,

The. Constitution (Twenty-fifth Amendment) Act came into force on November 5, 1971, the Constitution (Twenty-fifth Amendment) Act came into force on April 20, 1972 and the Constitution {Twenty-ninth Amendment) Act came into force on June 9, 1972.

The effect of the Twenty-ninth Amendment of the Constitution was that it inserted the following Aots in the Ninth Schedule to the Consti~

tution :-

"65. The Kerala Land Reforms (Amendment) Act, 1969 (Kera la Act 35 of 1969). 66. The Kera la Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971)."

The petitioner then moved an application for urging additional grounds and for amendment of the writ petition in order to challenge the above constitutional amendments.

The Court allowed the application for urging additional grounds .and for amendment of the writ petition on August 10, 1972 and issued notices to the Advocates-General to appear before this Court and take .such part in the proceedings as they may be advised.

When the case was placed before the constitutional bench, it referred this case to a larger bench to determine the validity of the impugned constitutional amendments.

Similar orders were passed in the other writ petitions.

The larger bench was accordingly constituted. It was then felt :that it would be necessary to decide whether I. C. Golak Nath v. State .of Punjab(') was rightly docided or not. However, as I see it, the .question whether Golak Nath's(') case was rightly decided or not .docs not matter because the real issue is different and of much greater :importance, the issue being : what is the extent of the amending power conferred by art. 368 of the Constitution, apart from art. 13(2), on Parliament ?

The respondents claim that Parliament can abrogate fundamental rights such as freedom of speech and expre9Sion, freedom to form .associations or unions, and freedom of religion. They claim that demo- cracy can even be replaced and one-party rule , established. Indeed, short of repeal of the Constitution, any form f Government ~.ith 1_10 freedom to the citizens can be set up by l'arhament by exerosmg its powers under art. 368.

On the side of the petitioners it is urged that the power of Parliament is much more limited. The petitioners say that the Constitution gave the Indian citizen freedoms which were to subsi.st for ever

( 1 ) [19671 2 S. C.R. 762.

USAVANANDA II. KEIW.A (Sikri, C.J.)

and the Constitution was drafted to free the nation from any future tyranny of the representatives of the people. It is this freedom from tyranny which, according to the petitioners, has been taken away by the impugned art. 31C which has been inserted by the Twenty-fifth Amendment. If article 31C is valid, they say, hereafter Parliament and State Legislatures and not the Constituti.on, will determine how much freedom is good for the citizens.

These cases raise grave issues. But however grave the issues maybe, the answer must depend on the interpretation of the words in art. 368, read in accordance with the principles of interpretation which. arc applied to the interpretation of a Constitution given by the people to themselves.

I must interpret art. 368 in the setting of our Constitution, in the background of our history and in the light of our aspirations and

hopes, and other relevant circumstances. No other constitution in the world is like ours. No other constitution combines under its wings. such diverse peoples, numbering now more than 550 millionsrwith different languages and religions and in different stages of economic development, into one nation, and no other nation is faced with such. vast socio-economic problems.

I need hardly observe that I am not interpreting an ordinary statute, but a Constitution which apart from setting up a machinery for government, has a noble and grand vision. The vision was put in words in the Preamble and carried out in part by conferring fundamental rights on the people. The vision was . directed to be further carried out by the appl'ication of directive principles.

PART II-Interpretation of, Golak Nath's Cate.

Before proceeding with the main task, it is necessary to ask : what was decided in J. C. Golak Nath v. State of Punjab(') ? In order t<> properly appreciate that case, it is necessary first to have a look at Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar(") and Sajjan Singh v. State of Rajasthan(')

The Constitution (First Amendment) Act, 1951, which inserted inter alia Arts. 31A and 31B in the Constitution was the subject matter of decision in Sankari PraraJ' s(') case. The main argument~

(•) (1961] 2 S.C.R. 762.

( 1) (1965] I S.C.R. 933.

(2) (1952] S.C.R. 89.

'90 SUPREME COURT REPORTS ( 1973) Supp. S.C.ll,

relevant to the present case wh:ch were advanced in support of the petition before this Court were summarised by Patanjali Sastri, J. as he then was, 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 designated body and, therefore, the provisional Parliament was not competent to exercise that power under article 379.

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 several particulars during its passage through the House, the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed in article 368.

Fifthly, the Amendment Act, in so far as it purports to take away or abridge the righs conferred by Part III of the Constitution, falls within the prohibition of article 13(2)".

x x x x x

As stated in the head note, this Court held :

"The provisional Parliament is competent to exercise the power of amending the Constitution under Art. 368. The fact that the said article refers to the two &uses of the Parliament and the President separately and not to the Parliament, docs not lead to the inference that the body which is invested with the power to amend is not the Parliament but a different body consisting of the two Houses.

The words "all the powers conferred by the provisions of this Constitution on Parliament" in Art. 379 are not confined to such powers as could be exe.rcised by the provisional Parliament consii>ling of a single chamber, but are wide enough to include the power to amend the Constitution conferred by Art. 368.''

I may mention that Mr. Seervai contends that the conclusion just mentioned was wrong anil that the body that amends the Constitution under Art. 368 is not Parliament.

The Court further held :

"The view that Art. 368 is a eomplete code in itself 'in respect of the procedure providtd by .it and does not contemplate any amendment of a Bill for amendment of the Constitution after it has

KESAVANANDA I'. KEJW.A (Sikri, C.J.) 91

been introduced, and that if the Bill is amended during its passage through the House, the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed by Art. 368 and would be invalid, is erroneous.

Although "law" must ordinarily include constitutional law there is a clear demarcation between ordinary law whi<:h is made in the exercise of legislative power and constitutional law, which is made in the exercise of constituent power. In the context of Art. 13, "law" must be taken to mean rules or regulations wade in exercise of ordinary legislative power and not amendments to the constitution made )n the exercise of constituent power with the result that Art. 13(2) does not affect amendments made under Art. 368."

Although the decision in Sankari Prasad' s(') case was not challen ged in Sajjan Singh' s(2) case, Gajendragadkar, c. J. thought it fit to give reasons for expressing full concurrence with that decision.

The only contention before the Court was that "since it appears that the powers prescribed by Art. 226 are likely to be affected by the intended amendment of the provisions contained in Part III, the bUI introduced for .the purpose of making such an :unendment, must at!tract the proviso, and as the impugned Act has admittedly not gone through the procedure prescribed by the proviso, it is invalid". According to Gajendragadkar, C.J. "that raised the questii>n about the construction of the provisions contained in Art. 368 and the relation between the substantive part of Art. 368 with its proviso."

The Chief Justice came to the conclusion that "as a matter of construction, there is no escape from the conclusion that Art. 368 provides for the amendment of the provisions contained in Part Ill without imposing on Parliament an obligation to adopt the procedure prescribed by the proviso."

The learned, Chief Justice thought that the power to amend in the context was a very wide power and it could not be controlled by the literal dictionary meaning of the word "amend". He expressed his agreement with the reasoning of Patanjali Sastri,' J. regarding the applicability of Art. 13(2) to Constitution Amendment Acts passed ·

under Act. 368. He further held that when Art. 368 confers on ' Parliament the right to amend the Constitution, it can be exercised over all the provisions of the Constitution. He thought that "if the Constitutio,1-makers had intende<; l that any future amendment of the

( 1) [1952] S.C.R. 89.

{ 2) [!965] I S.C.R. 933.

92 SUPREME COURT REPORTS ( 1973) Supp. ~.C.R.

provisions in regard to fundamental rights should be subject to Art. 13(2), they would have taken the precaution of making a clear provision in that behalf."

He seemed to be in agreement with the following observations of Kania, C.J. in A. K. Gopalan v. The State of Madras(') :

"the inclusion of article 13(1) and (2) in the Constitution appears to be a matter of abundant caution. Even in their absence if any of the fundamental rights was infringed by any legislative enactment, the Court has a\Ways the power to declare the enactment, to the extent it transgresses the limits, invalid".

He was of the view that even though the relevant provisions of Part III can be justly described as the very foundation and the cornerstone of the democratic way of life ushered in tliis country by the Constitution, it cannot be said that the fundamental rights guaranteed to the citizens are eternal and inviolate in the sense that they can never be abridged or amended.

According to him, it was legitimate to assume that the Constitul!ion-makers visualised that Parliament would be competent to make amendments in these rights so as to meet the challenge of the probkms which may arise in the course of socio-economic progre55 and development of the country.

Hidayatullah, J., as he then was, agreed with the Cl\:ief Justice that the 17th Amendment was valid even though the procedure laid down in the proviso to Art. 368 had not been followed. But he expressed his difficulty in accepting the part of the reasoning in Sonkari Prasad's(') case.

He observed as follows :

"It is true that there is no complete defini, tion of the word "law,. in the article but it is significant that the definition does not seek

to exclude constitutional amendments which it would have been easy to indicate in the definition by adding "but shall not inc111Je

1zn amendment of the Constit11tion". (p. 958).

He further observed : "The meaning of Art. 13 thus depends on the sense in which the word "law" in Art. 13(2) is to be understood. If an amendment can be said to fall within the term "law", the Fundamental Rights become "eternal and inviolate" to borrow the language of the Japanese Constitution. Article 13 i& then on par with Art. 5 of the American Federal Constitution in its immutable prohibition as 1011g as it stands." (p. 958). ·

(1) [ 1950] S.C.R. 88 at p. 100.

( 2) [1952] S.C.R. 89.

KESAVANANDA V, KERALA (Sikri, C.j.) 93

According to him "Our Preamble is more akin in nature to the American Declaration of Independence (July 4, 1776) then to the preamble to the Constittµion of the United States. It does not make any grant of power but it gives a direction and purpose to the Constitution which is reflected in Parts III and IV. Is it !lo be imagined that a two-thirds majority of the two Houses at any time is all that is necessary to alter it without even consulting the States ? It is not even included in the proviso to Art. 368 and it is difficult to think that as it has not the protection of the proviso it must be within the main part of Art. 368."

He further observed :

"I would require stronger reason than those given in Sankari Prasad's .case to make me accept the view that Fundamental Rights were not really fundamental but were intended to be within the powers of amendment in common with the other parts of the Constitution and without the concurrence of the States."

He held:,-

"What Art. 368 does is to lay down the manner of amendment and the necessary conditions for the effectiveness of the amendment ......................... .

The Constitution gives so many assurances in Part Ill that it would be difficult to think that they were the play-things of a special majority. To .hold this would mean prima facie that the most solemn parts of our Constitution stand on the same footing as any other provision and even on a less firm ground than one on which the articles mentioned in the proviso stand."

Mudholkar, J. although agreeing that the writ petition should be dismissed, raised various doubts and he said that he was reserving his opinion on the question whether Sankari Prasad's case was rightly decided. He thought :

"The language of Art. 368 is plain enough to show that the action of Parliiament in amending the Constitution is a leg'islative act like one in exercise of its normal legislative power. The only difference in respect of an amendment of the Constitution 'is that the Bill amending the Constitution has to be passed by a special majority (here I have in mind only those amedments which do not attract the proviso to Art. 368). The result of a legislative action of a legislature cannot be other than 'law' and, therefore, it seems to me that the fact that the legislation deals with the amendment of a provision of the Constitution woul\l not make its result any the less a 'law'." 7-36 S. C. Jnd; a/73

94 ' SUPREME COURT REPORTS (1973] Supp. S.C.ll.

He observed :

"It is true that the Constitution does not directly prohibit the amendment of Part III. But it would indeed be strange that rights which are considered to be fundamental and which include one which is guaranteed by the Constitution ( vide Art. 32) should be more easily capable of being abridged or restricted than any of the matters referred to in the prov'is0 to Art. 368 some of which are perhaps less vital than fundamental rights. It is possible, as suggested by my learned brother, that Art 368 merely lays down the procedure to be followed for amending the Constitution and does not confer a power to amend the Constitution which, I think, has to be ascertained from the provision sought to be amended or other relevant provisions or the prcimble."

Later, he observed :

"Above all, it formulated a solemn and dignified preamble which appears to be. an epitome of the basic features of the Constitution.

Can it not be said that these are indica of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution ?"

He posed a further question by observing :

"It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the.

Constitution; and if the latter, would it be within the purview ot Art. 368 ?"

He th<>n stressed the prime importance of the preamble :

"The Constitution indicates three modes of amendments and assuming that the provisions of Art. 368 confer power on Parliamentt to amend the Constitution, it will still have to be considered whether as long as the preamble stands unamended, that power ~

be exercised with respect to any of the basic features of the .Constitution.

To illustra~ my point, .as long as the words 'sovereign democratic

republic' are there,. could the Constitution be atl)ended so as to depart from the democradc form of Government OF im . republic character? If. that cannot be done, then, as long as W91"dt

"JuStlc.e, social, economic and political etc.," arc there. d any of the rjghts enumera~ in. Arb. 14 to 19, 21, 25, 31 ; llld. 32 be . taken away ? If they cannot, it will be for consicferatioo :whether they can . be modified. · ·

KESAVANANDA ti, KllALA (Sikri, C.J.) 95

"It has been said, no doubt, that the preamble is not a part of our Constitution. But, I think, that if upon a comparison of the preamble with the broad features of the Constitution it would appear that the preamble is an epitome of those features or, to put it differently if these features are an amplification or concretisation of the concepts set out in the preamble it may have to be considered whether the preamble is not a part of the Constitution.

While considering this question it would be of relevance to bear in mind that the preamble is not of the common run such as is to be found in an Act of a legislature. .It has the stamp of deep deliberation and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it?" ·

Coming now to Golak Nath' s case, the petitioner had challenged the valid.ity of the Constitution (Seventeenth Amendment) Act, 1964 which included in the Ninth Schedule, among other acts, the Punjab Security of Land Tenures Act, 1953 (Act 10 of 1953), and the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14

I of 1%5.

It was urged before the Court that Sankari Prasad's(') case in which the validity of the Constitution (First Amendment) Act, 1951 and Sajjan Singh's( 2 ) case in which the validity of the Constitution (Seventeenth Amendment) Act was in question had been wrongly decided by this Court. ·

Subba Rao, C.J. speaking for himself and 4 other Judges summarised the conclusions at page 815 as follows :

"The :if oresaid diocussion leads to the following results :

(!) The power of the Parliament to amend the Constitution iB

derived from Arts. 245, 246 and 248 of the Constitution and not from Art. 368 thereof which only deals with procedure.

Amendment is a legislative process .

(2) Amendment is 'law' within the meaning of Art. 13 of the Constitution and, therefore, if it take$ 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, and the 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.

( 1) (19521 S. C.R. 89.

(1) (1965) 1 S. C. R. 933.

96 SUPREME COURT REPORTS ( 1973) Supp. S.C.R.

( 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 Constirution so as to take away or abridge the fundamental rights enshrined therein.

(6) As the Constirution (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 Arts. 13, 14 or 31 of the Constirution."

It must be borne in mind that these conclusions were given in the light of the Constirut:ion as it stood then i.e. while Art. 13(2) subsisted in the Constirution. It was then not necessary to decide the ambit of Art. 368 with respect to the powers of Parliament to amend Art. 13(2) or to amend Article 368 itself. It is these points that have now to be decided.

It may further be observed that the Chief Justice refused to express an opinion on the contention that, in exercise of the power of amendment, Parliament cannot destroy the fundamenta \ structure of the Constitution but can only modify the provision thereof within the framework of the original instrument for its better effectuation.

As will be seen later, the first conclusion above, does not survive for discussion any longer because it is rightly admitted on behalf of the petitioners that the Constitution (Twenty Fourth Amendment) Act. 1971, in so far as it transfers power to amend the Constitution from the residuary entry (Entry 97 List 1 ) or Art. 248 of the Constirution to Art. 368, is valid; in other words Art. 368 of the Constitution as now amended by the Twenty Fourth Amendment deals not only with the procedure for amendment but also confers express power on Parliament to amend the Constirution. ·

I will also not discuss the merits of the second conclusion as the same result follows In this case even if it be assumed in favour of the respondents that an amendment of the Constitution is not law within Art. 13(2) of the Constitution.

Hidayatullah, J. as he then was, came to the following conclusions at page 902:

"(i) that the Fundamental R:ights are outside the amendatory process if the amendment seeks to abridge Oii take away any of the rights;

KESAVANANDA V. KERALA (Sikri, C.J.) 97

(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 Arts. 13(2) 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 Art. 368, any further inroad into these rights as they exist today will be illegal and unconstitutional unless it complies with Part lII in general and Arr. 13(2) in particular;

( v) that for abmlging 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, 1.953 (X of 1953) and the Mysore Land Reforms Act, 1961 (X of 1962) as amended by Act XIV of !965 are valid under the Constitution not because they are included in Schedule 9 of the Constitution but because they are protected by Act. 31-A, and the President's assent."

I am not giving his reasons for these .conclusions here because they w'ill be examined when dealing with the arguments addressed to us on various points.

Wanchoo, J. as he then was, also speaking on behalf of 2 other Judges held that Sankari Prasad's(') case was correctly decided and the majority in Sajja11 Singh's(') case was correct in following that decision.

Bachawat, J. held :

( 1) Article 368 not only prescribes the procedure but also gives the power of amendment;

(2) Article 368 gives the power of amending each . and every provision of the Constitution and as art. 13(2) 1s a part. of the Constitution it is within the reach of the amending power;

( 1) [1952] S.C.R. 89.


98 SUPREME COURT REPORTS ( 1973] Supp. S.C.R.

(3) Article 368 is not controll!ed by art. 13(2) and the prohibi-.

tory injunction in art. 13(2) is not attracted against the amending power;

(4) Constitutional amendment under art. 368 is.not a law within the meaning of art, 13(2);

(5) The scale of value embodied in Parts III and IV is not immortal. Parts III and IV being parts of the Constitution arc not immune from amendment under art. 368. Constition-makers could not have intended that the rights conferred by Part III could not be altered by giving effect to the policies of Part IV.

(6) The Preamble cannot control the unambiguous language of the articles of the Constitution.

Regarding the amendment of the basic features of the Constitution, he observed :

"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 Sevonteenth Amendment has not derogated from the sovereignty, the republican form of government and the federal structure, arid 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 tho fundamental rights arc within the reach of the amending power."

Ramaswami, J., held :

( l) The amending power under art. 368 is sui generis ;

(2) "Law" in Art. 13(2) cannot be construed so as to include

 "Lw" made by Parliament under Arts. 4, 169, 392, 5th Schedule Part D and 6th Schedule Para 21.

(3) The expression "fundamental rights" does not lift the fundamental rights above the constitution itself;

(4) Both the power to amend and the procedure to amend a~

enacted in art. 368.

(5) There were no implied limitations on the amending power and all articles of the Constitution were amendable either under the proviso of art. 368 or under the main part of the article.

(6) The Federal structure is not an essential part of our Constitution.

Kl!SAVANANDA ti. KERALA (Sikri, C.J.) 99

(7) The power of amendment is in point of quality an adjunct of sovereignty. If so, it does not admit of any limitations.

In btjef 6 Judges held that in view of Art. 13(2) Fundamental Rights could not be abridged Qr taken away. Five Judges held that Art. 13(2) was inapplicable to Acts amending the Constitution.

PART III-Interpretation of art. 368 Let me now proceed to interpret Art. 368. Article 368, as originally enacted, read 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 in-

(a) article 54, article 55, article 73, article 162 or article 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter 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 alio 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."

It will be noticed that art. 368 is contained in a separate part and the heading is "Amendment of the Constitution", but the marginal note reads "Procedure for amendment of the Constitution".

The expression "amendment of the Constitution" is not defined or expanded in any manner, although tn other parts of the Constitution, the word "Amend" or "Amendment" has, as will be pointed out later, been expanded. In some parts they have clearly a narrow meaning ..

The proviso tht ows some light on t.he problem. First, it uses the CX pression "if such amendment seeks to make any change in"; it does not add the words "change of ", or omit "in", and say "i;, ks t<> change" instead of the expression "seeks to make any change m ·

1.00 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.

The articles which arc included in the proviso may be now considered. Part V, Chapter I, deals with "the Executive". Articl~2. provides that there shall be a President of India, and art. 53 vests the executive power of the Union in the President and provides how it shall be exercised. These two articles are not mentioned in the proviso to art. 368 but arts. 54 and 55 are mentioned.

Article 54 provides :

"54. The President shall be elected by the members of an electoral college consisting of-

( a) the elected members of both Houses of Parliament; and

(b) the elected members of the Legislative Assemblies of the States."

Article 55 prescribes the manner of election of the President.

Why were arts. 52 and 53 not mentioned in the proviso to art. 368 ]f the intention was that the States would have a say as to the federal structure of the country i One of the inferences that can be drawn is that the constitution-makers never contemplated, or imagined that Art. 52 wi]ll be altered and there shall not be a President of India. In other words they did not contemplate a monarchy being set up in India or there being no President.

Another article which has been included in the proviso to art. 368 is art. 73 which deals with the extent of executive powers of the Union.

As far as the Vice-President is concerned, the States have been giYen no say whether there shall be a Vice-President or not; about the method of his election, etc. But what is remarkable is that when we come to Part VI of the Constitution, which deals with the "States",

the only provision which is mentioned in tihe proviso to art. 368 is art. 162 which deals With the extent of executive power of States. The appointment of a Governor, conditions of service of a Governor, and the constitution and functions of the Council of Ministers, and other provisions regarding the Ministers and the conduct of government business arc not. mentioned at all in the proviso to art. 368. Another article which 1s mentioned in cl. (a) of the proviso to art. 368 is art. 241 which originally dealt with High Courts for States in Part C of the First Schcuble.

Chapter IV of Part V of the Constitution which deals with the Union Judiciary, and Chapter V of. Part VI which deals with the High .Courts in the State are included in the proviso to art. 368 but it is extra, ordinary that Chapter VI of Part VI which deals with subordinate Judiciary Is not mentioned in clause (b ). Chapter I of Part XI is included and this deals with the Legislative Relations between the

' I

IQ!MVANANDA "· IWW.A (Sikri, C.J.) 101

Union and the States, but Chapter II of Part XI which deals with Administrative Relations between the Union and the States, and vari- . ous other matters in which the States would be interested arc not included. Provisions relating to services under the State and Trade and

Commerce arc also not included in the proviso.

This analysis of the provisions contained in clauses (a) and (b) of the proviso to art. 368 shows that the reason for including certain articles and excluding certain other from the proviso was not that all articles dealing with the federal structure or the status of the States had been sclc~ for inclusion in the proviso.

Clause (c) of the proviso mentions the Lists in the Seventh Schedule, clause ( d) mentions the representation of States in Parliam.ent,

and clause ( c) the provisions of art. 368 itscl£. The provisions of subclauses (.c), (d) and (c) can rfghdy be said to involve the . federal structure and the rights of the States.

What again is remarkable is that the fllndamental rights arc not included in the proviso at all. Were not the States interested in the fundamental rights of their people ? The omission may perhaps be understandable because of the express provision of art. 13(2) which provided that States shall not make any law which takes away or abridges the rights conferred by Part IIJ and any law made in contravention of this clause shall to the extent of the contravent'ion be void, assuming for the present that Art. 13(2) operates on Constitutional amendments.

In construing the expression "amendment of this constitution I must look at the whole scheme of the Constitution. It is not right to construe words in vacuum and then insert the meaning into an article.

Lord Greene observed in Bidie v. General Accident. Fire and Life

Asiurance Corporation(') : ·

"The first thing one has to do, I venture to think, in• construing words in a section of an Act of Parliament is not to take those words in vacuo, so to speak, and attribute to them what is sometimes called their natural or ordinary meaning. Few words in the English language have a natural or ordinary meaning in the sense that they must be so read that thcir meaning is entirely independent of their context. The method of construing statutes that I prefer is not to take partieular words and attribute to them a sort of prirna facie meaning which you may have to displace or modify.

( 1) (1948] 2 .All E.R. 995, 998.

102 SUPREME COURT Rl!POllTS [1973] Supp. s.c.a.

It is to read the statute as a whole ahd ask oneself the question : "In this state, in this context, relating to this subject-matter, what is the true meaning of that word ?"

I respectfully adopt the reasoning of Lord Greene in construing the expres5ion "the amendment of the Constitution."

Lord Greene 'is nor alone in this approach. fo Bourne v. Norwich Crematorium(') it is observed.:

"Engfish words derive colour trom those which swround them.

Sentences are not mere .collections of words to be taken out of the sent®ce defined separately by reference oo the dictionary or decided cases, and then put back again into the sentence with the meaning which you have assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language."

Holmes, J. in Towne v. Eigner(') bad the same thought. He observed:

' '

"A word is not crystal, transparent and unchanged; it is the skin of living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used." t

What Holmes J. said is particularly true of the word "Amendment" or "Amend".

I may also refer to the observation of Gwyer C.J. and Lord Wright:

"A grant of the power in general terms, standing by itself, would no doubt be construed in the wider sense; but it may be qualified by other express provisions in the same enactment, by the implicatio1lf of the context, and even by the considerations ariing

out of what appears to be the general scheme of the Act". (Per Gwyer C.J.-The Central Provinces and Berar Act, 1939 F.C.R. 18 at 42.)

The question, then, is one of construction and in the ultimate resort must be determined upon tht actual words used, fmti noe in vacuo but as occurring in a single complex instrument, in which one part may throw light on another. The constitution has been described as the federal compact, and the construction must hold a balance between all its parts''. (Per Lord Wright-Jama "· Commonwealth of Australia-1936 A.C. 578 at 613):'

( 1) [ 1967] 2 All E.R. 576, 578. (') 245 U.S. 418; 425=62 L. ed. 372; 376.

L ' •

DSAVANANDA ti. Kl!RALA (Sil(_ri, C.J.) 103

In the Constitution the. word "amendment" or "amend'' has been wed in various places to mean different things. In some articles, the word "amendment" in the context has a wide meaning and in another context it has a narrow meaning. In art. 107, which deals with legislative procedure, cl. (2) provides that "subject to the provisions of articles 108 and IO'), a Bill shall not be deemed to have betn passed by the House of Parliament unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses." It is quic .clear that the word "amendment" in this

article has a narrow meaning. Simila.rL'y, in art. 11 l of the Constitution, whereby the President is enabled to send a message requestSng the Houses to consider the desirability of introducing amendments, the "amendments" has a narrow meaning.

The opening of art. 4(1) reads:

"4(1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be nccC'Ssary to give effect to the provisions of the law ........................ " ·

Herc the word "amendment'.' has a narrower meaning. "Law" under Artides 3 and 4 must "conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise .... is not the power to over-ride the constitutional scheme. No state can,

l!hcrcfore, be formed, admitted or set up by law under Article 4 by the Parliament which has no effective legislative, executive and judicial orgaus". (Per Shah J.~Mangal Singh v. Union of India(') (Emphasis. supplied). . .

Article 169(2) reads :

"Any law referred to in clause (1) shall contain such provisio11s fot the amendment of. this Constitution as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions as Parliament may deem necessary."

Here also the word "amendment" has a narrow meaning.

Para 7 of Part D, Fifth Schedule, which deals with amendment of the schedule, reads :

"7. mcndment of the Schedule.-(!) Parliament may from time to ttme by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shalt be construed as a reference to such schedule as so amended."

(1) [ 1967] 2 S.C.R. 109 at 112.

l 04 SUPREME COUJ<T REPORTS [ 1973] Supp.· s.c.R.

Here the word "amend" has been expanded by using the expres.ion "by way of addition, variation or repeal", but even h=, it seems to me, the amendments will have to be in line with the whole Constitution. Similarly, under para 21 of the Sixth Schedule,. which repeats the phraseology of para 7 of the Fifth Schedule, it seems to me, the amendments will have Ito be in line with the Constitution.

I may mention that in the case of the amendments which may be made in exercise of the powers under art. 4, art. 169, para 7 of the Fifth Schedule, and para 21 of the Sixth Schedule, it has been expressly stated in these provisions that they shall not be deemed to be amendments of the Constitution for the purposes of art. 368.

It is also important to note that the Constituent Assembly which adopted art. 368 on September 17, 1949, had earlier on August 18, 1949, substituted the follow'mg section in place of the old Section 291 in the Government of India Act, 1935 :

"291.. Power of the Governor-General to amend certain provisions of the Act and orders made thereunder-

( l} The Governor-General may at any time by order make such amendments as he considers necessary whether by way of addition, modification or repeal, in the provisions of this Act or of any order made thereunder in relation to any Provincial Legislature with respect to any of the following matters, that is to say-

( a) the composition of the Chamber or Chambers of the Legislature;

(b) the delimitation of territorial constituencies for the 'purpose of elections under this Act. . . . . ~~ Here, llhe word "amendment" hasbeen expanded. It may be that there really is no cxpanSion because every.amendment may involve addition, variation or repeal of part of a provision.

According to Mr. Scervai, the power of amendment given by art. 4, read with arts. 2 and 3, art. 169, Fifth Schedule and Sixth &hedule, is a limited power limited to certain provisions of the Constitutio~, while the power under art. 368 is not limited. It is .true every provision is prima facie amendable under art. 368 but this docs not solve the problem before us.

I may mention that an attempt was made to expand the word "amend" in ar1i. 368 by proposing an amendment that ''by wy of vanation, addition, or repeal" be added but the amendment was reiected.

(C.A.D. Vol. 9 p. 1663).

JtESAVANANDA V. KERAu (Sikri, C.J.) 105

Again, in art. 196(2), the wod "amendment" has been used in a limited sense. Art:. 196(2) reads :

"196(2). Subject to the provisions of articles 197 and 198, a Bill shall not be deemed to have been passed by the Houses of the Legislature of a State having a Legislative Council unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses."

Similar meaning may be given to the word "amendment" in art. 197(2), which reads: ·

"197(2). If after a Bill has been so pa:ssed for the second time by the Legislative Assembly and transmitted to the Legislative Council-

( a) the Bill is rejected by the Council; or

(b) more than one month elapses from the date on which the

Bill is laid before the Council without the Bill being passed by it; or

(c) the Bill is passed by the Council 'l'l'ith amendments to whicb

the Legislative Assembly does not agree,

( c) the Bill is passed by the Legislative Assembly does not agree. the Bill shall be deemed to have been passed by the Houses of the Legislature of the State in the form in whicb it wa5 passed by tbc Legislati.ve Assembly for the second time with such amendments, if any, as nave been made or suggested.by the Legislative Council and agreed to by the Legislative Assembly."

Under Art. 200 the Governor is enabled to suggest the desirability of introducing any such amendments as he may recommend in his. message. Here again "amendment" has clearly a limited meaning.

In art. 35 (b) the words used are :

"Any law in force immediately before the commencement of this Constitution. . .. . . . . . . . . subject to the terms thereof and to any adaptations and modifications that may be made therein under article 372, continue in force until' altered or repealed or amended by Parliament."

Herc, all the three words are used giving a, comprehensive meaning. Reliance is not placed by the draftsman only on the word "amend".

1 Similar language is used in art. 372 whereby existing laws continue to be in force until "altered or repealed or amended' by a com- . petent Legislature or other competent authority.

106 SUPREMI! COUllT R1!P<>RTS [ 1973] Supp. s.C.R.

In the original art. 243(2), in conferring power on the President to make regulations for the peace and good government of the territories in part D of the First Schedule, it is stated that "any regulation so made may repeal or amend any law made by Parliament." Here, the two words together give the widest power to make regulations inconsistent with any law made by Parliament.

In art. 252 again, the two words arc joined together to give a wider power. Clause (2) of art. 252 reads :

"252(2). Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by. an Act of the Legislature of that State."

In he proviso to art. 254, which deals with the inconsistency between laws made by Parliament and laws made by the Legislatures of States, it is 'stated :

"Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding . to, amending, varying or repealing the law so made by the Legislature of the State."

In art. 320(5), "all regulations made under the proviso to clause (3)" can be modified "whether .by way of repeal or amendment" as both Houses of Parliament or the House or both Houses of the Legislature of the States may make during the session in which they arc so laid.

I have referred to the variation in the language of the various articles dealing with the' question of amendment or, repeal \n detail because our Constitution was drafted very carefully and I must presume that every word was chosen carefully and should have its proper meaning. I may rely for this principle on the following observations of the United Sllltes Supreme Q)urt: in Holmes v. Jenntson(') and quoted with approval in William v. United States(') :

"In expounding the Constitution of the United States, every word must have its due force, and appropriate meaning : for it is evident from the whole instrument, that no word was unncccssarily used, or needlessly added ..... ; .. "

( 1) (10) L. ed. 579; 594.

( 1) (77) L. ed. 1372; 1380.

KESAVANANDA I/, UliL.\. (Sikri, C.J.) 107

Reference was made to s. 6(2) of the Indian Independence Act, 1947, in which the last three lines read:

" ..... and the powers of the Legislature of each Dominion in- . elude the power to repeal or amend any such Act, order, rule or

regulation in so far as it is part of the law of the Dominion."

Herc, the comprehensive expression "repeal or amend" gives power to have a completely new Act different from an existing act of Parliament.

So, there is no doubt from a perusal of these provisions that different words have been used to meet different demands. In view of the great variation. of the phrases used all through the Constitution it follows that the word "amendment" must derive its colour from art. 368 and the rest of the provisiDns of the Constitution. There is no <loubt that it is not intended that the whole Constitution could be repealed. This much is conceded by the learned counsel for the respom:lcnts.

Therefore, in ordi::r r.o appreciate the real content of the expression "amendment of this Constitution", in Article 368 I must look at the whole structure of. the COnstitution. The Constitution opens with a preamble which reads :

''WE; THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure toall its citizens:

JUSTICE, social, economic and politkal;

LIBERTY of thought, expression, belief, faith and wonhip;

EQUALITY of status and of opportunity: and to promote among them all ' , ,

FRATERNITY assuriftg the dignity of the individual and the unity of the Nation; ·

IN OUR CONSTITUENT ASSEMBLY this Twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO QURSEL VES nus, CONSTITUTION."

. This Preamble, and indeed the Constitution, was drafted in the light and. direction of the Objective Resolutions adopted on January 22, 1947, which runs as follows :

_(1) _THIS CON~TUENT ASSEMBLY declares its firm . and solemn resolve to proclaim India as an Independent Sovciclgn

~ublic d to draw up for her future governance a Consti-

108 SUPREME COURT REPORTS (1973) Supp. S.C.R.

(2) wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States, as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and

(3) herein the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of auto- nomous units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as arc vested in or assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and

( 4) wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and

(5) wherein shall be guaranteed and secured to all people of

India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and

( 6) wherein adequate safeguards shall be provided for minorities backward and tribal areas, and depressed and other backward classes; and

(7) whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilized nations, and

(8) this ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind."

While moving the resolution for acceptance of the Objectives Resolution, Pandit Jawaharlal Nehru said :

"!t seeks very feebly to tell the world of what we have thought or dreamt for so long, and what we now hope to achieve in the near future. It is in that spirit that I venture to place this Resolution before the House and it is in that spirit that I trust the .

House will receive it and ultimately pass it. And may I, Sir, also with all respect, suggest to you and" to the House tha_t, when the time comes for the passing of this Resolution let it 6e not done

KESAVANANDA I'. K.ERALA (Sikri, C.J.) 109

in the formal way by the raising of hands, but much more solemnly, by all of us standing up and thus taking this pledge anew."

I may here trace the history of the shaping of . the Preamble because this would show that the Preamble was in conformity with the Constitution as it was finally accepted. Not only was the Constitu-'

tion framed in the light of the Preamble but the Preamble was ultimately settled in the light of rhe Constitution. This appears from the following brief survey of the history of the framing of the Preamble

extracted from the Framing of India's Constitution (A study) by B. Shiva Rao. In the earliest draft the Preamble was something formal and read : "We, the people of India, seeking to promote the common good, do hereby, through our chosen representatives, enact, adopt and give to ourselves this Constitution".(')

After the plan of June 3, 1947, which led to the decision to parti tion the country and to set up two independent Dominions of India and Pakistan, on June 8, 1947, a joint sub-committee of the Union Constitution and Provincial Constitution Committees, took note that the objective resolution would require amendment in view of the latest announcement of the British Government. The announcement of June 3 had made it clear that full independence, in the form of Dominion Statm, would be conferred on India as from August 15,

1947. After examining the implications of partition tile sub-committee thought that the question of making changes in the Objectives Resolution could appropriately be considered only when effect had actuall1 been given to the June 3 Plan.(") The Union Constitution Committee provisionally accepted the Preamble as drafted by B. N, Rao and reproduced it in its report of July 4, 1947 without any change, with

the tacit recognition at that stage that the Preamble would be finally based on the Objectives Resolution. In a statement circulated to members of the Assembly on July 18, 1947 Pandit Jawaharlal Nehru inter alia, observed that the Preamble was covered more or less by

the Objectives Resolution which it was intended to incorporate in the final Constitution subject to some modification on account of the political changes resulting from partition. Three days later, moving the report of the Union Constitution Committee for the consideration of the Assembly, he suggested that it was not necessary at that stage to onsier. the daft of th: Prcambl; cc the Ass; mbly stood by the basic prmc1plcs laid down m the Obiecttves Resolutton and these could

( 1) Shiva R.ao's-Framing of India's Constiiution-A 11Udy-p. 127. (') _Special Sub-Commi~ minu11:1 June 9,_ 1947. Later on July 12, 1941, the special 1ub-comm1ttce agam postponed consideration of the matter. Select Documenu II, 20(ii), p. 617. (Shiva 'Rao's-Fruning oi India's Constituti<>n-

A study-(p. 127 foetnote).

8-369. C. lndia /73

110 sUPUJ.a couar REPOll.TS (1973] Supp. s.c.ll.

be incorporated in the Preamble in the light of the changed situation(').

The suggestion was accepted by the Assembly and further consideration of the Preamble was held over.

We need not ronsidcr the inllcrmcdiatc drafts, but in the meantime the declaration (Sec Constituent Assembly Debates, Vol. 8, page 2) was adopted at the end of April, 1949 by the Government of the various Commonwealth countries and the resolution was ratified by Constituent Assembly on May 17; _1949 after two days' debate.

In the meantime the process of merger and integration of Indian States had been completed and Sardar Vallabhbhai Patel was able to tell the Constituent Assembly on October 12, 1949, that the new Constitution was "not an alliance between democracies and dynasties, but a real union of the Indian people, built on the ha~ concept of the sovereignty of the people."(')

The draft Preamble was considered by th~ Asscmbl y on October 17, 1949. Shiva Rao observes that "the object of putting the Preamble last, the President of the Assembly explained, was to sec that it was in conformity with the Constitution as accepted."(') "Once the transfer of power had taken place the question of British Parliament's

ubscqucnt approval which was visualised in the British Cabinet Commission's original plan of May 1946 could no longer arise. The sovereign character of the Constituent Assembly thus became automatic with. the rapid march of events without any controversy, and the words in the Preamble "give to ourselves this Constitution" became .appropriate. The Preamble was adopted by the Assembly without any alteration. Subsequently the words and figure "this twenty-sixth day of November 1949" were introduced in the last paragraph to indicate the date on which the Constitution was finally adopted by the <Constituent Assembly".(') (p. 131).

Regarding the use which can .. be made of the preamble in interpreting an ordinary statute, there is no doubt that it cannot be used to modify the language if the language of the enactment is plain and clear. If the language is not plain and clear, then the preamble may have effect either to extend or restrict the language used in the body of an enactment. "If the language of the enactment is capable of more than one meaning then that one is to be preferred which comes nearest to the purpose and scope of the yreamble." (see Tbibhuban

Parkash Nayyar v. The. Union uf India) ( ).

(') Shiva Rao'o-Franiing of Indi&'1 Constitution-A study-pp. 127-128 (also see footnote I p. 128). (') Shiva Rao's -Framina of India's Constitution-A study,-pp. 130-132.


KESAVANANDA I/, KEllALA (Sikri, C.J.} 111

W c arc, however, not concerned with the interpretation of an ordinary statute. As Sir Alladi Krishnaswami, a most eminent lawyer

said, "so far as the Preamble is concerned, though in an ordinary statute we do not attach any importance to the Preamble, all importance has to be attached to the Preamble in a Constitutional statute".

(Constituent Asscml;>ly Debates Vol. 10, p. 417). Our Preamble outlines the objectives of the whole constitution. It expresses "what we had thought or dreamt for so long."

In re. Berubari Union and Exchange of Encla11es(') this was said about the Preamble~

"There is no doubt that the declaration made by the people of India in exercise of their sovereign will in the preamble to the Constitution is, in the words of Story, "a key to open the mind of the makers" which may show the general purposes for whic11

they made the several provisions in the Constitution; but nevertheless the preamble is not . a part of the Constitution, and, as Willoughby has observed about the preamble. to the American Constitution, "it has never been regarded as the source of any substantive power conferred on the Government of the United

States or any of its departtnents. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted".

What is true about the power is equally true about the pro.hibitions and limitations.''

Wanchoo, J. in Golaknath v. Puniab(') relied on Dcrubari's case and , said:

"on a parity of reai<>ning we arc of opinion that the. preamble cannot prohibit or control in any way or impose any implied prohibitions or. limitations on tl1e power to amend the Constitution contained in Art. 368."

Bachawat, J. in this case observed :

"Moreover the preamble cannot 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 Enc/a11es."(' ).


112 SUPREME COURT REPORTS [1973] Sapp. s.c.R.

With respect, the Court was wrong in holding, as has been shown above, that the Preamble is not a part of the Constitution unless the court was thinking of the distinction between the Constitution Statute and the Constitution, mentioned by Mr. Palkhivala. It was expressly voted to be a part of the Constitution. Further, with respect, no authority has been referred before us to establish the proposition that "what is true about the powers is equally true about the prohibitions and limitations." As I will show lator, even from the preamble limitations have been derived in some cases.

It is urged in the written submission of Mr. Palkhivala that there is a distinction between the Indian Constitution Statute and the Constitution of India. He urge. as follows :-

"This Constitution is the Constitution which follows the Preamble. It starts with Article 1 and ended originally with the Eighth Schedule and now ends with the Ninth Schedule after the First Amendment Act, 1951. The way the Preamble is drafted leaves

no doubt that what follows, or is annexed to, the Preamble, is the Constitution of India."

He has also urged that the Preamble came into force on November 26, 1949 alongwith Articles 5, 6, 7 etc. as provided in Art. 394 because Articles 5, 6, 7 and the other Articles mentioned therein could hardly come into force without the enacting clause mentioned in the Preamble having come into force. He says that the Preamble is a part of

the Constitution statute and not a part of the Constitution but precedes it. There is something to be said for his contention but, in my view, it is not necessary to base my decision on this distinction as it is not necessary to decide in the present case whether Art. 368 enables

Parliament to amend the Preamble. Parliament has not as yet chosen to amend the Preamble.

The Preamble was used by this Court as an aid to construction in Behram Khurshed Pasikaka v. The State of Bombay('). After referring to Part III, Mahajan, C.J., observed :

"We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, econrunic and political; liberty of thought, expre~ sion, belief, f:lidi and worship; equality of status and of opportunity. These fundamental rights have not been put in the Con~ titution merely for individual benefits, though ultimately they

(l) [1955) I S.C.R. 613 at p. 653.

KESAVANANDA V. KERALA (Sikri, C.j.) 113

come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy."

Similarly in In re. The Kera/a Education Bill(') 1957, Das C.J. while considering the validity of the Kerala Education Bill 1957 observed:

"In order to appreciate the true meaning, impart and implications of the provisions of the Bill which are said to have given rise to doubts, it will ]Je necessary to refer first to certain provisions of the Constitution which may have a bearing upon the questions under consideration and then to the actual provision of the Bill.

The inspiring and nobly expressed preamble to our Constitution records the solemn resolve of the people of India to constitute .... (He then sets out the Preamble). Nothing provokes and stimulates thought and express; on in people more than education. It is education that clarifies our belief and fairh and helps to strengthen our spirit of worship. To implement and fortify these supreme purposes set forth in the preamble, Part III of our Constitution has provided for us certain fundamental rights."

In Sajjan Singh v. State of Rajasthan,(2 ) Mudholkar, J. after assuming that the Preamble is not a part of the Constitution, observed :

"While considering this question it would be of relevance to bear

in mind that the preamble is not of the common run such as is to be found in an Act of a legislature. It has the stamp of deep <lclibcration and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it?

Quick and Garran in their "Annotated Constitution of the Australian Commonwealth (1901 p. 283) "adopted the following sentence

from Lord Thring's "Practical Legislation, p. 36" :

"A preamble may be used for other reasons to limit the scope of certain expressions or to explain facts or introduce definitions."

Thornton on "Legislative Drafting"-p. 137pines that "construction of the preamble may have effect either to extend or to restrict

gneral language used in the body of an enactment."

( 1) 11959] S.C.R. 995, 1018·1019.


114 SUPREMf, COURT REPORTS [ 1973] Supp. s.c.R.

In Attorney-General v. Prince Ernest Augustus of Hanover(') the: House of Lords considered the effect of the preamble on the interpretation of Princes Sophia Naturalization Act, 1705. It was held that "u a matter of construction of the Act, there was nothing in the Act or its preamble, interpreted in the light of the earlier. relevant smtutc:1

• . . . . . . . . . . . . . . . . . . . . . capable of controlling and limiting the plain and ordinary meaning of the material words of the enacting provisions and that the class of lineal descendants "born or hereafter to be born" meant the class of such descendants in all degrees without any limit as to time." The House of Lords further held that "looking at the Act from the point of view of 1705 there was no such manifest absurdity i.'l this; construction as would ontitle the court to reject it."

Mr. Seervai referred tl<l the passage from the speech of Lord Normand, at p. "67. The passage is lengthy but I may quote thc:se sentences :

"It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail. . If they admit of only one construction, that construction will receive effect even if it is inconsistent with the preamble, but if the enacting words arc capable of either of the constructions offered by the parties, the construction which fits the preamble may be preferred."

Viscount Simonds put the matter at page 463, thus : "On the one hand, the proposition can be accepted that "it is a sl"ttled rule that the preamble cannot be made use of to control the enactments themselves where they are expressed in clear arid unambiguous terms''. I quote the words of Chitty L. J., which were cordially approved by Lord Davey in Powell v. Kempton Park: Racecourse Col Ltd. [ (1889) A.C. 143, 185]. On the other hand it must often be difficult to say that any terms are clear and unambiguous until they have been studied in their context."

This case shows that if on reading Art. 368 in the context of. the Constitution I find the word "Amendment" ambiguous I can refer to the Preamble to find which construction would fit in with the Preamble.

In State of Victoria v. The Commonwealth(') which is discussed in detail later, a number of Judges refer to the federal structure of the Constitution. It is in the preamble of the Commonwealth of Australia Constitution Act, 1902 that 'one indissoluble Federal Commoowealth' is mentioned.

( 1) (1957] A.C. 436, 460.

( 2) 45 A.L.J. 251.

KESAVANANDA V. KEl\ALA (Sikri, C.J.) ll5

There is a sharp conflict of opinion in Australia respecting the: question whether an amendment can be made which would be inconsistent with the Preamble of the Constitution Act referring to the "indissoluble" character and the sections which refer to the "Federal"' nature of the Constitution. After referring to this conflict, Wynes• observes:

"Apart from the rule which excludes the preamble generally from consideration in statutory interpretation, it is clear that, when all is said and done, the preamble at the most is, only a recital of the intention which the Act' seeks no effect; and it is a recital of a present (i.e., as in 1900) intention. But in any event the insertion of an express reference to amendment in the Constitution itself must surely operate as a qualification upon the mere recital of the reasons for its creation."

I am not called upon to say which view is correct but it does show that in Australia, there is a sharp conflict of opinion as to whether the Preamble can control the amending power.

Story in hi; Commentaries on the Constitution of the United . States states: [(1883) Vol. 1]

"It (Preamble) is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; for if they arc dear and unambiguous, there seems little room for interpretation, e:<cept in cases leading to an obvious absurdity, or to a direct overthrow of the intmtion express in the preamble. (p. +14)

There docs not seem any reason why, in a fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble.

And accordingly we find, that it has been constantly referred to by statesmen and jurists to aid them in the exposition of its provisions." (page 444).

Story further states at page 447-448 :

"And the uniform doctrine of the highest judicial authority has accordingly been, that it was the act of the people, and not of the states; and that it bound the latter, as subordinate to the people. "Let us turn," said Mr. Chief Justice Jay, "to the constitution. The people therein declare, that their design in establishing it comprehended six objects: (1) To form a more perfect union; (2) to establish justice; (3) to insure domestic tranquillity; (4) to provide for the common defence; (5) to promote the general welfare;

•Wynes Legislative, Executive and Judicial Powers in Australia, Fourth Edn. p. 506.

116 SUPREME COUllT REPORTS [1973] Supp. s.c.R.

( 6) to secure the blessings of liberty to themselves and their posterity. It would," he added, "be pleasing and useful to consider and trace the relations, which each of these objects bears to the others; and to show, that, collectively, they comprise every thing requisite, with the blessing of Divine Providence, to render a JX-Ople pro; perous and happy." In Hunter v. Martin (1 Wheat. R. 305, 324), the Supreme Court say, (as we have seen,) "the constitution of the United States was ordained and established, not b; the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by the people of the United States;" and language still more expressive will be, found used on o; her solemn occasions." ,.

"l'he Supreme Court of United States (borrowing some of the language of the Preamble to the Federal Constitution) has appropriately stated that the people of the United States erected their constitutrons or forms of governm, nt to establish jnstice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence". (American Jurisprudence, 2d.

Vol. Hip. 184).

In the United States the Declaration of Independence is sometimes referred to in determining constinuional questions. It is stated in American Jurisprudence (2d. 16. p. 189) :

"While statements of principles contained in the Declaration of Independence do not have the force of organic law and therefore cannot be made the basi• of judicial decision as to the limits of

right~ and duties, yet it has been said that it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence, and the courts sometimes refer to the Declaration in determining constitutional questions."

It seems to me that the Preamble of our Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Pre-amble.

Now I may briefly describe the scheme of the Corutitution. Part I of the Constitution deals with "the Union and its Territory".

As originaUy enacted, art. 1 read as follows :

1. India, that is Bharat, shall be a Union of States.

2. The States and the territories thereof shall be the States and their territories specified in Parts A, B and C of the First Schedule.

JCISAVANANllA v. llW.A (Siri. C.J.)

3. The territory of India shall comprise-

(a) the territories of the States;

(b) the territories specified in Part D of the First Schedule;

and

( c) such other. territories as may be acquired.

Article 2 enabled Parliament to admit into the Union, or establish, new States on such terms and conditions a; it thinks fit. Article 3 and 4 dealt with the formation of new States and alteration of area>, boun- -Oaries or names of existing States.

Part II dealt with "Citizenship". The heading of Part III is ·"Fundamental Rights". It first describes the expression "the State" to include "the 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." (Art. 12), Article 13 provides that laws inconsistent with or in derogation of the fundamental rights shall be void. "This applies to existing laws as well as laws made after the coming into force of the Constitution. For the time being I assume that in Art. 13(2) the word "law" includes constitutional amendment.

The fundamental rights conferred by the Constitution include right to equality before the law, (Art. 14), prohibition of discmina 'tion on grounds of rclig'°n, race, caste, sex or place of birth, (Art. 15), equality of opportunity in matters of public employment, (Art. 16), right to freedom of speech and expression, to assemble peaceably and without arms, to form association or unions, to move freely throughout the territory of India, to reside and settle in any part of the territory of India, to acquire, hold and dispose of property; and to practice any profess.ion or lP carry on any occupation, trade or business. (Art. 19). Reasonable restrictions can be imposed on the rights under Art. 19 in respect of various matters.

Article 20 protects a person from being convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence or to he subjected to a penalty greater than that which m'ight have been inflicted under the law in force at tht time of the commission of the offence. It further provides that no person shall be prosecuted and punished for the same offence more than once, and no person accused of any offence shall be compelled , to be a witness against himself.

Article 21 provides that no person shall he deprived of his life or persoml liberty except according to procedure established by law.

118 SUPREME COURT REPORTS (1973] Supp. s.c.11..

Article 22 gives further protection against arrest and detention in certain cases. Article 22(1) provides that "no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practi, tQi.cr of his choice." Article 22(2) provides that "every person who is arrested and detained in custody shall be produced before the nearest magistrate within .. a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of. the magisrrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate".

Article 22( 4) deals with Preventive Detention. Article 23 prohibits traffic in human beings and other similar forms of. forced labour.

Article 24 provides that "no child below the age of fourteen years shall be employed to work .ln any factory or mine or engaged in any other hazardous emplaymcnt."

Articles 25, 26, 'lJ and 28 deal with the freedom of religion.

Article 25 (!) provides that "subject to public order, morality and health and to the other provisions of this Part, all persons arc equally entitled to 'freedom of conocicnce and the right freely to profess, practise and propagate religion." Article 26 enables every religious denomination or section thereof, subject to public order, morality and health, to establish and manage institutions for religious and, charitable purposes; to manage their own affairs in matters of religion, to own and acquire movable and immovable property, and to administer such property in accordance with law. Article 27 enables prcsons to resist payment of any taxes the proceeds of which are specifically appropriatrd in payment of expenses for the promotion or maintenance of.

any particular religion or religious denomination. . Article 28 deals with, fredom as to atrendao.i:e at religious instruction or religious worship in certain educational institutions.

Article 29(1) gives protection to minorities and provides that "any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same." Article 29(2) provides that "no person shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.''

Article 30 gives further rights to minorities whether based on religion or language to establish and administi:r educational institutions of their choice. Article 30(2) prohibits the State from discriminating

KESAVANANDA V. KERALA (Sik..ri, C.J.) 119

against any educational institution, in granting aid to educational institutions, on the ground that it is under the management of a minority, whether based on religion or language.

As will be shown later the inclusion of special rights for mmorities has great significance. They were clearly intended to be inalienable.

The right to property comes last and is dealt with the art 31. As originally enacted, it dealt wi, th the right to propertiy and prevented deprivation of property save by authority of law, and then provided for compulsory acquisition for public puqJQSes on payment of compensation. It had three significant provisions, which show the intention of the constitution-makers regarding property rights. The first is

Art. 31(4). This provision was intended llO protect legislation dealing with agrarian reforms. The second provision, Art. 31(5)(a), was designed to protect eXisting lelation dealing with compulsory acquisition. Some' acts, saved by this provision did not provide for payment of full compensation e.g. U.P. Town Improvement Act, 1919. The third provision Art. 31 ( 6) provided a protective umbrella to similar laws enacted not more than eighteen months before the commencement of the Constitution.

The fundamental rights were considered of such importance that right was given to an aggrieved person to move the highest courr of the land, i.e., the Supreme Court, by appropriate proceedings for the enforctment of the rights conferred by this part, and this right was

guaranteed. A1ticlc 32(2) confers very wide powers on the Supreme Court, to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. Article 32( 4) further provides that "the right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution."

Article 33 enables Parliament by law to "determine to what extent any of the rights conferred by this Part shall, in their application to the members of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper di, charge of their duties and the maintenance of discipline among them."

This articles shows the care with which, the circumstances in which, fundamental rights can be restricted or abrogated were contemplated and precisely described.

120 SUPREME COUJlT :REPORTS [ 1973]' Supp. s.c.R.

Article 34 enables Parliament, by law, to indemnify any person in the service of the Union, or of a State or any other person in connection with acts done while martial law was in force in a particular area.

Part JV of the Constitution contains directive principles of State policy. Article 37 specifically provides that "the provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance oE the country and it shall be rhe duty of the State to apply these principles in making laws." This clearly sh0ws, a11d it has also been laid down by this Court, that these provisions are not justiciable and cannot be enforced by any Court. The Courts could not, for instance1 issue a mandamus directing the State to provide adequate means :fj

livelihood to every citizen, or that the ownership and control df tllf. materia: resources of the community be so distributed as best to sub. 1crve the common good, or that there should be equal pay for equal

work for both men and women.

Some of the directive principles arc of i<rcat fundamental impor-· tancc in the governance of the country. But the question ii not whether they arc important; the question is whether they override the

fundamental rights. In other words, can Parliament abrogate the fundamental rights in order to give effect to some of the directive principles I

I may now briefly notice the directive principlCI .mentioned in Part JV. Art. 38 provides t'1at "the State shall strive to promote the welfare of the people by securini< and protecting as effectively "' it may a social order in which justice, social, economi.c and political, shall inform all the institutions of the national life.'' Now, this dirco. tivc is compatible with the fundament?al rights because surely the object of many of the fundamental rights is to ensure that there shall be justice, social, economic and political, in the country. Article 39, which givs particular directions to the State, reads thus :

"39. The State shall, in particular, di•ect its policy toward• securin11-

(a) that the citizens, men ant! women equally, have the right to

an adequate means uf livelihood;

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; ( c) that the operation of the economic system does not. result in the concentration of wealth and means of production to the common d(:triment;

KESAVANANDA v. llllALA (Si/i.ri, C.J.) 121

(d) that there is equal pay for equal work for both men and women;

( e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by eqonomic necessity to enter avocations unsuited to their age or strength;

(f) that childhood and youth are protected against exploitation and against moral and material abandonment."

Article 40 deals with the orga1iisation of village panchayats.

Articles 41 deals with the right to work, to education and to public assistance in certain cases. Article 42 directs that the State shall make proviswns for securing just and humane conditions of work and for matnnity relief. Article 43 direct that "the State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, tD all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full ejoyment ot leisure and social and cultural opportunities and, in particular, the State shall endeavour to promoi.= cottage industries 011

an individual or cooperative basis in rural areas."

Article 44 enjoins that the "State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." Desirable as it 'is, the Government has not been able to take any effective steps towards. the realisation of this goal. Obviously no Court can compel the Government to lay , fawn a uniform civil code even

though it is essentially deidlle in the interest of the integrity. and unity of the country.

Article 45 directs that "the State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free compulsory education for all children until they complete the age of fourteen years." This again is a very desirable directive. Although the Government has not been able to fulfil it completely, it cannot be compelled by any court of law IX) provide such education.

Article 46 supplements the directive given above and enjoins the State to promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castx:s and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation.

Article 47 lays down as one of the duties of the State to raise the standard of. living and to improve pub!.¥: health, and to bring about

122 SUPREME COURT REPORTS (1973] Supp. S.C.R.

prohibition. Article 48 directs the State to endeavour to organise agriculture and animal husbandry on modern and scientific lines, and in particular, to take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milch and draught cattle.

Article 49 deals with protection of monuments and places and ob1ects of national importance. Article 50 directs that the State shall take steps to separate the judiciary from the executive in the public services of the State. This objective has been, to a large extent, carried out without infringing the fundamental rights.

In his preliminary note on the fundamental Rights. Sir B. N. Rau, dealing with the directive principles, observed :

"The principles set forth in this Part are intended for the general guidance of the appropriate Legislatures and Government in India (hereinafter referred to collectively as 'the State'). The application of these principles in legislation and administration shall be the care of the State and shall not be cognizable by any Court."

After setting out certain directive principles, he observed : "It is obvious that none of th~ above provisions is suitable for enforcement by the courts. They are really in the nature of moral precepts for the authorities of the State. Although it may be contended that the Constitution is not the proper place for moral precepts, nevertheless constitutional declaration of policy of this kind are now becoming increasingly frequent. (See the Introduction to the I.LO. publication Constitutional Provisions concerning Social and Economic Policy, Montreal, 1944). They have at least an educative value." (pages 33-34-Shiva R:w : Framing of Indian Constitution: Doc. Vol. II).

Then he referred to the genesis of the various articles mentioned in the preliminary note.

One must pause and ask the question as to why did the Constituent.

Assembly resist the persistent efforts of Shri B. N. Rau to make fundamental rights subject to the directive principles. The answer seems plain enough : The Constituent Assembly deliberately decided not to do so.

Sir Alladi Krishnaswami Ayyar, in his note dated March 14, 1947, observed:

"A distinction has necess'lfily to be drawn between rights which are justiciable and rights which are merely intended as a guide and directive objectives tc state policy." (page 67 supra).

usAVANANDA v. XEllALA (Sikri, C.J.) 123

It is impossible to equate the directive principles with fundamcn ta! rights though it cannot be denied that they arc very important.

But to say that the directive principles give a directive to take away fundamental rights in order to achieve what is directed by the direr

rive principles seems to me a contradiction in terms.

I may here mention that while our fundamental rights and dircc rive principles were being fashioned and approved of by the Consti tuent Assembly, on December 10, 1948 the General Assembly of the United Nations adopted a Universal Declaration of Human Rights.

The Declaration may not be a legally binding instrument but it shows how India understood the nature of Human Rights. I may here quote

only the Preamble :

"Whereas recognition of the inherent dignity of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. (emphasis supplied)

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.

Whereas it is essential to promote the development of friendly relations between nations.

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards .of life in larger freedom.

Whereas Member States have pledged themselves to achieve, in cooperation with the U cited Nations, the promotion of uni versa] respect for and observance of human rights and fundament:1! freedoms.

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge"

In the Preamble to the _International Covenant on Economic and Social and Cultural Rights 1966, inalienability of rights is indicated in the first Para as follows :

:Considering that, in accordance with the principles proclaimeJ m the Chartx:r of the United Nations, recognition o£ the inherent

'124 SUPREME COURT REPORTS (1973) Supp. S.C.R.

dignity and of the equal and inalienable rights of aU members of the human family is the foundation of freedom, justice and peace in the world."

Do rights remain inalienable if they can be amended out of •'\istmce i The Preamble arts. l, 55, 56, 62, 68 and 76 of the United, Nations Charter had provided the basis for the elaboration in the Universal Declaration of Human Rights. Although there is a sharp conflict of opinion whether respect for human dignity and fundamental human rights is obligatory under the Charter (see Oppenheim's International Law; 8th ed. Vol. 1, pp. 740-41; footnote 3), it seems to me that, in view of art. 51 of the directive principles, this Court must interpret language of the Constitution, if not intractable, which is after all a municipal law, in the light of the United Nations Charter an<il the solemn declaration subscribed to by India. Article 51 reads :

"51. The State shall endeavour to-

(a) promote international peace and security ;

(b) maintain just anJ honourable relations betwer.n nations ;

( c) foster respect for international law and treaty obligations in the dealings of organised peoples with one another ; and

( d) encourage settlement of international disputes by arbitration."

1\.s opserved by Lord Denning in Corocraft v. Pan American Airways(') "it is the duty of these courts to construe our Legislation so as to be in conformity with international law and not in conflict with it." (Sec also Oppenheim supra, pp. 45-46 ; American Jurisprudence 2nd, Vol. 45, p. 351).

Part V Chapcr I, deals with the Executive ; Chapter II with Parliament-conduct of its business, qualification of. its members, legislation procedure etc. Article 83 provides that :

"83. ( 1) The Council of States shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.

(2) The House of the People unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the House : .... ~

(1) ( 1969) I All E.R. 82; 87.

KESAVANANDA V. KERALA (Sikri, C.J.) 125

Un.der the proviso this period can be extended while a Proclamation of Emergency is in operation for a period not exceeding in any case beyond a period of six months after the Proclamation has ceased to operate. It was provided in art. 85 ( 1) before its amendment by the Constitution (First Amendment) Act 1951 that the House of Parliament shall be summoned to meet twice at kast in every year, and six months shall not intervene between thcir last sittings in one session and the date appointed for thcir first sitting in the next session.

Article 123 gives power to the President to promulgate ordinances during recess of Parliament. Chapter IV deals wi\h Union Judiciary.

Part VI, as originally enacted dealt with the States in Part A of the First Schedule-the Executive, the State Legislatures and the High Courts. Article 174 deals with the summoning of the House of Legislature and its provisions are similar to that of art. 85. Article 213 confers legislative powers on the Governor during the recess of State Legislature by promulgating ordinances.

Part XI deals with the relation between the Union and the States; Chapter I regulating legislative relations and Chapter II administrative relations.

Part XII deals with Finance, Property, Contracts and Suits. We need only notice art. 265 which provides that "no tax shall be levied or collected except by authority of law",

Part XIII deals with Trade, Commerce and Intercourse within the Territory of India. Subject to the provisions of this Chapter, trade, commerce and intercourse throughout the territory of India shall be free (art. 301).

Part XIV deals with Services under the Union and the States. Part XVI contains special provisions relating to certain classes-the Scheduled Castes, the Scheduled Tribes etc. It reserved seats in the House of the People for thes~ classes. Article 331 enables the President to nominate not more than two members of the AnglC>-Indian community if it is not adequately represented in the House of the People. Article 332 deals with the reservation of seats for Scheduled Castes and ScHeduled Tribes in the Legislative Assemblies of the States. In art. 334 it i. provided that the above mentioned reservation of seats and special representation to certain classes shall cease on the expiry of a period of ten years from the commencement of this Constitution.

Article 335 deals with claims of scheduled casries and scheduled tribes to services and posts. Article 336 makes special provisions for AnglC>- lndian community in certain services, and article 337 makes special

9--36-S. c. India/73

126 SUPREME COURT REPORTS [1973] Supp. s.c.R.

provisions in respect of educational grants for the benefit of Anglo-

Indian community. Article 338 provides for the creation of a Special Officer for Scheduled Castes, Scheduled Tribes, etc. to be appointed by the President, and prescribes his duties. Article 340 enables the President to appoint a Commission to investigate the conditions of socially and educationally back.ward classes within the territory of India which shall present a repon and make recommendations on steps that should be taken to remove difficulties and improve their condition.

Article 341 enables the President to specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purpose,<; of this Constitution be deemed to be Scheduled Castes in relation to that State. Similarly, article 342 provides that the Presidenr may specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall be deemed to be Scheduled Tribes in relation to that State.

Part XVII deals with Official Language, and Part XV III with Emergency Provisions. Article 352 is important. It reads :

"352.(1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect."

Article 353 describes the effect of the Proclamation of Emergency. The effect is that the executive power of the Union shall be extended to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised, and the Parliament gets the power to make laws with respect to any matter including the power to .make laws conferring powers and imposing duties, etc., notwithstanding that it is one which is not enumerated in the Union List.

Article 354 enables the President by order to make exceptions and modifications in the provisions of art. 268 to 279. Under art. 355 it is the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. Article 356 contains provisions in case of failure of constitutional machinery in a State.

Article 358 provides for smpension of the provisions of art. 19 during Emergency. It reads:

"358. While a Proclamation of Emergency is in operation, nothing in article 19 shall restrict the power of the State as dened in Part III to make any law or to take any executive action which

JWAVANANDA v. KEllALA (Sikri, C.J.) 127

the State would but for the provisions contained in that Part be competent to make or to take. but any law so made shall, to the rxtent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect."

Article 359 is most important for our purpose. It provides that :

"359. (1) Where a Proclamation of Emergency is in operation the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Pan III

as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.

(2) An order made as aforesaid may extend to the whole or any part of the territory of India.

(3) Every order made under clause (1) shall, as soon as may be after it is made be laid before each House of Parliament."

These two articles, name! y Art. 358 and Art. 359 show that the Constitution makers contemplated that fundamental rights might impede the State in meeting an emergency, and it was accordingly provided that Art. 19 shall not operate for a limited time, and so also Art. 32 and Art. 226 if the President so declares by order. If it wac the design that fundamental rights might be abrogted surely they would have. expressly provided it somewhere.

I may here notice an argumenMhat the enactment of Articles 358 and 359 showed that the fundamental rights were not treated as inalienable rights. I am unable to infer this deduction from these articles. In an emergency every citizen is liable . to be subjected to extraordinary restrictions.

I may here notice some relevant facts which constitute the background of the process of drafting the Constitution. The British Parliament knowing the complexities of the structure of the Indian people expressly provided in s. 6(6) of the Indian Independence Act, 1947, that "the powers referred to in sub-section ( 1) of this section extends to the making of laws limiting for the future the powers of the legislature of the Dominion." Sub-section (1) of s. 6 reads:

"The legislature of each of.the new Dominions shall have full power to make laws for that Dominion, including laws having extraterritorial operation.''

1~8 suPllEME oourr lll!PORTS [1973] Supp. s.c.11.

That s. 6(1) included making provision as to the. Constitution of the Dominion is made clear by s. 8(1) which provided: "In the case of _ each of the new Dominions, the powers of legislature of the Dominion shall for the purpose of making provision as to the C onstttution of the Dominion be exercisable in the first instance by the Constituent Assembly of that Dominion, and references in this Act to the legislature of the Dominion .shall be construed accordingly. "(Emphasis supplied)".

These provisions of the Indian Independence Act amply demonstrate that when the Constituent Assembly started functioning, it knew, if it acted under the Indian Independence Act, that it could limit the powers of the future Dominion Parliaments.

No similar provisions exists in any of the Independence Acts in respect of other countries, enacted by the British Parliament, e.g., Ceylon Independence Act, 1947, Ghana Independence Act, 1957, Federation of Malaya Independence Act, 1957, Nigeria Independence Act, 1960, Sierra Leone Independence Act, 1961, Tanganyika Independence Act, 1961, Southern Rhodesia Act, 1965, Jamaica Independence Act, 1962. •

I may mention that the aforesaid provisions in the Indian Indcpen• dencc Act were enacted in line with the Cabinet Statement dated May 16, 1947 and the position of the Congress Party. Para 20• of the Statement by the Cabinet Mission provided :

"The Advisory Committee on the rights of citizens, minorities, and tribal and excluded areas should contain full representation of the interests affected, and their function will be to report to the Union Constituent Assembly upon the list of Fundamental Rights,. the clauses for the protection of ffiinorities, and a scheme for the administration of the tribal and excluded areas, and to advise whether these rights should be incorporated in the Provincial, Group, or Union constitution."

In clarifying this statement Sir Stafford Cripps at a Press Conference dated May 16, 1946 stated :

"But in order to give these minorities and particularly the smal!er minorities lib: the Indian Christians and the Anglc>-Indians and also the tribal representatives a better opportunity of influencing minority provisions, we have made provision for the setting up by

•See: Shiva Rao-The Framing of India's Constitution, Vol. I, p. 216.

osAVANANDA ti. KUALA (Sikri, C.J.) 129

the constitution-making body of an influential advisory Commi .. lion which will takY: the Initiative in the preparation of the list of fundamental rights, the minority protection clauses and the proposals for the administration of tribal and excluded areas. This Commission will make its recommendations to the constitution

making body and will also suggest at whicli stage or stages in the ronstitution these provisions should be inserted, that is whether in the Union, Group or Provincial constitutions or in any two or more of them." (P. 224, Supra). ·

In the letter dated May 20, 1946, from Maulana Abul Kalam Azad to the Secretary of State, it is stated : ·

"The principal point, however, is, as stated above, that we look upon this Constituent Assembly as a sovereign body which can decide as it chooses in regard to any matller before it and can give effect to its decisions. The only limitation, we recognise is that in regard to certain major communal issues the decision should be -by a majority of ech of the two major communities." (P. 251,

Supra). •

In his reply dated May 22, 1946, llhc Secretary of State observed : "When the Constituent Assembly has completed its labours, His Majesty's Government will recommend to Parliament such action as may be necc.1Sary for the cession of sovereignty to the Indian people, subject only to two provisos which arc mentioned in the statement and which arc not, we believe, controversial, namely, adequate protiilitm for the protection of minorities and willingness to conclude a treaty to cover matters arising out of the transfer 'of power." (Emphasis supplied) (P. 252, Supra).

In the Explanatory statement dated May 22, 1946, it was again re. iterated as follows : ·

"When the Constituent Assembly has completed its labours, His Majesty's Government will recommend to Parliament such action as may be !1-ecessary for the cession of sovereignty to the Indian people, subiect only to two matters which arc mentioned in the statement and, ','l'hich, we believe are not ctmtroversial, namely ; adequate provtsttm for the protection of the minorities (paragraph 20 ?f the statement) and willingness to conclude a treaty with His Maiesty's Government to cover matters arising out of the transfer of power (paragraph 22 of the statement) (Emphasis supplied) (P. 258, Supra).

 In pursuance of the above, a resolution for the setting up of an Advisory Committee on fundamental rights was moved by Govind

130 SUPREME COUil.T REPORTS [1973] Supp. s.c.R.

Ballabh Pant in the C.Onsllituent Assembly on January 24, 1947.

He laid special importance on the issue of minorities. The Advisory C.Ommittee met on February 27, 1947 to constitute various sub-committees including the Minorities Sub-c.ommittee.

The Sub-c.ommittee on Minorities met later the same day. A questionnaire was drafted to enquire about political, economic, religious, , educational and cultural safeguards. In other words all these safeguards were considered.

Divergent views were expressed, and the Minorities Sub-Committee met on April 17, 18 and 19, 1947 to consider this important matter. At these meetings the sub-committee considered llhe interim proposals of the fundamental rights Sub-Committee in so far as these had a bearing on minority rights. These discussions covered such important matters as the prohibition of discrimination on grounds of race, religion, caste, etc.; the abolition of untouchability and the mandatory requirements that the enforcement of any cfuability arising out of untouchability should be made an offence punishable according to law ; freedom to profess, practise and propagate one's religion ; the right to establish and maintain institutions for religious and charitable purposes ; the right ro be governed by one's persona\ law ; the right to use one's mother-tongue and establish denominational communal or language schools etc.

Having dealt with the question of fundamental rights for minorities, the Minorities Sub-Committee rnet again on July 21, 1947, to consider the political safeguards for minorities and their presentation in the public services.

In forwarding the report of the Advisory Committee on the subject of Minority Rights, Sardar Vallabhbhai Patel, in his report dated August 8, 1947, said :

" ... It should be treated as supplementary to the one forwarded to you with my letter No. CA/24/Com./47, dated the 23rd April 1947 and dealt with by the Assembly during the April session.

That report dealt with justiciable fundamental rights ; these rights, whether applicable to all citizens generally or to members of minority communities in particular offer a most valuable safeguard for minorities over a comprehensive field of social life. The present report deals with what may broadly be described as poli- tical safeguards of minorities and covers the following points : (Emphasis supplied) (p. 411, Supra)

(i) Representation in Legislature ; joint versus separate clect<>-

rates ; and wcightage.

(ii) Reservation of scats for minorities in Cabinets.

(m) Reservation for minorities in the public services.

;--

KESAVANANDA V. KERALA (Sikri, C.J.) 131

(iv} Administrative machinery to ensure protection oi. minority rights.

Sardar Patel, while moving. the report for consideration on August 27, 1947, said :

"You will remember that we passed the Fundamental Rights Committee's Report which was sent by the Advisory Committee ; the major part of those rights has been disposed of and accepted by this House. They cover a very wide range of the rights of minorities which give rhem ample protection ; and yet there arc certain political safeguards which have got to he specifically considered. An attempt has been made in this report to enumerate those safeguards which a•e matters of common knowledge, such as representation in legislatures, that is, joint versus separate electorate." (Emphasis supplied) (p. 424, Supra)

The above proceedings show that the minorities were particularly concerned with the fundamental rights which were the subject-matter of discussion by the Fundamental Rights CommiJttec.

The above brief summary of the work of the Advisory Committee and the Minorities Sub-Commi.ttee shows that no one ever contemplated that fundamental rights appertaining to the minorities would be liable tn be abrogated by an amendment of the Constitution. The

same is true about the proceedings in the Constituent Assembly. There is no hint anywhere. that abrogation of minorities rights was ever in the contemplation oi. the important members of the Constituent Assembly. It seems to me that in the context of the British Plan, the setting up of Minorities Sub-Committee, the Advisory Committee and the proceedings of these Commi.ttees, as wdl as the proceedings in the Constituent Assembly mentioned above, it is impossible to read the expression "Amendment of the Constitution" as empowering Parliament to abrogate the rights of minorities.

Both sides relied on the speeches made in the Constituent Assembly.

It is, however, a sound rule of construction that speeches made by mcmbers .. of a legislature in the course of debates relating to the enactment o( a. statute cannot be used as aids for interpreting any of provisions of the. sta.tute. Th.e sa.me rule has been applied to the provisions of this Constitution by thlS Court in State of Travanco<e-Cochin and Others v.

Bombay Co. Ltd! 'Shastri, .C.J., speaking for the Court observed : 'It remains only to point out that the use made by the learned Judges below of t!ic speeches made by the Members of the Constituent Assembly m the course of the debates on the draft Constitutior

( 1) [1952] S.C.R. 1112, 1121.

132 SUPREME COURT Rl!PORTS [ 1973] Supp. s.c.11.

is unwarranted. That this form of extrinsic aid to the interpretation of statutes is not admissible has been generally accepted in England, and the same rule has been observed in the construction of Indian statutes-sec Administrator-Genera/ of Bengal v. Prem Nath Mallick.(') The reason behind the rule was explained by one of us in Gopa/an's(') case thus :-

"A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not rdiect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in

record,"

or, as it is more tersely put in an American case-

"Those who did not speaki may not have agreed with those who did ; and those who spoke might differ from each other-United States v. Trans-Missou.ri Freight Association."

This rule of cxclwion has not always been adhered to in America, and sometimes distinction is made between using such material to ascertain the purpose of a statute and using it for ascertaining its meaning. It would seem that the rule is adopted in Canada and Awtralia-sce Craics on Statute Law, 5th Ed. p. 122."

In Golak Nath's(') case,° Subba Rao, C.J., referred to certain portions of the speeches made by Panclit Nehru and Dr. Ambedkar but he made it clear at p. 792 that he referred IP these speeches "not with a view to interpret the provisions of art. 368, which we propose to do on its own terms, but only to notice the transcendental character givf:n to the fundmental rights by two of the important architects of the Constitution." Bachawat, J., at p. 922 observed :

"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-sec State of Travancore Cochin and Ors. v. Bombay Co. Ltd.(') Accordingly I do not rely onthcm as aids to construction. But I propose to refer to them, a• 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. . "

(') [1895] 22 I.A. 107-118.

( 2 ) [1950] S.C.R. 88.


(') [1952] S.C.R. 1112.

XESAVANANDA V. KDALA (Sikri, C.J.) 133

In H. H. Maharaiadhiraia Madhav Rao v. Union of India(') Shah, J, in •.he course of the judgment made a brief reference to what was Slid by the Minister of Home Affairs, who was in charge of the States, when he moved for the adoptiol\ of art. 291. He referred to this portion of the speech for the purpos~ of showing the historical background and the rircwmtances which necessitated giving certain guarantees to the former rulers.

It is true that Mitter, J., in the dissentmg judgment, at p. 121, used the debates for the purposes of interpreting art. 363 but he did not discuss the point whether it is'permissjble to do so or not.

In Union of India v. H. S. Dhillon,(') I, on behalf of the majority, before referring to the speeches observed at p. 58 that "we are, however, glad to find from the following extracts from the debates that our interpretation accords with what was intended." .There is no harm in finding confirmation of one's interpretation in debates but it is qtiite a different thing to interpret the provisions of the Constitution in the light of the debates.

There is an additional reason for not referring to debates for the , purpose of interpretation. The Constitution, as far as most of the Indian States were concerned, came into operation only because of the acceptance by the Ruler or Rajpramukh. This is borne out by the following extract from the statement of Sardar Vallabhbhai Patel in the Constituent Assembly on October, 12, 1949 (C.A.D. Vol. X, pp. 161-3) :-

"Unfortunately we have no properly constituted Legislatures in the rest of the States (apart from Mysore, Saurashtra and Travancore and Cochin Union) nor will it be possible to have Legislatures constituted in them before the Constitution of India emerges in its final form. We have, therefore, no option but to make the Constitution operative in these States on the basis of its acce'ptance by the Ruler of the Rajpramukh, as the case may be, who will no doubt consult his Council of Ministers." ·

In ccorance with this sttement, declarations were issued by the Rulers or .Roipramukhs acceptmg the Constitution.

It seems to me that whei; i a Ruler or RajpramukJi or the people of the State accepted the Constitution of India in its final form he did not accept it subject to the speeches made during the Cnstituent Assembly deates. The speeches can, in my view, be relied on only in order to see if the course of the progress of a particular provision or


( 2) f1972 J 2 S.C.R. 33.

134 SUPREME COURT REPORTS ( 1973) Supp. S.C.R,

provisions throws any light on the historical background or shows that a common understanding or agreement was arrived at between certain sections of the people.•

In this connection reference was made to art. 305 of the draft Constitution which provided that notwithstancling anything contained in article 3.o4 of the Constitution, the provisions of the Constitution relating to the reservation of seats for the Muslims etc., shall not be amended during the period of ten years from the commencement of the Consti

tution. Although this draft article 305 has no counterpart in our Constitution, jt was sought to be urged that this showed that every provision of the Constitution was liable to be amended. I have come to the conclusion that every provision is liable to be amended subject to certain limitations and this argument does not affect my conclusion as to implied limitations.

A very important decision of the Judicial Committee ot the Privy Council in The Bribery Commissioner v. Pedrick Ranasinghe(') throws considerable light on the topic under discussion. The import of this decision was not realised by this Court in Go!ak Nath's (') case. Indeed, it is not referred to by the minority in its judgments, and Subba Rao, C.J., makes only a passing reference to it. In order to fully appreciate the decision of the Privy Council it is necessary to set out the relevant provisions of the Ceylon Independence Order in Council, 1947, herein after referred to as the Ceylon Constitution.

Part Ill of the Ceylon Constitution deals with "Legislature". Section 7 provides that "there shall be a Parliament of the Island which shall consist of His Majesty, and two Chambers to be known respectively as the Senate and the House of Representatives."

Section 18 deals with voting. It. reaJs: "18. Save as otherwise provided in sub-section (4) of section 1.9, any question proposed for decision by either Chamber shall be determined by a majority of votes of the Senators or Members, as the case may be, present and voting. The President or Speaker or other person presiding sha.11 not vote in the first in!tance but shall have and exercise a casting vote in the event of an equali.ty of votes." Section 29 deal; with the power of Parliament to make laws.

It reads :

"29(1) Subject to the provisions of this Order, Parliament shall have power to make laws for the pe"ce. order and good government of the Isbnd .

.. (See In re. The Regulation and Control of Aeronauti'c1 in Canada) [1932 , \.\..:. 54 at p. 70.

( 1) [1965] A.C. 172. i') (1967] 2 S.C.R. 762.

KESAVANANDA fl. KERALA (Sikri, C.J.) !35

(2) No such law shall-

( a) prohibit or restrict the free exercise of any religion, or

(b) make persons of any community or religion liable to disabilities or restrictions to which persons or other communities or religions are not made liable ; or

( c) confer on persons of any c0mmunity or religi, on any privilege or advantage which is not conferred on persons of other communities or religions ; or

(d) alter the constitution of any religious body except with the consent of the governing authority of that body. So, however,. that in any case where a religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body.

Provided, however, that the preceding provisions of this subsection shall not apply to any law making provision for, relating to, or connected with the, election of Members of the House of Representatives, to represent persons registered as citizens of Ceylon under the Indian & Pakistani Residents (Citizenship Act).

This prO'Viso shall cease to have effect on a date to be fixed by the Governor-General by Proclamation published in the Gazette.

(3) Any law made in contravention of sub-section (2) of this section shall, to the extent of such contravention, be void.

( 4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island :

Provided that no Bill for the amendment or repeal of any of the Provisions of this Order shall be presented for the Raval Assent unless it has endorsed on it a certificate under hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than twothirds of the whole number of members of the House (including those not present),

Every certificate of the Speaker under this sub-section shall be conclusive for all purposes and shall not be questioned in any court of law.''

1ccording to.Mr. Palkhivala, section 29(1) corresponds to arts. 245 and -46, and section 29( 4) corresponds to art. 368 of our Constitution, _a!ld sections _29(2) and 29(3) correspond to art. 13(2) of our Constitution, read with fundamental righa,

136 SUPREME COURT REPORTS (1973] Supp. S.C.L

The question which arose before the Judicial Committee oi the Privy Council was whether section 41 of. the Bribery Amendment Act, 1958 contravened section 29(4) of the Ceylon Constitution, and was consequently invalid. The question arose out of tl).e following facts.

The respondent, Ranasinghe, was prosecuted for a bribery offence .before

the Bribery Tribunal created by the Bribery Amendment Act, 1958.

The Tribunal sentenced him to a term of imprisonment and fine. The Supreme Court on appeal declared the conviction and orders made against him null and inoperative on the ground that the persol'ls composing the Tribunal were not validly appointed to the Tribunal.

Section 52 of the Ceylon Constitution provided for the appointment of the Chief J us ti cc and Puisnc Judges of the Supreme Court. Section 53 dealt with the setting up of the Judicial Service Commission, consiating of the Chief Justice, a Judge of the Supreme Court, and one other person who shal~ be, or shall have been, a Judge of the Supreme Court.

It further provided that no person shall be appointed as, or shall remain, a member of the Judicial Service Commission, if he is Senator or a Member of Parliament. Section 55 provided for the appointment of other Judicial Officers. Section_ 55 ( 1) reads :

"55. (1) The appointment, transfer, dismissal and disciplinary control of judicial officers is hereby vested in the Judicial Service Commission."

The Judicial Committee deduced from these provisions thus :

"Thus there is secured a freedom from political control, and it'is a punishable offence to attempt directly or indirecdy to influence any decision of the Commission (Section 56)." (p. 190).

The Judicial Committee then described the p<ll'lition of the Bribery Tribunal as follows :

"A bribery tribunal, of which there may be any number, is composed of three members selected from a panel (section 42). The panel is composed of not more than 15 persons who arc appointed by the Governor-General on the advice of the Minister of Justice (section 41). The members of the panel arc pitld remw1eration (section 45)." (p. 192). ·

The Judicial Committee held that the members ~£ the Tribooal held judicial office and were judicial officers wi~ S: 55 ~-the Ceylon -COnstit\ltion. They found that there was a plain ct bctwwi

section 55 of the Constitution and section 41 of the Brilicry Am_cndmcnt Act under which the panel was appointed.

KESAVANANDA V, KERALA (Sikri, C.J.} 137

Then the Judicial Committee examined the eficct of this conflict.

After setting out section 18, section 29(1) and section 29(2) (a), the Judicial Committee observed :

"There follow (b), (c) and (d), which set out further entrenched religious and racial matters, whidi shall not be the subject of legislation. They represent the solemn balance of rights, between the citizen; of Ceylon, the ftmdamental conditions on which inter se they accepted the ConstitutioH ; and these are, therefore unalterable

under the Constitution." (Emphasis supplied) (p. 193).

After making these observations, the Judicial Committee set out sub-sections (3) and (4) of section 29 of the Ceylon Constitution. The observations, which I have set out above, are strongly relied on by Mr. Palkhivala in support of his argument that Part III similarly entrenched various religious and racial and other matters and these represented solemn balance of rights between the citizens of India, rhe fundamental conditions on which inter se they accepted the Constitution of India and these are, therefore, unalterable under the Constitution of India.

Mr. Seervai, in reply, submitted that the word "entrenched" meant nothing else that than these provisions were subject to be amended only by the procedure prescribed in s. 29(4) of the Ceylon Co.nstitution. But

I am unable to accept this interpretation because in that sense other provisions of the Constitution were equally entrenched because no provision of the Ceylon Constitution could be amended without following the procedure laid down in s. 29(4).

The interpretation urged by Mr. Palkhivala dervies support in the manner the Judicial Committee distinguished McCawley's(') case (Mt Cawley v. King). I may set out here the observations of the Judicial Committee regarding M cCawley' s case. They observed :

"It is possible now to state summarily what is the essential difference between the McCawley case and this case. There the legislature, having full power to make laws by a majority, except upon one subject that was not in question. passed a law which conflicted with one of the existing terms of its Constitution Act. It was held that this was valid legislation, since it must be treated as pro tanto an alteration of the Constitution, which tuas neither fundamental in the sense of being beyond change nor so constructed as to require any special legislative process to pass upon the topic dealt with. (Emphasis supplied). (p. 198).

( 1) [1920] A.C. 691.

138 SUPREME COUJlT llPO&TS [1973] Supp. s.c.P..

It is rightly urged that the expression "which was neither fundamental in the sense of being beyond change" has reference to s. 29(2) of the Ceylon Constitution. I have no doubt that the Judicial Committee held that the provisions of s. 29(2) in the Ceylon Constitution were unamendable. I may mention that Prof. S A de Smith in reviewing the book "Reflections on the Constitution and the Constituent Assembly. (Ceylon's Constitution) "by L.J.M. Cooray, reads the obiter dicta in Bribery Commissioner v. Ranasinghe(') ingicating that certain provisions of the Constitution were unalterable by the prescribed amending procedure.

It may be that these observations are obiter but these deserve our careful consideration, coming as they do from the Judicial Committee.

Why did the Judicial Committee say that the provisions of s. 29(2 were "unalterable under the Constitution" or "fundamental in the sens of !J,, ing beyond change" ? There is nothing in the language of s." 29( 4 to indicate any limitations on the power of the Ceylon Parliament. I' could "amend or repeal" any provision of the Constitution, which included section 29(2) and s. 29( 4) itself. The reason could only be an implied limitation on the power to amend under section 29( 4) deducible from "the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution". Unless there was implied a limitation on the exercise of the amending power under section 29(4), section 29(4) could itself be amended to make it clear that section 29(2) is amendable.

This case furnishes an exact example where implied limitations on the power to amend the Constitution have been inferred by no less a body than the Judicial Committee of the Privy Council.

Mr. Seervai relied on the portion within brackets of the following passage at pp. 197-198:

''These passages show clearly that the Board in M cCawley' s case took the view which commends itself to the Board in the present case, that (a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its powers 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 that if the terms of those provisions are compiled with ancl the alteration or amendment may

(') (1965] A.c. 172, 193-194.

Xl!SAVANANDA ti. KERALA (Sikri, C.J.) 139

include the change or abolition of those very provisions.) But the proposition which is not acceptable is that a legislature, once cstabllihcd, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majori'ty or by a different legislative process. And this is the proposition which is in reality involved in the a.rgument."

The portion, not within br.ackets, which has been omitted in Mr. Seervai's written submissions, clearly shows that the fudicial Committee in this passage was not dealing with the amendment of s. 29(2) of the Ceylon Constitution and had understood McCawlty's(') case as not being concerned with the question of the amendment of a provision like s. 29(2) of the Ceylon Constitution. This passage only means that a legislature cannot disregard the procedural conditions imposed on it by the constituent instrument prescribing a particular majority but may amend them if the constituent instrument gives that power.

The next passage, a part of which I have already extracted, which deals with the difference between McCawley's case a.nd Rana.ringhe's(')

case shows that the fudicial Committee in the passage relied on was dealing with the procedural part of section 29( 4) of Ceylon Constitution. ft reads :

"It is possible now to state summarily what is the essential dilfe.

rence between the Mccawley case and this case. There the legislat; ure having full power to make laws by a majority, except upon one subject that was not in question, passed a law which conflicted with one of the existing terms of the Constitution Act. It was held that this was valid legislation, since it must be treated as pro tanto an alteration of the Constitution, which was neither fundamental in the sense of being beyond change nor so constructed as to require any special legislative process to pass upon the topic dealt with. In the present case, on the other hand, the legislature has purported to pass a law which being in conflict with section 55 of the Order in Council, must be treated, if it is to be valid, as an implied alteration of the Constitutional provisions about the appointment of judicial officers. Since such alterations, even if express, can only be mae by law~ whic.h comply with the special legislative procedure laid down m section. 29( 4), the Ceylon legislature has not got the_ general l.'o':"er to legslate so as to amend its Omstitution by ordrnary ma1onty resolutions, such as the Queensfand legislature was found to have under section 2 of its Constitution Act, but is .

( 1 ) f 1920] A.C. 691.

( 2) [1965] A.C. 172, 193-194.

140 SUPREME COUllT REPORTS [ 1973] Supp. s.c.11.

rather in the position, for effecting such amendments, that that legislature was held t<> be in by virtue of its section 9, namely,. compelled to operate a special procedure in order to achieve the desired result." (p. 198).

I may mention that the Judicial Committee while interpreting the British :North America Act, 1867 had also kept in mind the preservation of the rights of minorities for they say In re The Regulation and Control of Aeronautics in Canada : (') "inasmuch as the Act ~British North.

America Act) embodies a compromise under which the original Provinces agreed to federate, it is important to keep in mind that the preservation of the rights of minorities was a conditioin on which such minorities entered into the federation, and the foundation upon which the whole structure was subsequently erected. The process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction of the Provisions of ss. 91 and 92 should impose a new and different contract upon the federating bodies."

The words of the Judicial Committee in Ranasinghe's case, are apposite and pregnant. " They represent the solemn balance of rights between the citizen< of Ceylon, the fundamental conditions on which inter se they accepted the Constitution and these are, therefore unalterable under the Constitution." It is true that the Judicial Committee in the context of minorities and religious rights in Ceylon used the word "unalterable".

But the India context is s\ightly different. The guarantee of fundamental rights extends to numerous rights and it could not have been intended that all of them would remain completely unalterable even if Art. 13(2) of the Constitution be taken to include constitutional amendments. A more reasonable inference to be drawn from the whole ; cheme of the Constitution is that some other meaning cf "Amendment" is most appropriate. This conclusion is also reinforced by the concession of the Attorney-General and Mr. Seervai that the whole Constitution cannot be abrogated or repealed and a new one

mbstituted. In other words, the expression "Amendment of this Constitution" does not include a revision of the whole Constitution. If this is true-I say that the concession was rightly made-1hen which is that meaning of the word "Amendment" that is most appropriate and fits in with the while scheme of the Constitution. In my view 1hat meaning would be appropriate which would enable the country to achieve a social and economic revolution without destroying the democratic structure of the Con.ritution and the basic inalienable rights guaranteed in Part III and without going outside the contours delineated in the Preamble.

(') [1933) A.C. 54 at p. 70.

14.

I come to the same conclusion by another line of reasoning. In a written constitution it is rarely that everything is said expressly. Powers and limitations are implied from necessity or the scheme of the Constitution. I will mention a few instances approved by the Judicial Committee and this Court and other Courts. I may first consider the doctrine that en<1bles Parliament to have power to. deal with ancillary and subsidiary matters, which strictly do not fall within the legislative entry with-respect to which legislation is being unden.

Lefroy in "A short Treatise on Canadian Constitutional Law" (page 94), puts the matter thus :

"But when it is (Dominion Parliament) is legislating upon the enumerated Dominion subject-matters of sec. 91 of the Federation Act, it is held that the Imperial Parliament, by necessary implication, intended to confer on it legislative power to interfere with, deal with, and encroach upon, matters otherwise assigned to the provincial legislatures under sec. 92, so far as a general law relating

{O those subjects may affect them, as it may also do to the enent of such ancillary provisions as may be required to prevent the scheme of such a law from being defeated. The Privy Council has established and illustrated this in many decisions."

This acts as a corresponding limitation on the legislative power of the Provincial or State legislatures.

This Court has in numerous decisions implied sim'lar powers. (See Orient Paper MiNs v. State of Orissa('); Burmah Construction Co. v~ Stat.: of Ori<Sa('); Navnit Lal Javeri v. Appellate Assistant Commissioner('); to mention a few).

It often happens that what has been implied by courts in one constitution is expredy conferred in another constitution. For instance, in the Constitution of the United States, clause 18 of section 8 expressly grants incidental powers :

"The Congress shall have power .......... to make all laws which shall be necessary and proper for carrying into execution the fore- ·"' going powers and all other powers vested by this Constitution in the government of the United States, or in any departtnent or officer thereof."

It would not be legitimate to argue from the above express provision in the United States Constitution that if the constitution-makers wanted to giye such powers to the Parliament of India they would have expressly conferred incidental powers.

( 1 ) [ 1962] !. S.C.R. 549.

( 2 ) [1962] 1 Supp. S.C.R. 242.

( 3 ) A.I.R. 1965 S.C. 1375. 10-36 S.C. India/73

142 sul'&llME couar &UGa'S [Im} .Sapp. ~

Story says that clause 18 import$ no ~.

J:baa would zaalt from necemry implicition (~ pp. 112 and lU. Vol. 3) if it had not been cxpmsly inserted.

In Ram /awaya Kapur v. Sttlle uf .,_;.{') thil Cowl: implied that "the President has thus been made a formal or constitutional head of the executive and the real executive powc:n are \ICStcd in the Ministers or the Cabinet. The same provisions obtain in tqard to the Government of States ; the Governor or the Rajpnmukh .... "

In Sanieevi Naidu v. State of Madras(") Hedge, J., held that the Governor was essentially a constitutional head and the administrtion of State was run by the Council of Minis~

Both these cases were followed by another constitutioo bench in U.N.R. Rao v. Smt. Indira Gandhi.(')

This conclusion constitutes an implied limitarion oo the powers of the President and the Governors.. The Court further implied in. &zm /awaya Kapur' s(') case that the Government could without spccilic legislative sanction carry on trade aad bwincst.

To save time we did not hear Mr. Sc~ on the last 3 cases just cited. I have mentioned them only to give another aample.

It may be noted that what was implied regarding carrying on trade was made an express provision in the Constit1; l!ion by the Constitution (Seventh Amendment) Act, 1956, when a new art. 298 was substituted.

The Federal Court and the Supreme Court of India have recognised and applied this principle in other :

(i) "A grant of the power in general terms standing by itself would no doubt be construed in the wider sense ; but it may be qualified by other express provisions in the same enactment, by the implications of the context, and even by considerations arising out of what appears to be the gcneml scheme of the Act."

(Per Gwyer C.J. The C.P. & lkr11r Act-1939 F.C.R. 18 at 42).

(ii) Before its amendment in 1955, Article 31(2) was read as containing an implied limitation that the State could acquire only


( 2) [1970] I S.C.C. 443.

<(3 ) [1971] 2 s.c.c. 63.

UU.VANANDA v. lllALA (Sikri, C.J.)

14J

for a public purpose (the Fourth Amendment expressly enacted this limitation in 1955).

(a) "One limitation imposed upon acquisition or taking pos.1CSsion of private property which is implied in the clause is that such taking must be for public purpose". (Per Mukherjca J.

Chiraniitlal Chowdhuri v. Union of lndi11-1950 SCR 869 at 902).

(b) "The existence of a 'public purpose' is undoubtedly an

 implied condition of the exercise of compulsory powers of acquisition by the State ........ " (Per Mahajan J. SttZte of Bihar v. Makarajadliiraja of Darbhanga-1952 SCR 889 at 934).

(iii) The Supreme Court has laid down that there is an implied limitation on legislative power : the Legislature cannot delegate the essentials of the legislative functions.

" .... the legislature cannot part with its essential legislative function which consists 'in declaring its policy and making it a binding rule of conduct. . . . . . . . the limits of the powers of delegation in India would therefore have to be ascertained as a matter of construction from the provisions of the Constitution itself and as I have said the right of delegation may be implied in the exercise of legislative power only to the extent that it is necessary to make the exercise d the power effective and complete. (Per Mukherjea J. in re The Delhi Laws Act-1951 SCR 747 at 984-5).

The same implied limitation on the Legislature, in the field of delegation, has been invoked and applied in :

Raj Narain Singh v. Patna Admin'istration-1955(1) SCR 290.

Hari Shankar Bag/a v. State of Madhya Pradesh-1955(1) SCR 380.

V asantilal Sanjanwala v. State of Bombay-1961 ( 1) SCR 341.

The Municipal Corporation of Delhi v. Birla Cotton Mills-1968

(3) SCR 251.

Garewal v. State of Punjab-1959 Supp. (1) SCR 792.

(iv) On the power confered by Articles 3 and 4 of the Constitution to form a new State and amend the Constitution for that purpose limitation has been implied that the new State must-

"conform to tlte democratic pattern envisaged by the Constitution;

and the power which the Parliament may exercise ....... -_ is not

the power ro over-ride the constitutional scheme. No State can therefore be formed, admitted or set up by law under Article 4 by the Parliament which has no , ffcctive legislative, executive and

144 SUPREME COURT REPORTS (1973] Supp. S.C.R.

judicial organs". (Per Shah J.-Mangal Singh v. Union of Indi11- 1967(2) SCR 109 at 112. (Emphasis supplied).

It would have been unnecessary to refer to more authorities but for the fact that it was strenuously urged that there could not be any implied limitations resulting from the scheme of the Constitution.

Before referring to a recent decision of the Australian High Court, observations in certain earlier cases may be reproduced here :

"Since the Engineers" case (1920-28 CLR 129) a notion seems to have gained currency' that in interpreting the Constitution no implications can be made. Such a method of construction would defeat the intention of any instrument, but of all instruments, a written constitution seems the last to which it could be applied.

I do not think that the judgment of the majority of the court in the Engineers' case meant to propound such a doctrine" (Per Dixon J. West v. Commissioner of Taxation (New South Wales)-56 CLR 657 at 681-2).

"Some implications are necessary from the structure of the Constitution itself, but it is inevitable also, I should think, that thr.se implications can only be defined by a gradual process of judicial decision" (Per Starke J., South Attstralia v. Commonwealth-65 CLR 373, 447. (Emphasis supplied).

''The Federal character of the Australian Constitution carries implications of its own ..... , Therefore it is beyond the power of either to abolish or destroy the other". (Per Starke J. Melbourne Corporation v. Commonwealth-74 CLR 31 at 70). (Emphasi• supplied).

"The Federal syst\om itself is the foundation of the restraint upon the use of the power to control the State ...... Restraints to be implied against any exercise of power by Commonwealth against State and State against Commonwealth calculated to destroy or detract from the independent exercise of the functions of the one or the other ...... " (Per Dixon J.-Me/bourne Corporation v. Commonwealth-74 CLR 31 at 81-2).

I may now refer to State of Victoria v. The Commonwealth(') which discusses the question of implications to be drawn from a constitution like the Australian Constitution which is contained in the Commonwealth Act. It gives the latest view of that court 01> the subject.

( 1 ) [1971] 45 A.L.R.J. 251; 252; 253.

...

KESAVANANDA V. KE!lALA (Sikri, C.J.) ' 145

 The point at issue was whether the Commonwealth Pariiament, in the exercise of its power under s. 51Cil) of the Constitution (subject to the Constitution, to make laws with respect to taxation, but so as not to discriminate between States or parts of States) may include the Crown in right of a State in the operation of a law imposing a tax or providing for the assessment of a tax. ·

Another point at issue was 1he status of the Commonwealth and the States under the Constitution, and the extent to which the Cpmmon wealth Parliament may pass laws binding on the States, considered generally and historically, and with particular reference to the question whether there is any implied limitation on Commonwealth legislative power. It is the discu; sion on the latter question that is relevant to the present case.

There was difference of opinion among thc~Judgcs. Chief Justice Barwick held as follows :-

"The basic principles of construction of the Constitution were definitively enunciated by the Court in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920), 28 C.L.R. 129 (the Engineers' case) Lord Selborne's language in Reg. v. Burah

(1878) 3 App. Cas. 889 at pp. 904-905, was accepted .and applied as was that of Earl Loreburn in Attorney.General for Ontario v.

Attorney-General for Canada (1912) A. C. at 583".

According to the Chief Justice, the Court in Engineeres' case unequivocally rejected the doctrine that there was an "implied prohibition" in the Constitution against the exercise in relation, to a State of a legislative power of the Commonwealth once ascertained in accordance with the ordinary rules of construction, a doctrine which had theretofore been entertained and sought to he founded upon some suwoscd necessity of "protection", as it were, "against the aggression of some outside and possibly hostile bo<ly". The Court emphasized that if protection against an abuse of power were needed, it must be provided by the electorate an<Nlot by the judiciary. "The one clear line of judicial inquiry as to the meaning of the Constitution must be to read it naturally in the light of the circumstances in which it was made, with kno;.vledge of the combined fabric of the common law, and the statute law which preceded it and then lucet ipM per see" (p 253).

Now this is the 'udgment which is relied on by Mr. Seervai and the learned Attorney (!encral. On the other hand, reliance is placed by Mr. Palkhivala on Menzies J's judgment : ·

"Docs the fact that the Constitution is "federal" carrv with it implications limiting the law-making powers , of, the Pir)iamcnt of the Commonwealth with regard to the States ?

146 SUPBEME COURT BEPORTS [ 1973] Supp. s.C.Il.

To this questin I have no doubt, both on principle and on authority, that an affirmative answer must be given. A constitution providing for an indissoluble federal Commonwealth must protect both Commonwealth and States. The Stat.cs arc not outside the Constitution. They arc States of the Commonwealth ; s. 106.

Accordingly, although the Constitution docs, clearly enough, subject the States to laws made by the Parliament, it does so with some limitation." (p. 262).

After making these observations, the learned Judge examined authorities and he found support in M albourne Corporation v. The

Commonwealth('). He then examined various other cases in support of the above principles.

The other passages relied on by the petitioners from the judgments of the other learned Judges on the Bench in that case are as follows :-

Windcyar J.

"In each case an implication means that something not expressed is to be understood. But in the one case, this involves an addition to what is expressed : in the other it explains, perhaps limits, the effect of what is expressed. It is in the latter sense that in my view of the matter, implications have a place in the interpretation of the Constitution : and I consider it is the sense that Dixon J. intended when in Auttralian National Airways Pty. Ltd. v. The

Commonwealth (1945) 71 C.L.R. 29, he said (at p. 85) : "We should avoid pedantic and narrow constructions in dealing with an instrument of government and I do not sec why we should be fearful about making implications". His Honour, when Chief Justice, repeated this observation in Lamshed v. Lake (1958) 99 C.L.R. 132 at p. 144. I said in Spratt v. Hermes (1965) 114 C.L.R. 226, at p. 272, that it is well to remember it. I 91ill think so. The only emendation that I would venture is that I would prefer not to say "making implications", because our avowed task is simply the revealing or uncovering of implications that are already there.

In Mnibourne Corporation v. The Commonwealth (1947), 74 C.L.R. 31, Starke J. said (at p. 70) : "The federal character of the Australian Constitution carries implications of its own" .... (p. 268). • • • • • •

(') (1947] 74 C.L.R. 31.

KESAVANANPA ti. KERALA (Sikri, C.J.) 147

"The position that I take is this : The several subject matters with respect to which the Commonwealth is empowered by the Constitution to make laws for the peace, order and good government of the Conmmonwealth are not to be narrowed or .limited by implications .. Their scope and amplitude depend simply on the words by which they are expressed. But implications arising from the existence of the States as parts of the Commonwealth and as constituents of the federation may restrict the manner in which the Parliament can lawfully exercise its power to make laws with respect to a particular subject-matter.

These implications, or perhaps it were better to say underlying assumptions of the Constitution, relate to the use of a power not to the inherent nature of the subject matter of the law. Of course whether or not a law promotes peace, order and good government is for the Parliament, not for a court, to decide. But a law although it be with respect to a designated subject matter, cannot be for the peace, order and good government of the Commonwealth if it be directed to the States to prevent their carrying out their functions as parts of the Commonwealth." •. ;. (p. 269).

* .. * .. * * Gibbs J.

"The ordinary principles of statutory construction do not preclude the making of implications when these are necessary to give effect to the intention of the legislature as revealed in the statute as a whole. The intention of the Imperial legislature in enacting the Constitution Act was to give effect to the wish of the Australian people to join in a federal union and the purp9se of the Constitution was to establish a federal, and not a unitary, system for the government of Australia and according! y to provide for the distribution of the powers of government between the. Commonwealth and the States who were to be the constituent members of the federation.

In some respects the Commonwealth was placed in a position of supremacy, as the national interest 'required, but it would be inconsistent with the very basis of the federation tha( the Commonwealth's powers should extend to reduce the States to such a position of subordination that their very existence, or at least their capacity to function effectually as independent units, would be dependent upon the manner in which the Commonwealth

exercised its powers, rather than on the legal limits of the powers themselves. Thus, the purpose of the Constitution, and the scheme by which. it is intended to be given effect, necessarily giv!! rise to implications as to the manner in whicl1 the Commonwealth and the States respectively may exercise thdr powers, vis-a-vis each other." ..•. (p. 275).

148 suPREME couaT UPOlTS [Im] Supp. i.c.L

Wynes• in discussing the amendment of the Constitutions oE the Sillies of Australia sums up the position thus. I may refer only to die propositions which arc relevant to our case.

(1) Every State legislature has by viritue of sec. 5 full powers of amendment of any provision respecting its constitution powers and procedures.

(2) But it cannot (semble) alter its "representative" character. (3} The "Constitution" of a Legislature means its composition, form or nature of the House or Houses, and excludes any reference to the Crown.

(6) No Colonial Legislature can forever abrogate its power of amendment and thereby render its Constitution absolutely immutable. A law purporting to effect this object would be void under sec. 2 of the Act as being repugnant to sec. 5 thereof.

For proposition (2) above, reference is made in the footnote. to Taylor v. The Attorney-General of Queensland.(') The relevant passages which bear out the second proposition are :

"I take the constitution of a legislature, as the term is here used, to mean the composition, form or nature of the House of Legislature where there is only one House, or of either House if the legislative body consists of two Houses. Probably the power does not extend to authorize the elimination of the reprsentative character of the legislature within the meaning of the Act. (p. 468 per-Barton J.).

"I read the words "constitution of such legislatme" as inCluding the change from a unicameral to a bicameral system, or the reverse.

Probably the "representative" character of the legislature isa basic condition of the power relied on, and is preserved by the word "such," but, that being maintained, I can see no reason for ;:uitting down the plain natural meaning of the words in question sb as to exclude the power of a self-governing community to say that for State purposes one House is sufficient as its organ of legislation." (p. 474 per-Issacs J.). (For proposition No. 3, see Taylor v. The Attorney-General of Q11ee11sland(') and Clayton v. Heffron.)(').

Then dealing with the Commonwealth Constitution, he states : "Another suggested limitation is based upon the distinction between the covering sections of the Constitution Act and the Const:tution

•Wynes Legislati\e, Executive and Judicial Power in Australia, FOOrth Edn.

P' 5o3.

. (') 23 C.L.R. 457.

( 2) [1960] 105 C.L.R. 214; 251.

!<£SAVANANDA V. KERALA (Sikri, C.J.) 149

itself; it is admitted on all sides that sec. 128 does not penp.it of any amendment to those sections. (And in this respect the Statute of Westminster does not confer any new power of amendmentindeed it is expressly provided that noihing in the statute shall be deemed to confer any power to repeal or alter the Constitution of the Constitution Act otherwise than accordance with existing law.) In virtue of their character of Imperial enactments the covering sections of the Constitution are alterable only by the Imperial Parliament itself. The question is, admitting this principle, how far does the Constitution Act operate as a limitation upon the amending power ? It has been suggested th"t any amendment which would be infonsistent with the preamble of the Act referring to the 'indisso!Uble' character and the sections which refer to the "Federal" nature of the Constitution, would be invalid. There has been much conflict of opinion respecting this matter ; the view here taken is that the preamble in no wise effects the power of alteration." (p. 505).

In view of this conflict, no assistance can be derived from academic writing.

Tbe ca<e of The Attorney Genera! of No1Ja Scotia and The .Attorney General of Canada and Lord Nelson Hotel Company Umitcd(') furnishes another example where limitations were impiied. 'The Legislature of the Province of Nova Scotia contemplated passing an act respecting the delegation of jurisdiction of the Parliament of -Canada to the Leg'slature of Nova Scotia and vice verm. The question arose whether, if enacted, the bi\! would be constiutionally valid since it contemplated delegation by Parliament of powers, exclusively vested in it by s. 91 of the British North America Act to the Legislature of Nova Scotia, and dc!egation by that Legislature of powers, exclusive!:· vested in Provincial Legislature under s. 92 of the Act, to Parliament.

The decision of the Court is summarised in the headnote as follows:

"The Parliament of Canada and each Provincial Legislature is a sovereign body within the sphere, possessed of exclusive jurisdiction to legislate with regard to the subject matters assigned to it under s. 91 or s. 92, as the case may be. Ne:ther is capable therefore of delegating to the other the powers with which it has been Yested nor of the receiving from the other the powers with which the other has been vested."

( 1) [1951] S.C.R.-Canada-31.

150 SUPREME COURT REPORTS [1973] Supp. s.c.R.

The Chief Justice observed :

"The consitution of Canada does llQt belong either to Parliament, or to the Legislatures ; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled. It is part of that protection that Parliament can legislate only on the subject matters referred to it by section 91 and that each Province can legislaite exclusively on the subject matters referred to it by section 92." (p. 34).

He further observed :

"Under the scheme of the British North America Act there were to be, in the words of Lord Atkin in The Labour Convention; Reference (1937) A.C. 326)", "Water, tight compartments which are an essential part of the original structure." (p. 34).

He distinguished the cases of In re Gray(') and The Chemical Reference(') by observing that delegations such as were dealt with in these cases were "delegations to a body subordinate to Parliament and were of a character different from the delegation meant by the Bill now submitted to the Court."

Kerwin, J., referred to the reasons of their Lordships in In Re The Initiative and Referendum(') Act as instructive. After referring to the actual decision of that case, he referred to the observations of Lord Haldane, which I have set out later while dealing with the Initiative & Referendum case and then held :

{) "The British North America Act divides legislative jurisdiction between the Parliament of Canada and the Legislatures of the Provinces and there is no way in which these bodies may agree to a different division." (p. 38).

Taschereau, J., observed :

"It is a well settled proposition of law that jurisdiction cannot be conferred by consent. None of these bodies can be vested directly or indirectly with powers which have been denied them by the B.N.A. Act, and which therefore are not within their constitutional jurisdiction." (p. '10).

He referred to a number of authorities which held that ntlther the Dominion nor the Province can delegate to each other powers they do not expressly possess under the British North Amerio> Act.

(') [1918} 57 Can. S.C.R. 150. (') (1943} S.C.R. I-Canada.

(') (1919) A.C. 935.

JCESAVANANDA "· KE11ALA (Sikri, C.J.) lSl

distinguished cases like Hodge v .. The Queen,(') In Re Gray,(') Shannon v. Lower Mainland Dairy Products Board,(') and Chemicals Reference(') by observing :

"In all these cases of delegation, the authority delegated its powers to subordinate Boards for the purpose of carrying legislative enact- . ments into operation." (p. 43)

Justice Rand emphasized that delegation implies subordination and subordination implies duty.

Justice Fauteux, as he then was, first referred to the following obscrvatiooo of Lord Atkin in Attorney General for Canada v. Attorney

General for Ontario(') :

"No one can doubt that this distribution (of powers) is one of the most essential conditions, probably the most essential condition, in the inter-provincial compact to which the British North America Act gives effect.'' He then observed : "In the result, each of the provinces, enjoying up to the. time of the union, within their respective areas, and quoad one another, an independent, exclusive and over...all legislative authority, surrender to and charged the Parliament of Canada with the responsibility and authotity to make laws with respect to what was then considered as matters of common interest to the whole country and retained and undertook to be charged with the responsibility and authority to make laws with respect to local matters in their respective sections. This is the system of government by wliih the Fathers of Confederation intended-and their intentions were implemented in the Act-to "protect the diversified interests of the several provinces and secure the efficiency, harmony and permanency in the working of the union." (p. 56).

In the case just referred to, the Supreme Court of Canada implied a limitation on the power of Parliament and the Legislatures of the Provinces to delegate legislative power to the other although there was no express limitation, in terms, in ss. 91 and 92 of the Canadian Corutitution. This case also brings out the point that delegation of law makng power can only be to a subordinate body. Apply the ratio of this decision to the present case, it cannot be said that the

( 1) (1883) 9, App. Cas. 117.

( 2 ) (57) Can. S.C.R. 150.

( 8) [1938] A.C. 708. (') [ 11143 J S.C.l. 1-c.n.da . .

(") [1937] A.C. 326, 35L

152 SUPREME COURT REPORTS (1973) Supp. S.C.R.

State Legislatures or Parliament acting in its ordinary legislative capacity, are subordinate bodies.to Parliament acting under art. 368 of the Constitution. Therefore it is impermissible for Parliament under art. 368 to delegate its functions of amending the constitution to either the State legislatures or to its ordinary legislative capacity. But I will refer to this aspect in greater detail later when I refer to the case In re the Initiative and Re, ferendum Act.

In Canada some of the Judges have implied that freedom of speech and freedom of the Press cannot be abrogated by Parliament or Provincial legislatures from the words in the Preamble to the Canadian Constitution i.e. "with a Constitution similar in principle to that of the United Kingdom." Some of these observations are :

"Although it is not necessarv, of course, to determine this question for the purposes of the present appeal, the Canadian Constitution being declared to be similar in principle to that of the United Kingdom, I am also of opinion that as our constitutional Act now stands, Parliament itself could not abrogate this right of discussion and debate." (Per Abbot ). Switzmen v. Elbling-1957 -Can. S.C. 285 at 328). "I conclude further that the opening paragraph of the preamble to the B.N.A. Act 1867 which provided for a 'Constitution simi- .•ar in principle to that of the Uni, ted Kingdom', thereby adopted the >ame constitutional princ' pies and hence S. 1025A is contrary to the Canadian Constitution, and beyond the competence of Parliament or ny provincial legislature to enact so long as our Constitution remains in \ts present from of a constitutional democracy." (Per O'Halloran J.A.-Rex v. Hess-1949 4 D.L.R. 199 at 208). 'in Re Alberta Legislation, (1938) 2 D.L.R. 81, S.C.R. 100, Sir Lyman P. Dutt C.J.C. deals with this matter. The proposed legislation did not attempt to prevtnt discussiofl of affairs in newspapers but rather to compel the publication of statements as to the true and exact objects of Governmental policy and as to the difficulties of achieving them. Quoting the words of Lord Wright M. R. in fames v. Commonwealth of Aust1<::1/ia, (1936) A.C. 578 at p. 627 freedom of discussion means " 'freedom governed by

law'" he says at p. 107 D.L.R., p. 133 S.C.R. : "It is axiomatic that the practice of this right of free public discussion of public affairs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary mstitutions."

He deduces authority to protect it from the principle that the "powers 1'eq11isit~ for the preservation of the con.rtitution arise by a necessary implication of the Confederation Act as a whole." (Per Rand J.-Samur v. City of Quebec-(1953) 4 D.L.R. 641 at 671). (Emphasis supplied).

KESAVANANDA V. KERALA (Sikri, C.J.) 151

It is, however, noteworthy that the Solicitor-General appearing on behalf of the Union of India conceded that implications can arise from a Constitution, but said that no implication necessarily arises out of the provisions of Art. 368.

I may now refer to another decision of the Judicial Committee in Iiya11gc's case,(') which was relied on by Mr. Secrvai to show that an .uncndment of the constitution cannot be held to be void on the ground of repugnancy to some vague ground of inconsistency with the preamble.

The Parliament of Ceylon effected various modifications of the Criminal Procedure Code by the Criminal Law (Special Provisions) Act, 1962. The appellants were convicted by the Supreme Court of Ceylon for various offences like conspiring to wage war against the Queen, etc.

The two relevant arguments were : "The first is that the Ceylon Parliament is limited by an inability to pass legislation which is contrary to fundamental principles of justice. The 1962 Acts, it is said, arc contrary to such principles in that they not only arc directed against individuals but also Cl' post facro create crimes and punishment, and dcstroyfair safeguards by which those individuals would otherwise be protected.

The appellants' second coutcntion is that the 1962 Acts offended against the Constitution in that they .amounted to a direction to convict the appellants or to a legislative plan to secure the conviction and severe punishment of the appellants and thus constituted an unjustifiable assumption of judicial power by the legislature, or an interference with judicial power, which is outside the legislature's competence and is inconsistent with the severance of power between legislature, executive, and judiciary which the Constitution ordains." (p. 283).

Mr. Sccrvai relics on the answer to the first contention. According to Mr. Sccrvai, the answer shows that constituent.power is different from, legislative power and. when constituent power is given, it is exhaustive leaving .nothing uncovered.

The Judicial Committee after referring to passages from ''The Sovereignty of the British Dominions" by Prof. Keith, and "The

Sttutcs of Westminster and Dominion Status" by K. C. Whcarc, observed. at page 284 : ·

 ·"Their Lordships cannot accept the view that the lcgislatiirc while' rcmoying the ftttcr of.repugnance to English law, left in Cl'istcncc-

(1) [1967] 1 A.C. 259.

154 SUPREME COUJlT llpOJl.TS [ 1973] Supp. s.c.11..

a fetter of repugnance to some vague unspecified Jaw of natural justice. The terms of the Colonial Laws Validity Act and especially the words "but not otherwise" in section 2 make it clear that Parliament was intending to deal with the whole question of repugnancy ...... "

The Judicial Committee referred to the Ceylon Independence Act, 1947, and .. the Legislative Power of Cey Ion and observed :

"These liberating provisions thus incorporated and enlarged the enabling terms of the Act of 1865, and it is clear that the joint effect of the Order in Council of 1946 and the Acb of 1947 was intended to and did have the result of giving to the Ceylon Parliament the full legislative powers of a sovereign independent State

(see lbralcbbe \'. The Q11een-(l%4) A.C. 900)"

Mr. Seervai sought to argue from this that similarly the amending power of Parliament under Art. 368 has no limitations and cannot be limited by some vague doctrine of repugnancy to natural and inalienable rights and the Preambk. We are unable to appreciate that any analogy exists between Mr. Palkhivala's argument and the argument of Mr. Gratien. Mr. Palkhivala relies on the Preamble and the scheme of the Constitution to interpret Art. 368 and limit its operation within the contours of the Preamble. The Preamble of the Constitution of India does not seem to prescribe any vague doctrines like the law of natural justice even if the latter, contrary to many decisions of our Court, be considered vague.

The case, however, furnishes another instance where implied limitations were inferred. After referring to the provisions dealing with "judicature" and the Judges, the Board observed : ''These provisions manifest an intention to secure in the judiciary a freedom from political, legislative and executive control. They arc wholly appropria.te in a Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature.

The Constitution's silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century, in the hands of the judicature. It is not consistent with any intention that hence-forth it should pass to or be shared by, the executive or the legislature."

The Judicial Committee was of the view 'that there "exists a . separate power in the judicature which under the Constitution as it stands cannot be usurped or infringed by the executive or the legislature." The Judicial Committee cut down the plain words of scc::ion 29(1) thus: '

IWAVANANDA ti, KERALA (Sikri, C.).1 155

"Section 29Cl) of the Constitution says:

"Subject to the provisions of this Order. Parliament shall have power to make laws foi the peace order and good government of the Island". These words have habitualJly been construed in their fullest scope. Section 29(4) provides that Parliament may amend the Constitution on a two-thirds majority with a certificate of the Speaker. Their Lordships however cannot read the words of section 29(1) as entitling Parliament to pass legislation which usurps the judicial power of the judicature-e.g., by passing an Act of attainder against some person or instructing a judge to bring in a verdict of guilty against someone who is being triedif in law such usurpation would otherwise be contrary to the Constitution." (p. 289).

In conclusion the Judicial Committee held that there was interference with the functions of the judiciary and it was not only the likely but the intended effect of the impugned enactments, and that was fatal to their validity.

Their Lordships uttered a warning which must always be borne in dealing with constitutional cases : "what is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution." This was in reply to the argument that the Legislature had no such general intention to absorb judicial powers and it had pascd the legislation because it was beset by a grave situatipn and it took grave measures to deal with it, thinking, one must presume, that it had power 10 do so and was acting .rightly. According to their Lordships that consideration was irrelevant and gave no validity to acts which infringed the Constitution.

McCau•ley \', The King(') was strongly relied on by Mr. Seervai.

The cae was on appeal from the decision of the High Court of Australia, reported in 26 C.L.R. 9. Apart from the questions of interpretation of sub-s. (6), s. 6, of the Industrial Arbitration Act, 1916 and the construction of the Commission which was issued, the main question that was debated before the High Court and the Board was whether the Legislature of Queensland could amend a provision of the Constitution oi Queensland without enacting a legislative enactmco•

<1> [1920] A.C. 691.

156 SUPREME COURT REPORTS [ 1973] Supp. s.c.11.

directly .amending the Constitution. The respondents before the Board had contended as follows : ·

"But an alteration. to be valid must be made. py direct legislative .enactment. The Constitution can be altered but cannot be disregarded. So long as it subsists it is the test of the validity of legislation. The High Court of Australia so decided in Cooper'; case('). (p. 695).

The appellants, on the other hand, had . contei; ided that "the Legislature of Queensland has power, by ordinary enactment passed by both houses and assented to by the Governor in the name of the Crown, to alter the constitution of Queensland, including the judicial institutions of the State, and the tenure of the judges ........ All the. laws applying to Queensland which it is competent to the Queensland Legislature to alter can be altered in the same manner by ordinary enactment."

There was ditference of opinion in the High Court. Grit!ith, C.J., was of the opinion that the Parliament of Queensland could not merely by enacting a law inconsistent with the Constitution Act of 1867 overrule its provisions, although it might be proper formality pass. an Act which expressly altered or repealed it. Isaacs and Rich JJ., with whom the Board found themselves in almost complete agreement, held to the contrary. The F.oarJ, in dealing with the question, first. referred to the "distinction between constitutions the terms of which may be modified or repealled with no other formality than is necessary in the case of other legislation, and constitutions which can only be altered with some special formality, and in some cases by a spec(ally convened assembly." ·

Then Lord Birkenhead, L.C., observed at page 704 : "Many different terms have been employed in the .text-boiiks to distinguish these two constrasted forms - of constitution. Their special qualities may perhaps be exhibited as clearly by ca.lling the one a controlled and the other an uncontrolled constitution as by any other nomenclature. Nor is a constitution debarred from being reckoned as an uncontrolled constitution because it is not, like the British constitution, constituted by historic development but finds its genesis in an originating document which may. Contain some conditions which cannot be altered except by the pawci which gave it birth: It. is of the gr":3test miportance ~· notice that . . where the comtitutmn 1• uncontrolled the q>nseqµences .. of its. frci:-.

dom admit of no qnalification whatever. The diictrine,1is.91Tdcd to eyry .proper consequer1ce with ca~ and inel'Ol'.Jlblc.pr, cdSiOft, Thus when one of the learned Judges m the Court below said . ' . ?

(') [ 1907] 4 C.L.R. 130'

USAVANANDA V. ll1lALA (Sif{ri, C.J.) 157

that, according to the appellant, the constitution could be ignored as if it were a Dog Act, he was in effecn merely expressing his opinion that the constitution was, in fact, controlled. If it were uncontrolled, it would be an elementary commonplace that in the eye of the law th~ legislative document or documents which

defined it occupied precisely the same position as a Dog Act or any other Act, however humble its subject-matter."

Then, the Judicial Committee proceeded to deal with the Comlitution oi Queensland and held that it was an uncontrolled constitution. Later, their Lordships observed :

"It was not the policy of the Imperial Legislature, at any relevant period, to shackle or control in the manner suggested the legislative powen of the nascent Australian Legislatures. Consistently with the genius of the British people what was given was given completely, and unequivocally, in the belief fully justified by the event, that these young communities would successfully work out their own constitutional salvation." (p. 706).

Mr. Seervai sought to deduce the following propositions from thiJ case:

Firstly-(!) Unless there is a special procedure prescribed 'foe

amending any part of the Constitution, the constitution was uncontrolled and could be amended by an Act in the manner prescribed for enacting ordinary laws, and therefore, a subsequent law inconsistent with the Constitul!on would f>rO tnto repeal the " Constitution ;

Seeondly-(2) A constitution largely or generally uncontrolled may contain one or more provisions which prescribe a different procedure for amending them than is prescribed for amending an ordinary law, in which case an ordinary law cannot amend them and the procedure must be strictly followed if the amendment is to be effected ;

!hird~(3) Implications oc limitation of power ought not be imported from grneral co11cepts but only from express or necessarily implied limitations (i.e. implied limitation without which a constitution cannot be worked) ; and

Fourtlily-(4) The British Parliament in granting the colonial legislatures power of legislation as far back as 1865-s. 2~&efuscd to put limitations of vague character, like general principles of. law, but limited those limitations to objective standards like

statutes and provisions of any Act of. Parliament or order or regulation made under the Aro of. Parliament.• lt-!6S.C.1Ddl1/73

158 SUPREME Cl)URT REP01'.TS (1973] :Sup)?. $, C.R.

I agree that the first and the second propositions are deducible from McCawley's case but I am unable_ to agree with the learned counsel that the third proposition enunciated by him emerges from the case.

The only implied limitation which was urged by the learned counsel for the respondents was that the Queensland legislature should first .directly amend the Constitution and then pass an act which would <Jtherwise have been inconsistent if the constitution had not been amen- , ded. It appears from the judgment of Isaac, J., and the Board that two South Australia Judges had earlier held that the legislation must be

"with the object of altering the constitution of the legislature". Lord :Selborne, when Sir Roundell Palmer, and Sir Robert Collier expressed dissent from their view and recommended the enactment of a statute like the Colonial Laws Validity Act, 1865.

The fourth proposition states a fact. The fact that British Parliament in 1865 refused to put so ailed vague limitations does not assist us in deciding whether there cannot be implied limitations on the .amending power under Art. 368.

I shall examine a little later more cases in which limitations on lawmaking power have been implied both in Australia, U.S.A., and in Canada. McCawley's case is authority only for the proposition that if the constitution is uncontrolled then it is not necessary for the .legislature to pass an act labelling it as an amendment of the constitution; it can amend the constitution like any other act.

Attorney-General for New South Wales v. Trethowan(') was concerned really with the interpretation of s. 5 of the Colonial Laws Validity Act, 1865, and its impact on the powers of the legislature of the New

South Wales. The Constitution Act, 1902, as amended in 1929, had inserted s. 7 A, the relevant part of which reads as follows :

"7A.-(1) The Legislative Council shall not be abolished nor, subject to the provisions of sub-s. 6 of this section, shall its constitution or powers be altered except in the manner provided in this section. (2) A Bill for any purpose within sub-s. 1 of his section shall not be presented to the Governor for His Majesty's assent until the Bill has been approved by the electors in accordance with this section. (5) If a majority of the electors voting approve the Bill, it shall be presented to the Governor for His Majesty's assent.

(6) The provisions of this section shall extend to any Bill for the repeal or amendment of this section, but shall not apply to any Bill for the repeal or amendment of any of the.following sections of this Act, namely, ss. 13, 14, 15, 18, 19, 20, 21 and 22."

( 1 ) [1932] A.C. 526.

XESAVANA!ltlA fl, Kl!MLA (Sikri, C.J.) 159

Towards the end of 1930 two bills passed by both Housca of the New South Wales lcgis1ature. The first Bill enacted that s. 7A

above referred to was repealed, and the second Bill enacted by clause 2, sub-s. I. "The Legislative Council of New South Wales is abolished."

The contentions advanced before the Judicial Committee were :

"The appellants urge: (1) That the King, with the advice and consent of the Legislative Council and the Legislative Assembly, had full power to enact a Bill repealing s. 7 A.

(2) That sub-s. 6 of s. 7 A of the Constitution Act is void, because :

(a) The New South Wales Legislature has no power to shaclcle or control its successors, the New South Wales constitution being in substance an uncontrolled "cons4tution"; (b) It is repugnant to s. 4 of the Constitution Statute of 1855 ; (c) It is repugnant to s. 5 of the Colonial Laws Validity Act, 1865.

For the respondents it was contended: (1) That s. 7A was a valid amendment of the constitution of New South Wales, validly enacted in the manner prescribed, and \\'.as legally binding in New South Wales.

(2) That the legislature of New South Wales was given by Imperial statutes plenary power to alter the constitution, powers and procedure of such legislature.

(3) That when once the legislature had altered either the constinition or powers and procedure, then the constitution and powers and procedure as they previously existed ceased to exist, and were replaced by the new constitution and powers.

( 4) That the only possible limitations of this plenary power were : (a) it must be exercised according to the manner and form prescribed by any Imperial or colonial law, and (b) the legislature muat continue a representative legislature according to the definition of the Colonial Laws Validity Act, 1865.

(5) That the addition of s. 1A to the Constitution had the ' effect of : , (a) making the legislative .body consist thereafrer of the King, the Legislative Council, the. Assembly and the people for the purpose of the constitutional enactments. therein described, ox (b) imposing i manner and form of legislation in reference to

:these cbnstitutional enactments ·:which 'thereafter became binding on the legislature by virtue of the colorilal Laws Validity Act, 1865, until. repealed in the manner and mode .prescribed.

('6) lfhat the pawer of alttring the constitution conferred by 1, 4 of the Constitution Stattrt:e; 1855, unmt be read subject to the

f60 SUPREME COUIT REPORTS [1973] Supp. s.c.R.

Colonial Laws Validity Act, 1865, and that in particular the limitation as to manner and form prescribed by the 1865 Act must be governed by subsequent amendments to the constitution, whether purporting to be made in the earlier Act or not." (p. 537).

The I udicial Committee considered the meaning and effect of s. 5 of the Act of 1865, read in conjunction with s. 4 of the Constitution Statute. It is necessary to bear in mind the relevant part of s. 5 which reads as follows :

"Section 5. Every colonial legislature. . . . . . and every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers, and procedure of such legislature ; provided that such laws shall have been passed in such manner and form as may from time to , time be required by any Act of Parliament, letters patent, Order in Council, or colonial law, for the time being in force in the said colony."

Tbe Judicial Committee interpreted sec. 5 as follows :

"Reading the section as a whole, it gives to the legislatures of New South Wales certain powers, subject to this, that in respect of certain laws they can only become effectual provided they have been passed in such manner and form as may from time to time be required by any Act still on the statute book. Beyond that, the words "maimer and form" arc amply wide enough to cover an enactment providing that a Bill is to be submitted to the electors and , that unless and until a majority of the electors voting approve the Bill it shall not be presented to the Governor for His Majesty's assent"

The Judicial Committee first raised the qucstio~ : "could that Bill, a repealing Bill, after its passage through both chambers, be lawfully 'presented for the Royal assent without having first received the approval of the clcctors in the prescribed manner I", and answered it thus :

"In their Lordships' opinion, the Bill could not lawfully be so presented. The proviso in , the second sentence of s. 5 of the Act of 1865 states a condition which must be fulfilled before the legislature can validly exercise its power to make the kind of. laws which arc referred to in that sentence. In order that s. 7 A may be repealed (in other words, in order that that particular law

"respecting the constitution, powers and procedure" of the legislature may be validly made) the law for that purpose most have been passed in the manner required by s. 7 A, a colonial law for the rime being in force in New Sooth Wales."

KESAVANANDA ti. DMLA (Sikri, C.J.) 161

This case has no direct relevance to any of the points raised before us. There is no doubt that in the case before us, the impugned constitutional amendments have been passed according to the form and man- 11cr prescribed by art. 368 of our Constitution. It is, however, noteworthy that in contention No. (4), mentioned above, it was urged that notwithstanding the plenary powers conferred on the Legislature a possible limitation was th•t the legislature must continue a representative legislature according to th~ definition of the Colonial Laws Validity Act 1865. This is another illustr, ation . of a limitation implied on amending power.

I may also refer to some of the ins.tances of implied limitations which have been judicially accepted in the United States; It would suffice if I refer to Cooley on Constitutional Limitations and Constitution of the United States of America edited by Corwin (1952).

After mentioning express limitations, imposed by the Constitution upon the Federal power to tax, Cooley on 'Constitutional Limitations' (page 989) states :

" ...... but there are some others which are implied, and whicla under the complex system of American government have the effect to exempt some subjects otherwise taxable from the scope and reach, according to circumstances, of either the Feclcral power to tax or the power of the several States. One 'of the implied limitations is that which precludes the States from taxing the agencies whereby the general government performs its functions. The reason_ is that, if they possessed this authority, it would be within their power to impose taxation to an extent that might cripple, if not wholly defeat, the operations of the national authority within its proper and constitutional sphere of action."

Then he cites the passage from the Chief Justice Marshall in McC111/ock v. Maryland.(')

In "Constitution by the United States of America" by Corwin (1952)-page 728-729 it is stated :

"Five years after the decision in McCullock v. Maryland that a State may not tax an instrumentality of the Federal Government, the Court was asked tQ and did re-examine the entire question in Osborn v. Bank of the United States. In that case counsel for the State of Ohio, whose attempt to tax the Bank was challenged, put forward the arguments of great importance.

In the first place it was "contended, that, admitting Congress to possess the

 ( 1) 4 L. ed. 579; 607.

162 SUPREME COUU REPOR1S [ 1973} Supp. S.C.L

power, this exemption ought to have been expressly assented in the act of incorporation ; and not being expressed, ought not to be implied by the Court." To which Marshall replied that: "It is no unusual thing for an act of Congress to imply, without expressing, this very exemption from state control, which is said to be so objectionable in this instance.

Secondly the appellants relied greatly on the distinction between the bank and the public institutions, such as the mint or the post-office. The agents in those olliccs arc, it is said, officers of Government, • • • Not so the directors of the bank,. The connection of the government with the bank, is likened to that with contractors." Marshall accepted thiJ analogy, but not to the advantage of the appellants. He simply indicated that all contractors who dealt with the Government wercr entitled to immunity from taxation upon such transactions. Thill not only was the decision of McCullock v. Mary/anti reaffirmed but the foundation was laid for the vast expansion of the principle of immunity that was to follow in the succeeding decades."

We need not examine the exact extent of the doctrine at the present day in the United States because the only purpose in citing these instances is to refute the argument of the respondents that there can- JIOt be anything like implied limitations.

The position is given at p. 731, as it existed in 1952, when the book was written. Corwin sums up the position broadly at p. 736 :

"Broadly speaking, the immunity which remains is limited to activities of the Government itself, and to that which is explicitly created by statute, e.g. that granted to federal securities and to fiscal institutions chartered by Congress. But the term, activities, will be broadly construed."

Regarding the taxation of States, Cooley says at pp. 'R5-'RJ :

"If the States cannot tax the means by which the national government performs its functions, neither, on the other hand and for the same reasons, can the latter tax the agencies of the State governments. "The same supreme power which established the departments of the general government determined that the local governments should also exist for their own purposes, and made it impossible to protect the people in their common interest without them.

Each of these several agencies is confined to its own sphere, and all are strictly S11bdrdinate to the constitution which limits them;· .and independent of other agencies, except as thereby made dcpenqcnt.

There is nothing in the Conuitution of the United States which can be made to admit of any interference by Congress with the secure existence of any State authority within its la'wful baunds.

USAVANANDA V. IO!llAI.A (Si/(.ri, C.J.) 163

And any such interference by the indirect means of taxation is quite as much beyond the power of the national legislature as i£ the intederence were direct and extreme. It has, therefore, been held that the law of Congress requiring judicial process to be

stamped could not constitutionally be applied to the process of the State courts.; since otherwise Congrm might impose such restrictions upon the State courts as would put and end to their effective action, and be equivalent practically to abolishing them altogether. And a simiiar ruling has been made in other analogous

cases. But "the txmption of State agencies and instrumentalities from national taxation is limited to those which arc of a strictly governmental character, and does not extend to those which are used by the State in the carrying on of an ordinary private business." "

I may mention that what has been implied in the United , States i~ the subject-matter of express provisions under our Constitution (see

arts. 285, 287, 288 and 289).

It was urged before us that none of these cases dealt with implied limitations on the amending power.

It seems to me that four cases are directly in point.

I have referred already to :

1. The Bribery Commissioner v. Pedrick Ranasinghe(')

2. Mangal Singh v. Union of lndia(2)

3. Taylor v. The Attorney-General of Queensland(') and I will be discussing shortly In re The Initiative and Referendum Act(').

What is the necessary imprication from all the provisions of the Constitution ?

It seems fo me that reading the Preamble, the fundamental importance of the freedom of the individual, indeed its inalienability, and the importance of the economic, social .and political justice mentioned in the Preamble, the importance of directive principles, the non-inclusion in art. 368 of provisions like arts. 52, 53 and various other provisions to which reference has already been made an irresistible conclusion emerges that it was not the intention to use the word

"amendment" in the widest sense.

( 1) [1965] Af:.. 172.


(') 23 C.L.R. 457. (') (1919) Af:.. 935.

} 64 SUPUMK COUJ.T llPOITS ( 1973) Supp. 0S.C.L

 It was the common understanding that fundamental rights would remain in substance as they are and they would not be amended ?'1t of existence.

It seems also to have been a common understanmg that the fundamental features of the Constitution, namely, sccul~1s'!1, democracy and the freedom of the individual would always subsist m the welfare state.

In view of the above reasons, a necessary implication arises that there arc implied limitations on the power of Parliament that the expression "amendment of this Constitution" has consequently a limited meaning in oiir Constitution and not the meaning suggested by the respondents.

This conclusion is reinforced if I consider the consequences of the contentions of both sides.

The respondents. who appeal fervently to democratic principles, urge that there is Iio limit to the' powers of Parliament to amend the Constitution.

Art. 368 .can itself .be amended to make the Constitution completely flexible or extremely rigid and unamendablc.

If this is so, a political party with a tw<>-third majority in Parliament for a few years coula so amend the Constitution as to debar any other party from functioning, establish totalitarianism, enslave the people, and after having effected these purposes make the Constitution unamendable or extremely rigid.

This would no doubt invite extra-constitutional revolution.

Therefore, the appeal by the respondents to democratic princip!Cs and the necessity of having absi> lute amending power to prevent a revolution to buttress their contention is rather fruitless, because if their contention is accepted the very democratic principles, which they appeal to, would disappear and a revolution would also become a possibility.

However, if the mening I have suggested is accepted a sociaL and economic revolution can gradually take place while preserving the freedom and dignity of every citizen.

For the aforesaid reasons, I am driven to the conclusion tl1at the expression "amendment of this Constitution" in art. 368 means any addition or change in any of the provisions of the Constitiution within the broad contours of the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive Principles.

Applied to fundamental rights, 'it would mean that. while fundamental rights

cannot be abrogated reasonable abridgements of fundamental rights can be effected in the public interest.

It is of course for Parliiament to decide whether. an ent is •ecessary.

The Courts will not be concerned with wls!1om. of the amendment.

ltESAVANANDA "· KllALA (Sikri, C.J.) 165

H this meaning is g1vcn it would enable Parliament to adjust fundamental rights in order to secure what the Directive Principles direct to be accomplished, while maintaining the freedom and dignity d every citizen.

It is urged by Mr. Seervai that we would be laying down a very unsatisfactorv test which it would be diflicult for the Parliament to comprehcnci' and follow.

He said that the constitution-makers had <liscarded the concept of "due process" in order to have something certain, and they substituted tho words "by authority of law" in art. 21.

I am unable to sec what bearing the dropping of the words "due process" has on this question.

The Constitution itsel:f has used words' like "reasonable restrictions" in art. 19 which do not bear an ex;;// meaning, and which cannot be defined with precision to fin in all cases that may come before the courts; it would depend upon the facts of each case whether the restrictions imposed by the Legislature arc reasonable or not. Further, as Lord Reid observed in Ridge v.

Baldwin(') :

"In modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless.

But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. The idea of negligence is equally insusceptible of exact definition, but what a reasonable man would regard as fair procedure in particular circumstances and what he would regai-d as negligence in particular circumstances are equally capable of serving as tests in law, and natural justice as it has been interpreted in the courts is much more definite than that."

(emphasis supplied).

It seems to. me that the concept of amendment within the contours d the Preamble and the Constitution cannot be said to be a vague and unsatisfactory idea which Parliamentarians and the public would not be able to understand.

The learned Attorney-General said that every provision of the Constitution is essentiah; otherwise it would not have. been put in the Constitution.

This is true.

But this docs not place every provision d the Constitution in the same position.

The true position is mat every provision of the Constitution can be amended provided in die result the basic foundation and structure of the constitution remains the same. The basic structure may be said to consist of the following features : - .

{l) Supremacy of. the Constitution;

(2) Republican and Democratic form of Government.

{ 1) (1964] A.C. 40; ~.

166 SUPliME COURT liPORTS [ 1973 j Supp, S.C.R.

(3) Secular character of the Constitution;

( 4) Separation of powers between the Legislature, the executive and the judiciary;

(5) Federal character of the Constitution.

The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual.

This is of supreme importance. This cannot by any form of amendment be destroyed.

The above foundation and the above basic features are easily di$- cernible not only from the preamble but the whole scheme of the Constitution, which I have already discussed.

In connection with the question of abrogation of fundamental rights, Mr. Seervai boldl'y asserted .that there was no such thing as natural or ina!'ienable right$ because the scheme of Part III itself shows that non-citizens have not been given all the fundamental freedoms; for example, art. 19 speaks of only citizens. He says that if there were natural rights, why is it that they were not conferred on non-citizens.

The answer seems to be that they arc natural rights but our country does not think it expedient to confer these fundamental rights, mentioned in art. 19, on non-citizons.

Other rights have been conferred on non-citizens because the constitution-makers thought that it would not be detrimental to the interests of the country to do so.

He then said that even as far as citizens arc concerned, there is power to modify those rights under art. 33 of the Constitution, which enables Parliament to modify rights in their application to the Armed Forces.

This power has been reserved in order to maintain discipline among the armed forces, which is essential for the security of the country.

But it does not mean that the rights cease to be natural or human rights.

He then said that similarly art. 34 restricts fundamental rights while martial law is in force in any area.

This again is a case where the security of the country is the main consideration.

Citizens have to undergo many restrictions in the interest of the country.

He then pointed out arts. 358 and 359 where certain rights arc suspended during Emergency.

These provisions are again based on the security of the country.

He also relied on the words "rights conferred" in art. 13(2) and "enforcement of any right< conferred by this Part" to show that they were not natural or inalienable and could not have been claimed by them.

There is no question of the sovereign people claiming them from an outside agency.

The people acting through the Constituent

µs.\VA!fANllA fl, EDAf.\ (Siri,. C.J.) 167

Assembliy desired that the rights mentioned in Part III sha~ be guar; anteed and therefore Part III was enacted. In the context conferred docs not man that sme superior power had gran_ted the~ right~. I~

is very much like a King bestowing the title of 'His Iropcnal Ma1esty on himself.

I am unable to hold that these provisions show that some rights are not natural or inalienable rights. As a matter of fact, India was a party to the Universal Declaration of Rights which I have already referred to and that Dedaration describes some fundamenal rights as inalienable. ·

Various decisions of this Court describe fundamental rights as 'natural rights' or 'human rights'.

Some of these decisions arc extracted belpw.

"There can be no doubt that the people of India have in exercise of their sovereign will as expressed in the Preamble, adopted the democratic ideal, which assures to the citizen the dignity of the individual and other cherished human values as a means to the full evolution and expression of his personality, and in delegating to the legislature, the executive and the judiciary their respective powers in the Constitution, reserved to themselves certain fundamental rights so-ca/Jed, I apprehend, because they have been retained by the people and made paramount to the delegated powers, as in the American Model." (Per Patanjali Sastri, J., in Gopalan

v. State of Madras(')) (emphasis supplied).

(ii) "That rticle (Article 19) enumerates certain freedoms under the caption "right to freedom" and deals with those great and basic rights which are recognised and guaranteed as the natural rights inherent m the status of a citizen of a free country." (Per Patanjali Sastri, C. J., in State of West Bengal v. Subodh Gopal Bose(2)) (emphasis spplied).

"I have no doubt that the framers of our Constitution drew the same distinction and classed the natural right or capacity of a citizn 'to acquire, hold and dispose of property' with other natural rights and freedoms inherent in the status of a free citizen. and cmOO?ied them in article 19(1) ........ (ibid, p. 597)" (emphasis

supplied).

( 1) [1950] S.C.R. 88; 198-199.

( 2) [1954] S.C.R. 587; 596.

168 SUPllMF. couitT REPORTS [ 1973] Supp. s.c.R.

"For all these reasons, I am of opinion that under the scheme of the Constitut'ion, all those br<>ad and basic freedams inherent in the stat#! of a citizen as a free man are embodied and protected from invasion by the State under clause (1) of article 19 ......... "

(ibid p. 600) (emphasis supplied).

(iii) "The people, however, regard certain rights as paramount, because they embrace liberty of action to the individual in matters of private life, social intercourse and share m the Government of the country and other spheres.

The people who vested the three limbs of Government with their power and authority, at the same time kept back these rights of citizens and also sometime1 of non-

. citizens, and made them inviolable except under certain conditions.

The rights thus kept back are placed in Part III of the Constitution, which is headed 'Fundamental Rights', and the conditions under which these rights can be abridged are also indicated in that Part." (Per Hidayatullah J., in Ujjambai v. State of U. P.(')) .(emphasi.! supplied).

The High Court of Allahabad sas described them as follows :

-(iv) " ........ man ha,, certain natural or inalienable rights and that it is the function of the State, in order that human liberty might be preserved and human personality developed, to give recognition and free play to those rights .......... "

"Suffice it to say that they represent a trend in the democratic thought of our age." (Motilal v. State of VJ'.(')) (emphasis supplied).

Mr. Seervai relied on the observations of S. K. Das, J., in Basheshar Nath v. CJ.T(') :

"I am of the view that the doctrine of 'natural rights' affords nothing but a foundation of shifting sand for building up a thesis that the doctrine of waiver does not apply to the rights guaranteed in Part III of our Constitution."

I must point out that the learned Judge was expressing the minority opinion that there could be a waiver of fundamental rights in certain circumstances. Das, C.J., and Kapur, J., held that there could be no waiver of fundamental rights founded on art. 14 of the Constitution, while Bhagwati and Subba Rao, JJ. held that there could be no waiver not only of fungamental rights enshrined in art. 14 but also of any other fundamental rights guaranteed by Part III of the Constitution.

(') (1963] I S.C.R. 778; 926-7.

( 2) J.L.R. [1951] I All. 269; 387-8. (') [1959] Supp. (!) S.C.R. 528; 605.

ltllSAVANANDA I/, lillALA (Sikri, C.J.) 169

Article 14 has been described variously as follows :

{l) "as the basic principle of republicanism" (per Patanjali Sastri

C. J. in State of West Bengal v. Anwar Ali Sarlf..!Ir(') )

(2) "as a principle of republicanism" (per Mahajan, J., Ibid. p. 313)

(3) "as founded on a sound public policy recognised and' valued in all civilized States" (per Das C. J., : Basheshar Nath v.

C. I. T.('))

( 4) "as a necessary corollary to the high concept of the rule of law"

(per Subba Rao, C.J., in S11twant Singh v. Passport Officer('))

(5) "as a vital principle of republicat' institutions" (American

, Jurisprudence, Vol. 16, 2d. p. 731, art. 391)

How would this test be operative vis-a-vis the constitutional amendments made hithertp ? It seems to me that the amendments . made by the Constitution (First Amendment) Act, 1951, in arts. 15 and 19, and insertion of art. 31A (apart from the question whether there was delegation of the power to amend the Constitution, and apart from the question as to abrogation), and the amendment made by the Constitution (Fourth Amendment) Act in art. 31(2), would be within the amending power of Parliament under art. 368.

Reference may be made to Mohd. Maqbool Damnoo v. State of /ammu and Kashmir(') where this Court repelled the argument of the learned counsel that the amendments made to ss. 26 and 27 of the Constitution of Jammu and Kashmir were bad because they destroyed the structure of the Constitution.

The arguments of the learned counsel was that fundamentals of the Jammu and Kashmir State Constitution had been destroyed.

This argument was refuted in the following words :

"But the passage cited by him can hardly be av>; iled. of by im for the reason that the amendment impugned by him, m the hght of what we have aheady •lated about the nature of the explanation to Article 370 of our Constitution, dnes not bring about any alteration either in the framework or the fundamentals of .the Ju and Kashmir Constitution. The State Governor s.ttll OOl_lnues to be the head of the Government aided by a council of mm1sters

(') [1952] S.C.R. 284, 293.

(') [1959] S11pp. (I) s.c.R. 528, 551. (') [1967] 3 S.c.R. 525; 542. (') [1972];1 s.c.c. 536; 546.

170 SUPREME COUJ.T llEPO!l'R [1973] Supp. S.C.lt.

and the only change affected is in his designation and the mode of his appointment.

Ir is not as if the State Government, by such a change, is made irresponsible to the State Legislature, or its fundamental character as a responsible Government is altered.

Just as a change in the designation of the head of that Government was earlier brought about by the introduction of the office of Sadar-i-

Riyasat, so too a change had been brought about in his designa, tion from that of Sadar-i-Riyasat to the Governor. That was necessitated by reason of the Governor having been substituted in place of Sadar-i-Riyasat.

There is no question of such a change being -0ne in the character of that Government from a democratic to a non-democratic system."

' Before parting with this topic I may deal with some other arguments addressed to us. Mr. Seervai devoted a considerable time in expounding principles of construction of statutes, including the Constitution. I do not think it is necessary to review the decisions relating to the principles of interpretation of legislative entries in art. 245 and art. 246 of the Constitution. The Federal Court and this Court in this connection have followed the principles enunciated by the Judicial Committee in interpreting ss. 91 and 92 of the Canadian Constitu- .tion. I have no quarrel with these propositions but I am unable to see that these propositions have any bearing on the interpretation of art. 368. The fact that legislative entries are given wide interpretation has no relevance to the interpretation of art. 368. The second set of""ases referred to deal with the question whether it is legitimate to consider consequences of a particular construction.

He referred to Vacher & Sons v. London Society of Compositors('). This decision does not support him in the proposition that consequences of a particular construction cannot be considered, for Lord Machaghten observed at p. 117 :

"Now it is "the universal rule," as Lord Nensleydale observed in Grey v. Pearson(') that in construing statutes, as in construing all other written instruments "the grammatical and crdinary" sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further."

Then he observed at p. 118 :

"In the absence of a preamble there can, I think, be only tw( cases in which it is permissible to depart from the ordinary an(

( 1 ) [1913] A.C. 107; 117-118.

( 2) [1857] 6 H.L.C. 61; 106.

UMVANANllA f>'. l.'llAU (Sikti, C.J.) 171

natural sense of the words of an enactment. It must be shown either that the words taken in their natural sense lead to som~

absurdity or that there is some other clause in the body of the Acr inconsistent with, or repugnant to, the enactment in question construed in the ordinary sense of the language in which it is

expressed."

Lord Atkinson observed at pp. 121-122 : "It is no doubt well established that, in construing the words of a statute susceptible of more than one meaning, it is legitimate to consider the consequences which would result from any particular construction for, as there are many things which the Legislaturr

is presumed not to have intended to bring about, a construction which would not lead to any one of these things should be prrferred to one which would lead to one or more of them. But, as Lord Halsbury laid down in Cooke v. Charles A. Vog6ler

Co.('), a Court of Law has nothing to do with the reasonableness or unreaisonablencss of a provision of a statute, except so far as it may help it in interpreting what the Legislature has said. 'If the language of a statute be plain, admitting of only one meaning, the Legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced cl:iough it should lead to absurd or mischievous results. If the language of this sub-section be not controlled by some of the other provisions of the statute, it must,

since it.S language is plain and unambiguous, be enforced, and your Lordship's House sitting judicially is not concerned with the question whether the policy it embodies is wise or unwise, or whether it leads to consequences just or unjust, beneficial or mischievous."

The next case referred to is Banf of Toronto v.Lambe(2 ), but this .case is explained in Attorney-General for Alberta v. Attorney-General for Canada('). The Judicial Committee first observed :

"It was rightly contended on behalf of the appellant that the

Supreme Court and the Board have no concern w; th the wisdom , of the Legislature whose Bill is attacked ; and it was urged that it would be a dangerous precedent to allow the views of members of the Court as to the serious consequences of excessive taxation on banks to lead to a conclusion that the Bill is ultra vires. Their Lordships do not agree that this argument should prevail in a GS'C where the taxation in a practical business sense is prohibitive.~

( 1) [1901] A.C. 102 at p. 107.

( 2) fl887] 12 A.C. 575; 586.

(') [1939] A.C. 117; 132; 133.

172 SUPREME COURT REPORTS [1973] -Supp. s.c.R.

Then their Lordships made the following observations on the decision of the Judicial Committee in Bank of Toronto v. Lambe(') :

"That case seems to have occasioned a difficulty in the minds of some of the learned Judges in the Supreme Court. It must, however, be borne in mind that the Quebec Act in that case was attacked on two specific grounds, first, that the tax was not "taxa tion with the Province," and secondly, that the tax was not a "direct tax." It was never suggested, and there seems to have been no ground for suggesting, that the Act was by its effect calculated to encroach upon the classes of matters exclusively within the Dominion powers. Nor, on the other hand, was there any contention, however faint or tentative, that the purpose of the Act was anything other than the legitimate one of raising a revcnu~

for Provincial needs. . . It was never laid down by the Board that if such a use was attempted to be made of the Provincial power as materially to intcrlcre with the Dominion power, the action of the province wouW be intra vires."

This case further shows that serious consequences can be taken into consideration.

I agree with the observations of Lord Eshcr in Queen v. fudge of City of London Court,(') cited by him. These observations are:

"If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has oothing to do with the question whether the legislature has committed an absurdity. In my opinion the rule has always been this-if the words or an Act admit of two interpretations, then they arc nor clear; and if one interpretation leads to an absurdity, and the other does not, the Court will conclude that the legislature did net intend. to lead to an absurdity, and will adopt the other interpretation."

He then relied on the observations of Lord Greene, M.R.. in Grundt v. Great Boulder Proprietary Mines Ltd.(') :

'There is one rule, I think, which is very clear-and this brings me back to where I srartcd, the doctrine of absurdity-that although the absurdity or the non-absurdity oE one eonclusio? as compared with another may be of assistance, and V":f often 1~ of assistance, to the court in choosing between two possible n; igs of ambiguous words, it is a doctrine which has to be applied with

( 1) [1887] 12 A.C. 575; 586.

(') [1892] 1 Q.B. 273-290.

( 1) [1948] 1 Ch. HS; 159.

KESAVANANDA V. KERALA (Sikri, C.J.) 173

great care, remembering that judges may be fallible in this question of an absurdity, and in any event must not be applied so as to result in twisting language into a meaning which it cannot bear ; it is a doctrine which must not be relied upon and must not be used to re-write the language in a way different from that in which it was originally framed."

Earlier, he had. said at p. 158 :

" "Absurdity" I cannot help thinking, like public policy, is a very unruly horse ... "

As I read Lord Greene, what he meant to say was that "absurdity" was an unruly horse, but it can be of assistance, and very often is of assistance, in choosing between two possible meanings of ; ambiguous words, and this is exactly the use which this Court is entitled to make of the consequences which I have already mentioned.

Mr. Seervai referred to State of Punjab v. Ajaib Singh('). Das, J., observed:

"We are in agreement with learned counsel to this extent only that if the language of the article is plain and unambiguous and admits of only one meaning then the duty of the court is to adopt that meaning irrespective of the inconvenience that such a construction may produce. If however two constructions are possible, then the court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience

or make well established yr0visions of existing law nugatory."

He also referred to the £ofiowing passage in Collector of Customs, Baroda v. Digvijaysinghi Spinning & Weaving Mills Ltd.(') :

"It is one of the well established rules of construction that "if the words of a statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature." It is eqally well sct_tled

principle of construction that "Where altt\fnattve constructtons are equally open that alternative is to be chosen wh!ch .will be consistent with the smooth working of the system which the statute purports to be regulating ; and that alternative is to be rejected which will introduce uncertainty." ·

( 1 ) (1953] S.C.R. 254, 264.


-~

174 SOPRJ!ME COURT REPORTS [1973] Supp. s.c.R.

What he urged before us, relying on the last two cases just referred to, was that if \Ve construed the y.,.•ord "amendmt:nt'' in its narrow sense, then there would be uncertainty, friction and confusion in the working of the system, and we should therefore avoid the narrow sense.

If Parliament has power to pass the impugned amendment acts .• there is no doubt that I have no nght to question the wisdom of the policy of Perliament. But if the net result of my interpretation is to prevent Parliament from abrogating the fundamental rights, and the basic features outlined above, I am unable to appreciate that any uncertainty, friction or confusion will nesessarily result.

He also drew our attention to the following observations of Hegde, J. in Budhan Singh v. Nabi Bux(') :

"Before considering the meaning of the word "held'', it is necessary to mention that it is proper to assume that the law-makers who are the representatives of the people enact laws which the society considers as honest, fair and equitable. The object of every legislation is to advance public welfare. In other words, as observed by Crawford in his book on Statutory Construction the entire legislative process is influenced by considerations of justice and reason.

Justice and reasorr constitute the great general legislative intent in every piece of legislation. Consequently where the suggested construction operates harshly, ridiculously or in any other manner contrary to prevailing conceptions of justice and reason, in most instances, it would seem that the apparent or suggested meaning of the statute, was not the one intended by the law-makers. Jn the absence of some other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe that it represents the legislative intent."

I am unable to appreciate how these observations assist the respondents. If anything, these observations are against them for when I come to the question of interpretation of the 25th amendment I may well approach the interpretation keeping those observations in mind.

Both Mr. Seervai and the learned Attorney General have strongly relied on the decisions of the United States Supreme Court, Federal Courts and the State Courts on the interpretat; on of Article V of the Constitution of the Unite<l States and some State Constitution. Mr. Pal khiwala, on the other hand, relied on some State decisions in support of his submission~.


KESAVANANDA V. KERALA (Sikri, C.J.) 175

Artide V of the Constitution of the United States differs greatly from Art. 368 of our Constitution For facilitv of reference Article V is reproduced below : ·

"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 several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intients 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 oru: or the other mode of ratification may be proposed by the Congress; Provided that no amendment which may be mado prio~ 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."

It will be noticed that Article V provides for two steps ro be taken for amending the Constitution. The first step is proposal of an amendment and the second step is ratification of the proposal. The proposal can be made either by two thirds of both Houses of Congress or by a convention called by the Congress on the application of the legislatures of two thirds of several States.

Congress determines which body shall ratify the proposal. It can either be the legislaturns of three fourths of the States or by conventions in three fourth of the States.

If a proposal is made by a Convention and ratified by three fourth of the States. in conventions it can hardly be doubted that it is amendment made by the people. Similarly if a proposa~ 'is made by the Congress and ratified by conventions there cannot be any doubt that it is the people who have amended the Constitution. Proposal by Congress and ratification by three fourth legislatures of the States can in this context be equated with action of the people. But what is important to bear in mind is that the Congress, a federal legislature, does not

itself amend the Constitution.

In India,. the position is different. It is Parliament, a federal legislature, wliich is given the power to amend the Constitution except in matters which are mentioned in the proviso. I may repeat that many important provisions including fundamental rights are not mentioned in the proviso. Can we say that an amendment made by Parliament is an amendment made by the people ? This is one of the matters that has to be borne in mind while considering the proper meaning to be given to the expression "amendment of ibis Constitution" in Art. 368 as it stood before its amendment by the 24th Amendment.

J 76 SUPREME COURT REPORTS (1973] Supp. S.C.R,

Article V of the U.S. Constitut'ion differs in one other respect from Art. 368, There are express limitations on amending power. The first, which has spent its force, was regardihg the first and fourth clauses in the ninth section of the first article and the second relates to depnvation of a State's suffrage in the Senate without its consent. Apart from the ahove broad differences in Art. V as compared to Art. 368, the Constitution of India 'is different in many respects which has a bearing on the extent of the power of Parliament to amend the Constitution. In brief they are : the background of the struggle for freedom, various national aspirations outlined <luting this struggle, the national objectives as recited in the Objectives Resolution dated January 22, 1947 and the Preamble, the complex structure of the Indian nation consisting as it does of various peoples with, different religions and languages and in different stages of economic development. Further the U.S. Constitution has no Directive Principles as has the Indian Constitution. The States in U.S. have their own Constitutions with the right to modify them consistently with the Federal Constitution. In India the States have no power to amend that part of the Indian Constitution which lays down their Constitution. They have legislative powers on certain specified subjects, the residuary power being with Parliament.

I may before referring to the decisions of the Supreme Court of the United States say that that court has hitherto not been confronted with •the question posed before us : Can Parliament in exercise of its powers under Art. 368 abrogate essential basic features and one fundamental right after another including freedom of speech, freedom of religion, freedom of life ? The American decisions would have been

of assistance if this fundamental question had arisen there and if the power to amend the Federal Constitution had beeri with two third majority of the Congress.

The question before the Court in Hawke v. Sminth(') was whether the States while ratifying proposals under Article V of the. Constitution were restricted to adopt the modes of ratification mentioned in Article V, i.e. by the legislatures or by conventions therein, as decided by Congress, or could they ratify a proposed amendment in accordance with the referendum provisions contained in .State n

stitutions or statutes.

The Court held that "the determination of the method of ratification is the exercise of a national power specifically granted bv Constitution" and "the language of the article is plain, and admits of no doubt in its interpretation.'' The Court also held that the power

( 1) 64 L. Ed. 871.

KESAVANANDA fl. KERALA (Sikri, C.J.) 177

was conferred on the Congress and was limited to two methods : by action of the legislatures of three fourths of the states, or conventions in a like number of states.

The Court further held that the power to ratify a proposed amendment to the Federal Constitution had its source in the Federal Constitution and the act of ratification by the state derived its authority from the Federal Constitution to which the state and its people had alike assented.

This case is of no assistance to us in interpreting art. 368 of the Constitution.

I may now refer to decision of the Supreme Court Rhode Island

v. Palmer('). This case was concerned with the validity of the 18th Amendment and of certain general features of the National Prohibition Law known as Volstead Act. No reasons were given by the Court for the conclusions arrived at. The conclusions which may have some relevance for us are conclusion 4 and 5. The learned counsel sought to deduce the reasons for these conclusions from the arguments addressed and reported in 64 L. Ed. and for the reasons given by the learned Judge in 264 Fed. Rep. 186 but impliedly rejected by the

- Supreme Court by reversing the decision.

Counsel sought to buttress this argument by citing views of learned Ameriqn authors that the arguments against the validity of the 18th Amendment were brushed aside although no reasons are given.

I have great respect for the judges of the Supreme Court of United States, but unless the reasons are given for a judgment it is difficult to be confident about the ratio of the decision. Apart from the decision, I would be willing to hold the 18th Amendment valid if it had , been enacted by our Parliament and added to our Constitution, for I

would iscern no such taking away of Fundamental rights or altering the baSic structure of the Constitution as would place it outside the contours of the Preamble and the basic features of the Constitution.

United States of America v. William H. Sorague(') was concerned with the validity of the 18th Amendment. The District Court had held(') that the 18th Amendment had not been properly ratified so as to become part of the Constitution. It was the contention of the respondents before the Supreme Court that notwithstanding the plain language of Article V, conferring upon the Congress the choice of

( 1 ) 64 L. Ed. 946.

( 2) (75) L. Ed. 640.

( 8) 44 F. (2d) 967.

178 SUPREME COURT REPORTS [1973) Supp. S.C.R.

method of ratification, as between action by legislatures and by conventions, this Amendment could only be ratified by the latter. The respondents urged that there was a difference in the kind of amendments, as, e.g. "mere changes in the character of federal means or machinery, on the one hand, and matters affecting the liberty of the citizen on the other." There was no question as to ambit of the power of amendment. In other words, there was no question that the subject-matter of amendment, namely, prohibition, fell within Article V of the Constitution. ·

The Court held that the choice of the mode rested solely in the discretion of the Congress. They observed :

"It was submitted as part of the original draft of the Constitiition to the people in conventions assembled. They deliberately made the grant of power to Congress in respect to the choice of the mode of ratification of amendments. Unless and until that Article be changed by amendment, Congress must n, mction as the delegated agent of the people in the choice of the method of ratification."

The Court further held that the 10th Amendment had no limited and special operation upon the people's delegation by Article V of certain functions to the Congress. ·

I am w1able to sec how this case helps the respondents in any manner. On the plain language of the article the Court came to the conclusiion that the choice of the method of ratification had been entrusted to the Congress. We are not concerned with any such quc.<- tion here.

fr. Seervai urged that the judgment of the Distict Court showed that the invalidity of the 18th Amendment to the Constitution could be rested en two groups of grounds ; group A consisted of grounds relating to the meaning of the word "amendment" and the impact of the 10th Amendment or the nature of the federal system on Art. V of the Constitution, and that Article V by providing the two alter, native methods of ratification by convention and legislature showed that the convention method was essential for valid ratification when the amendment affected the rights of the people. Group B consisted cf the grounds on which the District Court declared the 18th amend ment to be invalid and those were that "the substance of an amend ment, and therefore of course, of an entirely new Constitution, might have to conform •to the particular theories of political science, socio. logy, economics, etc. held by the current judicial branch of the Government."

KESAVANANDA v. KERALA (Sikri, C.J.) 179

He then pointed out that grounds mentioned in Group B, which were very much like Mr. Palkhiwala arguments, were not even urged by counsel in the Supreme Court, and, therefore we must regard these grounds as extremely unsound. I, however, do not find Mr. Palkhi. wala's arguments similar to those referred to in Group B. It is true articles like Marbury's "The Limitations upon the Amending Power, -33 Harvard Law Rev. 232'', and Mc Goveney's "ls the Eighteenth Amendment void because of its content ?" (20 Col. Law Rev. 499), were brought to our notice but for a different purpose. Indeed the District Judge criticised these writers for becoming enmeshed "in a consideration of the constitutionality of the substance of the amendment"-the point before us. As the District Judge pointed out, he was concerned with the subject-matter of the 18th Amendment because of the relation between that substance or subject-matter and the manner of its adoption. (p. %9).

I do not propose to decide the validity of the amendment on the touchstone of any particular theory of political science, sociology, economics. Our Constitution is capable of being worked by any party having faith in democratic institutions. The touchstone will be the intention of the Constitution makers, which we can discern from the constitution and the circumstances in which it was drafted and enacted.

A number of decisions of State Courts were referred to by both the petitioners and the respondents. But the State Constitutions are drafted in such different terms and conditions that it is difficult to derive any assistance in the task before us. Amendments of the Constitution are in effect invariably made by the people.

These decisions on the power to amend a Constit1.ftion are not very helpful because "almost without exception, amendment of a state constitution is effected, ultimately, by the vote of the people.

Proposed amendments ordinarily reach the people for approval or 'disapproval in one of two ways ; by submission from a convention of delegates chosen by the people for the express purpose of revising the entire instrument, or by submission from the legislature of propositions which the legislature has approved, for amendment of the constitution in specific respects.

However, in some states constitutignal amendments may be proposed by proceedings under initiative and referendum, and the requirements governing the passage of statutes by initiative and referendum are followed in making changes in the state constitutions." (American furispr1ulence, Vol. 16, 2d., p. 201).

In footnote 9 it is stated :

"Ratification or non-ratification of a constitutional amendment is

a vital element in the procedure to amend the constitution."

180 SUPREME COURT REPORTS [1973) Supp. S.C.R.

(Towns v. Suttles-208 Ga 838, 69 SE 2d 742).

The question whether the people may, by the terms of the constitution, delegate their power to amend to others-for example, to a constitutional convention-is one on which there is a notable lack, of authority.

An interesting question arises whether this power could be delegated to the legislature, and if so, .whether the instrument 'which the legislature would then be empowered to amend would still be a constitution in the proper sense of the term."

This footnote brings out the futility of referring to decisions to interpret a constitution. wherein power to amend has been delegated to Parliament.

That there is a distinction between the power of the people to amend a Constitution and the power of the legislature to amend the same was noticed by the Oregon Supreme Coun in Ex Parte Mrs. D.

C. Kerby('), one of the cases cited before us by the respondent.

McCourt, J. speaking for the Court distinguished the case of Eason

v. State in these words :

"Petitioner cites only one authority that has any tendency to support the contention that a provision in the bill of rights of a con stitution cannot be amended-the case of Eason v. State, supra.

Upon examination that case discloses that the Arkansas Constitution provided that the legi5lature might, by the observation of a prescribed procedure, amend the Constitution without submitting the proposed amendment to a vote of the people of the state, and the Bill of Rights in that Constitution contained a provision not found in the Oregon Constitution, as follows : "Everything in this article is excepted out of the general powers of government."

The court held that the clause quoted exempted the provisions in the Bill of Rights from the authority delegated to the legislature to amend the Constitution, and reserved the right to make any such amendment to the people themselves, so that the case is in fact an authority in support of the right of the people to adopt such an amendment.

The case is readily distinguished from the ins.tant case, for every proposed amendment to the Oregon Constitution, in .order to become effective, must be approved by a majority vote of the people, recorded at a state election, and consequently, when approved and adopted, such an amendment constitutes a direct CX pression of the will of the people in respect to the subject elri braced by the particular measure, whether the same be proposed by initiative petition or by legislative resolution."

( 1) 36, A.L.R. 1451; 1455.

KESAVANANDA ti. KERALA (Sikri, C.J.) 181

No report of the decision in Eason v. State is available to me but it appears from the annotation at page 1457 that it was conceded that a constitut; onal provis10n might bt repealed if done in the proper manner viz. by the people, who have the unqualified right to act in the matter. The Court is reported to have said :

"And this unqualified right they can constitutionally exercise by means of the legislative a-ction of the general assembly in providing by law for the call of a convention of the whole people to reconstruct or reform the government, either partially or entirely. And such convention, when assembled and invested with the entire sovereign power of the whole people (with the exception of such of these powers as have been delegated to the Federal government), may rightfully strike out or modify any principle declared in the Bili of Rights,' if not forhidden to do so by the Federal Constitution/'

Both sides referred to a number of distinguished and well-known authors. I do not find it advantageous to refer ro them because the Indian Constitution must be interpreted according to its own terms and in the background of our history and conditions. Citations of comments on the Indian Constitution would make this judgment cumbersome.

I have had the advantage of very elaborate and able arguments on both sides and. I must apply my own mind to the inteipretation.

The learned Attorney-General brought to our notice extracts from 71 Constitutions. I admire the research undertaken but I find it of no use to me in interpreting Art. 368. First the language and the setting of each Constitution is different.

Apart from the decisions of the Courts in United States there are no judicial decisions to guide us as to the meaning of the amending clauses in these constitutions.

Furher, if it is not helpful to argue from one Act of Parliament to another (see Commissionei of Stamps, Straits Settlements v. Oei Tjong Swan('))·

much less would it be helpful to argue from one Constitution to another different Constitution (see Bank of Toronto v. Lambe(')).

During the course of the arguments I had drawn the attention of the Counsel to the decision of the Supreme Court of Ireland in The State (at the prosecution of Jeremiah Ryan) v. Captain Michael Lennon and thers('), and the respondents place great reliance on it. I may

mntton that this case was not cited before the Bench hearing Golak

( 1) [1933] A.C. 378; 389.

( 2) [1887] 12 A.C. 575-787.

(1) [1935] lrUb Reports 170.

182 SUPREME COURT llEPOP.TS [1973] Supp. s.c.a . • Nlllh's case. On careful consideration of this case, however. I find that this case is disninguishable and does not afford guidance to me in interpreting art. 368 of the Constillltion.

In order to appreciate the difference between the st!ructure of art. .. 50 of the Irish Constitution of 1922 and Art. 368 of the Indian Constitution, it is necessary ro set out art. 50 before its amendment. It reads:

"50. Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas. but no such amendment, passed by both Houses of the Oireachtas. after the expiration of a period of eight years from the date of the coming into opration of this Constitution. shall become law. unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters on the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation, and as such shall be subject to the provisions of art. 47 hereof."

It will be noticed that afr the expiry of the period of eight years mentioned in the article, the amending power was not with the Oireachtas as every amendment had to be first passed by the two Houses ~

the Oireachtas and then submitted to a referendum of the people, and the condition of the referendum was that a majority of the votes on the register shall have recorded their votes on such referendum, and either the votes of a majority of the votes on the register, or two-t!.irds of the votes recorded shall have been cast in favour of such amendment. So, in fact, after the expiry of the firs~ eight yars, the amendments had to be made by the people themselves. In our art. 368 people as such are not associated at all in the amending process.

Further, the Irish Constitution differed from the Indian Constitution in other respects. It did not have a Chapter with the heading of fundamental rights, or a provision like our art. 32 which is guaranteed.

The words "fundamental rights" were deliberatcly omitted from the Irish Constitution (see foot note 9 page 67, The Irish Constitution by Barra O' Briain, 1929). At the same time, there was no question of any guarantee to any religious or other minorities in Ireland.

It will be further noticed that for the first eight years on an; endment could be made by way of ordinary legislation, i.e., by ordmary legislative proc; edure. The sixth amendment had deleted from the end

itE!A\IANANDA v. KEllALA (Sikri, C.J.) 183

of this article the words "and as such shall be subject to the provisions of Article 47 which provided for a referendum hereof. In other words, for the first eight years it was purely a flexible constitution, a constitutional amendment requiring no special procedure.

With these differences in mind, I may now approach the actual decision of the Supreme Court.

The High Court and the Supreme Court were concerned with the validity of the Constitution (Amendmenn No. 17) Act 1931 (No. 37 of 1931) having regard to the provisions of the Constitution. The vali~ dity of that Act depended on the validity of the Constitution (Amendment No. 10) Act, '1928, No. 8 of 1928, and of the Constitution (Amendment No. 16) Act, 1929, No. 10 of 1929.

The Oonstitution (Amendment No. 17) Act 1931 was passed as an Act of the Oireachtas on October 17, 1931 i.e. some 11 months after the expiry of the period of 8 years mentioned in Article 50 of the Constitution, as originally enacted. It was not submitted to a referendum of the people. It was described in its long title as an "Act tlO, amend the Constitution by inserting therein an Article making better provision for safeguarding the rights of the people and containing provisions for meeting a prevalence of disorder." But there is no doubt that it affected various human rights which were granted in the Irish Constitution.

The Constitution (Amendment No. 10) Act No. 8 of 1918 removed articles 47 and 48 of the Constitutioa and also the words "aad as such shall be subject to the provisions of Article 4i thereof" from the end of Article 50 as originally enacted. Constitution (Amendment No. 16.\ Act No. 10 of 1929 purported to amend Article 50 of the Constitution by deleting the words "eight years" and inserting in place thereof the words "sixteen vears" in that Article.

The impugned amendment was held valid bv the High Court.

Sullivan P., J. interpreted the word "amendment" in Art. 50 widely relying on Edwards v. Attorne.v General of Canada('). Meredith ]. relied on the fact that the width of the power of amendment for the period during the first eight years was co-extensive wi.th the period after eight years and he could find no distinction between Articles of primary importance or secondary imporrance. O' Bvrne J. could not

see any distinction between the word "amendment" and the \VIOrd>

"amend or repeal."

In the Supreme Court, the Chief Tustice first noticed "that the Constitution was enacted bv the Third Dail. sitting as a Constituent Assembly, and not by the Oircachtas. which. in fact, it created ." He

( 1) [1930] AC. 124.

184 SUPREME .COUllT REPORTS [1973} Supp. $.C.R.

l"Cad three limitations in the Constitution, The fust, he described aJ the over-all limitatioin: Thus:- ·

"The Constituent Assembly declared in the forefront OE 'th~·con stitution Act (an Act which it is not within the power of the Oireachtas to alter, or amend, or repeal). that all lawful authority comes from God to the people, and it is declared by Article 2 of the Constitution that "all powers of government and all authority, legislative, executive and judicial. in Ireland arc derived from the people of Ireland. (p. 204) ••• " "

, The limitation was deduced thus : "It follows that every ; act, wh'- ther legislative, executive or judicial, in order to be lawful under the

Constitution, must be capable of being justified under the authority thereby declared to be derived from God." ·

Now this limitation in so far as it proceeds from or is derived from the belief in the Irish State that all lawful authority comes from God to the people, can have no application to our Constitution. ..

The second limitation he deduced from section 2 oi the Irish Frtt State Act and Article 50 of the Irish Constitution. It was that any amendment repugnant to the Scheduled Treaty shall be void and :inoperative.

The third limitation was put in these words :

"The Third Dail Eireann has, therefore, as Constituent Assembly, of its own supreme authority, proclaimed its acceptance of and declared, in relation to the Constitution which it enacted, certain principles, and in language which shows beyond doubt that they are stated as governing principles which are fundamental and absolute (except as expressly qualified), and, so, necessarily, immutable. Can the power of amendment given tq the Oireachtas be lawfully exercised in such a manner as to violate these principles which, as principles, the Oireachtas has no power to change ?. In my opinion there can be only one answer to that question, namely, that the Constituent Assembly cannot be supposed to have in the same breath declared certain principles to be fundamental and immutable, or conveyed that sense in other words, as by a declaration of inviolability, and at the same time to have conferred upon the Oireachtas power to violate them or to alter them. In my opinion, any amendment of the Constitution, purporting to be made under the power given by the Consiituent Assembly, which would be a violation of, or be inconsistent with, any fundamental .

J>rinciple so declared, is necessarily outside the scope of the power and invalid and void." (p. 209)

' llsAVANANDA II. Kl!llALA (Sikri, C.J.) 185

He further said that these limitations would apply even after the expiry of eight years. He said :

"I have been dealing with limitations of the power of amendment in relation to the kinds -0f amendment which do not fall within the scope of the power and which arc excluded from it always, irrespective of the time when, i.e. within the preliminary period of eight years or after, or the process by which, the amendment is attempted." . (p. 209)

He then. approached the validity of the 161lh Amendment in these words:

"Was, then, the Amendment No. 16 lawfully enacted by Act No. 10 of 1929 ? There are two princi;:ial grounds for impeaching its validity; the first, the taking away whether validly or not, in any case the effective removal from use, of the Referendum and the right to demand a Referendum ; the second, that the Amendment No. 16 is not within the scope of the power of amendment, and therefore the Oireachtas was incompetent to enact it." (p. 212)

He thought:

"The Oireachtas, therefore, which owes its existence to the Constitution, had upon its coming into being such, and only such, power of amendment (if any) as had been given it by the Constituent Assembly in the Constitution, that is to say, the express power set out in Article SO, and amendments of the Constitution could only be validly made within the limits of that power and in the manner prescribed by that power." (p. 213)

He then observed :

"Now, the power of amendment is wholly contained in a single Article, but the donec of llhe power and the mode of its exercise arc so varied with regard to a point of time as to make it practically two separate powers, the one limited to be exercised only during the preliminary period of eight years, the other. a wholly different and permanent power, to come into existence after the expiry of that preliminary period and so continue thereafter." (p. 213)

.( .

After referring to the condition (it shall be subject to the provisions of Article 47) he thought : '

"The Constituent Assembly, even during the preliminary period, would not relax the ultima~ authority of the people, and expressly reserved to the people the right to intervene when they considered it necessary to restrain the action of the Oircachtas affecting the Constitution. The frame klf this provision makes it clear to my mind that, even if, by amendment of the Constitution under the

186 ' SUPREME COURT REP\)11.TS (1973) Supp. S.C.R.

power, Article 47 might cease to apply to ordinary legislation of the Oireachtas, the provisions of that clause were declared, dcliberatdy, expressly and in a mandatory way, to be kept in force and operative for the purpose of amendments of the Constitution during the preliminary period of eight years." (p. 213)

According to him "the permanent power of amendment, to ame at the expiry of the period of eight years, is a wholly different thing both as to the donee of the power and the manner of its exercise."

He held that it was not competent for the Oireachtas to remove from the power granted to it by the Constituent Assembly the requisites for its exercise attached to it in the very terms of donation of the power.

He observed :

 "That provision of the Statute, No. 8 of 1928, was bad, in my opinion as being what is called in the general law of powers 'an excessive execution.' It was outside the scope of the power. We have not been referred to, nor have I found, any precedent for such a use of a power. I do not believe that there can be a precedent because it defies logic and reason. It was, therefore, invalid in my opinion.'' (p. 216)

Regarding the substitution of "sixteen years" for the words "eight years" he said : • "If this amendment is gJOOd there is no reason why the Oireachtas should not have inserted or should not even yet insert, a very much larger term of years or, indeed, delete the whole of Article 50 from the words "by the Oireachtas" in the second line to the end of the Article." (p. 216)

Later he observed : "The attempt to take from the people this right, this exclusive power and authority and to confer on the Oireachtas a full and uncontrolled power to amend the Constitution without reference to the people (even though for a period of yeas, whether it be until 1938 or Tibb's Eve, a matter of indifference in the circumstances) was described by counsel in, I think, accurate language, as a usur pation, for it was done in. my opinion without legal authority." (p. 217)

He then repelled the argument that section 50 conferred the power to amend the Article itself. His rea90ills for this conclusion. arc summarised thus at page 219 :

"In my opinion, o!1 the true interprctai~~ of th~ ow.er before us, -upon a consideratton of express proh1b1t1an, hm1tat1ons apd requirements of the clause containing it, the absence of any express

Kl!SAVANANDA fl, Kl!RALA (Sikri, C.J.) 187

authority, the donation of the effective act in nhc exercise of the power to the people as a whole, the relevant surrounding circum stances to which I have already referred and the documents and their tenor in their entirety, there is not here, either expressly or by necessary implication, any power to amend the power of amend mcnt itself."

I cannot agree with the learned Attorney-General that the sole basis of Kennedy C. J.'s decision was that Article 50 did not contain an express power of amending the provisions of Article 50 itself. He gave various reasons which I have referred to above.

FitzGibbon J. held that the :word "ame..-idmcnt" was wide enough to include a power to amend or alter or repeal and there is no express prohibition in Article 50 itself that any article of the Constitution including Article 50 could not. be amended. The only limitation that he could find was that the provision's of the Scheduled Treaty could not be .all'lcndcd. He observed :

"I sec no ground for holding that either of these Articles could not have been amended by the Oircachtas subject to a Referendum of the people after the period of eight years, and, if so, it follows that the same amendment, e.g., the deletion oi the word "no" in . . Article 43 could be made "by way of ordinary legislation" within that period, or within sixtcC11, years, after eight had been altered to sixteen.'' (p. 228)

In other words, according tci him, if the Oircachtas subject to a r~

fcrcnum of the people mentioned in Article 50 could .amend any Aniclc, so could Oircachtas .du, ring the period of eight years.

But he noticed that in other Constitudons, there arc articles, laws. or provisions which arc: specifically dcseribcd as "Fundamc111al" e.g., Sweden, or '.'nspWc tiol!al" e.g., Austria, Czcchosloyakia:,:i:nd Frahcc, in rcspcctof \Vhid1 'the Constit11tion express! y restricts the power of amendment, but in Consti tution . of the Sac:>rnat there is no such segregation,. and the power of amendment which applies to any Article appears to me to be equally applicable t?- all others, subject, of cou.r.sc, to the rchriction in respect of .the_ SchCdulccl, Treaty. He, later observed :,

"UnlCis, therefore, thcscrights appear' plainly from the express provisions of our Constituti!lll to be inalienable, and incapable of being modified or taken a\vay byi any lcgislati.ve act, I cannot accede tO

the arglllnentthat the Oircachtai•cannot alter, modify, or ri:pesil

them. The framer of our Constitution may have intended "to bind man down from mischief by the chains of the Constitiit'ion,"

188 SUPREME COURT REPORTS (1973) Supp. S.C.R.

but if they did, they defeated their object by banding him the key of the padlock in Article 50." (P. 234)

Murnaghan J. stressed the point that "this direct consultation of tile people's will docs indicate that all matters, however fundamental, might be the subject of amendment. On the other hand the view contended for by the appellants must go to this extreme point, viz., that certain Articles or doctrines of the Constitution arc utterly incapable of alteration at any time even if demanded by an absolute majority of the voters.''

'Fhis observation really highlights the distinction between Article 50 of the Irish Constitution and Art. 368 of the Indlian Constitution.

As J have already observed, there is no direct consultation of the people's will in Article 368 of our Constitution.

The only limitation he could find in Article 50 was that the amend- . ment to the Constitution must be within the terms of the Scheduled Treaty.

As I h\lvc observed earlier, I find Article 50 of the Irish Constitution quite different in structure from Article 368 of the Indian cOnstitution and I do not think it is permissible to argue from Article 50 of the Irish Constitution to Art. 368 of the Indian Constitution.

Be that as it may, if I had to express my concurrence, I would express concurrence with the view of the learned Chief Justice in so far as he said that the Oireachtas could not increase its power of amendment by substituting sixteen years for the words "eight years".

I had also invited a1tcntion of Counsel to Moore <l1ld Others v.

Attorney-General for the Irish Free State and Others(') and the respondents rely heavily on it.

In this case the validity of the Constitution (Amendment No. 22) Act, 1933 (Act 6 of 1933) was involved. It was alleged that this amendment was no bar to the maintenance by the petitioners, who were the appellants, of their appeal before the Judicial Committee, as it was void.

On May 3, 1933, the Oircachtas passed an Act, No. 6 of 1933, entitled the Constitution (Removal of Oath) Act, 1933. That Act, by

1. 2, provided that s. 2 l>f the Constitution of the Irish Free State (Saorstat Eireann) Act!, !922, should be repealed, and, by s. 3, that Art. 50 of the Constitution should be amended by deleting the words "within the terms of the Scheduled Treaty.''

(') [1935] A.C. 484.

KESAVANANDA V, KERALA (Sikri, C.J.) 189

Finally, on November 15, 1933, the Oireachtas, enacted the Consti. tution (Amendment No. 22) Act, 1933, amending art. 66 of the Constitution so as to terminate the right of appeal to His Majesty in Council.

The Validity of the last amending Act depended on whether the earlier Act, No. 6 of 1933, was valid, namely, that which is directed to removing from art. 50 the condition that there can be no amendment of the Constitution unless it is within the terms of the Scheduled Treaty. ·

It appears that Mr. Wilfrid Greene, arguing for the petitioners, conceded that the Constitution (Amendment No. 16) Act, 1929 was regular and that the validity of the subsequent amendments could not be attacked on the ground that they had not been submitted to the people by referendum.

It is true that the Judicial Committee said that Mr. Greene rightly conceded this point but we do not know the reasons which impelled the Judicial Committee to say that the concession was rightly made. In view of the differences between art. 50 of the Irish Constitution and art. 368 of our Constitution, this concession cannot have .my importance in the present case. The actual decision in the case is of no assistance to us because that proceeds .on the basis that the Statute of Westminster had removed the restriction contained in the Constitution of the Irish Free State Act, 1922.

Mr. Greene challenged the validity of Act No. 6 of 1933 by urging :

''The Constitution derived its existence not from any legislature of the Imperial Parliament but solely from the operations of an Irish body, the Constituent Assembly, whiCh is called in Ireland the Third Dail Eireann.

This body, it is said, though mentioned in the Irish Free State (Agreement) Act, 1922, was in fact elected pursuant to a resolution passed on May 20, 1922, by the Second Dail Eireann, an Irish Legislative Assembly. The Third Dail Eireann was thus, ii was alleged, set up in Ireland by election of the people of Ireland of their own authority as a Constituent Assembly to create a Constitution, and having accomplished its work went out of existence, leaving no successor and no body in authority capable of amending the Constituent Act. The result of that argument is that a Constitution was established which Mr. Greene has described as a semi-rigid Constitution-that is, "one capable of being amended in detail in the different articles according to their terms, but not susceptible of any alteration w far as concerns the

I ~36 S. C. India/73

190 SUPREME COURT REPORTS (1973] Supp. S.C.R.

Constituent Act, unless perhaps by the calling together of a new Constituent Assembly by the people of Ireland. Thus th~ articles of the Constitution may only be amended in accordance with An.

SO, which limits amendments to such as arc within the terms of the Scheduled Treaty. On that view Mr. Greene arguc9 that the law No. 6 of 1933 is ullra vires and hence that the amendment No. 22 of 1933 falls with it." (p. 496)

Mr. Greene referred their Lordships to State (Ryan and Others)

v. Lennon and Others('). In that case Chief Justice Kennedy is reported to have expressed a view which corresponds in substance to that contended for by Mr. Greene.

Now it is these contentions which I have just set out and which their Lordships could not accept. They observed :

"In thciir opinion the Constituent Act and the Constitution of the Irish Free State derived their validity from the Act of the Imperial Parliament, the Irish Free State Constitution Act, 1922. This Act established that the Constitution, subject to the provisions of the Constituent Act, should be the Constitution of the Irish Free State and should come into operation on being proclaimed by His Majesty, as was done on December 6, 1922.

The action of the House of Parliament was thereby ratified." (p. 497)

The position was summed up as follows :

"(1) The Treaty and the Constituent Act respectively form parts of the Statute Law of the U nitcd Kingdom, cah of them being parts of an Imperial Act. (2) Before the passing of the Statute oE Westminster it was not competent for the Irish Free State Par- IWnent to pass an Act abrogating the Treaty because the Colonial Laws Validity Act forbade a dominion legislature to pau a law repugnant to an Imperial Act (3) The affect of the Statute of Westminster was to remove the fetter which lay uj>on the Irish Free State Legislature by tt.1son of the Colonial Laws Validity Act. That Legislature can now pass Acts repugnant to an Imperial Ii.ct. In this case they have done so.'' (p. "98) ·

I think that summary makes it quite cleat that it was because of the Statute .of Westminster that the Irish Free State Parliament was enabled to amend the Constitution Act.

(') (1935) Irish .Repcrla 170.

KESAVANANDA V, DUI.A (Si/l; ri, C.J.) 191

P~TIV

,,;.;; Validity of 241h Ammdmeal

Now I may deal with the question whether the Constitution (Twenty-Fourth Amendment) Act, 1971 is Valid. It. reads thus:

(2) In article 13 of the Constitution, after clause (3), the following clause shall be inserted, namely' :-

"( 4) Nothing in this article shall apply to any amendment of this Constitution made un4cr article 368." ·

(3) Article 368 of the Constitution shall be i:c-nuinbcrcd as clause (2) thereof, and- ( a) for the margirial heading to that article, the following marginal hcadin~ shall cd, y :- •

"Power of Parliament to 111D.end the Constitution and prOCC.: dure therefor.";

(b) before clause (2) as .O, rc..numbercd, the following clause shall be inserted, namely :- •

"(1) Notwithstanding .g in this Constitution, Parliament may in exercise cifjp" . ..<; Qllstitucnt power amend by way of dition, variation or pilal any provi.!ion, of this Constitution in accordance witl?tbF• procedure laid down. in this article."; 1 ~.. j."'

(c) in clause (2) as '° lll!lbued, for the words uit shall be presented to the President f!>l', his aascnt and upon such amnt being given to the Bill,"; tht, i.,.l)[lb "it shall be pmcnted to the President who shall give his aPcnt to the Bill Jllld thereupon" shall be substituted;

. ( d) after clause (2) as ft: numbered, the forlowin.IJ shall be inJcrtcd, namely :- ·· •·,,. .. .. "(3) Nothing in articlc'lfSbal apply to any amendmcrtt' made under this article." , • ·.. ~...,:{..'.! ...

• -i ..

According to the petitioner, t1ic~ .Amendment has sought IO achieve five results : .-<!'

(i) It has inserted an exp~ ~Qn. in Article 368 to indicate

that the source of the ..... jng power will be found in tlm

Article itself.

192 SUPBEME COURT REPORTS ( 1973) Supp. S.C.R.

(ii) It has made it obligatory on the President to give his assent to any Bill duly passed under that Article.

(iii) It has substituted the words "amend by way of addition," variation or repeal. ............. " in place of the bare concept of l'amcndmcnt" in the Article 368.

(iv) It makes explicit that when Parliament makes a constitutional amendment under Article 368 it acts "in exercise of its constituont power."

(v) It has expressly provided, by amendments in Article 13 and 368, that the bar in Article 13 against abridging or taking away any of the fundamental rights should not apply to any amendment made under Art. 368."

Mr. Palkhivala did not dispute that the amendments covered by

(i) and (ii) above were within the amending power of Parliament. I do not find it necessuy to go into the question whether Subba Rao, C.J., rightly decided that the amending power was in List I entry <n, or Art. 248, because nothing turns on it now.

Mr. Palkhivala rightly conceded that Parliament could validly amend art. 368 to transfer the source of amending power from List I entry <n to art. 368.

Mr. Palkhivala however contended that "if the amendments covered by (iii) and (iv) above arc construed as empowering Parliament to , exercise the full constituent power of. the people themselves, and as vesting in Parliament the ultimate legal sovereignty of the people, and as authorising Parliament to alter or destroy all or any of the essential features, basic elements and fundamental principles of the Constitution (hereinafter referred to "essential features"), the amendments must be held. to be illegal and oid." He further urges that "if the arncndmtnt covered by ( v) is construed as authorising Parliament to damage or destroy the essence of all or any of the fundamental rights, the amendment must be held to be illegal and void." He says that the 24th Amendment is void and illegal for the following reasons : A creature of the Constitution, as the Parliament is, can have only such amending power as is conferred by the Constitution which is given by the people unto themselves. While purporting to exercise that amending power, Parliament cannot increase thar very power.

No doubt, Parliament had the power to amend Article 368 itself, but that doct1

not mean that Parliament could so amend Article 368 as to change its own amencfing power beyond recognition. A creature of the Constitu. tion cannot enlarge its own power over the Constitution, while purporting to act under it, any more than the creature of an ordinary law

KESVANANDA V. KERALA (Sikri, C.J,) 193

can enlarge its own power while purporting to act under that law.

The power of amendment cannot possibly embrace the power to enlarge that very power of amendment, or to abrogate the limitations, inherent or implied, in the terms on which the power was conferred.

The contrary view would reduce the whole principle of inherent and implied limitations to an absurdity."

It is contended on behalf. of the respondents that the 24th Amendment does enlarge the power of Parlient to amend the Constitution, if Golak Nath's case !united it, and as Art. 368 clearly contemplates amendment of Art. 368 itself, Parliament can confer additional powers of amendment on it.

Reliance was placed on Ryan's(') case and Moore's(') case.

I have already dealt with these cases.

It seems to me that it is not legitimate to interpret Art. 368 in this manner.

Clause ( e) of the proviso does not give any different power than what is contained in the main article. The meaning of the expression "Amendment of the Constitution" does not change when one reads the proviso.

If the meaning is the same, Art. 368 can only be amended so as not to change its identity completely.

Parliament, for instance, could not make the Constitution uncontrolled by changing the prescribed two third majority to simple majority.

Similarly it cannot get rid of the true meaning of the expresSion "Amendment of the Constitution" so as to derive power to abrogate fundamental rights.

If the words "notwithstanding anything in the Constitution" 'arc designed to widen the meaning of the word "Amendment of the Constitution" it would have to be held void as beyond the amending power.

But I do not read these to mean th.is.

They have effect to get rid of the argument that Art. 248 and Entry <fl List I contains the power of amendment. . Similarly, the insertion of the words "in exercise of its constituent power" only serves to exclude Art. 248 and Entry <fl List I and emphasize that it Is not ordinary legislative power that Parliament is exercising under Art. 368 but legislative power of amending the Constitution.

It was said that if Parliament cannot increase its power .of amendment clause ( d) of Section 3 of the 24th Amendment which makes Article 13 inapplicable to an amendment of the Constitution. w_ould be bad.

I see no force in th.is contention.

Article 13(2) as existing prrvious to th~ 24th Amendment as interpreted by the majority in Golak, Nath' s case prevented legislatures from taking away or abridging the

( 1) [1935] Irish Reports 170.

(•) (1935) A.C. 484.

194 SUPUM1 COVJ.T J:£pOllTI ( 1973] Supp. S.C.R.

rights conferred by Art. 13.

In other words, any law which abridged . a fundamental right even to a small extent was liable to be struck down under Art. 368 Parliament can amend every article of the Constitution as long as the result is withiii the limits already laid down by me. The amendment of An..13(2) does not go beyond the limits

laid down because Parliament cannot even after the amendment abrogate or authorise abrogation or tM taking away of fundamental rights.

After the amendment llOW a law which has the effect of merely abridging a right while remaining within the limits laid down would not be liable to be struck down.

In the result, in my <>pinion, the 24th Amendment as interpreted by me is valid.

PART V.-V alitlity of SeC'liot1 2 oA tM Constitution (Twenty-fifth

Anttndmenl) 'Act, 1971. .

Section 2 of the Corutitution (Twenty-fifth Amendment) Act, 1971 enacted as follows :- .

(a) for clause (2), the following clause shall be substituted, namely :-

"(2) No property' shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquilition or requisitioning of the property for an amount which may be fixed by such law or which may

be determined in accordance with such principles and given in such manner as may be specified in such law; and no such law shall be called in question in any court on the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amounr is to be given otherwise than in cash :

Provided that in making any law providing for the compulsory acquisition of. any property of. an educational institution established and administered by a minority, referred to in clause (1) of article 30, the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guarantetd under that clause."

(b) after clause (2A), the following clause shall be inserted, namely :- ·

. "(2B) Nothing in sub.clause (f) of clause (l) of article 19 shall affect any such law as is referred to in clause (2)."

KESVANANDA V. KEP.ALA (Sikri, C.J.) l9S

There cannot be any-doubt that the object of the amendment is to modify the decision given by this COun in Rustom Cavas; ee Cooper v.

Union of India(') where it was held by ten Judges that the Banking Companies (Acquisition and Transfer of Undertakings) Act violated the guarantee of compensation under an. 31 (2) in that it provided for Jtiving certain amounts determined according to principles which were not relevant in the determination of compensation of the undertaking of the named Banks and by the method prescribed the amounts so declared could not be regarded as compensation.

If we compare art. 31 (2) as it stood before and after the 25th Amendment, .the following changes seem to have been effected. Whereas before the amendment, an. 31 (2) required the law providing for acquisition to make provision for compensation by either fixing the amount of compensal'.Jon or specifying the principles on which and the manner in which the compensation should be determined after the amendment art. 31 (2) requires such a law to provide for an "amount" which may be fixed by the law providing for acquisition or reqliisitioning or which may. be determined in accordance with such pri11ciples and given in such manner as may be specified in such law.

In other words, for the idea that compensation should be given, now the idea is that an "amount" should be given. This amount can be fixed directly by law or may be determined in accordance with such principles as may be specified.

It is very difficult to comprehend the exact meaning which can be ascribed to the word "amount". In this context, it is true that it is being used in lieu of compensation, but the word "amount" is nt a legal concept as "compensation" is. .

According to Shorter Oxford English Dictionary, Third Edn. p. 57, the word "amount" has the following mearung :

I "Amount (amount sb. 1710, (f. the vb.) 1). The sum total to which anything amounts up; spec. the sum of th' principal and interest

1796. 2. fig. The full value, effect, or significance 1732. 3. A quantity or sum viewed as a total 1833."

According to Webster's Third New International Dictionary, p. 72, uamount" means :

"mount la : the total number of quantity; AGGREGATE (the. amount of the line is doubled); SUM, NUMBER (add the same amount to each column) (the amount of the policy is 10,000 dollars) b : the sum of individuals (the unique amount of


196 SUPREME COURT REPORTS [1973] Supp. s.c.R.

worthless IOU's collected during each day's business - R.L. Taylor) c : the quantity at hand or under consideration (only a small amount of trouble involved) (a surprising amount of patience) 2 : the whole or final effect, significance, or import! (the amount of his remarks is that we are hopelessly beaten) 3 : accounting : a principal sum and the interest on it syn see SUM."

I have also seen the meaning of the word "amount" in the Oxford English Dictionary, Volume 1 p. 289, but it does not give me much guidance as to the meaning to be put in art. 31(2), as amended. The figurative meaning, i.e., the full value, I cannot give because of the deli!Y:rate omission of the word "compensation" and substitution of the word "amount" in lieu thereof.

Let us then see if the other part of the article throw' any. light on the word "amount".

The article postulates that in some cases principles may be laid down for determining the amount and these principles may lead to an adequate amount or an inadNuate amount.

So this show that the word "amount" here means something to be given in lieu of the property to be acquired but this amount has to and can be worked out by laying down certain principles.

These principles must then have a reasonable relationship to the .property which is sought to be acquired, if this is so, the amount ultimately arrived at by applying the principles 'must have some reasonable relationship with the property to be acquired; otherwise the principles of the Act could hardly be principles within the meaning of art. 31(2).

If this meaning is given to . the word "amount" namely, that the

amount given in cash or otherwise is of such a nature that it has been worked out in accordance with the prini:.iples which have relationship to the property to be acquired, the question arises : what meaning is to be given to the expression "the amount so fixed". The amount has to be fixed by law but the amount so fixed by law must also be fixed in accordance with •ome principles because it could not have been intended that if the amount is fixed by law, the legislature would fix the amount arbitrarily.

It could not, for example, fix the amount by a lottery.

Law is enacted by passing a bill which is introduced. The Constitution and legislative procedure contemplate that there would be discussion, and in debate, the Government spokesman in the legislature would be able to justify the amount which has been fixed. Suppose an amendment is moved to the amount fixed.

How would the debate pr<><; eed ? Can the Minister say-"This amount is fixed as it is the gover\iment's wish." Obviously not. Therefore, it follows that the amount,

KESVANANDA V, KERALA (Sikri, C.J.) 197

if fixed by the legislature, h:is also to be fixed according to some principles. These principles cannot be different from the principles which the legislature would lay down.

In this connection it must be borne in mind that art. 31 (2) is still a fundamental right. Then, what is the change that has been brought about by the amendment ? It is no doubt that a change was intended, it seems to me that the change effected is that a person whose property is aquired can no longer claim full compensation or just compensation but he can still claim that the law should lay down principles to determine the amount which he is to get and these principles must have a rational relation to the property sought to be acquired. If the law were to lay down a principle that the amount to be paid in lieu of a brick of gold acquired shall be the same as the market value of an ordinary brick or a bric~ of silver it could not be held to be a principle at all. Similarly if it is demonstrated that the amount that has been fixed for the brick of gold is the current value of an ordinary brick or a brick of silver the amount fixed would be illegal. If I were to interpret Art. 31 (2) as meaning that even an arbitrary or illusory or a grossly low amount could be given, which would shock not only the judicial

conscienc~ but the conscience of every reasonable human being, a serious question would arise whether Parliament has not exceded its amending power under art. 368 of the Constitution. The substance of the fundamental right to property, under art. 31, consists of thre~ things: one, the property shall be acquired by or under a valid law; secondly, it shall be acquired only for a publicpurpose; and, thirdly, the,, person whose property has been acquired shall be given an amount in',, lieu thereof, which, as I have already said, is not arbitrary, illusory or',, shocking to the judicial conscience or the conscience ri. mankind. I , have already held that Parliament has no power under art. 368 to abrogate the fundamental rights but can amend or regulate or adjust them in its exercise of amending powers without destroying them.

Applying this to the fundamental right of property, Parliament cannot empower legislatures to fix an arbitrary amount or illusory amount or an amount that virtually amounts to confiscation, taking all the relevant circumstances of the acquisition into consideration.

Same cgnsiderations apply to the manner of payment. I cannot interpret this to mean that an arbitrary manner of payment is contemplated.

To give an extreme example, if an amount is determined or fixed at Rs. 10,000 a legislature cannot lay down that payment will be made at the rate of Rs. I 0 per year or Rs. 10 per month.

Reference may be made to two cases that show that if discretion is conferred it must be exercised reasonably.

198 SUPREME COURT REPORTS (J973] Supp. S.C.R.

In Roberts v. Hopwood,(') it was held that the discretion conferred upon the Council by s. 62 of the Metropolis Management Act, 1855, must be exercised reasonably. The following observations of Lord Buckmaster are pertinent :

"It appears to me, for the reasons I have given, that they cannot have brought into account the consideration which they say influenced them, and that they did not base their decision upon the ground that the reward for work is the value of the work reasonably and even generously measured, but that they tooki an arbitrary principle and fixed an arbitrary sum, which was not a real exercise of the discretion imposed upon them by the statute."

I may also refer to Lord Wrenbury's observation at p. 613 : "I rest my opinion upon higher grounds.

A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so - he must in the exercise of his discretion do not what he likes but what he ought.

In other words, he must, by use of his reason, ascertain and follow the course which reason directs.

He must act reasonably."

In fames Leslie Williams v. Haines Thomas(') the facts are given in the headnote as follows :-

"Under s. 4 of the New South Wales Public Service Superannuation Act, 1903, the plaintiff was awarded by the Public Service Board a gratuity of 23 £ JO$, 1 d. per mensem, calculated for each year of service from December 9, 1875, the date of his permanent employment, upto December 23, 1895 ;. and upon his claiming to have his service reckoned up to August 16, 1902, was awarded a further gratuity of one penny in respect of each year subsequent to December 23, 1895, up to August 16, 1902, the date of the commencement of the public Service Act of that year."

The Judicial Committee held the award to be illusory. The Judicial Committee observed :

" ........ it seems to their Lordships to be quite plain that an illusory award such as this - an award intended to be unreal and unsubstantial - though made under guise of exercising discretion, is at best a colourable performance, and tantamount to a refusal bv the Board to exercise the discretion entrusted to them by Parliament." (p. 385)

(') [1925] A.C. 578; 590.

(') [ 1911 J A.C. 381.

IWVANANDA I/, ltERALA (Sikri, C.J.) 199

Although I am unable to appreciate the wisdom of inserting clause (2B) in art. 31, the effect of which is to make art. 19(1) (f) inapplicable, I cannot say that it is an unreasonable abridgement of rights under art. 19(l)(f). While passing a law fixing p, inciples, the legislatures are bound to provide a procedure for the determination at the amount, and if the procedure is arbitrary that provision may well be struck down under art. 14.

In view of. the interpretation which I have placed on the new art. 31(2), as amended, it cannot be said that Parliament has exceeded its amending power under art. 368 in enacting the new art. 31 (2).

For the reasons aforesaid I hold that s. 2 of the Constitution (Twenty-fifth Amendment) Act, 1971, as interpreted by me, valid.

Part VI-Validity of S. 3 of the Constitution (Twenty-Fifth Amendment) Act, 1971.

Section 3 of the twenty-fifth amendment, reads thus : "3. After article 31B of the Constitution, the following arti.de shall be inserted, namely :- "31. C. Notwithstailding anything contained in article 13, no law giving effect to the polic-y of the State towards securing the principles specified in clause (b) or clause ( c) of article 39 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; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy : Provided that where such law is made bv the iegislature 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."

It will be noted that art. 31C opens with the expression "notwithstanding anything contained in article 13". This however cannot mean that not only fundamental rights like art. 19(1) (f) or art. 31 are excluded but all fundamental rights belonging to the minorities and religious groups are also excluded.

The article ourpo!'tS to save laws which a State may make towards securing the principles specified in els. (b) or ( c) of art. 39 from being chal!lenged on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by arts. 14, 19 or 31. This is the only ground on which they cannot be challenged.

It will be noticed that the article provides tha~ if the law cont.ains a declaration that tt is for giving effect to such policy, it shall not be called in question in any court on the ground tha: it does not give effect to such policy. In other words, once a declaration

2()() SUPREME COURT REPORTS [ 1973] Supp. S.c.P..

js given, no court can question the law on the ground that it has nothing to do with givmg effect to the policy; whether it gives effect to some other policy is irrelevant.

Further, a law may contain some provisioru dealing with the principles specified in els. (b) or (c) of Art. 39 while other sections may have nothing to do w'ith it, yet on the language it denies any court power or jurisdiction to go into this question.

In the face of the declaration, thi• Court. would be unable to test the validity of incidental provisioru whlch do not corutirutc an essential and integral part of the policy directed to give effect to art. 39(b) .and art. 39(c).

In Akadasi Padhan v. State of Orissa(') Gaiendragadkar, C. J., speaking for the Court, observed :

"A law relating to" a State monopoly cannot, in the context, include all the provisions contained in the said law whether they have direct relation with the creation of the monopoly or not.

In our opinion, the said expression should bt construed to mean. the law relating to the monopoly in its absolutely essential features. If a law is passed creating a State monopoly, the Court should enquire what are the provisions of the said law which are basically and essentially necessary for creating the State monopoly.

It is only those essential and basic provisions which are protected by the latter part of Art. 19( 6). If there are other provisions made by the Act which are subsidiary, incidental or helpful to the operation of the monopoly, they do not fall under the said part and their validity must be judged under the first part of Art. 19(6).

These observations were quoted with approval by Shah, J., speaking on behalf of a larger Bench in R. C. Cooper v. Union of India(').

After quoting the observations, Shah, J., observed :

"This was reiterated in Rashbihar' Panda and Others v. The State of Orissa,(') M/s. Vrailal Mam?al & Co., and Another v. The State of Madhya PradeJh & Others(') and Municipal Committee, Amritsar and Others v. State of Punjab"(').

While dealing with the validity of the Bombay Prohibition Act (XXV of 1949), , this Court in State of Bombay v. F. N. Balsara (•) struck down two provisions on the ground that they conflicted with

( 1) [1963] Supp. 2 S.C.R. 691-707.


( 3)

[ 1969] 3 S.C.R. 374.


{') [1951] S.C.R. 682.

KESAVANANDA fl, KERALA (Sikri, C.J.) 201

the fundamental rights of freedom of speech and expression guaranteed by art. 19(l)(a) of the Constitution. These provisions were sections 23(a) and 24(1) (a), which read

"23. No person shall-

(a) commend, solicit the use of, offer any intoxicant or hemp,. or ........

24(1). No pcrsonshall print or publish in any newspaper news.-

sheet, book, leaflet, booklet or any other single or pcriod'ical publication or otherwise display or distribute any advertisement or other matter- '

(a) which commends, solicits the use of, or offers any intoxicant or hemp ............ "

.Section 23(b) was also held to be void. It was held that "the words. "incite" and "encourage" are wide enough to include incitement and encouragement by words and speeches and also by acts and .the words used in th~ section arc so wide and vague that the clause must be held to be void in its entirety." ·

Section 23(b) reads as follows :

"23. No person shall-,

(a) ........

(b) 'incite or encourage any member of the publi~ or any cbss

of individuals of the public generally to commit any act, which frustrates or defeats the provisions of this Act, or any rule, regulation or order made thereunder, or ........

Mr. Palkhivala contends, and I think rightly, that this Court woul~ not be able to strike these provisions dawn if a similar declaration wcrr inserted now in the Bombay Prohibition Act that this law is for giving' effect to Ary 47, which prescribes the duty of the State to bring about prohibition of the consumpllion of intoxicating drinks. If a similar provision were inserted in the impugned Kerala Acts making it acriminal offence to criticise, frustrate or defeat the policy of the Acts,. the provisions would be protected under Art. 31 ( C).

The only so-called protection which is given is that if the legislature of a State passes such a law it must receive the President's assent.

It is urged before us that it is no protection at all because the President would give his assent on the advice of the Union Cabinet.

Article 31C in its nature differs from art. 31A, which was inserted by the Fourth Amendment.

202 SUPREME COUllT REPORTS [1973] Supp. S.CJI.

"31A. (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 publiic interest or in order to secure the proper management of the property, or ( c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, 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 license,

hall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by

articl~ 14, article 19 or article 31 : Provided that .............. "

In Ar~. 31A the subject-matter of the kg'islation is clearly provided, namely, the acquisition by the State of any estate or any rights therein, (art. 31A(a) ). Similarly, the subject-matter of legislation is specifically provided in els. (b), (c) and (d) of art. 31A., But in arll. 31C the

ky is the limit because it leaves to each State to adopt measures towards

securing the priniples specified in els, (b) and ( c) of art. 39. The wording of arts. 39(b) and 39(c) is very wide.

The expression "economic system" in art. 39( c) may well include professional and other services. According to Encylopedia Americana (1970 Ed. Vol. 9p, p.· '600) "economic systems arc forms of social organization for producing goods and services and determining how they will be distributed. It would be difficult to resist the contention of the .State that each provision in the law has been taken for the purpose of giving effect to the policy of the State.

It was suggested that if the latter part of art. 31C, dealing with declaration, is regarded as unconstitutional, the Court will be entitled to go into the question whether there is any nexus between the impugned law and art. 39(b) and art. 39(c). I find it difficult to appreciate this submission. There may be no statement of State policy in

KESAVANANDA fl, Kl!MLA (Sik.ri, C.J.) 203

a law. Even if there is a statement of policy in the Preamblie, it would not control the substantive provisions, if unambiguous. But assuming that there is a clear statement it would be for the State legislature to decide whether a provision would help to secure the objects.

The Courts will be unable to separate necessarily incidental provisions and merely incidental.

Further, as I have pointed out above, this question is not justiciable if the law contains a declaration that it is for giving effect to such a policy.

According to Mr. Palkhivala, Art. 31C has four features of totalitarianism: (1) There is no equality.

The ruling party could favour its own party members, (2) There need not be any freedom of speech, (3) There need be no personal liberty which is covered by Art. 19(1)(b), and (4) The property will be at the mercy of the State, In other words, confiscation of property of an individual would be permissible.

It seems to me that in effect, art. 31C enables States to adopt any policy they like and abrogate arts. 14, 19 and 31 of the Constitution at will. In other words, 'it enables the State to amend the Constitution.

Article 14, for instance, would be limited by the State 'according to its policy and not the policy of the amending body, i.e., the Parliament, and so would be arts. 19 and 31, while these fundamental rights remain in the Constitution.

It was urged that when an Act of Parliament or a State Legislature delegates a legislative power within permissible limits the delegated legislation derives its authority from the Act of Parliament. It was suggested that similarly the State law would derive auvhority from Art. 31C.

It is true that the State law would derive authority from Art. 31C but the difference between delegated legis!ation and the State law made under Art. 31C is this : It is permissible, within limits, for a legislature to delegate its functions, and for the delegate to make law. Further the delegated legislation would be liable to be challenged on the ground of violation of fundamental rights regardless of the validity of the State Act. But a State legislature cannot be authorised 1o amend the Constitution and the State law deriving authority from Art. 31C cannot be challenged on the ground that it infringes Articles 14, 19 and 31.

It will be recalled that art. 19 deals not only with the right to property but it guarantees varioos rights : freedom of speech and ex

pression; right to assemble peaceably and without arms; right to fomi associations or unions; right to move freely throughout the territory of India; rightr to practice any profesion or to carry on any occupation, trade or business. I am unable to appreciate the reason for giving such powers to the State legiskiture to abrogate the above freedoms.

In effect, Parliament is enabling State legislatures to declare that "a

citizen shall not be free; he will have no freedom of speech to criticise

204 SUPREME OOUllT REPORTS [1973) Supp. S.C.ll.,

the policy of the' State; he shall not assemble to protest against the policy; he shall be confined to a town or a district and shall not move outside his State; a residen~ .of another state shall not enter the State whi~ is legislating; he shall not, if a lawyer, defend people who have

violated the law. It could indeed enable legislatures t'? apply one law co political opponents of the ruling party and leave members of. the party outside the purview of the law. In 'short, it enables a State Legis... lature to set up complete totalitarianism in the State. It seems'_ that its implications were not realised by Parliament though Mr. Palkhiwala submits that every implication was deliberately intended.

I have no doubt that. the State legislatures and Parliament in itJ ordinary legislative capacity will not exercise this new power confC!Ted on them fully but I am concerned with the amplitude of the . power conferred by art. 31C and not with what the legislatures may or may not do under the powers so conferred. ·

I have already held that Parliament cannot.under .art. 368 abrogate fundamental rights. Parliament equally cannot enable the legislatures to abrogate them. This provision thus enables legislatures to abrogate fundamental rights and therefore must be declared unconstitutional.

It has been urged before us that s. 3 of the 25th amendment Act

i.~ void as it in effect delegates the constituent amending power to State legislatures. The question arises 'whether art. 368 enables Parliament to delegate its function of amending the Constitution to another body. It seems to me clear that it docs not. It would be noted that art. 368 of this Constitution itsc1£ provides that aniendment may be initiate<l only by the introduction of a bill for the. purpose in either House of Parliament. In other words, art. 368 docs not contemplate any other mode of amendment by Parliament and it docs not equally on 1 template that Parliament could set up another body to amend the

Constitution. ·

It is well-settled in India that Parliament cannot delegate .its essential legislative functions.

See: (1) Per Mukherjea J. in re The Delhi l.Aws Act, 1912. (1951) SCR 747 at 984-5. · '

(2) Ra; Narain Singh v. Patna Administration 1955 (I) SCR

290. "

(3) Hari Shankar Bag/a v. State of Madhya Pradesh - 1955 (lj

SCR 380. · .

~SAVANANDA V. KEMLA (Sikri, C.J.) 205

(4) Vasa11tlal Sanjanwala v. State of Bombay -

1961 (1) SCR 341.

(5) The Municipal Corporation of Delhi v. Bir/a Cotton Mills -

1968 (3) SCR 251.

(6) Gar1wal v. State of Punjab - 1959 Supp. (1) SCR 792. ·

It is also well-settled in countries, where the courts have taken a position different than in Indian courts, that a legislature cannot create another legislative body. Reference may be maac here to In re lnilkztive and Referendum Act(') and Attorney-General of No11Q

Scoitia v. Attorney-General of Canada('). I have discussed the latter case while dealing with the question of implied limitation. Initiative and Referendum case is strongly. relied on by Mr. Palkhivala to csta blish that an amending power cannot be delegated.

In this case the Judicial Committee of the Privy Council was concerned with the interpretation of s. 92, head 1. of the British North America Act, 1867, which empowers a Provincial Legislature to amend the Constitution of the Province, "excepting as regards the office of the Lieutenant Governor". The Legislative Assembly of Manitoba enacted the Initiative and Referendum Act, which in effect would compel the Licute nant Governor to submit a proposed law to a bodv of voters totally distinct from the legislature of which he is the constitutional head, and would render him powerless to prevent it from becoming an actual law if approved by these voters.

1'he judgment of the Court of Appeal is reported in 27 Man. L.R. 1, which report is not available to me, but the summary of the reasons . of the learned Judges of the Court of Appeal arc given at page 936 of

(1919) A.C. as follows :

"The British North America Act, 1867, declared that for each Province there should be a Legislature, in which s. 92 vested the power of law-making; the legislature could not confer that power upon a body other than itsclf1 The procedure proposed by the Act in question would not be an Act of a Legislature within s, 92, would be wholly opposed to the spirit and principles of the

Canadian constitution, and would override the Legislature thereby provided .. Further, the power to amend the Constitution given by s. 92, head 1, expressly expected "the office of the :t.ieuteruirit-Governor". Sect. 7 of the proposed Act, while preserving the power ' of veto and disallowance by the Governor-General provided for by ss. 55 and 90 of the Act of 1867, dispensed with the assent of the Lieutenant-Governor provided for by ss. 56 and 90 of that

(') (1919) A.C. 935.

( 1) (1951) S.C.R.-canada-31.

14-36 s. c. India/73

206 SUPREME COURT REPORTS (1973) Supp. s.c.R.

Act; even if s. 7 was not intended to dispense with that assent, s. 11 clearly did so. The proposed Act also violated the provisions of s. 54(inconjunction with s. 90) as to money bills."

Their Lordships of the Judicial Committee held at page 944 :~

"Their Lordships are of opinion that the language of the Act cannot be construed otherwise than as intended seriously to affect the position of the Lieutenant-Governor as an integral part of the Legislature, and to detract from rights which arc important in the legal theory of that position. For if the Act is valid it compels him to submit a proposed law to a body of voters totally distinct from the Legislature of which he is the Constitutional head, and renders him powerless to prevent it from becoming an actual law if approved by a majority of these voters. It was argued that the words already referred to, which appear in s. 7, preserve his powers of veto and disallowance. Their Lordships are unable to assent to this contention. The only powers pre- served are those which relate to Acts of the Legislative Assembly, as distinguished from Bills, and the powers of veto and disallowance referred to can only be those of the Governor-General under s. 90 of the Act .of 1867, and not the powers of the Lieutenant- Governor, which are at an end when a Bill has become an Act.

Sect. 11 of the Initiative and Referendum Act is not less difficult to reconcile with the rights of the Lieutenant-Governor. It provides that when a proposal for repeal of some law has been approved by the majority of the electors voting, that law is automatically to be deemed repealed at the end of thirty days after the clerk of the Executive Council shall have published in the Manitoba Gazette a statement of the result of the vote. Thus the Lieutenant-Governor appears to be wholly e_Juded from the new legislative authority."

I have set out this passage in extenso because this deals with one pan of the reasoning given by the Court of Appeal. Regarding the <ithcr part i.e. whether the Legislature could confer that power on a body other than itslf, the Judicial Committee observed at page 945:

"Having said so much, their Lordships, following their usual practice of not deciding more than is strictly necessary, will not deal finally with another difficulty which those who contend for the validity of this Act have to meet. But they think it right, as the point has been raised in the Court below, to advert to it. Sect. 92 of .the Act of 1867 entrusts the legislative power in a Province to its legislature, and to that Legislature only. No doubt a body, with power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial LcgiSlature in Canada, could, while

KEUV.\NANDA u. KEMLA (Sikri, C.J.) 207

preserving its own capacity intact, seek the assistance of subordinate agencies, as had been done when in Hodge v. The Queen(') the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to . which it owes its swn existence. Their Lordships do no more than draw attention to the gravity of the constitutional questioos which thus arise. (Emphasis supplied)

It is interesting .to note that this position was indicated by Sir A.

Hobhouse, a member of the Judicial Committee, while Hodge v. The Queen(') was being argued. This appears from Lefray on Canadian Federal System at p. 387 :

"Upon the argument before the Privy Council in Hodge v. The Queen, Mr. Horace Davey contended that under this sub-section,

(Sec. 92(1) of Canadian Constitution) provincial legislatures "could do what Lord Selborne, no doubt correctly, said in The Queen v. Burah,(') the Indian legislature could not do,-abdicate their whole legislative functions in favour of another body." But, as Sir 4".<Hobhouse remarked, this they cannot do. "They remain init(S.~ with a responsibility. Everything is done by them, and such officers as they create and give discretion to."

The learned Attorney-General submitted that this case decided only that in the absence of clear and unmistakable language in s. 92, head 1, the power which the Crown possesses through a person directly representing the Crown cannot be abrogated. It is true that this -s the actual decision but the subsequent observations, which I have set out above, clearly show that the Judicial Committee was prepared to imply limitations as the Court of Appeal had done on the amending power conferred on the Provincial Legislature by s. 92, head 1.

The Attorney General said that the scope of this decision w:u referred to in Nadan v. The King,(') where at page 495 reference is made to this case in the following words :

"In the case of In re Initiative and Referendum Act Lord Haldane, in declaring the judgment of the Board referred to "the impropriety in the absence of clear and unmistakable language of construing s. 92 as permitting the abrogation of any power which the Crown possesses through a person directly representing it"; an

( 1) 9 A.C. 117.

( 2) [1878] 3 A.C. 905.

( 8) (1926) A.C. 482.

2Q8 suPUl\Ot. COtlllT IU!POllTS. [ 1973] Supp. s.c.11.

observation which 'applies with equal force to s. 91 of the Act al 1867 and to the abrogation of a power which remains vested in the Crown itself."

But this passage again dealt with the actual point decided and . not the obiter dicta. ·

The first para of the head note in Nadan's( 1) case gives in brief the actual decision of the Privy Council as follows :

"Sect. 1025 of the Criminal Code of Canada, if and so far as it is intended to prevent the King in Council from giv'ing effective leave to appeal aga~ an order of a Canadian Court in a crimj. nal case, is invalid. The legislative authority of the Parliament of Canada as to criminal law and procedure, under s. 91 of the Bri tish North America Act, 1867, is confined to action to be taken in Canada. Further, an enactment annulling the royal prerogative to grant special leave to appeal would be inconsistent with the Judicial Committee Acts 1833 and 1844, and therefore would be invalid under s. 2 of the Colonial Laws Validity Act, 1865.

The royal assent to the Criminal Code could not give validity to an enactment which was void by imperial statute; exclusion of the prerogative could be accomplished only by an Imperial statute."

For the aforesaid reasons I am unable to agree with the Attorney General and I hold that the Initiative and Referendum Act case shows .that limitations can be implied in an amending power. Mr. Scervai

kCks to distinguish this case on another ground. According to him, these observations were obiter dicta, but even if they are treated as considered obiter dicta, they add nothing to the principles governing ddcgated legislation, for this passage merely repcai.S what had been laid down as far back as 1878 in The Queen v. Burah(1 ), where the Privy Council in a classical passage, observed :

"But their Lordships are of opinion that the doctrine of the majority of the Court is erroneous, and that it rests upon a mistl!kcn view of the powers of the Indian Legislature, and indeed of the nature and principles of legislation. The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature. as those of

(l) (1926) A.C. 482.

(") 5 I.A. 178=(1878) 3 A.C. 889; 904: 905.

XESAVANANDA fl. KEW.A.· (Sikri, C.J.)

Parliament itself. The established Courts of Justice, when a_ question arises whether the prescribed limits have been cxccecJed.· must of necessity determine that question; and the only way in which they can properly do so, is,. by looking to the terms of. the

instrument by which, affirmatively, the legislative powers were created, and by ; which, negatively, they are restricted. If what. 1w been done is legislation, within the general scope of the aflli'mative words which give the power, and if it violates no cxpreu condition or restriction bycwhich that power is limited (in which category would of course be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further or to enlarge constructively those conditiolll_ and restrictions."

Mr~ Seervai further says that having laid down the law as . set alit above, the Privy Oluncil added : ·

"Their Lordships agree that the Governor-General in Coundr could not, by any form of enactment; create in India, and arm with general legislative authority, .a new legislative power, nOl created or authorised by the Council's Act."

We are unable to agree with him that the obiter dict.i of the Judi-· cial Olmmittee deals with the same subject as Burah's(') c; ase.·

Burah's case was not concerned with the power to amend the. Constitution but was concerned only with legislatiOn enacted by the Indian Legislature. This clearly appears from the passage just cited from Lefroy. The Governor-General in Council had no power to amend

the Government of India Act, under which it functioned.

Reference was also made to the observations of one of us in Delhi Municipality v. B. C. & W. Mills(2) where I had observed as folfows :-

"Apart from authority, in my view Parliament has full power . to delegate legislative authority to subordinate bodi~. This power Bows, in my judgment, from Art. 246 of the Constitution. The word "exclusive" mean.~_ exclusive _of any other legislation and not exclusive of any subordinate body. There is, however, one restric- -tion in this respect and that is also contained in Article 246 .. Parli-

.ament must pass a law in respect of an item or items of the relevant list. Negatively this means that Parliament cannot abdicate its Junctions."

( 1) S I.A. 178-(1878) 3 A.C. 889.

( 1) A.I.I!.. (1968) S.C. 1232 at p. 1266.

210 SUPREME COURT REPOrl'S (1973) Supp. S.C.R.

Reference was also invited to another passage where I had observed:

"The case of 1919 AC 935 provides an instance of abdication of functions by a legislature. No inference can be drawn from this case that delegations of the type with which we are concerned amount to abdication of functions."

It is clear these observations are contrary to many decisions of. this Court and, as I said, I made these observations apart from authority.

But neither this Court nor the Judicial Committee in Queen v.

Burah(') were concerned with an amending power, and the importance of the obiter observations of the Privy Council lies in the fact that even in exercise of its amending power the legislature could not "create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence," and the fact that in Canada the doctrine of limited delegated legislation does not prevail as it does in India.

It has been urged before us that in fact there has been no delegation of the amending powers to the State legislatures by art. 31C. and what has been done i" that art. 31C lifts the ban imposed by Part III from certain laws. I am unable to appreciate this idea of the lifting of the ban. Fundamental rights remain as part of the Constitution and on the face of them they guarantee to every citizen these fundamental rights. But as soon as the State legislates under art. 31C, and the law abrogates or takes away these constitutional rights, these fundamental riglits cease to have any effect. The amendment is then made not by Parliament as the extent of the amendment is not known till the State legislates. It is when the State legislates that the extent of the abrogation or abridgement of the fundamental rights becomes clear. To all intents and purposes it seems to me that it is State legislation that effects an amendment of the Constitution. If it be assumed that Art. 31C does not enable the States to amend the Constitution then art. 31C would be ineffective because the law which in effect abridges or takes away the fundamental rights would have been passed not in the form required by art. 368, i.e. by 2/3rd of the majority of Parliament but by another body which is not recognised in art. 368, and would be void on that ground.

The learned Solicitor General, relying on Mohamed Samsudem Kariapper v. S. S. Wijesinha( 2) urged that there can be implied ameridment of the constitution and art. 31C may be read as an implied amendment of art. 368. What the Judicial Committee decided in this

( 1) 5 I.A. 178=(1878) 3 A.C. 889.

(2) (1968) A.C. 717; 743.

KESAVAN~A ti. KE&ALA (Sikri, C.J.) 211

case was that a bill having received a certificate in the hands of the Speaker that the number af votes cast. in favour thereof in the HDUSC of Representatives amounted to no kss than two-thirds of the wlimt number of Members of the House in effect amounted to a bill for the amendment or repeal of any of the provisions of the order, and the words "amendment or repeal" included implied amendment.

Menzies; J., spca, king for th~ Judicial Committee, observed :

"Apart from the proviso to sub-section (4) therefore the board has found no reason for not construing the words "amend or repeal" in the earlier part of section 29( 4) as extending to amendment or repeal by inconsistent law . . . . . . . . . . . . . A bill which, if it becomes an Act, docs amend or repeal some provision of the order is a bill "for the amendment or repeal of a provision of the order." (p. 743)

Later, he _observed :

"The bill which became the Act was a bill for an amendment of section 24 of the Constitution simply because its terms were inconsistent with that section. It is the operation that the bit! will have upon becoming law which gives it its constitutional chuac• ter, not any particular label which may be given to it. A bill des,

cribed as one for the amendment of the Constitution, which con- . tained no operative provision to amend the Constitution would not require the prescribed formalities to beci>me a valid law whereas a bill which upon its passing into law would, if valid, alter the Constitution would not be valid without compliance with those formalities."

We are not here concerned with the question which was raised before the Judicial Committee because no one has denied that art. 31C is an amendment of the Constitution. The only question we are concerned with is whether art. 31C can be read to be an implied amendment of art. 368, and if so read, is it valid, i.e., within the powers of Parliament to amend art. 368 itself.

It seems to me that art. 31C cannot be read to be an implied amendment of art. 368 because it opens with the words "notwi.thstanding anything contained in art. 13" and Art. 31C does not say that "notwithstanding anything contained in art. 368.'' What art. 31C does is that it empowers legislatures, subject to the condition laid down in art. 31 C itself, to take away or abridge rights conferred by arts. 1'1, 19 and 31. At any rate, if it is deemed to be an amendment of art. 368, it is beyond the powers conferred by art. 368 itself. Article 368 d~ l'lOt enable Parliament toconstitute another legislature to amend die

Constitution, in its exercise of the power to amend art. 368 itself.

212 SUPREME COURT REpOll.TS (1973) Supp. S.C.J..

For the aforesaid reasons I hold that s. 3 of the Constitution (Twenty-fifth Amendment) Act 1971 is void as it delegates power to legislatures to amenq the Constitution.'

PAll.T-VII.- Twenty-Ninth Amendment

The Constitution (Twenty-Ninth Amendment) reads:

"2. Amendment of Ninth Schedule

. "In the Ninth Schedule to the Constitution after entry. 64 and be

fore the Explanation, the following entries shall be inserted, namely: -

"65. The Kerala Land Reforms (Amendment) Act, 1969 (Kcrala Act 35 of 1969).

66. The Kerala Land Reforms (Amendment) Act. 1971 (Kerala Act 25 of 1971)."

The effect of the insertion of the two Kerala Acts in the Ninth Schedule is that the provisions of art. 31-B get attracted. Article 31-B which was inserted by s. 5 of the Constitution (First Amendment) Act, 1951, reads :

 "Insertion of new article 31B.

5. After article 31A of the Constitution as inserted by s-.-cticn 4.

the following article shall be inserted. namelv :-

"31B. Validation of certain Acts and Reg11lations ·

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 provisioqs thereof shall be dee111~Q to be void, or ever to have become vole!, on the ground that such Act, Regulation or . provision is inconsistent with, or takes way or abridges any of the rights conferred .. hy, any provisions of thiJ 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 com JXh!llt Legislatwe to repeal or amend it, continue in f91:cc."

The First Amendment h•d also ir.sertt-d art. 31..;\ and the N\otli $cheduk including 13 State enactmcnli . dealing "'.ith agrarla!t.. J'h. forms. .

KESAVANANDA V. KERALA (Sikri, C.J.) 213

Before dealing with the points debated before us. it is necessary to mention that a new art. 31-A was substituted bv the Constitution (Fourth Amendment) Act, 1955, for the original article with retrospective effect. The new article contained original art. 31A(l) as dause (a) and added clauses. (b) to ( e) and also changed the nature of the protective umbrella. The relevant part of art. 31A(l) as substituted has already been set out .

. Under art. 31-A as inserted bv the First Amendment a law was protected even if it was it)consistent with or took away or abridged any rights conferred by any provisions of Part III. Under the Fourth Amendment the protective umbrella extended to only art.· 14, art. 19 or art. 31. The Seventeenth Amendment further amended the definition of the word "estate" in art. 31A. It also added seven Acts to the Ninth Schedule.

The argument of Mr. Palkhivala. on this part of the case, was two.fold. First, he contended, that art. 31B, as originally inserted, had intimate relations with agrarian reforms, because at that stage art. 31-A dealt only with agrarian reforms. The words "without prejudice to the generality of the provisions contained in art. 31A'', according to him, pointed to this connection. He, in effect, said that art. 31-B having this original meaning did not change the meaning or its scope when a new art. 31cA containing clauses (b) to (e) were included.

I am unable. to ccede to these contentions. The ambit of art. 31-B has been determined by this Court in three decisions. In State of Bihar v. Maharajadhiraia Sir Kameshwar Singh('), Patnjali Sastri, C.J., rejected the limited meaning suggested above by Somayya, and observed:

"There is nothing in article 31-B to indicate that the specific mention of certain statutes was only intended to illustrate the application of the general words of article 31-A. The opening words of article 31-B are only intended to make clear that article 31-A should not be restricted in its application by reason of anything contained in article 31-B and are in no wav calculated to restrict the application of the latter article or of the enactments referred to therein to acquisition o~ "estates,"

He held that the deci.-ion in Sibnath Banerji' s(2) case afforded no useful analogy.

(1) (1952) S.C.R. 889; 914-15.

(') (1945) P.C.R. 195.

214 SUPBEMI COUR1' BEPORTS [ 1973] Supp. s.c.R.

In Visweshwar Rao v. State of Madhya Pradesh(') Mahajan, J., repelled the argument in these words :

"In my opinion the observations in Sibnath Banerji' s case far from supporting the contention raised negatives it. Article 31-B specifically validates certain acts mentioned in the Schedule despite the provisions of art. 31-A and is not illustrative of art. 31-A. but stands independent of it."

In H. B. /eejeebhoy v. Assistant Collector, Thana('), to which decision I was a party, Subha Rao, C. J., observed that "art 31-B is not governed by art. 31-A and that art. 31-B is a constitutional device to place the specified statutes beyond any attack on the ground that they infringe Part III of the Constitution."

I may mention that the validity of the device was not questioned before the Court then.

But even though I do not accept the contention that art. 31-B can be . limited by what is contained in art. 31-A, the question arises wh~ ther the Twenty-Ninth Amendment is valid.

I have held that art. 368 does not enable Parliament to abrogate or take away fundamental rights. If this is so. it does not enable Parlia• ment to do this by any means, in.eluding the device oE art. 31-B and the Ninth Schedule. This device of art. 31-B and the Ninth Schedule is bad insofar as it protects statutes even if they take away fundamental rights. Therefore, it. is necessary to declare that the Twenty-Ninth Amendment is ineffective to protect the impugned Acts if they takeaway fundamental rights.

In this connection I may deal with the argument that the device of art. 31B and the Ninth Schedule has uptill now been upheld by this Court and it is now too late to impeach it. But the point now raised before us has never been raised and debated before. As Lord Atkin observed in Proprietary Articles Trade- Association. v. Attamey.-GeneraJ for Canada('). ·

"Their Lordships enl:crtain no efE>uf!lt that time akmc will not vali date an Act which when ci'tallcnged is f61md to be ulll'a vires; nor will a history of a gradual series of advances till this boundary is finally crossed. avail Ill) protect the ultiJnat.e ¢11m<1ch.il!em."

(') (1952) S.C.R. 1020-1037.

(') (1%5) 1 S.C.R. 636-648.

( 8 ) {1931) A.C. 310; 317.

' t'

XESAVANANDA fl. Kl!:RALA (Sikri, C.J.) 215

If any further authority is needed, I may refer to Attorney-General for Australia v. The Queen and the Boilermakers' Society of Australia('). The Judicial Committee, while considering the question whether certain sections of the Conciliation and Arbitration Act, 1904- 1952 were ultra tlires inanmuch as the Commonwealth Court of Conciliation and Arbitration had been invested with the executive powers alongwith the judicial powers, referred to the point why for a quarter of century no litigant had attacked the validity of this obviously illegitimate union, and observed :

"Whatever the reason may be, just as there was a patent invalidity in the original Act which for a number of years went unchallenged, so far a greater number of years an invalidity which to their Lordships as to the majority of the High Court has been convincingly demonstrated, has been disregarded. Such clear conviction must find expression in the appropriate judgment." . .

We .had decided not to deal with the merits of individual cases and' accordingly Counsel had not addressed any arguments on the impugned Acts passed by the Kerala State Legislature. It would be for the Constitution Bench to decide whether the impugned Acts take away fundamental rights. If they do, they will have to be struck down.

If they only abridge fundamental rights, it would be for the Constitu-.

tion Bench to determine whether they are reasonable abridgements essential in the public interest.

Broadly speaking, constitutional amendments hitherto made in, art. 19 and art. 15 and the agrarian laws enacted by various State• furnish illustrations of reasonable abridgement of fundamental rights in the public interest.

It was said during the arguments that one objecr of art. 31-B was to prevent time-consuming litigation, which held up implementation of urgent reforms. If a petition is filed in the High Court or a suit is. filed in a subordinate court or a point raised before a magistrate challenging the validity of an enactment. it takes years before the vlidity of an enactment is finally determined. Surely, this is not a good reason to eprive persons of their fundamental rights. There are other ways available to the Government to expedite the decision. It may for example propose ordinary legislation to enable parties to approach the Supreme Court for transfer of such cases to the Suoreme Court for dct; rmmation of substantial questions of interpretation of the Constitution.

( 1) (1957) A.C. 288; 323.

216 SUPREME COURT REroRTs [ 1973] Supp; soc.1t.

PART VIII: Conclusions

To summarise, I hold that :

(a) Golak Nath's(') case declared that a constitutional amendment would be bad if it infringed art: 13(2)1 as thil111pplled. not only to ordinary legislation but also to an amendment of the Constitution. ·

(b) Golak Nath' s(') case did not decide whether art, . 13(2) can be amended under art. 368 or determine the exact. meaning of the expression "amendment of this Constitution" in art. 368.

(c) The expression "amendment of this <Anstitution~ 'docs not enable Parliament to abrogate or take away. fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity. Within these limits Parliament can amend every article.

{d) The Constitution (Twenty-fourth Amendment) Act, 1971, as interpreted by me, has been validly enacted.

{ e) Article 368 does not enable Parliament in its constituent capacity to delegate its function of amending the Constitution to another legislature or to itself in its ordinary legislative capacity. ·

(f) Section 2 of the Constitution (Twenty-fifth Amendment) Act, 1971, as interpreted by me, is. valid.

(g) Section 3 of the <Anstitution (Twenty-fifth Amendment) Act, 1971 is void as it delegates power to legislatures to amend the Constitution. ·

(h) The Constitution (Twenty-Ninth Amendment) Ai:t, 1971 is ineffective to protect the impugned Acts if they abrogate or take away fundamental rights. The Constitution Bench will decide whether the impugned Acts take away fundamental rights or only abridge theni; and in the latter case whether they effect reasonable abridgements in the public interest. ·

The Constitution Bench will determine the validity of the Consti- 'tlltion (Twenty-sixth Amendment) Act, 1971 in. accordance wi!; h this judgment, and the law.

(') (1967) 2 S.C.R. 762.

KESAVANANDA I'. KERALA (She/at & Grover, JJ.) 217

The cases are remitted to the Constitution Bench to be decided in> accordance with this judgment, and the law. The parties will bear their own costs.

SHEi.AT & GRoviR, JJ. :-All the six writ petitions involve com• mon questions as to the validity of the 24th, 25th and 29th amend ments to the Constitution. It is not necessary to set out the facts which have already been succinctly stated in the judgment of the learned Chief Justice.

It was considered, when the larger bench was constituted, that the decision of the questions before us would hinge largely on the correctness or otherwise of the decision of this court In I. C. Golak Nath & Others v. State of Punjab & Anr.('), according to which it was

held, by majority, that Art. 13(2) of the Constitution was applicable to constitutional amendments made under Art. 368 and that for that reason the fundamental rights in Part III could not be abriged in any manner or taken away. The decision in Golak Nath has become academic, for even on the assumption that the majority decision in that case was not correct, the result on the questions now raised before ns, in our opinion, would just be the same. The issues that have been raised travel far beyond that decision and the main question to be determined now is the scope, ambit and , extent of the amending power conferred by Art. 368. On that will depend largely the decision of the other matters arising out of the 25th and the 29th amendments.

The respective positions adopted by learned counsel for the parties diverge widely and are irreconcilable. On the side of the petitioners, it is maintained inter alia that the power of the amending body (Parliament) under Art. 368 is of a limited nature. The Constitution gave the Indian citizens the basic freedoms and a polity or a form of government which were meant to be lasting and permanent.

Therefore, the amending power does not extend to alteration or destruction of all or any of the essential features, basic elements and fundamental principles of the Constitution which power, it is said, vests in the Indian people alone who gave the Corutitution to themselves, as is stated in its Preamble.

The respondents, on the other hand, claim an unlimited power for the amending body. It is claimed that it has the full constituent power which a legal sovereign can exercise provided the conditions laid down in Art. 368 are satisfied. The content and amplitude of the power is so wide that, if it is so desired, all rights contained in Part III


218 SUPREME COUl<T REPOllTS [ 1973) Supp. S.C.ll.

\Fundamental Rights) such as freedom of speech and expression; the freedom to form associations or unions and the various other freedoms guaranteed by Art. 19( 1) as also the right to freedom of religion as contained in Arts. 25 to 28 together with the protection of interests -0f minorities (to mention the most prominent ones) can be .abrogated and taken away. Similarly, Art. 32 which confers the right to move this court, if any fundamental right is breached, can be repealed or abrogated. The directive principles in Part IV can be altered drastically or even abrogated. It is claimed that democracy can be replaced by any other form of government which may be wholly undemocratic, the federal structure can be replaced by a unitary system by abolishing all the States and the right of judicial review can be completely taken away. Even the Preamble which declares that the People of India gave to themselves the Constitution, to constitute India into a Sovereign Democratic Republic for securing the great objectives mentioned therein can be amended; indeed it can be completely repealed, Thus, according to the respondents, short of total abrogation or repeal of the Constitution, the amending body is omnipotent under Art. 36!\ and the Constitution can, at any point of time, be amended by way of variation, addition or repeal so long as no vacuum is left in the governance of the country.

These petitions which have been argued for a very long time raise momentus issues of great constitutional importance. Our Constitution is unique, apart from being the longest in the world. It is meant for the second largest population with diverse people speaking different languages and professing varying religions. I~ was chiselled and shaped by great political leaders and legal luminaries, most of whom, had taken an active part in the struggle for freedom from the British yoke and who knew what domination of a foreign rule meant in the way of deprivation of basic freedoms and from the point of view of exploitation of the millions of Indians. The Constitution is an organic document which must grow and it must take stock of the vast socioeconomic problems, particularly, of improving the lot of the common man consistent with his dignitly and the unity of the nation.

We may observe at the threshold that we do not propose to examine the matters raised before us on the assum)?tion that Parliament will exercise the power in the way claimed on behalf of the respondents nor did the latter contend that i~ will be so done. . But while interpreting constitutional provisions it is necessary to determine their width or reach in fact the area of operation of the power, its minimum and maximum dimensions cannot be demarcated or determined without fully exallllning the rival claims. Unless that is done, the ambit, content, scope and extent of the amending power cannot be properly and correctly decided.

K.ES&.VA:r; ANDA 11. KERALA (She/at & Grover, JJ.) 219 ·

Fimr owr p11tpascs it is not 111Ccess11ry to g1lil ptim- to the year 1934 . . lt was in that year that the Inclian NatiGnal Congress made the demand for a Constiruent Assembly as part! of i; ts policy. This demand

WllS 11epcated in the Central LegiS!ative Assembly in 1937 by the rcpresc:statives of the Congress. By what is koown as the Simla Conference 1.945 the Congress repeated its sttmd that India could only accept

the Go!llll'liturion dr.nm by the people. After the end ef World War II the demand was put forward very strongly by the Indian leaders including Mahatma Gandhi. Sir Strafford Cripps representing Britain had ca:ls<> accepted the idea that an elected body of Indians should frame the Indian Constirution. (') In September 1945 the newly elected

British Labour Government annowiccd that it favoured the creation of a wnstituent , body in India. Elections were to be held so that the newly elected provincial legislatures could act as electoral bodies for the C(onstituent Assembly. A parlianienty delegation was sent to India in January 1946 and this was followecf by what is known as the Cabinet Mission. There were a great deal of difficulties owing to the

differences between the approach of the Inclian National Congress and the Muslim League led by Mr. M. A. Jinnah. The Cabinet Mission devised a plan which was announced on May 16, 1946. By the end of

June, both the Muslim League and the Congress had accepted it with reservations.

The Constituent Assembly was cl:ected between July- August 1946 as a result of the suggestion contained in the statement of the Cabinet Mission. The Attlee Government's efforts to effect an agreement between thi: Congress and the Muslim League having failed, the partition of the country came as a consequence ci. the declaration of the British Governinent on June 3, 1947. As a re.ult of that declaration certain changes took place in the Constituent Assembly.

There was also readjustment of representation of Indian States from time to time between December 1946 and November 1949. Many Smaller States merged into the provinces, many united to from union of States and some came to be administered as commissioner's pr<>-

vinces. There was thus a gradual process by which the Constituent Assembly became fully representative of the various communities and interests, political, intellectual, social and cultural. It was by virtue of s. 8 of the Indian Independence Act 1947 that the Constituent Assembly was veHed_ with the legal authority to frame a Constitution for India.

The .first meeting of the Oonstituent Assembly took place on December 9, 1946 when the swearing in of members and election df a temporary president r.o conduct the business until the installation of

a permanent head, took place. On December 13, 1946 Pandit Jawahar Lal Nehru moved the famous "Objectives Resolution" giving an out-

(') The facts have been taken mainly from the Indian Constitution, Cornerstone of a Nation, by Granville Austin.

220 SUPREME COURT REPORTS (1973] Supp. S, C.R.

line, aims and objects of the Constitution. This resolution was actually passed on January 22, 1947 by all members of the Constituent Asseni. bly (standing) and it declared among other matters that all power and authority of the S101Vereign Independent India, its constituent parts and organs of Governmen~ are derived from the people. By November 26, 1949 the deliberations of the Constituent Assembly had concluded and the Constitution had been framed. As recited in the Preamble it was on that date tihat the people of India in the Constituent Assembly adopted, enacted and gave to themselves "this Constitution" which according to Art. 393 was to be called "The Constitu ti on of India". In accordance with Art. 394 that Article and the other Articles mentioned therein were to come into force at once but the remaining provisions of the Constitution were to come into force on the 26th day of January 1950.

Before the scheme of the Constitution is examined in some detail it is necessary to give the pattern which was followed in framing it.

The Constituent Assembly was unfettered by any previous commit ment in evolving a constitutional pattern "suitable tlO the genius and requirements of the Indian people as a whole". The fusembly had before it the experience of the working of the Government of India Act 1935, several features of which could be accepted for the new Constitution. Our Constitution borrowed a great deal from the Constitutions of other countries, e.g. United Kingdom, Canada, Australia, Ireland, United States of America and Switzerland. The Constitution being supreme all the organs and bodies owe their existence to it.

None can claim superiority over the other and each of them has to function within the four-corners of the constitutional provisions. The Preamble embodies the great purposes, objectives and the policy underlying its provisions apart from the basic character of the State which was to come into existence i.e. a Sovereign Democratic Republic. Parts III and IV which embody the fundamental rights and directive principles of state policy have been described as the conscience of the Constitution('). The legislative power distributed between the Union Parliament and the State Legislatures cannot be so exercised as to take awy or ab.idge the fundamental rights contained in Part III: Powers of the Union and the States are further curtailed by conferring the right to enforce fundamental rights contained in Part III by moving the Supreme Coun for a suitable relief('), Art. 32 itself has been constituted a fundamental right. Part IV containing the directive principles of Stal!e policy was inspired largely by similar provisions in the Constitution of the Eire Republic (1937). This

( 1) The Indian Constitution by Granville Austin p. 50.

(') Sec generally, Kania C.J. in A. K. Gopalan v. The State [1950] S.C.R. 88 at pp. 96-97.

.Part, according.to Jl..'N,, Raoi'is can Instrumen~ of Instructions .from the ull, ina:ate sovereign, namely, the people of India ( 1). The -Constitution h:is all the essential .clements of a federal structure as was the case in the Government oflndia Act 1935, the essence offederalism being. the distribution . of 'powers betWeen the federation or the Union

and th~ S(3.tes o~, the provinces;· All the 'l!cgislatures have plenary powers but these arc controlled, by the basic concepts of the Constitutin itlf and thty function within the. limits laid down in it('). All the functronaries, be they legislators, members of the executive or tihe judiciary take oath of allegiance to the Constitution and derive their authority and jurisdiction fro Di its provisions. : The Constitution has

entrusted to the judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental . rights('). It is a written and controlled Constitution. It can be amended only to the extent of and in accordance with the provisions contained therein, the pnncipa1 provision being Art. 368. Although our Consti• tution is federal in its structure it provides a system modellec) on the British parliamentary systc; m. It is the executive that has the main responsibility for formulating the governmental policy by "transmitting it into taw" whenever necessary. '.'The executive function comprises both the, determination of the. policy as well as carrying it into execution. This evidently includes the inilliation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State."(') With regard to the civil services and the position of the judiciary the British model has been adopted inasmuch as the appointment of judges lioth of the Supreme Court of India and of the High Courts of tihe States is kept free from political controversies .. Their independence has been assured.

But the doctrine of parliamentary sovereignty as it obtains in England docs not prevail here except to the extent provided by the Constitution. The entire scheme of 1!he Comtitution is such that it ensures the sovereignty and integrity of the country as a Republic and the deme>- cratic way of -life by parliamentary institutions based on free and fair elections.

India is a secular State in which there is no State religion. Special provisipns have been made in the Constitution guaranteeing the freedom of conscience and free profession, practice and propagation of

( 1 )- B. N. Rao, India's Constitution in the Making p. 393. (') Per Gajcndragadkar C.J, in Special Rcfcrcncc No. 1 of 1964, [1965] 1 S.CJt 413 at p. 445.

( 1) Ibid p. 446. (') R. S. Ram Jawaya Ka[1Ur l!r Othb-s v. The Stak of Punjab (1955) . 2 S.C.R. 225 at p. 236.

IS-36 S. C. Indial73

222 SUPll!Mll COUllT ll!l'OllTS [1973] Supp. s.c.a.

religion and the freedom to manage religious affairs as also the protection of interests of Minorities. The interests of scheduled castes and the scheduled tribes have received special trcatmenn. The Rule of Law has been ensured by providing for JUdicial review. Adult suffrage, the "acceptance of the fullest implications of democracy" is one of the

most striking features of the Constitution. According to K. M. Pannikar, "it may well be claimed that the Chnstitution is a solemn pronlise to the people of India that the legislature will do everything possible to renovate and remnstitute the society on new principles(')".

We may now look at the Preamble.

It reads:-

"We, THE PEOPLt OF !Nb!A, having solemnly resolved tp constitute India into a SOVEREIGN DEMOCRATIC REPUB- LIC and to secure to all its citizens :

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all;

FRATERNITY assuring the dignity of the individual and the uniry of the Nation;

IN OUR CONSTITUENT ASSEBML Y this twenty-sixth day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO

OURSELVES THIS CONSTITUTION".

It may be mentioned that this Preamble and indeed the whole Constitution was drafted in the light of and directions .contained in the "OBJECTIVES RESOLUTION" adopted on January 22, 1947.

According to Granville Austin('), directive principles of State policy set forth the humanitarian socialist precepts that were the aims of the Indian social revolution. Granville Ausnin, while summing up the interrelationship of fundamental rights and directive principles, says that it is quite evident that the fundamental rights and the directive principles were designed by the members of the Assembly to be the chief instruments in bringing about the great rforms of the social revolution. He gives the answer to the question whether t11ey have helped to bring the Indian society closer to the Constitution's -------- ( 1) Hindu Society at crossroads (, By K. M. Pannikar) at pages 63-64.

( 2) Cornerstone •f a nation (Indian Constitution) by Granville Austin, p. 75.

USAVANANDA "· IWALA (SMlat & Grover, JJ.) 223

1!(>111 of social, economic and political justice for all in the affirmative ( 1) Das C. J. in Rt: Kera/a Ed#cation Bill 1957(') made the 'following observations with regard to Parts III and IV :- ' "While our Fundamental Rights arc guaranteed by Part Ill o1 the Constitution, Part IV of it on the other hand, lays down certain directive principles of State policy. The provisions contained in. that Part arc not enforceable by any court but the principles therein laid down are, nevertheless, fundamental in the govern ance of the country and it sall be the duty of the State to apply these principles in making laws. Art. 39 enjoins the State to. direct its policy towards securing, amongst other things, that the citizens, men. and women, equally, have the right to an adequate means of livelihood."

Although in the previous deci<; ions of this Court in Stak of Madras v.

Smt. Champakam Doraira; an(') and Mohd. Hanit Qureshi & Ot!iers v.

The State of Bihar(') it had been hdd that the directive principles of State policy had to conform to and run subsidiary to the Chapter of Fundamental Rights, the learned Chief Justice was of the view which may he stated in his own words :-

"Nevertheless in dete(rnining the scope and ambit of the fundamental rights relied on by or on behalf of: any person or body the. court may not entirely ignore these directive principles of State policy laid down in Part IV of the Constitution but should adopt the principle of harmonious con.truction and should attempt to give effect to both as much as po5sible".

The first question of prime importance involves the validity of the Constitution Amendment Act 1971 (hereinafter called the 24th Amendment). It amended Art. 368 of th~ ConstitJUtion for the first time. According to the Statement of Objects and Reasons in the Bill relating to the 24th amendment. the result of the judgment of this Court in Golak Nath's(') case has been that Parliament is considered to have no power to take away or curtail any of the fundamental rights guaranteed by Part III of the Constitution even if it becomes necessarv to do so for giving effect to the Directive Principles of State Policy and

(') Indian Constitution (Cornerstone of a nation) by Granville Austin p: 113.

(') [1959) S.C.R. 995 at p. 10~ (") [ 1951] S.C.R. 525 at p. 531,

(') [1959) S.C.R. 629.

{') [1967] 2~.C.R. 762.

224 SUpJ.IEM& COUB.T .it!PORTS (1973] Supp. S.CJI •..

for. attainment of the Objectives set out in the Preamble to the Constirution. It became, therefore, necessary to provide expressly that Parliament has the power to amend any provi•ion of the Constitution. including the provisions contained in Part III.

. Article 368 is in a separate Part i.e. Part XX. Its marginal note before the 24th Amendment was "Procedure for amendment of the Constlitution''. It provided in the substantive portion of the Article how the Constitution "shall stand amended" when "An Amendment of this Constitution" was initiated by the introduction of a Bill in either House of Parliament. The following oonditions had to be satisfied: -

(i) The Bill had to be passed in each House by a majority of the

total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting.

(ii) The Bill had to be presented for the assent of the President and his assent had to be obtained.

Under the proviso, it was necessary to obtain ratification of legislatures of not less than one half of the States by Resolutions before presenting the Bill to the Preooent for assent if the amendment sought to make any change in the Articles, Chapters eoc. mentioned in clauses (a) to (e). Clause (e) was "the provisions of this Article".

The 24th Amendment made the following changes :

(i) The marginal heading has been substituted by "Power of Parliament to amend the Constitution and procedure therefor".

(ii) Art. 368 has been re-numbered as clause (2) . .•

(iii) Before clause (2), the following clause has been inserted :-

''Notwithstanding anything in this Constitution, Parliament may i.n exercise of the Constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article".

(iv) In clause (2) as renumbered, for the words "it shall be presented to President for his assent and upon such assent being given to the B~I" the words "it shall be presented to the President who shall give his assent to the Bill and thereupon" have been substituted.

KESAVANANDA v: KEitALA ( Shelat & Grover, JJ.) 225

(v) A new clause (3) has been inserted, namely:

"(3) Nothing in Article 13 shall apply to any amendment made under this article".

Ia may be mentioned that by the 24th amendment clause ( 4) has been inserted im Article 13 itself. It is :

"( 4) Nothing in this Article shall apply to any amendment of this Constitution made under Article 368".

On behalf of the petitioners, Mr. Palkhivala stated that he need not for the purposes of this case dispute the 24th Amendment in so far as it leads to the following results :-

(i) The insertion of the express provision in Art. 368 that the source of the amending power is the Article itself.

(ii) The President is bound to give assent to any Bill duly passed under that Article.

The following three results have, however, been the subject of great l!lcal of argument : -

(i) The substitution of the words in Art. 368 "amend by way of addition, variation or rpeal. . . ...... " in place of the concept 'amendment'.

(ii) Making it explicit in the said Article that when Parliament makes a constitutional amendment under the Article it acts "in exercise of its constituent power".

(iii) The express provi.ion in Article 13 and 368 that the bar in the former Article against abridging or taking away any of the fundamental rights should not apply to an amendment made under the latter Article.

In the judgment of Chief Tustice Subba Rao with whom four learned judges agreed in Golak Nath's case the source of the amending power was held to reside in Art. 248 read with entry <J7 of List I to the Seventh Schedule. Whether r11at view is sustainable or not need not be considered here now owing to the concession made by Mr. Palkhivala that by amendment of Art. 368 such a power could be validly located in that Article even if it be assumed that it did not originally reside there. The real attack, therefore, is directed against the validity of the 24th Amendment in so far as the three results mentioned above arc concerned. It has been maintained that if the effect of those results is that the Parliament has clothed itself with legal sovereignty which thi!>-People of India alone possess, by taking the full constituent power,

22 6 suPDME COUil' uP011TS [ 1973] Suw. s.c.a.

and if the Parliament can in exercise of that power alter or destroy all or any of the 'essential .featlll'es' of the -Constitution, the 24th Amend ment will be void. The fundamental rights embodied in Part III arc a part of the 'essential features' and if their essence or core can be damaged or taken away, the 24th amendment will be void and illegal.

The position taken up on behalf of the respondents is that' so far as Article 368 's concerned, the 24th Amendment has merely clarified the doubts cast in the majority judgment in Colak Nath. That Araclc, as it originally stood, contained the constituent power by virtue . of which all or any of the provisions of the Constitution including the Preamble could be added to, varied or repealed. In other words, the power of amendment was unlimited and unfettered and was not circumscribed by any such limitations as have been suggested on behalf of the petitioners. Therefore, the crux of t!he matter is the cktermination of the true ambit, scope and width of the amending provisions contained in Art. 368 before the changes and alterations made in it by the 24th Amendment. If the Article conferred the power of the amplitude now covered by the 24th Amendment nothing new has

been done and the amendment cannot be .challenged. If, however, the original power though having the constituent quality was a limit ed one, it could not be increased. In other words the amending body cannot enlarge its own powers.

What then is the meaning of the word "amendment" as used in Art. 368 of the Constitution. On behalf of the respondents it has been maintained that "amendment" of this Constitution" can have only one meaning. No question, can arise of resorting to other aids in the matter of interpretation or construction of the expression "amendment."

On the other hand, the argument of Mr. Palkhivala revolves on the expression "amendment"• which can have more than one meaning and for that reason it is essential to discover its true import as well as ambit by looking at and taking into consideration other permissible aids of construction. No efforts have been spared on both sides to give us all the meanings of the words "amendment" and "amend" from the various dictionaries as also authoritative books and opinions of authors and writers.

It is more proper, however, to look for the true 'meaning' of the word "amendment" in the Constitution itself rather than in the dk

tionaries. Let us first analyse the scheme of Art. 368 itself as it sl'OOd before the 24th Amendment.

(i) The expression "amendment of the ConstitUtion" is not defined or explained in any manner although in other Parts ti the Constitution the word "amend" as will be noticed later,

KEs.\.V.\.NA.NDA ti. lA (Sftlil# Cfi' Grf!!'fr, JJ.) 2l1

has beon expanded by 11sc of th~ exprssion "~Qlend by way of addition, variation ar rcpe\11."

(ii) The power in rescc of amendment has not been conferred in express terms. It can be spelt out only by necessary im- . plication.

(iii) The proviso uses the W(ll"ds "if such amcnd!llcnt seeks to make any change j.n". It. dOC$ not use the words "change of" or "change" s; mpliciter. .

(iv) The provisions of the Constitution mentioned in the proviso do not show that the basic structure of the Constitution can be changed if the procedure lai4 down therein is followed. For instance, cl. (a) in the proviso refers to Articles S4 and S5 which relate to the election of the President. It is noteworthy that Article S2 which provides that there shall be a President of India and Art. 53 which vests the power of the Union in the President and provides how it shall be exercised are not included in clause (a). It is incomprehensible that the Constitution makers intended that although the ratification of the legislatures of the requisite number of States should be obtained if any changes were to be made in Articles S4 and SS but that no such ratilication was necessarv if the office of the President was to be abolished 'Ind the excutive power of the

Union was to be exercised by same other person or authority.

(v) Another Article which is mentioned in cl. (a) is Art. 73 which deals with the extent of the executive power of -the Union. So far as the Vice-President is concerned there is no mention of the relev:int Articles relating to him.· In other

words the States hve been given no voice in the question whether the ofliee of the Vice-President shall be continued or abolished or what the method of his election would be.

(vi) The neict Article mentioned in cl. (a\ is 162 which deals with the extent of the executive power of the States. The Articles relating to the appointment and conditions pf service of a Governor, Constitution and functions of his council of ministers as also the conduct of business are not mentioned in cl.

(a) or any other part of the proviso.

(vii) Along with Articles S4, S5, 73 and 162. Article 241 is mentioned in cl. (a) of the proviso. This Article dealt originally only with the High Courts for States in Part C of the First

Schedule.

(viii) Chapter IV of Parr V of the Constitution deals with the Union

Judiciary and Chapter V of Part VI with the High Courts in

228 SUPREME COURT REPORTS [ 1973] Supp. s.C:R.

the States. Although these have been included in cl. (b) of the proviso it is surprising !'hat Chapter VI of Part VI which relates to Subordinate Judiciary is not mentioned at all, which is the immediate concern of the States.

(ix) Chapter I of Par' XI which deals with legislative .relations

between the U ruon and the States is included in cl. (b) oi. th~ proviso but Chapter II of that Parn which deals with Administrative Relations between the Uruon and the States and various other matters in which the States would be vitally interested are not included.

(x) The provisions in the Constitution relating to services under the State as also with regard to Trade and Commerce are not included in the proviso.

(xi) Clause (c) of the proviso mentions the lists in the Seventh Schedule. Clause (d) relates to the representation of States in Parliament and clause ( e) to the provisions of Art. 368 itself.

The net result is that the provisions contained in els. (a) and (b) of the proviso do not throw any light on the logic, sequence or systematic arrangement in respect of the inclusion of those Articles which deal with the whole of the federal structure. These clauses demonstrate that the reason for including certain Articles and excluding other from the proviso was not that all Articles dealing with the federal structure or the States had been selected for inclusion in the proviso.

The other unusual result is that if the fundamental rights contained in

Part III have to be amended that can be done without complying with the provisions of the proviso. It is difficult to understand that the Constitution makers should not have thought of ratification by the

States if such important and material rights were to be abrogated or taken away wholly or partially. It is also interesting that in order to meet the difficulty created by the omission of Articles 52 and 53 which relate to there being a President in whom the executive functions of the Union would vest, the learned Solicitor General sought to read by implication the inclusion of those Articles because according to him, the question of election cannot arise with which Articles 54 and 55 are concerned if the office of President is abolished

We may next refer to the use of the words "amendment" or "amended" in other articles of the Constitution. In some articles these words in the context have a wide meaning and in another context they have a narrow meaning. The group of articles which expressly

confer power on the Parliament to amend arc five including Art. 368.

KESAVANANt>A v. XERALA (She/at & Grover, JJ.) 229

The first is Art..4. It relates to laws made under Arts. 2 and 3 to pro..

vid~: for amendment of the First and the Second Schedules and supplemental, incidental and consequential matters. The second Article is 169 which provides for abolition or creation of Legislative O:>Uncils in States. The third and the fourth provisions are paras 7 and 21 of the 5th and 6th Schedules respectively which have to be read with

Art. 244 and which deal with the administration of Scheduled Areas 211d Tribal Areas. The expression used in Arts. 4 and 169 is "amendment". In paras 7 and 21 it is the expanded expression "amend by way of addition, variation or repeil.I" which has been employed. Parliament has been empowered to make these amendments by law and it has been expressly provided that no such law shall be deemed to be an amendment of the Constirution for the purpose of Art. 368.

It is apparent that the word "amendment" has -been used in a narrower sense in Art. 4. The argument that if it be assumed that Parliament is invested with wide powers under Art. 4 it may conceivably exercise power to abolish the legislative and the judicial -Ocgans of the State altogether was refuted by this court by saying that a State cannot be formed, admitted or set up by law under Art. 4 by the Parliament which docs not conform to the democratic pattern envisaged by the Constitution('). Similarly any law which contains provisions for amendment of the Constitution for the purpose of abolition or creation of legiS!ative .councils in States is only confined to that purpose and the word "amendment". has necessarily been used in a narrow sense. But in Paras 7 and 21 the expanded expression is employed and indeed an attempt was made even in the Constituent Assembly for the insertion of a new clause before cl. (1) of draft Art. 304 (Present Article 368). The amendment(') (No. 3239) was pro.. posed by Mr. H. V. Karnath and it was as follows :-

"Any provision of this Constitution may be amended, whether by way of variation, addition or repeal, in the manner provided in this article''. ·

Mr. Karnath had moved another amendment in draft Art. 304 to suhtitute the words "it shall upon presentation to the President receive his assent''. Both these amendments were negatived by the Constituent Assembly('). It is noteworthy that the 24th amendment as now insert- .ed has. introduced substantially the same amendments which were not accepted by the Constituent Assembly,


.(~) Constituent Assembly Debates Vol. 9, p. 1663. (') Ibid.

230 SUPIU!ME CQUl.T REPORTS [1973) Supp. s.c.Jt.

The C!lllstituent Assembly, must be presumed to be fully aware of the expanded expression, as on September 17, 1949 it had substituted the following section in place of the old s. 291 of the Government of India Act 1935 by means of Constituent Assembly Act 4 of 1949 :-

"291. Power of the Governor General to amend certain prof.lisions of the Act and order made thereunder.-

"(l) The Governor General may at any time by Order make such amendments as he considers necessary whether by way of addition, modification, or repeal, (emphasis supplied) in the provisions of this Act or of any Order made thereunaer in relation to any Provincial Legislature with respect to any of the following matters, that is to say,-

(a) .................... "

The word "amendment" has also been used in certain Articles like Art. 107 dealing with legislative procedure and Article lll which enables the President to send a message requesting the Houses to consider the desirability of introducing amendments etc., "Amendment''' as used in these Articles oould only have a limited meaning as is apparent from the context. On behalf of the petitioners a great deal of reliance has been placed on the contrast between the use of the word "amendment" in Article 4 and 169 and paras 7 and 21 of the 5th and 6th Schedules which use the composite expression "amend by way of addition, variation or repeal." It is pointed out that in Article 368 it is only the word "amendment" which has been used and if the Constitution makers intended that it should have the expanded meaning then there was no reason why the same phraseology would not have been employed as in paras 7 :ind 21 or as has been inserted now by the 24th amendment. The steps in this argument are :

(i) The contrast in the language 'employed in the different provisions of the Constitution in respect of amendment ;

(ii) conferment of the wider power for the purpose of the 5th and 6th Schedules which empower the Parliament to altr and repeal the provisions of those Schedules relating to the institutions contemplated by them, the law making authority set up under them and the fundamental basis of administration to be found in the two Schedu\es.

(iii) the wide language used in paras 7 and 21 of the two Sche.

dules was meant for the purpose that at a proper time in the future or whenever considered necessary the entire buic structure of the Schedules could be repealed and the areas and tribes covered by them could be governed and administered like the rest of India.

KESAVAN>.l'IDA 11. Kl!AALA (Shtltll & Grover, IJ.) 231

(iv) the use of the word "amendment" simpliciter in Article 368 must have a narrower meaning than the composite expression "amend" or "amendment" by way of addition, variation or repeal and must correspond to the meaning of the word "amend" or "amendment" in Articles 4 and 169 .

( v) The power of amending the Constitution is not concentra~

in Article 368 alone but it is diffused as it is to be found m the other Articles and provisions mentioned. The reason why it was added that no law passed by the Parliament under those provisions shall be deemed to be an amendment of this Constitution for the purpose of Article 368 was only meant to clarify that the form and manner prescribed by Article 368 was not to be followed and the Parliament could, in the ordinary way, by following the procedure laid down for passing legislative enactments amend the Constitution to the extent mentioned in those Articles and provisions.

The learned Advocate General of Maharashtra, who appears for respondent No. 1, has laid a great deal of emphasis on the fact that Article 368 is the only Article which is contained in a separate Part having the title "Amendment of the Constitution". It is under that article that all other provisions including Aricles 4, 169 and paras 7 and 21 of the Sth and 6th Schedules respectively can be amended. The latter group of articles contain a limited power because those Articles are subordinate to Article 368. This is illustrated by the categorical statement contained in each one of those provisions that no such law amending the Constitution shall be deemed to be an amendment there of for the purpose of Article 368. As regards the composite expression "amend by way of addition, variation or repeal" employed in paras 7 and 21 of the two Schedules, it has been pointed out that clause (2), in which the words "Amendment of this Constitution" are used clearly shows that addition, variation or repeal of any provision would be covered hy the word "amendment". According to the learned Attorney General the word "amendment'' must mean, variation addition or repeal. He has traced the history behind paras 7 and 21 of Schedules S and 6 to illustrate that the expression "amend by way of addition, variation or repeal" has no such significance and does not enlarge the meaning of the word "amendment". Our attention has been invited to a number of Articles in the Consnitution itself out of which ention may be made of Articles 320(5) and 392(1) where the expressions used were "such modification, whether by way of repeal or amendment" and "such adoption whether by way of modification addition or omission". It has been urged that the expression "amend: ment of this Constitution" has acquired substantive meaning over the

232 SUPREME 'COURT REPORTS (1973) Supp, S.C.R.

years in the context of a written Constitution and it means that any part of the Constitution can be amended by changing the same either by variation, addition or repeal.

Dr. B. R. Ambedkar who was not only the Chairman of the Drafting Committee but also the main architect of the Constitution made it clear(') that the articles of the Constitution were divided into diiferent categories; the first category was the one which consisted of articles which could be amended by the Parliamenn by a bare majority; the second set of articles were such which required the twothird majority. This obviously had reference to the group of articles consisting of Articles 4, 169 and paras 7 and 21 of the two Schedules and Article 368 respectively. The scheme of the amending provisions outlined by Dr. B. R. Ambedkar seems to indicate that the Constitution makers had in mind only one distinction between the amending power conferred by the other Articles and Article 368. No such distinction was present to their mind of the nature suggested by the learned Advocate General that the amending power conferred by Articles other than Art. 368 was of a purely subordinate nature. In one sense the power contained in the first group of Articles can be said to he subordinate in those Articles themselves could be amended by the procedure prescribed by Article 368. But that Article itself could be amended by the same procedure. It would not, therefore, be wrong to say that the amending power was of a diffused kind and was contained in more than one provision of the Consti11Ution. It appears that the statement in the articles and provisions .containing the amending power other than article 368 that any amendment made under those articles would not amount to an amendment under article 368 merely embodied the distinction emphasised by Dr. B. R. Ambedkar that one category could be amended by the Parliament by a bare majority and all the other articles could be amended by the said body but only by following the form and manner prescribed by article 368. Although pnma facie. it would appear that the Constitution makers did not employ the composite expression in Article 368 for certain reasons and even rejected Mr. Kamath's amendment which pointedly brought to their notice that it was of material importance that the expanded expression should be used, it may not be possible to consider this aspect as cnclusive for the purpose of determining the meaning of the word "amendment" in. Article 368.

According to Mr. Palkhivala there can be three possible meanings of amendment :-

(i) tq Improve or better; to remove an error, the question of improvement being considered from the standpoint of the basic

( 1 ) Constituent Assembly Debates Vol. 9, page 1661.

KEM.VA~ v. DRALA (Shelat & GrQver, JJ.) 233

philosophy underlying the Constitution but subject to its

essential features.

(ii) tq lllake changes which may not tall within (i) but which do. not alter. oc destroy any of the basic features, essential elements or fund;µuental princip!s of the Constitution.

(iii) to make aiiy change whatsoever including changes falling

outside (ii); ·

He claims that the preferable meaning is that whidi is contained in

(i) but what is stated in (ii) is also a possible constructio~: Category

(iii) shoulfl be ruled out altogether. Category (1) and (n) have a common factor, namely that the essential features cannot be damaged or destroyed.

On behalf of the respondents in is not disputed that the words "amendment of this Constitution" do not mean repeal or abrogation of this constitution. The amending power, however, is claimed <ln• behalf of the respondents to extend to .addition, alteration, substitution, modification, deletion of each and every. provision of the constitution.

The argument of the Attorney General. is that the amending power in Art. 368 as it stood before the 24th amendment and as it stands now has always been and continues to be the constituent power, e.g., the power to deconstitute or reconstitute the Constitution or any part of it. Constitution at any point of time cannot be so amended by way of variation, addition or repeal as to leave a vacuum in the government of the country. The whole object and necessity of amending power is to enable the Constitution to continue and such a constituent power,

unless it is expressly limuted in the Constitution itself, can by its very nature have no limit because if any such limit is assumed, although not expressly found in the Constitution, the hole purpose of an amending power will be nullified. It has been pointed out that in the Constitution First Amendment Act which was enacted soon after the Constitution of India came into force, certain provisions were inserted, . others substituted or omitted and all these were described as amendments of the article mentioned therein. In the context of the constitution, endmem. reches every proision including the Preamble ana

ere 1s n~ amb1gmty about 1t which may justify having resort to etther looking at the other Articles for determining the ambit of the amendatory power or taking into consideration the Preamble or the scheme of the Consti11Ution or other permissible aids to construction.

A g?D<1 deal of reliance h~ ":en placed on behalf of the respondents on Article 5 of the Constitution of the United States hereinafter

lld the 'A?lerican Constiiiu?on' whlch deals with amendment and its mt~retat:tOn by the American courts. Reference has been made to

the wntmgs of authors and writers who have dealt with the meaning-

234 SUPllm COURT ll!POllTS [ 1973] Supp. s.c.Jt.

of the word "amendment" in the American Constitution. It has been .argued that in Art. 5 of that Constitution the word used is "amendments" and our Constitution makers had that word .in mind when they employed the expression "amendment of this constitution" in Article 368. We propose to refer to the decision from other countrios including those of the Supreme Court of the United States later. We wish to observe, at this stage, that our founding fathers had primarily the Constitutions of Canada, Australia, Eire, U.S.A. and Switzerland 1n view apart from that of Japan. The whole scheme and language of Article 368 is quite different from the amending provisions in Constitutions of those countries. For instance, in U.S.A., Eire, Australia, Switzerland and Japan the people are associated in some manner or the other directly with the amending process. It would be purely speculative or conjectural to rely on the use of the word "amend" or "amendment" in the Constitution of another country unless the entire

scheme of the amending section or article is also kept in mind. In India Parliament is certainly representative of the people but so are •imilar institutions in the countries mentioned above and yet there is

~ provision for ratification by convention or referendum or submission of the proposed law to electors directly. Another way of discovenng the meaning on which both sides relied on is to refer to the various

speeches in the Constituent Assembly by the late Prime Minister Pan- -Oit Jawahar Lal Nehru and late Dr. B. R. Ambedkar the Chief Architects of the Constitution. The position which emerges from an examination of their speeches does not lead to any clear and conclusive result. Their speeches show that our constitution was to be an amendcable one and much rigidity was not intended. Pandit Nehru time and .again emphasised that while the Omstitution was meant to be as solid and as permanent a structure as it could be, nevertheless there was no permanence in the ce>nstitution and there should be certain

flexibility; otherwise it would stop a' nation's growth. Dr. Ambedkar, while dealing with draft Article 25 corresponding to the present article 32, said that the most important Article without which the Constitution would be a nullity and which was the very soul of the constitution and the heart of it was that Article. But what he said at a later stage appears to suggest that that article itself could he amended and according to the respondents even abrogated. This illustration shows . that nothing conclusive can emerge by referring to. the speeches for the purpose of interpretation of the word "amendment''.

It is not possible to accept the argument on behalf of the respondents that amendment can have only one meaning. This word or expression has several meanings and we shall have to determine its true meaning as used in the context of article 368 by taking assistance from the other permissible aids to construction. We shall certainly

KESAVANA!<DA ti. lt!IW.A (Sftt//ll Grrwrr, J}.) 235

beat in milld the well known ptinciplcs of interpretation and cOllstruction, particularly, of an instrument like a Oinstitution. A Constitution is nOt to be construed in any narrow and pedantic sense. A broad and liberal spirit should inspire those whose duty it is to interpret it.

Gwyer C. J.(') adopted the words of Higgins J., of the High Coult of Australia from the decision in Att()l'ney Generlll f()I' New South Wales v. Tlze Brt:wery Employees Union of New South Wales etc.(2) according to which even though the words of a constitution arc to be interpreted on the same principles of interpretation as arc applied to any ordinary law, these very principles of interpretation require taking into account the nature and scope of the Act remembering that "it is a constitution, a mechanism under which laws are tO be made and not a tntre Act which declares what the law is._ to be".(') The decision must depend on the words of the Constitution as provisions of no two constitutions are in identical terms. The same learned Chief Justice said that the "grant of the power in general terms standing by itself would no doubt be construed in the wider sense, but it may be qualified by other express provisions in the same enactment, by the implica- ' tion of the context, and even by considerations arising out of what appears to be the general scheme of the Act.".(') The observations o{ Lord Wright in James v. Commonwealth of Australia(") were also quoted in the aforesaid judgment of the Federal Court of India at page 73 :-

"The question, then, is one of construction and in the ultimate resort must be determined upon the actual words used rr:at/ not in a vacuo but as occurring in a single cotnplex instrument, in which one part may throw light on another. The constitution has been described as the federal compact, and the construction must hold a balance between all its parts."

Apart from the historical background and the scheme of the Constitution the use of the Preamble has always been made and is permissible if the word "amendment" has more than one meaning. Lord Green in Bidis v. General Accident. Fire and Life Assurance Corporation ( 6 ) pointed out that the words should never be interpreted in

vaco because _few. words in the English language have a natural or orpmary mearung m the sense that they must be so read that their

( 1) In Re. C. P. & Berar Sales of Motor Spirit & Motor Lubricants Taxa tion Act 1938 [1939] F.C.R. 18.

( 2 ) [1908] 6 CL.R. 469 at pp. 611-612.

( 3) [1939] F.C.R. 18, 37. (') ibid p. 42. (') [1936] A.C. 578 at p. 613.

( 6) [1948] 2 AU. E.R. 998.

236 S.uPREME COURT REPORTS (1973) Supp. S.C, R,

meaning is entirely independent of their context. The method which he preferred was not to take the particular words and attribute to them a sort of prima facie meaning which may have to be displaced or modified. To use his own words "it is to read the statute as a whole and ask oneself the question.

In this state, in this context, relating to this subject matter, what is the true meaning of that word I"

We shall first deal with the Preamble in our Constitution. The Constitution makers gave to the preamble the pride of place. It embodied in a solemn form all the ideals and aspirations for which the country had struggled during the British regime and a constitution was sought to be enacted in accordance with the genius of the Indian people. Jt certainly represented an amalgam of schemes and ideas adopted from the constitutions of other countries. But the constant strain which runs throughout each artd every article of the constitution is reflected in the Preamble which could and can be made sacrosanct. It is not without significance that the Preamble was passed only after draft articles of the constitution had been adopted with such modifications as were approved by the Constituent Assembly. The preamble was, therefore, meant to embody in a very few and we11 defined wordsthe key to the understanding of the const!itution.

It would be instructive to advert to the various stages through which the Preamble passed before it was ultimately adopted by the Constituent Assembly. In the earlier draft of the Union Constitution the Preamble was a somewhat formal affair. The one drafted by B. N.

Rau said: -

"We, the People of India, seeking ro promote the common good, do hereby, throughout chosen representatives, enact, adopt and give to ourselves this Constitution."

The Union Constitution Committee provisionally accepted the draft Preamble of B. N. Rau and reproduced it in its report of July 4, 1947 without any change with the tacit recognition, at than stage, that the Preamble would finally be based on the Objectives Resolution.

On July 18, 1947, Pandit Nehru in a statemenn observed that the Preamble was covered more or less by the Objectives Resolution which it was intended to incorporate in the final Constitution. Three days later, while moving the report of the Union Constitution Committee, he suggested that it was not at that stage necessary to consider the Preamble since the Assembly stood by the basic principles laid down in the Objectives Resolution and these could be incorporated in the Preamble later. The suggestion was accepted and further considci'a-

~~!l of the Preamble was held over.

KESAVANANDA v. KERALA (She/at & Grover, JJ.) •237

The Drafting Committee considered the Preamble at a number of its meetings in February 1948. The Committee omittJed that part of the Objectives Resolution which declared that the territories of India would retain the status of automonous units with residuary powers.

By this time the opinion had veered round for a strong centre with residuary powers. The Drafting Committee felt. that the Preamble should be restricted "to defining the essential features of the new State and its basic socio-political objectives and that the other matters dealt . with in the Resolution. could be more appropriat; ely provided in the substantial parts of the Co1,1stitution". Accordingly it drafted the Preamble, which subsnantially was in the presen\ form.

Meanwhile important developments had taken place in regard to the Indian States. With the completion of the process of merger and integration of the Indian States the principle had been accepted (i) of sovereign powers being vested in the people, and (ii) that their constitutions should be framed by the Constituent Assembly and should form integrated part of the new constitution. On October 12, 1949, Sardar Patel declared in the Assembly that the new Constitution was

"not an alliance between democracies and dynasties, but a real union of the Indian people, built on the basic concept of the sovereignty of the people."

The draft preamble was considered by the Assembly on October 17, 1949. The object of putting the Preamble last, the President of Assembly explained, was to see that it was in conformity with the Constitution as accepted. Various amendments were at this stage suggested, but were reiected. One of such was the proposal to insert , into it the words "In the name of God". That was rejected on the ground that it was inconsistent with the freedom of faith which was not only promised in the Preamble itself but was also guaranteed as a fundamental right. ( 1)

An amendment was moved in the Constituent Assemblv to make it clear beyond all doubt that sovereignty vested in the people. It was not accepted on the short ground that "the Preamble as drafted could convey no other meaning than that the Constitution emanated from the people and sovereignty to make this Constitution vested in them(').

The history of the drafting and the ultimate adoption of the Preamble shows : -

(1) that it did not "walk before the Constitution" as is said about the preamble to the United States Constitution ;

( 1) Constituent Assembly Debates Vol. 10, pp. 432-442. (') The Framing of India's Constitution by B. Shiva Rao, p. 131. 16-36 S. C. lndia/73

238 SUPREME COURT REPORTS [1973] Supp. s.c.R.

(2) that it was adopted last as a part of the Constitution ;

(3) that the principles embodied in it were taken ma.inly from the Objectives Resolution ;

( 4) the Drafting Committee felt, it should incorporate in it "the

essential features of the "new State" :

(5) that it embodied the fundamental concept of sovereignty being in the people.

In order to appreciate how the preamble will assist us in discovering the meaning of the weird "amendment" employed in Article 368. we may again notice the argument presented by the respondents that the amending body can alix:r, vary or repeal any provision of the Constitution and enact it and apply that process to the entire Constitution short of total repeal and abrogation. It is maintained on behalf of the Respondents that by virtue of the amending power even the preamble can be varied, altered or repealed. Mr. Palkhivala, however, relies a great deal on the preamble for substantiating the conix:ntion that

"amendment" does not have the widest possible meaning as claimed by the respo11dents and there are certain limitations to the exercise of the amending power and, therefore, the expression "amendment" should be construed in the lighn of those limitations. All the elements of the Constitutional structure, it is said, are to be found in the preamble and the amending body cannot repeal or abrogate those essential elements because if any one of them is taken away the edifice as erected must fall.

The learned Advocate General of Maharashtra, says that the preamble itself is ambiguous and it can lie ci no assistance in that sit:ua-. tion. It has furthr been contended that the concepts recited in the preamble, e.g., human dignity, social and economic justice are vague; different schools of thought hold different notions of their concepts.

We are wholly unable to accede to this contention. The preamble was finalised aftet a long discussion and it was adopted last so that it may embody the fundamentals underlying the structure of the constitution.

It is true tha~ on a concept such as social and economic justice there may be different schools of thought but the Constitution makers knew what they meant by those concepts and it was with a view to implement them that they enacted Parts III (Fundamental Rights) and Part IV (Directive. Principles of Stare Policy) - both fundamental in character-on the one hand, basic freedoms to the individual and on the other social security, justice and keedom from exploitation by laying down guiding principles for future governments.

KESAVANANDA v. KERALA (She/at & Groter, JJ.) 239

Our court has consistently looked to the preamble for guidanc& and given it a transcedental position while interpreting the Constitution or other laws. It was so referred in Behram Khurshid Pesikaka' s(') case. Bhagwati J., in Basheshar Nath v. Commissioner of Income-tax(') Rajasthan when considering the question of waiver of a fundamental right referred to the preamble and to the genesis of declaration of fundamental rights which could be traced to the report of the Nehru Committee of 1928. He proceeded to' say "the object sought to be achieved was, as the preamble to the Constitution states ................ " In Re Kera/a Education Bill 1957(') this court rc.- ferred to the preamble extensivcly and observed that the fundamental rights were provided for "to implement and fortify the supreme purpose set forth in the preamble". The court also made use of the "inspiring and nobly expressed preamble to our Constitution" while expressing opinion about the legality of the various provisions of the Kerala Education Bill 1957. It is unnecessary to multiply citations from judgments of this Court in which the preamble has been treated almost as sacrosanct and has been relied on or referred to for the purpose of interpreting legislative provisions. In other countries also following the same system of jurisprudence the preamble has been referred to for finding out the Constitutional principles underlying a Constitution. In Rex v. Hess(') it was said :-

'I conclude further that the opening paragraph of the preamble to the B. N. A. Act 1867, which provided for a "Constitution similar in principle to that of the United Kingdom" thereby adopted the same constitutional principles and hence s. 1025A is contrary to the Canadian Constitution and beyond the competence of Parliament or any provincial legislature to enact so long as our Constitution remains in its present form of a constitutional democracy."

In John Switzman v. Freda Elbling & Attorney General of the Province of Quebec('), Abbot J., relied on the observations of Duff C. J., in an earlier decision in Re Alberta Statutes(") which was affirmed in Attorney General for Alberta v. Attorney General for Canada(7)-

that view being that the preamble of the British North America Act showed plainly enough that the Constitution of the Dominion was to be similar in principle to that of the United Kingdom. The statute


( 2) [1959] Suppl. 1 S.C.R. 528.

( 8) [1959] s.c.R. 995. (') [1949] Dom. L.R. 199 at p. 208. (') [1957] Canada L.R. 285 at p. 326 (Supreme Court). (') [1938] S.C.R. 100 (Canada).

(') [1939] A.C. 117.

240 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.

contemplated a Parliament working under the influence of public Qpinion and public discussion. In McCawley v. The King Lord Birkenhead (1) (Lord Chancellor) while examining the contention that the Constitution Act of 1867 (Queensland, Australia) enacted certain fundamental organic provisions of such a nature which rendered the Constitution sterotyped or controlled proceeded to observe at page 711:-

"It may be premised that if change so remarkable were contemplated one would naturally have expected that the legislature would have given some indiqtion, in the very lengthy preamble of the <\ct, of this intention. It has been seen that it is impossible to point to any document or mstrument giving to, or imposing upon the Constitution of Queensland this quality before the year

1867. Yet their Lordships discern nowhere in the preamble the least indication that it is intended for the first time to make provisions which are sacrosanct or which at least can only be modified by methods never previously required."

In re. Berubari Union and Exchange of Enclaves(') an argument had been raised that the preamble clearly postulated that the entire territory of India was beyond the reach of Parliament and could not be affected either by ordinary legislation or even by constitutional amendment. The Court characterized that argument as extreme and laid down the following propositions :-

I. A preamble to the Constitution serves as a key to open the minds of the makers, and shows the general purposes for - which they made the several provisions in the Constitution;

2. The preamble is not a part of our Constitution;

3. It is not a sourte of the several powers conferred on government under the provisions of the Constitution;

4. Such powers embrace those expressly granted in the body of the Constitution "and such as may be implied from those granted";

5. What is true about the powers is equally true about the prohibitions and limitations;

6. The preamble did not indicate the assumption that the firsr part of preamble postulates a very serious limitation on one of the very important attributes of sovereignty, viz., ceding

(1) [1920] A.C. 691 at p. 711.


KESWANANDA ti. KERALA (She/at & Grover, JJ.) 241

territory as a result of the exercise of the sovereign power of the State of treaty-making and on the result of ceding a part of the territory.

On behalf of the respondents reliance has been placed on this case for the propooition that no. mitation was read by virtue of the preamble. A careful reading of the judgment shows that what was rejected was the contention that the preamble was the source of ! power. Indeed, it was held that the preamble was not even a partl of 1 the Comtitution and that one rn, ust se.ek power and its scope in the provisions of the Constitution. The premise for the conclusion was that a preamble is not the source of power since it is not a part of the Constitution. The learned Advocate General of Maharashtra has himself disputed the conclusion in the aforesaid judgment that the preamble is not a part of the Constitution. It is established that it was adopted by the Constituent Asemblv after the entire Constitution had been adopted. ·

Mr. Palkhivala has given an ingenious explanation as to why the preamble cannot be regarded as a part of our Constitution. He makes a distinction between the concept of the Constitution and the concept of the Constitution's statutes. The last words in the preamble "This Constitution is the Constitution which follows the preamble, "according to Mr. Palkhivala. It starts with Arr. 1 and ended originally with the Eighth Schedule and now ends with the Ninth Schedule after the First Amendment Act 1951. It is sought to be concluded from this that . the way in which the preamble has been draftt:d, indicates that what follows or is annexed to the preamble is the Constitution of India. It is further argued that :

"The Constitution statute of India consist of two parts-one, the preamble and the other the Constitution: The preamble is a part of the Constitution statute, but is not a part of the Constitution.

It precedes it; The preamble came into force on Nov. 26, 1949 and not 26th January 1950 as contended on behalf of Respondent No. l"

There is. a clear recital in the preamble that the people of India gave to themselves this Constitution on the 26th day of November .

1949. Even if the preamble was actually adopted by the Constitutent Assembly at a later date, no one can question the statement made in the Preamble that the Constitution came into force on the date mentioned therein. The preamble itself must be deemed by a legal fiction ro have come into force with effect from 26th November 1949. Even if this-is a plausible conclusion, it does not appear to be sufficient to support the observation in the Berubari case that the preamble was not a

242 SUPREME COURT REPORTS [1973] Supp. s.c.R.

part of the Constitution. To our mind, it hardly makes any substantial difference whether the preamble is a part of the Constitution or not. The preamble serves several important purposes. Firstly, it indi cates the source from which the Constitution comes viz. the people of India. Next; it contains the enacting clause which brings into force the Constitution. In the third place, it declares the great rights and freedoms which the people of India intended to secure to all citirzen• and the basic type of government and polity which was to be established. From all these, if any provision in the Constitution had to be interpreted and if the expressions used therein were ambiguous, the preamble would certainly furnish valuable guidance in the matter, particularly when the question is of the correct ambit, scope and width of a power intended to be conferred by Art. 368.

The stand taken up on behalf of the respondents that even the preamble can be varied, altered or repealed, is an extraordinary one.

It may be true about ordinary statutes buti it cannot possibly be SU$- tained in the light of the historical background, the Objectives Resolution which formed the basis of the preamble and t; he fundamental position which the preamble occupies in our Constitution. It constitutes a land-mark in India's history and sets out as a matter of historical fact what the people of India resolved to do for moulding their future destiny. It is unthinkable that the 'Constitution makers ever conceived of a stage hen it would be claimed that even the preamble could be abrogated or wiped out.

If the preamble contains the fundamentals of our Constitution, it has to be seen whether the word amendment in Art. 368 should be so construed that by virtue of the amending power the Constitution can be made to suffer a complete loss of identity or the basic element• on which the constitutional structure has been erected, can be eroded or taken away. While dealing with the preamble to the United States, Constitutio'.l it was observed by Stqry ( Comment)lries on the Constitution of the United States, 1833 edition, Volume I), that the preamble was not adopted as a mere formulary; but as a solemn promulgation of a fundamental fact, vital to the character and operations of the Government. Its true office is to expound the nature and extent and application of the powers actually conferred by the Constitution and not substantially to create them(').

Now let us examine the effect of the declarations made and the statements contained in the preamble on interpretation of the word "amendment" employed in Art. 368 of the Constitution. The first thing which the people of India resolved to do was to constitute tlheir

( 1 ) Story, para 462 at p. 445.

KESAVANANDA v. KERALA (Shelat & Grover, JJ.) 24:>

country 'into a Sovereign Democratic Republic. No one can suggest that these words and expressions are ambiguous in any manner.

Their true import and connotation is so well known that no question of any ambiguity is involved. The question which immediately arises is whether the words "amendment or amended ... as employed in Art. 368 can be so interpreted as to confer a power on the amending body to take away any of these three fundamental and basic characteristics of our polity. Can it be said or even suggested that the amending body can make institutions created bv our Constitution undemocratic as opposed to democratic; or aboli; h the office of the President and, instead, have some other head of the Stalle who would not fit into the conception of a "Republic" The width of the power claimed on behalf of the respondents . has such large dimension that even the above part of the preamble can be. wiped out from which it would follow that India can cease to be a Sovereign Democratic Republic and can have a polity denuded of sm-ereignty, democracy and Republican character.

No cme has suggested-it would be almost unthinkable for anyone to suggest-that the amending body acting under Art. 368 in our country will ever do any of the things mentioned above, namely change the Constitution in such a way that it ceases to be a Sovereign Democratic Republic. But while examining the width of the power, it is essential to see its limits, the maximum and the minimum; the entire ambit and magnitude of it and it is for that purpose alone that this aspect is being examined. While analysing the scope and width of the power claimed by virtue of a constitutional provision, it is whollv immaterial whether there is a likelihood or not of such an evenu; ality arising.

Mr. Palkhivala cited example of one country after another in recent history where from a democratic constitution the amending power' was so utilized as to make that country wholly undemocratic resulting in the negation of democracy by establishment of rule by one party or a small oligarchy. We are not the least impressed by these instances and illustrations. In the matter of deciding the que>- tions which are before us. we do not want to be drawn into the political arena which, we vent:ure to think, is .. out of bounds" for the judiciary and which . tradition has been cons; stently followed by this Court. [See Wanchoo J, as he then was in Golak Nath(')].

Since the respondents themselves claim powers of such wide magnitude that the results which have been briefly mentioned can flow apart from others which shall presently notice, the coniequences

( 1) (1967) 2 S.C.R. 762 at p. 850.

244 SUpREME COURT REPORTS [1973] Supp. s.C.R.

and effect of suggested construction have to be taken into account as 'has been. frequently done by this Court. Where two wnstructions arc:

possible the court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well-establmshed provisions of existing law nugatory(').

In Don John Francis Douglas Liyange & Ors. v. The Queen('), Lord Pearson declined oo read the words of s. 29( I) of the Ceylon Constitution as entitling the Parliament to pass legislation which usurped the judicial power of the judicature by passing an Act of Attainder against some persons or instructi11g a judge . to bring in a verdict of guilty against someone who is being tried-if in law such usurpation would otherwise be contrary to the Constitution.

In Maxwell's Interpretation of Statutes (12th Edition), Chapter 5 deals with restrictive construction and the very first section contains discussion on the question whether the consequences of a particular construction being adopted can be considered and examples have been given from cases decided in England with reference t!O the consequences. According to American Jurisprudence, Vol. 50, 1962 Reprint at pp. 372, 373 there are cases in which consequences of a particular construction are in and of themselves, conclusive as to the correct solution of the question.

The learned Advocate General of Maharashtra has contended that the proper way of construing an amending provision is not to take into consideration any such speculation that tihe powers conferred by it, would be abused. It has also been, said that any coun deciding the valirlity of a law cannot take into consideration extreme hypothetical examples or assume that a responsible legislature. would make extravagant use of the power(').

According to Mr. Palkhivala, the test of the true width of a power is not how probable it is that it may be exercised but what can possibly be done under it; that the abuse or misuse of power is entlirely irrelevant; that the question of the extent of the power cannot. be mixed up with the question of its exercise and that' when the real question is as to the width of the power, expectation that it will never

( 1) State of Punjab v. Ajaib Singh and Anr. [1953] S.C.R. 254 at page 264; Director of Custon1s, Baroda v. Dig Vijay Singhji Spining & Weaving Mills Ltd. [ 1962] I s.c.R. P• 896.

( 2 ) [1967] (I) A.C. 259. (') Th< Bank of Toronto v. Lambe (1887) 1'2 A.C. 575 at pp. 586-587.

KESAVANANDA v. KERALA (Shelat & Grover, )J.) 245

be used is as wholly irrelevant as an imminent dnger o(its use. The <:ourt does not decide what is the best what is the worst. It merely decides what can possibly be done under a power if the words conferring it are so construed as to have an unbounded and limitles< width, as claimed on behalf of the respondents.

It is _difficult to accede to the submission on behalf of the respondents that while considering the consequences with reference to the width of an amending power contained in a Constitution any question of its abuse is involved. It is not for the courts to enter into the wisdom or policy of a particular provision in a Constitution or a statute. That is for the Constitution makers or for the parliament or the legislature. But that the real consequences can be taken into account while judging the width of the power is well settled. The Court cannot ignore the consequences to which a . particular construction can lead while ascertaining the limits of the provisions granting the power.

According to the learned Attorney General, the declaration in the preamble to our Constitution about the resolve of the people of India to constitute it into a Sovereign, Democratic Republic is only a declaration of an intention which was made in 1947 and it is open to the amending body now under Art. 368 to change the Sovereign Demo. aatics Republic into some other kind of polity. This by itself shows the consequence of accepting the construction sought to be put on the material words in that article for finding out the ambit and width of the pover conferred by it. : . . -

The othr part of the Preamble may next be examined. The Sovereign Democratic Republic has been constituted to secure to all the <:itizens the objectives set out. The attainment of those objectives forms the fabric of and permeates the whole scheme of the Constitution. \Vhile most cherished freedoms and rights have been guaranteed the government has been laid under a solemn duty to give effect to the Directive Principles. Both Parts III and IV which embody them have to be balanced and harmonised-then alone the dignity of the individual can be 'achieved. It was to give effect to the main objectives in the Preamble that Parts III and IV were enacted. The three main organs of government legislative, executive and judiciary and the entire mechanics of their functioning were fashioned in the light of the objectives in the Preamble, the nature of polity mentioned therein and the grand vision of a unjted and free India in which every individual high or low will partake of all that is capable of achievemnt. Vie must, therefore, advert to the background in which Parts III and IV came to be enacted as they essentially form a basic element of the Constitution without which its identity will completely change.

246 SUPREME COUR~ REPORTS ( 1973] Supp. S.C.R.

 It is not possible to go back at any length to the great struggle for freedom from British Rule and the attainment of independence.

The British executive's arbitrary acts, internments and deportations without trial and curbs on the liberty of the press and individuals are too well known to every student pf Indian history to be specificallv mentioned. This was before some essential rights based on British Common law and jurisprudence came to be embodied in various Parliamentary enactments. According to B. N. Rau('), human rights, with few exceptions, were not guaranteed by the Constitution (Government of-India Act). 'Shiva Rao has in his valuable study(') given the various stages beginning with 1895 Constitution of India Bill framed by the Indian National Congress which envisaged a Constitution guaranteeing a number of freedoms and rights. Two events at a later stage exercised a decisive influence on the Indian leaders. One was the inclusion-Of a list of fundamental rights in the Constitution of Irish Free State in 1921 and the other, the problem of minorities. ( 3)

The next steps were the report of the Nehru Committee in 1928, the reiteration of the resolve at the session of the Indian National Congress at its Karachi Session in March 1931 and omitting some details, the deliberations of the Sapru Committee appointed by the All India Prties Conference (1944-45). The British Cabinet Mission in 1946 recommended the setting up of an Advisory Committee for reporting inter alia on fundamental rights. Before reference is made to the Objectives Resolu-::ion adopted in January 22, 1947 it must be borne in mind that the post war period in Europe had witnessed a fundamental orientation in juristic thinking, particularly in West Germany, characterized by a farewell to positivism, under the influence of positivist legal thinking. During the pre-war period most ol the German Constitutions did not provide for judic; al review which was conspicuously absent from the Weimar Constitution even though Hugo Preuss, often called the Father of that Constitution, insisted on its inclusion. After World War II when the disastrous effects of the positivist doctrines came to be realized there was reaction in favour of making certain norms immune fron1 amendment or abroga!1orL This was done in the Constitution of the Federal Republic of G<rmany. The atrocities committed during Second World \Var anc' t'.ic world wide agitation for human rights ultimately embodied ; n ti:<' U. N. Declaration of Human Rights on which a number of the proqsions in Parts Ill and IV of our Constitution are fashioned mnst net

be forgotren while considering these matters. Even in Great Briroin.

( 1 ) Year Book of Human Rights 1947.

( 2) Framing of India's Constirution (B. Shiva Rao).

( 3 ) Ibid p. 172.

KESAVANANDA v. KERALA (She/at & Grover, JJ.) 247

where the doctrine of the legal sovereignty of Parliament has prevailed since the days of Erskine, Blackstone, Austin and lastly Dicey, the new trend in judicial decisions is to hold that there can be at least procedural limitations (requirement of form and manner) on the legislative powers of the legislature.(') The Objective's Resolution declared, inter alia, the firm and the solemn resolve to proclaim India as Independent Sovereign Republic and to draw up for her future governance a Constitution. Residuary powers were to vest in the States. All power and authority of the Sovereign Independent India, its constituent parts and organs of government. were derived from the people and it was stalled :-

"(5) wherein shall be guaranteed and secured to all the people of India, justice, social, economic and political; equality cl status, of opportunity, and before the law; freedom of thought,. expression, belief, faith, worship, vocation, association and acaon, subject to law and public morality; and

( 6) wherein adequate safeguards shalil. be provided for miner. rities, backward and tribal areas, and depressed and other backward classes; and

(7) whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilised nations, and"

It may be recalled that as regards the minorities the Cabinet Mission had recognised in their report to the British Cabinet on May 6,

1946 only three main communities; general, muslims and sikhs. General community included all those who were non-muslims or non- •ikhs. The Mission had recommended an Advisory Committee to be set up by the Constituent Assembly which was to frame the rights of citizens, minorities, tribals and excluded areas. The Cabinet Mission statement had actually provided for the cession of sovereignty to the

Indian pee>ple subject only to two matters which were; ( 1) willingness to conclude a treaty with His Ma'esty's Government to cover matters arising out of transfer of power and (2) adequate provision, for the protection of the minorities. Pursuant to the above and paras 5 and 6 of the Objectives Resolution the Constituent Assembly set ur an Advisory Committee on January 24, 1947. The Committee was to consist of represent:atives of muslims, ti1e depressed classes or the scheduled castes, the sikhs, christains, parsis, anglo-Indians, tribals and excluded areas besides the Hindus('). As a historical fact it is safe

(1) This follows from the dccisioos in Moor< v. Th< Attorn<y G<n<ral fo1• th< Irish Pre< Stal< (1935) A.C. 484; Attorney Gen<ral for New South Wale~

v. Trethowan {1932) A.C. 526.

( 2) Constituent Assembly Debates Vol. 2 pages 31().349,

248 SUPREME COURT REPORTS ( 1973 j Supp. S.C.R,

to say that at a meeting hdd on May 11, 1949 a resolution for the abolition of all reservations for minorities other than the scheduled castes found whole hearted suppon from an overwhelming majority of the members of the Advisory Committee. So far. as the scheduled

<:astes were concerned it was felt that their pecuHar position would necessitate special reservation for them for a period of ten years. It would not be wrong to say that the separate representatik>n of minorities which had been the feature of the previous Constitutions and which had witnessed so much of communal tension and strife was given up in favour of joint electorates in consideration of the guarantee of fundamental rights and minorities rights which it was decided to incorporate into the new Constitution. The Objectives Resolution can be taken into account as a hisl)Ofical fact which moulded its nature and character. Since the language of e Preamble was taken from

the resolution itself the declaration in the Preamble that India would be a Sovereign, Democratic Republic which would secure to all its citizens justice, libeny and equality was implemented in Parts III and IV and other provisions of the Constitution. These formed not only the essential features of the Constitution but also the funda-

1 mental conditions upon and the basis on which the various groups

and in!ICrests adopted the Oonstitution as the Preamble hoped to create one uIDlied integrated community. The decision of the Privy Council in the Bribery Commissioner v. Pedrick Ranasinghe(') will require a more detailed discussion in view of the elaborate arguments addressed on both sides based on it. But for the present all that need be pointed out is that the above language is borrowed mainly from the judgment of Lord Pearce who, after setting out s. 29 of the Ceylon Constitu-

1 tional Order which gave Parliament the power to make laws for the peace, order and good government of the island, said with regard to d. (2) according to which no law could prohibit or restrict the free exercise of any religion,

"There follow (b), (c) and (d), which set out further entrenched religious and racial matters, which shall not be the subject of legislation. They represent the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution; and these arc therefore unalterable under the Constitution".

Another opposite observation in this connection was made in In re

the Regulation and Control of Aeronautics in Canada(') whilt interpreting the British North Amcriea Act 1867. It was said that inasmuch as the Act embodied a cnmpromisc under which the original

(') (1965] A.C. 172 at pp. 193-194.

(2) (1932] A.C. 54 at p. 70.

KESAVANANDA "· KERALA (She/at & Grover, JJ.) 249

provinces agreed to federate, in is important to keep in mind that the preservati_on of the rights of minorities was a condition on which such minorities entered into the federation and the foundation upon which the whole structure was subsequently erected.

Our Constitution is feder:i! in character and not unitary. In a federal structure the existence of both the Union and the Statics is indispensable and so is the power of iudicial review. According to Dicey:(')

"A federal State derives. its existence from the Constitution, just as a corporation derives its existence from the grant by which it is created. Hence every power, executive, legislative or judicial, whether it belong 1Xl the nation or to the individual States, is subordinate to and controlled by the co.'.lstitution".(')

The object for which a federal State is formed involves a division of: authority between the national government and the separate States.(2) Federalism can flourish only among communities imbued with a legal spirit and trained to reverence the law. Swiss federalism, according to Dicey, "fails, just where one would expect it to fail, in maintaining that complete authority of the courts which is necessary to the perfect federal system".(') The learned Advocalle General of Maharashtra while relying a great deal on Dicey's well known work in supl¥'rt of his other points, has submitted that although he was one of the greatest writers on the law of English Constitution, his book was concerned with two or three guiding principles which pervade the modern Constitution of England. The discussion of federal government in his book was a subordinate part and the discussion was designed to bring out sharply the two or rhree guiding principles of the English Constitution by contrast with the diffrent principles underlying the Constitution of the federal government. Reliance has been placed on Professor Wheare' s statement in his book(') that the Swiss Courts are reqnircd by the Constitution to treat all laws passed by the federal assembly as valid though they may declare Cantonal laws to be void and that: docs not constitute such a departure from the federal principle that the

Swiss people cannot be regarded as having a federal Constitution and a federal government. Switzerland is probably the only country having a federal Constitution where full-fledged right of judicial review is not provided. We are unable to understand how that can have any relevancy in the presence of judicial review having been made an. integral part of our Constitution.

( 1 ) Law of the Constitution by A. V. Dicey p. 144.

(') Ibid P 151.

( 1) Ibid p. 180. (') Federal Governmcn~ 4th Edn. (1963).

150 SUPREME COURT REPORTS [ 1973] Supp. s.c.ll.

It is pointed out on behalf of tlhe petitioners that the scheme of Art. 368 itself contains intrinsic pieces of evidence to give a limited meaning to the word "amendment". Firstly, Art. 368 refers to "an amendment of this ConstitJUtion", and the result of the amendment is to be that "the Constitution shall stand amended". As the Constitution has an identity of its own, an amendment, made under a power how- soever widely worded cannot be such as would render the Constitution to lose its character and nature. In other words, an amendment cannot be such as would denude the Constitution of its identity. The amending power is conferred on the two Houses of Parliament, whose identity is clearly established by the provisions in the Constitution. It must be the Par liamcnq of the Sovereign Democratic Republic. It is llOt any Parliament which has the amending power, but only that Parliament which has been created by the Constitution. In other words, it must continue t!O be the Parliament of a sovereign and .democratic republic. The institution of States must continue to exist in order that they may continue to be associated with the amending power in the cases falling under the proviso. If the respondents arc right, the proviso can be comp'. ,,., y deleted since Art. 368 itself can be amended. This would be wh• '. contrary to the scheme of Art. 368 because two agencies are providt for amending the provisions covered by the proviso. One agency caru 1t destroy llhc other by the very exer- cise of the amending power. T .c effect of limitless amending power in relation to amendment of Art. 368 cannot be conducive to the survival of the Constitution because the amending power can itself be taken away and the Constitution can be made literally unamendable -Or virtually unamcndablc by providing for an impossible majority.

While examining clie above contentio.ns, it is necessary to consider the da.im of the respondents that the amending body under Art. 368 has the full constituent power. It has been suggested that on every occasion the procedure is followed as laid down in Article 368 by the two Houses of Parliament and the assent of the President is given there is the reproduction of the functions of a Constituent Assembly. In other words, the Parliament acts in the same capacity as a Constituent Assembly when exercising the power of amendment under the said Article. This argument docs not take stock of the admission made on behalf of the respondents that the entiro Constitution cannot be repealed or abrogated by the amending bo<ly. Indisputably, a Constituent Assembly specially convened for the purpose would have the power to completely revise, repeal or abrogate the Constitution. This shows that the amending body under Article 368 cannot have the same powers as a Constituent Assembly. Even assuming that there is reference on the nature of power between enacting a law and making an amendment, both the powers are derived from the Constitution.

KESAVANANDA fl. KERALA (Shelat & Grover, JJ.) 251

The amending body has been created by the Constitution itself. It can

only exercise those powers with which it has been invested. And if that power has limits, it can be exercised only within those limits.

The respondents have taken up the position that even if the power was limited to some extent under Art. 368, as it originally stood, that power could be enlarged by virtue of clause ( e) of the proviso. It must be noted that the power of amendment lies in the first part of Art. 368. What cl. ( e) in the proviso docs is to provide that if Art. 368 is amended, such an amendment requires ratification by the States, besides the larger majority provided in the main part.

If the amending power under Art. 368 has certain limits and not unlimited Art. 368 cannot be so amended as to remove these limits nor can it be amended so as to take away the vdice of the states in the amending process. If the Constitution makers were inclined to confer the full power of a Constituent Assembly, it could have been easily provided in suitable terms. If, however, the original power wa~ limited to some extent, it could not be enlarged by the body possessing the limited power. That being so, even where an amending power is expressed in wide terms, it has to be exeocist'd within the framework of the Constitution. It cannot abrogate the Constitution or frame a new Constitution or alter or change the essential clements of the constitutional structure. It cannot be overlooked that the basic theory of our Constitution is that "Pouvoir Constituent", is vested in the people and was exercised, for and on other behalf by the Constituent Assembly for the purpose of framing the Constitution.

To say, as has been said on behalf of the respondents, that there are only two categories of Constitutions, rigid or controlled and flexible or uncontrolled and that the difference between them lies only in the procedure provided for amendment is an over-simplification.

In certain Constitutions there can be procedural and or substantive limitations on the amending power. The procedural limitations could be by way of a prescribed form and manner without the satisfaction of which no amendment can validly result. The form and manner may take different forms such as a higher majority either in the houses oi the concerned legislature sitting jointly or separately or by way of a convention, referendum etc. Besides these limitations, there can be limitations in the content and scope of the power. To illustrate, although the power to amend under Art. 5 of the U. S. Constitution resides ultimately in the people, it can be exercised in either of the modes as might be prescribed by the Congress viz. llhrough ratification by the State legislatures or through conventions, specially convened for the purpose. The equal suffrage in the Senate granted to each of the States, cannot be altered without the consent of the State. The

252 SUPREME COURT REPORTS ( 1973) Supp. S.c.L

true distinction between a controlled and an uncontrolled Constitution lies not mere! y in the difference in the procedure of amendment, but in the fact that in controlled Constitutions the Constitution has a. higher status by whose touch-st.one the validity of a law made by the legislature and the organ set up by it is subjected to the process of judicial review. Where there is a written Constitution which mpts the preamble of sovereignty in the people there is firstly no question of the law-making body being a sovereign body for that body possesses only those powers which are conferred on it. Secondly, however representative it may be, it cannot be equated with the people. This is especially so where the Constitution contains a Bill of Rights for such a Bill imposes restraints on that body, i.e. it ncga~ the equation of that body with the people.

Before concluding the topic on the inllerpretation or construction of the words "amendment of this Constitution" in Article 368, it is necessary to deal with some Ameri~ decisions relating to Art. 5 of the American Constitution on which a great deal of reliance wa~ placed on behalf of the respondents for establishing that the word "amendment" has a precise and definite meaning .which' is of the widest amplitude. The first relates to the 18th amendment. known as the National Prohibition cases in the St4Je of Rhode Island v. A.

Mitchel Palmer('). In that case and other cases heard with it, elaborate arguments were addressed involving the validity of the 18th amend ment and of certain features of the National Prohibition Law, known as Volstead Act, which was adoplled to enforce the amendment. The relief sought in. each case was an injunction against the execution of that Act. The Gourt merely stated its conclusions and did not give any reasons-a !\tatter which was profoundly regretted by Chief Justice White. From the conclusions stated and the opinion of the Chief Justice it appears 1.that a good deal of oontroversy centered on section 2 of the amendmel/.t which read "Congress and the several States shall have concurrent p<hvet to enforce this Article by .appropriate legisla tion". In the dissenting opinion of Mr. Justice Mckenna it was said that the constitutional validity of the 18th amendment had also been attacked and although he dissented in certain other m.atters he agreed that the 18th amendment was a part of the Constitution of the United States. The learned Advocate General of Maharashtra has placed a great deal of reliance On this decision. His argument is that though the judgment in the Rhode lslatul gives no reasons, yet it is permissible to look at the elaborate briefs filed by the courucl in several cases and their oral arguments in order to underst1a11d what was argued and what was decided. One of the m.ain contentions raised was that the 18th amendment was not in fact an amendment, for an

(') 64 L. Ed. 9-46.

KESAVANANDA v. KEEALA (Shelat & Grover, JJ.) 253

amendment is an alteration or llllprovement of that which is already there in the Constitution and that term is not intended to include any addition of a new grant of power. The judgment shows that this argument was not regarded even worth consideration and was reject ed outright. Now it is significant that most of the justices including the Chief Justice who delivered judgments dealt only with the questions which had nothing to do with the meaning of the word "amend ment". It is not possible to derive much assistance from this judgment.

In J. J. Dhillon v. R. W. Gloss(-1) it was observed that an examination of Art. 5 discloses that it was intended to invest Congress with a wide range of power in proposing amendments. However, the following observations are noteworthy and have been relied upon in support of the case of the petitioners that according to the United States Constitution it is the people who get involved in the matttt of amendments. "A further mode of proposal-as yet never invoked-is provided, which is, that on application of two-third of the Statcs, Congress shall call a convention for the purpose. When proposed in either mode, amendments, to be effective must be ratified by the legislatures or by convention in three fourths of the States as the one or the other mode of ratification may be proposed by the Congress". Thus the people of the United States, by whom the Constitution was ordained and established, have made it a condition for amending that instrument that the amendment be submitted to representativ~ assemblies in the several States and be ratified in three-fourths of them. The

plain meaning of this is (a) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ratificatibn by these assemblies in three-fourths of the States shall be taken as a deci sive expression of the people's will and be binding on all.

Although all the amend_ments were made by the method of ratification by the requisite number of Statie legislatures, the convention mode was adopted when the 18th amendment was repealed by the 21st amendment Another case, United States of America v. William H. Sprague & William f. Howey('), will be discussed more fully while considering the question of implied limitations. All that it establishes for the purpose of meaning of amendment is that one must look to thr

plain language of the Article conferring the power of amendment and not travel outside it. Article 5, it was said, contained procedural provisions for constitutional change by amendment without any present

limitation whatsoever except that no State might be deprived of equal representation in the Senate without its consent. Mr. Justia

( 1) 65 L.Ed. 994. (') 75 L. Ed. 640, 644. 17-36 S. C. India/73

254 SUPREME COURT REPORTS [ 1973] Supp. s.c.11.

Douglas while delivering the opinion of the court in Howard /oseph

Whitehill v. Wilson Elkins(') stated in categorical terms that the Constitution prescribes the method of "alteration" . by amending process in Article 5 and, while the procedure for amending it is restricted there is no restraint on the kind of amendment that mav be offered.

Thus the main submission on behalf of the counsel for the respondents has been that Article 5 of the United StatlCs Cbnstitution served as model for Article 368 of our Constitution.

Article V provides different modes of amendment. These may be analysed as follows :

The proposals can be made-,

(1) By two thirds of both Houses of the Congress or

(2) By a Convention for proposing amendments to be called by the Congress on the application of legislatures of twothirds of the States.

The ratification of the proposals has to be made by

(1) Legislatures of three fourths of th~ StatlCs or

(2) by Conventions in three fourths thereof (as one of the other mode of ratification may be proposed by the Congress).

In Hawke v. Smith('), the question raised was whether there was any conflict between Article 5 of the U. S. Constitution which gave power to the Congress to provide whether the ratification should be by State Legislatures or Conventions and the Constitution of Ohio as amended.

The Supreme Oiurt held that Article 5 was grant of authority by the people to Congress. The determination of the method of ratification was the exercise of the national power specilically granted by the Constitution and that power was limited to two methods, by the State Legislatures or by Conventions. The method of ratification, however, was left to the choice of Congress. The language of the Article was plain and admitted of no doubt in its in11erpretation. In that case the Constitution of Ohio even after amendment which provided for referendum vested the legislative power primarily in a General Assembly oonsisting of a Senate and a House of Representatives.

Though the law making power of a State was derived from the people the power to ratify a proposed amendment to the Federal Constitution had its source in that Constitution. The act of ratificatiion by

( 1) 19 L. Ed. 2d. 228. (') 64 L. Ed. 871.

KESAVANANDA v. KEllALA (Shelat & Grover, JJ.) 255

the State derived its authority from the federal Constitution. There- . '-0re, in order to find out the authority which had the power to ratify, it was Article 5, to which one had. to turn and not to the State Constitution. The choice of means of ratificatloo was wisely withheld from conflicting action in the several States.

On behalf of the respondents it is claimed that these decisions establish that the power of amendment conferred by Article 5 was of the widest amplitude. It could be exercised through the representatives of the people, both in the Congress and the State Legislatures. Jn the case of Article 368 also Parliament consists of representatives of the people and the same analogy can be applied that it is a grant of auth<>- rity by the people to the Parliament. This argument loses sight of the fact that under the American theory of government, power is inherent in the people including the right to alter and amend the organic instrument of government. Indeed, practically all the State Constitu

tions associate the people with the amending process. The whole basis of the decisions of the Supreme Clourt of the United States and of some of the State Supreme Courts is that it is the people who amend the Constitution and it is within their power to make the federal Constitution or unmake it. The reason is quite obvious. So far as Article 5 of the American Constitution is concerned, out of the alternative methods provided for amendment, there is only one in which the people cannot get directly associated, whereas in the others they are associated with .the amending process, e.g., proposal of amendment by two-thirds of both Houses of Congress and its ratification by conventions in three-fourths of the States or a proposal of amendment by a convention called on tihe application of two-thirds of the State Legislatures and its ratification by either convention in three-fourths of the States or by the Legislature of the same number of States.

The meaning of the words "amendment of this constitution" as used in Article 368 must be such which accords with the true intention of the Constitution makers as ascertainable from the historical back ground, the Preamble, the entire scheme of the Constitution, its structure and framework and the intrinsic evidence in various Articles including Art. 368. It is neither possible to give it a narrow meaning nor can such a wide meaning be given which can enable the amending body to change substantially or entirely the structure and identity of the Constitution. Even the concession of the learned Attorney General and the Advocate General of Maharashtra that the whole Constitution cannot be abrogated or repealed and a new one substitut ed supports the conclusion that the widest possible meaning cannot

be given to it. ·

256 SUPREME COURT REPORTS (1973] Supp. S.C.ll.

Coming to the question of what has been called 'inherent and implied limitations' to the amending power in Article 368 of OH' Constiwtion Mr. Palkhivala has maintained that inherent limitations are those which inhere in any authority from its very nature, character and composition whereas implied limitations are those which are not expressed bu1 are implicit in the scheme of the Constitution conferring the power. He maintains that the "rule is established beyond cavii that in construing the OJnstitutUin of the United States, what is implied is as miach a part of the instrument as what is expressed".(')

Although the courts have rejected in various cases a plea that a particular inherent or implied limitation should be put upon SQJile specific constitutional J'!OWer, no court, says Mr. Palkhivala, has ever rejected the principle that such limitations which are fairly and properly deducible from the scheme of the Constitution should be read as restrictions upon a power expressed in general terms.

Seeral decisions of our court, of the Privy OJuncil, Irish courts, Canadian and Australian courts have been cited in support of the contention advanced by him.

The approach to this question has essentially to be to look at our own decisions firs.t. They fall in two categories. In one category are those cases where limitations have been spelt out of constitutUinal provisions; the second category consists of such decisions as have laid down that there is an implied limitation ori legislative power.

Taking up the cases of the first category, before 1955, Art. 13(2) was read as containing an implied limitation that the State could . acquire property only for a public purpose. (The Fourth Amendmen1

expressly enacted this limitation in 1955). It was observed in Chirafl- #J Lal Chowdhauri v. The Union of India & others(') that one limitation imposed upon acquisition or taking possession of private property

which is implied in the clause is that such taking must be for • public purpose. Mahajan J., (later Chief Justice) said in the State of Bihar v. Maharaiadhiraja Sir Kameshwar Singh of Darbhanga & Ors(") that the existbnce of a public purpose is undoubtedly an implied oondition of the exercise of compulsory power of acquisition by the State. The power conferred by Arts. 3 and 4 of the <Anstitutinn to form a new State and amend the Coristitution for that purpose has been stated to contain the implied limitation that the new State must conform IP the democratic pattern envisaged by the Constitution and the power which Parliament can exercise is non the power to override the constitution scheme.(') It may be mentioned that so far . :•s , Art. 368 is concerned there seems. to have been a good deal of

~~ ~~~~~~~~-

(') American Jurisprudence (2d), Vol. 16, p. 251.


KESAVANANDA v. KllALA (Shelat & Grover, JJ.) 257

debate in Golak Nath's case on the question whether there were any inherent or implied limitations. Dealing wi.th the argument that in exercise of the power of amendment Parliament could not destroy the structure of the Constitution but it could only modify the provisions thereof within the framework of its original instrument for its better effectuation, Subba Rao C. J. observed that there was no necessity to express any opinion on this all important question owing to the view which was being taken with regard IP the meaning of the word "law"

in Art. 13(2). But it was recdgni.sed that the argument had considerable force. Wanchno J. (as he then was) considered the question of implied limitations at some length but felt thaa if any implied limitation that basic features of the Constitution cannot be changed or altered, were to be put on the power of amendment, the result would be that every amendment made in the Consitution would inVPlve legal wrangle. On the clear words of Art. 368 it was not possible to infer any implied limitation on the power of amendment. Hidayatullah J~

(later Chief Justice) discussed the question of implied limitations and referred to the spate of writings on the subject. He expressed no opinion on the matter because he felt that in our Constitution Art. 13(2) took in even consitutional amendments. Bachawat J., disposed of the matter by saying that the argument overlooked the dynamic character of the Constitution. Ramaswami J., clearly negatived the argument based on implied limitations on the ground that if the amending power is an adjunct of sovereignty it does not admit of any limitation. ·

The cases which fall in the second category are decidedly numerous. It has been consistently laid down that there is an implied limita

tion on the legislative power; the legislature cannot delegate the essentials of the legislative function. Mukherjea J. (who later became Chief Justice) in Re. Delhi l.Aws Act 1912 case(') stated in clear language that the right of delegation may be implied in the exercise o£ legislative power only to the extent that .it is neccs.ary to make the exercU!e of the power effective and complete. The same implied litnitation on the legislature, in the field of delegation, has been invoked in Raj Narain Singh v. Patna Administration('); Hari Shankar Bag/a v.

State of Madhya Pradesh('); VasantJal Sanjanwala v. State of Bom bay('); The Municipal .Corporation of Delhi v. Bir/a Cotton Mills(') •nd Grewal D. S. v. State of Punjab('). Implied limitations have also

( 1) (1951) S.C.R. 747 at pp. 98+985.

( 2) [1955) 2 S.C.R. 290.

(') [1955) I S.C.R. 380.

(') [1961) I S.C.R. 341.

(') [1968) 3 S.C.R. 251. (') [1959] Supp. I S.C.R. 792.

258 SUPREME COURT REPORTS [1973] Supp. s.c.R.

been placed upon the legislature which invalidates legislation usurping the judicial power: See for instance Shri Prithvi Cotton Mills Ltd v.

Broach Borough Municipality & Ors.(') and Municipal Corporation of the City of Alimedabad Etc. v. New Shorock Spg. & Wvg. Co. Ltd. etc(').

Before we go ro cases decided by the courts in other countries ir may be useful to refer to some of the constitutional provisions which are illustrative of the concept of implications that can he raised from the language and context thereof. The first provision in point is Art. 368 itself. It has been seen at the stage of previous discussion that the power to amend is to be found in that Article only by implication as there is no express conferment of that power therein. The learned Solicitor General made a concession that various Articles are included by implication in the clauses of the provision by reason of the necessity for giving effect to the express power contained therein, e.g., Arts. 52 and 53 must be so read as to impliedly include the power to amen!!

Arts. 54 and 55 which are not expressly mentioned in clause (a) of the proviso. It has been implied that the President has been made a formal or a constitutional head of the executive and the real executive power vests in the council of ministers and the Cabinet('). Article 53 declares that the executive power of the Union shall be vested in the President; Art. 74 provides for a council of ministers headed by the Prime Minister to aid and advise the President in exercise of his functions. Article 75 says that the Prime Minister shall be appointed by the President and the other ministers shall be appointed by him on the advice of the Prime Minister. The ministers shall hold office during the pleasure of the President and the council of ministers shall be collectively responsible to the House of the People. Although the executive power of the President is apparently expressed in unlimited terms, an implied limitation has been placed on his power on the ground that he is a formal or constitutional head of the executive and that the real executive power vests in the council of ministers. This conclusion which is based on the implications of the Cabinet System of government can be said to constitute an implied limitation on the power of the President and the Governors.

It may be mentioned in all fairness to the Advocate General of Maharashtra that the court did not desire him to address in detail about the President or the Governor being a constitutional head and the implications arising from the system of Cabinet Government. The decisions thereon are being referred to for the purpose of noticing

( 1 ) (1970) I S.C.R. 388 at pp. 392-393.

( 2) ( 1971) I S.C.R. 288 at pp. 294-297.


KESAVANANDA "· KEllALA (She/at & Grover, JJ.) 259

that according to them the President or the Governor though vested with full executive powers cannot exercise them personally and it is only the council of ministers which exercises all 11he executive functions. This is so, notwithstanding the absence of any express provisions in the Constitution to that effect.

Next, reference may be made to the decisions of the Privy Council relied on by one side or the other for deciding the question under consideration. The Advocate General of Maharashtra laid much stress on the principle enunciated in Queen v. Burah('), which according to him, has been consistently followed by the Federal Court and this court. The principle is that when a question arises whether the prescribed limits have been exceeded the court must look to the terms of the instrument "by which affirmatively, the legislative powers were created and by which, negatively, they were restricted. If what has been done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited . . • . . . . . . . . . . . . . . it is not for ariy court of justke to inquire further, or to enlarge constructively those conditions or restrictions". The ratio of that decision is that conditional legislation is to be distinguished from delegation of legislative power and that conditional legislation is within the power of the legislature in the absence of any express words prohibiting conditional legislation. The oft-quoted words about the affirmative conferment of power and absence of expess restriction on the power are used only ro repel the contention that conditional legislation was barred by 1mplication. It is significant that if Queen v. Burah(') is to be treated as laying down the principle that the powers in a Constjtution must be conferred only in affirmative words the argument of the respondents itself will suffer from d1e infirmity that it is only by necessary implication from the language of Art. 368 (before the 24th Amendment) that the oource of tlie amending power can be said to reside in that Article. There were no such words in express or affirmative terms which conferred such a power. Indeed in Golak Nath's(') case there was a sharp divergence of opinion on this point. Subba Rao C. J. with whom four oilier judges agreed held that die source of the amending power was to be found in the provisions conferring residuary provisions, namely, Art. 248 read with Entry 97 in the Seventh Schedule. The other six judges including Hidayatullah J. were of die . view that the power was to be found in Art. 368 itself.

In The Initiative and Referend11m Act(') the position briefly was tliat the British North America Act 1867, s. 92, head I, which cm powered a Provincial Legislature to amend the Constitution of die

( 1) (1878) 3 A.C. 889 at pp. 904-5.

( 2 ) (1967) 2 S.C.R. 762.

(') [1919] A.C. 935.

260 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.

Province, "excepting as regards the odlice of the Lieutenant-Governor: excluded the making of a law which abrogated any power which the Crown possessed through the Lieutenant Governor who directly represented the Crown. The Legislative Assembly of Manitoba passed the Initiative and Referendum Act. It compelled llhe Lieutenant Governor to submit a proposed law to a body of voters totally distinct from the legislature of which he was the constitutional head. The Privy Council was of the opinion that under the provisions of that law the Lieutenant Governor was rendered powerless to prevent a prop>sed law when passed in accordance with the Act from becoming actual law. The language of the Act could not be construed otherw.ise than as intended, seriously affecting the position of the Lieu11=nant Governor as an integral part of the legislature and to detract from the rights which were important in the legal theory of that position. Section 92 of the Act of 1867 entrusted the legislative power in a Province to its legislature and that legislature only. A body llhat has power of legislation on the subjects entrusted to it, the pPWer being so ample as that enjoyed by a Provincial legislature in Canada, could while "preserving its own capacity intact seek the assistance of a subordinate agency . . . . . . . . . . . . . . . . but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes own existence".(').

This case is more in point for consideration of validity of that part of the 25th Amendment which inserted Art. 31-C but it illustrat.cs

that an implied limitation was spelt out from the constitutional provisions of the British North America Act 1867 which oonferred legislative power on the legislatures of provinces as constituted by that Act.

McCawley v. The King("> was another case involving.constitutional questions. The legislature of Queensland (Australia) had power to include in an Act a provision iJ1J1t within the express restrictions contained in the Order in Council of 1959. But inconsistent with the term of the Constitution of Queensland, without first anrending the term in question under the powers of amendments given to it, the Industrial Arbitration Act of 1916 contained provisions authorising the Government in Council to appoint any Judge of tlhe Court of Industrial Arbitration to be a Judge of the Supreme Court of Queensland.

( 1) Ibid at p. 945.

(2) (1920) A.C. 691.

KESAVANANDA fl. KERALA (She/at & Grover, JJ.) 261

Mter explaining the distinction between a controlled and an uncontrolled Constitution, their Lordships pr'Xeeded to examine the contmtion that the Constitution of Queensland could not be altered merely by enacting legislation inconsistent with its article; it coultl Gily be altered by an Act which in plain and unmistakable language merred to it; asserted the intention of the legislature to alter it, and

consequentially gave effect to that intention by its operative provisions.

That argument was repelled by saying(').

"It was not the policy of the Imperial Legislature at any relevant period t.o shackle or control in the manner suggested, the legislative power of the Nascent Australian Legislations".

Sccilion 5 of the Colonial Laws Validity Act 1865 was held to have clearly conferred on the colonial legislatures a right to establish courts m judicature and to abolish and reconstitute them. A question had been raised that the Constitution AcU of 1867 enacted certain fundamental organic provisions of such a nature as to render the Constitu lion controlled. It was said that if a change of that nacure was contemplated, there would have been some indication in the very lengthy preamble of the Act, d that intention. Their Lordships could observe nowhe1e in the preamble the least indication that it was intended for the first time to make provisions which were sacrosanct, or which at least could only be modified by methods never previously required.

It was finally held that the legislature of Queensland was the master of. its own household except in so far as its power had in special cases been restricted.

No such restriction had been established and none in fact existed.

The Advocate General of Maharashtra has sought to deduce the following propositions from the dissenting judgment of Issacs and Rich JJ of the Australian High Court which was apprµved by the Privy Council in the above case :

(1) Unless there is a spial procedure prescribed for amending any part of the Constitution, the Constitution is uncontrolled and can be amended by the manner laid down for enacting ordinary law and, therefore, a subsequent law inconsistent with the Oanstitution would pro-tanto repeal the Constitu ti on.

(2) A Constit!Ution largely or generally uncontrolled may con

tain one or more provisions which prescribe a different procedure for amending them. In that case an ordinary law cannot amend them and the procedure must be strictly followed if the amendment is to be effected.

( 1) Ibid p. 706.

262 SVPIU!Ml! COVB.T UPOB.TS [ 1973] Supp. s.c.a.

(3) The implication on limitation oi power ought not to be im

ported from general concepts but only from express or necessarily implied limitations (emphasis supplied).

( 4) While granting powers to the colonial legislatures, the British Parliament as far back as 1865 refused to put limitations of vague character, but limited those limitations to objective standard!. e.g., statutes, statutory regulations, etc. to objectiw: standards.

We have already repel!led at an earlier stage(') the contention that the only distin.:tion between a controlled and an uncontrolled Con,. stitution is that in the former the procedure prescribed for amending any part of the Constitution has to be strictly followed. The second proposition is of a similar nature and can hardly be disputed. As re gards the third and fourth proposition all that need be said is that im plied limitation which was sought in McCawley's case by counsel for the respondents was that the Queensland legislature should first amend the Constitution and then pass an Act which would otherwise have been inconsistent, for the Constitution had not been amended. That con,. tention in terms was rejected. The Constitution in M cC awley' s case was uncontrolled and therefore the Queensland legislature was fulley empowered to enact any Constitution breaking law. Moreover Lord Birkenhead in an illuminating passage in McCawley's(2) case has himself referred to the difference of v'icw among writers upon the subject of constitutional law which may be traced "mainly to the spirit and genius of the nation in which a particular Constitution has its birth".

Some communities have "shrunk from the assumption that a degree of wisdom and foresight has been conceded to their generation w_hich

wiII be, or may be, wanting to their successors". Those who have adopted the other view probably believed that "certainty and stability were in such a matter the supreme desiderata". It was pointed out that different terms had been employed by the text book writers to distinguish between those who contrasted forms of Constitution. It was added:

"Their special qualities may perhaps be exhibited as clearly by calling the one a controlled and the other. an uncontrolled Constitution as PY any other nomenclature".

Lord Birkenhead did not make any attempt to define the two terms "controlled" and "uncontrolled" as precise legal terms, but mere ly used them as convenient expressions.

( 1 ) Pp. 70-71.

( 2) [1920] A.C. 691 at pp. 703-704.

KESAVANANDA 11. KEllALA (Shelat & Grover, JJ.) 263

The next case of importance is Attilrney General for New South Wales v. Tretfiowan.( 1) The Constitution Act, 1902 enacted by the legi&. lature of New South Wales, was amended in 1929 by adding s. 7-A which provided that no Bill for abolishing the Legislative Council should be presented to the Governor for His Majesty's assent until it had been approved by a majority of the electors voting upon a submission made in accordance with the section. The same provision was to apply to a Bill for repealing that section. In 1930 two Bills were passed by the Legislature. One was to repeal s. 7-A and the other to abolish the Legislative Council. Neither of the two Bills had been approved in accordance with s. 7-A. Reference was made to s. 5 of the Colonial Laws Validity Act 1865, which conferred on the Legislature of the State full power ro make laws inter alia in respect of the Constitution in such "rnanner,'and form" as might from time to time be provided by any Act of Parliament Letters Patent, Colonial law in force in the colony etc. It was held that the whole of s. 7-A was within the competence of the legislature of the State under s. 5 of the Colonial Laws Validity Act. The provision that the Bills must be approved by

the electors before being presented was a provision as to form and 'manner and accordingly the Bills could not lawfully be presented unless and until they had been approved by a majority of the electon voting. A number of contentions were raised, out of which the following may be noted :

(a) The Legislature of New South Wales was given by the Imperial Statutes plenary power to alter the Constitution, powers and procedure of such Legislature.

(b) When once the Legislature had altered either the Constitution or powers and procedure, the Constitution and powers and procedure as they previously existed ceased to exist and were replaced by the new Constitution and powers.

According to their lordships the answer depended entirely upon a consideration of the meaning of s. 5 of the Colonial Laws Validity Act read with s. 4 of the Constit'Ution statute assuming that the latter section still possessed some operative effect. The whole of s. 7-A was held to be competently enacted. The Privy Council, however, held that the repealing Bill after its passage through both Chambers could not be lawfully presented for the Royal assent without having first received . the approval of the electors in the prescribed manner. In order to be validly passed, the law must be passed in the manner prescribed by

$. 7-A which was in force for the time being. Trethowan's case (supra) fully illustrates how the Privy Council enforced such limitations even

( 1) (1932) A.C. 526.

264 SUPREME COURT REPORTS [ 1973 j Supp. S.C.P..

though they were of a procedural nature which had been provided in a constitutional statute relating to the form and manner in which any such statute could be altered or repealed.

These decisions, in particular, (Trcthowan's case) illustrate that the Privy Council has recognised a restriction on the legislative powers of a sovereign legislature even though that is confined only to the form and manner laid down. in a Constitution for amending the Constitution Act. In a country which still sticks 'to the theory of Parliamentary 10Vereignty, limitations of any other nature would be regarded as somewhat non-conformist and unorthodox.

The decision of the Privy Council in the Bribery Commissioner v.

Pedrick Ranasinghe(') has been heavily relied on by both sides. On behalf of the petitioners support has been sought from the observations relating to rights regarded as fundamental, being unalterable. What hai happened there was that by virtue of s. 41 of the Bribery Amendment Act 1956, a provision was made for the appointment of a Bribery Tribunal which was in conflict with the requirement in s. 55 of the Ceylon C'.onstitution (Order in Council 1946), hereinafter called the 'Ceylon Constitution Act', according to which the appointment of Judicial Officer~ was vested in the Judicial Scrvice Commission. Section 29 of the Ceylon Constitution Act provided by suh-s. (1) that subject to the provisions of the Order, the Parliament had the power to make laws for the peace, order and good government of the island. By suh-s. (2) it was provided that no such law shall (a) prescribe or restrict the free

exerci'se of any religion etc. This was followed by clauses (b), (c) and

(d) which set out further religious and racial matters, which accQrding l'o their Lordships, could not be the subject of legislation. In the words of their Lordships "they represent the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution; and these are therefore unalterable under the Constitution". By suh-s. (3) any law made in contravention of sub-s: (2) was to be void to the extent of such contravention. Suhscction ( 4) may be reproduced below :-

" ( 4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island :

Provided that no Bill for the amendment or repeal of aay of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand of the

Speker that the number of votes cast in favour thereof in the

( 1) [1965] A.C. 172.

KESAVANANDA ti. KEllALA (She/at & Grover, JJ.) 265

House of Reprcntatives amounted to not less than tw<>-thirds fl. the whole number of Members of the House (including those not present).

Every certificate of the Speaker under this sub-section shall be conclusive for all purposes and shall not be questioned in any court of law".

The Bribery Amendment Act 1958 had not been enacted in accordance with the provisions contained in suh-.section ( 4) of s. 29 of the Ceylon Constitution Act. As it involved a conflict with the Constitution, it was observed that a certificate of the Speaker as required by sub-section ( 4) was a necessary part of tihe Act ma.king process. The

1 point which engaged the serious attention of the Privy Council was that when a sovereign Parliament had purported to enact a Bill and it had ·

received the Royal, Assent, could it be a valid Act in course of whose passing there was a procedural defect, or was it an invalid Act which Parliament had no power to paS5 in that manner ? A distinction was

made while examining the appellant's arguments between s. 29(3) 'which expressly made void any Act passed in respect of the matters

entrenched in and prohibited by s. 29(2); whereas s. 29( 4) made no such provisions, but merely couched the prohibition in procedural terms. Reliance had been place on behalf of the appellant Bribery Commissioner on the decision in McCawley's case. It was pointed out that Mccawley'! case, so far as it was material, was in fact opposed to the appellant's reasoning. It was distinguished on the ground that the Ceylon legislature had purported to pass a law which being in conflict with s. 55 of the Ceylon Constitution Act, must be treated, if it was to be valid, as an implied alteration of the constitutional provisions about the appointment of judicial officers. It was held that such alterations, even if expressed, could only be made by laws which complied with the special legislative procedure laid down ins. 29(4). The Ceylon Legislature did not have the general power to legislate so as to amend its Constitution by ordinary majority resolutions such as the Queensland Legislature was found to have under s. 2 of its Constitution Act

The learned Advocate General of Maharashtra has referred to tht. arguments in Ranasinghe' s case and has endeavoured to explain the olj>servations made about the entrenched provisions being unalterable by saying that the same were obiter. According to him it was not tht respondent's case that any provision was unamendable. The referen~ to the solemn compact etc. were also obiter because the appeal did nO! raise any question about the rights of religion protected by sub-s. (2) of • s. 29 and the issues were entirely different. It is claimed that this decision supports the position taken up on behalf of the respondents that it is rmly the form and manner which is material in a controlled Constitution and that the above decisi:Qn is an authority for the proposition that

266 SUPREME COURT REPORTS (1973] Supp. S.C.R.

in exercise of the amending power a con.trolled Constitution can be converted into an uncontrolled one. Any implied limitations on Parliament's amending power here can be abrogated by an amendment of Art. 368 itself and the amending power can be enlarged by an exercise of that very power. According to Mr. Palkhivala this argument is wholly fallaeiotts. Firstly, the observations of the Privy Council(') is merely on the form and manner of amendment and has nothing to do with suhstantive limitations on the power of amendment. Placing limits on the amending power cannot be confused with questions of special legislative process which is also referred to by their Lordships.(') Secondly, the Ceylon Constitution authorised the Parliament to amend or repeal the Constitution, which power is far wider than the power of amendment sim pliciter conferred by Art. 368. It is suggested that Ranasinghe's case is a direct authority against the respondent1 since it held the religious and racial rights to be unalterable, which clearly implies that Parliament had no competence to take away those rights even in exereise of its power to amend the Constitution by following the prescribed form and manner in sub-s. ( 4) of s. 29 of the Ceylon Constitution Act. The material importance of this case is that even though observations were made by the Lordships which may in a sense be obiter those were based on necessary implications arising from section 29 of the Ceylon Constitution Act and were made with reference to interpretation of constitutional provisions which had a good deal of similarity (even on the admission of the Advocate General of Mahara· shtra) with some parts of our Constitution, particularly those which relate to fundamental rights.

Don John Francis Douglas liyange v. The Queen(3 ) is another decision on which strong reliance has been placed on behalf of the petitioners. The Ceylon Parliament passed an Act which substantiallv modified the Criminal Procedure Code inter alia by purporting to legalise an ex-post facto detention for 60 days of any person suspected of having committed an offence against the State. This class of offences for which trial without a jury by three Judges nominated by the Minister for Justice could be ordered was widened and arrest without a warrant for waging war against the Queen could be effected. New minimum penalties for that offence were provided. The Privy Couneil held that the impugned legislation involved a usurpation and infringement by the legislature of judicial powers inconsistent with the written Constitution of Ceylon which, while not in terms vesting judicial functions in the judiciary, manifested an intention to secure in the judiciary a freedom from political, legislative and executive control and

( 1) lbid p. 198.

( 2 ) Ibid portions D to &

(•) [1967] 1 A.C. 259.

KESAVANANDA "· KERALA (She/at & Grover, JJ.) 267

in effect left untouched the judicial system established by the Charter of Justice of 1833. The legislation was struck down as void. Their Lordships observed inter alia that powers in case of countries with

'lritten Constitutions must be exercised in accordance with the terms

ci. the Constitution from which they were derived. Reference was made to the provisions in the Constitution for appointment of Judges by the Jwdicial Service Commis.si.on and it was pointed out that these provisions manifested an intention to secure in the judiciary a freedom from political, legislative and executive control. It was said that these provisions were wholly appropriate in a Constitution which intended that judici•l power shall vest only in the judicature. And they would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature.

There seems to be a good deal of substance in the submission of Mr. Palkhivala that the above decision is based on the principle of implied limitations; because otherwise under section 29(1) of the Ceylon

Constitution Act Parliament was competent to make laws for the peace, order and good government of the island subject to the provisions of the Order. Strong observations were made on the true nature and purpose of the impugned enactments and it was said that the alterations made by them in the functions of the judiciary constituted a grave and

deliberate incursion in the judicial sphere. The following passage is noteworthy and enlightening :

"If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature has no such gene- ral intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one mmt presume, that it had power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringe the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution."

Mohamed Samsudden Kariapper v. S.S. Wiiesinha and Anr.(') has been cited on behalf of the S!:tte of Kerala for the proposition that judicial power could, by an amendment of our constitution, be transferred to the legislature thus negativing the principle of implied limitation. In that case a report had been made under the Commission of Inquiry Act. abou~ certain allegations of bribery having been proved against some members of the Parliament of whom the appellant was one. Under a cert:aln Act civil disabilities on persons to whom the Act

(1) [1968) Appeal Cue. 717.

268 SUPREME COURT REPORTS (1973] Supp. s.c.R.

applied were imposed. It also contained a provision that in the eYcnt of inconsistency with existing law, the Act should prevaiL The appellant challenged the validity of that Act on the ground that it was inconsistent with the Constitution and was usurpation of the judicial power. It may be mentioned that the Speaker had, in accordance will the proviso to s. 29( 4) of the Constitution of Ceylon, endorsed a cer:tificate under his hand on the bill for imposition of civic disabilities (Special Provisions) Act. The Privy Council held that the said was an exercise of legislati.ve power and not the usurpation of judicial power. The Constitution of Ceylon was a controlled constitution and the Act was an inconsistent law; the Act was to be regarded as amending the constitution unless some provisions. denying the Act constitutional effect was to be found in the constitutional restrictions imposed on the power of amendment. Apart from the proviso to s. 29(4) of the Consti.tution Act, there was no reason for not construing the words "amend or repeal" in that provision as extending to amendment or repeal by inconsistent law. The Act, therefore, amended the constitution.

Finally upon the merits it was observed that in view of the conclusion that the Act was a law and not an exercise of judicial power it was not necessary to consider the question whether Parliament could, by a law passed in accordance with the proviso to s. 29( 4), both assume judicial power and exercise it in the one law.

The above decision can certainly be invoked as an authority for the proposition that even in a controlled constitution where the form and manner had been followed of amending it, an Act, which would be inconsistent with it and which did not in express terms state that it was an amending Act, would have the effect of altering the constitution.

But it does not suppon any suggestion, as has been made on behalf ci the respondents, that judicial power could, by an amendment of our constitution, be transferred to the legislature. Moreover, as expressly stated by their lordships, the Ceylon Constitution empowered the Parliame, nt "to amend or repeal" the constitution and, therefore, t)lcrc can be no comparison between the scope of the Ceylon Parliament's amending power and that of the amending body under article 368.

We may next deal with the Australian decisions, because there ms been a good deal of discussion in them about implied limitations which can arise in the absence of express limitations. The subject matter cl most of the decisions has been the Commonwealth's taxing power. Section 51 of the Australian Constitution grants power to legislate with regard to taxation to the Commonwealth in wide terms but with certain express reservations, viz., that duties of customs should be unifomi.

that the taxing laws must not discriminate between States, nor must revenue laws give preference to one State over. another State. Section lH

KESAVANANDA v. KERALA (She/at & Grovi:r, JJ.) 269

bars the Commonwealth from taxing property of any kind belonging to a State. In Amalgamttted Society of Engineers v. Adelaide Steamship Co. Ltd.(1) the High Court of Australia accepted the principles of construction of a constitution laid down by the Privy Cowicil in Reg v.

Burah(') and Att. Gen. of Ontario v. Att. Gen. of Canada(8 ) viz., that

the onl\y way in which a court can determine whether the prescribed limits of legislative power had been exceeded or not was "by looking to the terms of the instrument by which affirmatively, the legislative powers are created, and by which negatively, they are restricted"; nothing was to be read into it on ground of poticy of necessity arising or supposed to arise from the nature of the federal form of government nor were speculations as to the. motives of the legislature to be entered into by the Court. These words would appa.:ently appear to reject any proposition as to implied limitations in the constitution against an exercise of power once it is ascertained in accordance with the ordinary rules of construction. Such an interpretation of the Engineers' case(') supposed to have buried for ever the principle of implied limitations, has not been unanimously accepted nor has the above criterion laid down been adhered to. In Att. Gen. of New South Wales v. Brewery Employees Union('), Higgins, J. cautioned that "although the words of the constitution are to be interpreted on the same principles of interpretation as are applied to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act-"to remember that it is a constitution, a mechanism wider which laws are to be made, and not a mere Act which declares whav the law is to be".

Sir Owen Dixon in Australian Railways Union v. Victorian Railway Commissioni:rs( 6 ) and later in West v. Commissioner of Taxation(') formulated what in his view was the basic principle laid down in Engineers' case (Supra) and made observations relating to reservations of qualifications, which he thought had been made, concerning the prima

facie rule of interpretation which that decision laid down. In Ex-parte Professional Engineers Association(") he once again adverted to the Engineers' case and suggested that perhaps "the reservations and qualifications therein expressed concerning the federal power of taxation and laws dircted specially to the states and also perhaps the prerogative of the Crown received too little attention." The question as to implied

( 1) [1920) 28 C.L.R. 129.

( 2) [1878) 3 A.C. 889.

(•) [1912] A.C. 571.

(') [ 1920] 28 C.L.R. 129. (") [1908] 6 C.L.R. 469 at pp. 611-612.

(') [1930] :44 C.L.R. 319, 390.

( 7) [1937) 56 C.L.R. 657, 682.

(•) [1959) 107 C.L.R. 208, 239. 18-36 S.C. India/73

2 70 SUPUMI! COUltT llPORTS [ 1973] Supp. S.C.R.

limimtions was directly raised and decided in the Melbourne Corporation v. Commrmwealth.(1) It was held that s. 48 of the Banking Act, 1945, prohibiting banks from conducting banking business for a state and for any authority of the state, including a local government authority was 'invalid. Two contentions were raised in that case: (1) that the impugned Act was not a law on banking wiithin s. 51(xiiii) because it was llQt a law with respect to banking, and (2) that the grant of power in s. 51(xiii) must be read subject to limitations in favour of the State because it appears in a federal constitution, so that even if s. 48 could be treated as a .law with respect to banking, it was still invalid since its operation interfered with the states in the exercise of their governmental functions. The second contention was accepted by the majority.

Latham C. J. stated that laws which discriminated against states or which unduly interfered with states in the exercise of their functions of government were not laws authorised by the constitution, even if they were laws with respect to a subject matter within the legislative power of the Commonwealth Parliament. Rich J., held that the constitution expressly provided for the continued existence of the States and that, therefore, any action on the pan of the Commonwealth, in purported exercise of its constitutional powers, which would prevent a State from continuing to exist or function as such was necessarily invalid because of inconsistency with the express prowsions of the Constitution.

Stark, J. said that the federal character of the Australian constitution carried implications of its own, that the government was a dual system based upon a separation of organs and of powers and, consequently, maintenance of the States and their powers was as much the object of the constitution as _maintenance of the Commonwealth and its powers.

Therefore, it was beyond the power of either to abolish or destroy the other.

The same contention was raised in a recent case of Victoria v. The Commonwealth('), where the Pay-roll Tax Act, 1941 and the Pay-roll Tax Assessment Act, 1941-1969 were impugned. These Acts were passed by the Commonwealth Parliament for financing the provisions of the Child Endowment Act, 1941 and casting the burden on employers bv taxing wages paid by them. The Crown in right of a State wa• in each State a considerable employer of labour, and in some States of ind us trial labour. The Crown in right of a State was included in the definition of 'employer' for the purpose of the Act. The question raised for decision was about the constitutional validity of the Act in so far as it • purported to impose upon the State of Victoria an obligation ; o payroll tax rated to the amount of salaries and wage.- paid to its public serl'ants employed in certain department named in its statement of cl•im.

(') [1947] 74 C.L.R. 31.

( 2) [1971] 45 A.L.J. 251.

DSAVANANDA 11. IWlALA (Shelat & Grover .. JJ.) 271

The contention raised by the State of Victoria as summarised by Barwi'ck, C.J. was that though the impugned Act fell under the enumerated power of taxation in s. 51 of the Constitution Act, that section did not authorise the imposition of a tax upon the Crown in the right of a

State because there was an implied constitutional limitation upon that Commonwealth power operating universally, that is to say, as to all the activities of a State. The point most pressed, however, was in a somewhat limited form, viz., that the legislative power with respect to taxation did not extend to authorise the imposition of a tax upon "any

=ntial governmental activity" of a State and therefore, at the least, the power under s. 51 did not authorise a tax upon the State in respect of wages paid to its civil servants. In other words such a limitation, whether of universal or of Ii.mired operation, was derived by implication from the federal nature of the constitution, and therefore, to levy a tax rated to the wages paid to its servants employed in departments of governments, so trenched upon the governmental functions of the State as to burden, impair and threaten the independent exercise of

those functions. All the seven judges agreed, firstly, that the Act was valid, and secondly, upon the proposition laid down in the Engineers' case (Supra) as also in certain otht:r decisions that where a power was granted to the Commonwealth by a specific provision such ass. Sl(ii), the Commonwealth could pass a law which would bind the States as it would bind individuals. The difference amongst the judges, however, arose as regards the question of implied limitation on such a power, however, expressly granted. Barwick C.J. and Owen J. were of the view that a law which in substance takes a State or its powers or functions of government as its subject matter is invalid because it cannot be supported upon any granted legislative power but there is no implied limita•tion on a Commonwealth legislative power under the constitution arising from its federal nature. McTiernan J. was also of the view that there was no necessary implication restraining the Commonwealth from making the law. However, Menzies, Windever, Walsh and Gibbs JJ. held in categorial terms that there is an implied limitation on Commonwealth legislative power under the Constitution on account of its federal nature. According to Menzies J. a constitution providing for indissoluble federal Commonwealth must protect both Commonwealth and State& The States were not outside the ConstitutiOn. Accordingly although the Constitution clearly enough subjected the States to laws made bv Commonwealth Parliament it did so wi:h some limitation. Windeyer J., read the Melbo11rne Corporation case (Supra) as confirming the principle of implication and added that the eourt in reading the Constitution "must not shy away from the word 'implication' and disavow every concept that it connotes." Walsh T. rejected the contention that it was inconsistent with the principles of construction laid down in Engineers' case that the ambit of power with respect to enumerated subject matter should be restricted in any w•y

2 72 SUPREME COURT REPOJ!.Ts [ 1973} Supp. s; c.11.

otherwise than by an express provision specially imposing some defined limitati?n upon it and ob,, erved :

"there is a substantial body of authority for the proposition that the federal nature of the Constitution does give rise to implications by which some limitations are imposed upon the extent of the power of the Commonwealth Parliament to subject the States to its legislation".

According to Gibbs J., the ordinary principles of tatutory interpretation did not preclude the making of implications when they were necessary to give effect to the intentiop. of the legislature as revealed in the statute as a whole. The intention of the Imperial Parliament in enacting the Constitution was to give effect tQ the wishes of the Australian people to join in a federal union and to establish a federal and not a unitary syem. In some respects the Commonwealth was placed in a position of supremacy as the nation~! interest required but it would be inconsistent with the very basis of federation that the Commonwealth's power should extend to reducing the states to such a positron of subordination that their very existence as independent units would be dependent upon the manner in which the Commonwealth exercises its powers, rather than on the legal limits of the powers themselves.

He proceeded to say :-

'Thus, the purpose of the Constitution, and the scheme by which it is intended to be given effect,· necessarify give rise to, implications as to the manner in which the Commonwealth and the States respectively may exercise tbeir powers, vis-a-vis each other".

The Advocate General of Maharashtra does not dispute that there are necessary implications in a federal constitution such as, for example, that any law violating any provision of the Constitution is voitl everi in the absence of an express declaration to that effect. Aga.in it is a neces- sary implication of a republican constitution that the sovereign of a foreign State-United Kingdom cannot place Indian territory in groups by Orders in Council a.s provided in the Fugutive Offenders Act, and, therefore, that Act is inconsistent with the. Republican Constitution of India, and is not continued in force by Art.' 372; see State of Madras

v. G. C. Menon('). But he maintains that the principle of Queen v.

Burah is not in any way displaced. Burah's case, according to him, laid down principles of interpretation and in doing so the Privy Council itself enunciated the doctrine of ultra vires which is a nece5sary implication of an Act of the British Parliament creating bodks or authorities with limited powers. An attempt has been made to show that the judgment of Chief Justice Barwick in the above Australian decision stated the

( 1)

( 1955] I S.C.R. 280.

KESAVANANDA 11: KERALA (She/at & Graver, JJ.) 273

basic principle of construction correctly and those principles are appli. cable to our constitution also since the decision was based on Queen

v. Burah(1 ) which has been consistently followed by tihis Court. We have already dealt with that decision and we arc unablo to agree that Queen v. Burah stands in the way of drawing implications where the purpose of the constitution and the scheme by which it is intended to be given effect, necessarily give rise to certain implications.

Turning to the Canadian decisions we need refer only to those which have a material bearing on the questions before us. In T lie Attorney General af Nova Scotia v. The Att. Gen. of Canada(°) the constitutionality of an Act respecting the delegation of jurisdiction from the Parliament of Canada to the Legislature of Nova Scotia and vice versa was canvassed. The Supreme Court of Canada held that since it contemplated delegation by Parliament of powers exclusively vested in it by s. 91 of the British North America Act to the Legislature of Nova Scotia; and delegation by that Legislature of powers, exclusively vested in Provincial Legislature under s. 92 of the Act to Parliament, it could not be constitutionally valid. The principal ground on which the decision was based was that the Parliament of Canada and each Provincial Legislature is a sovereign body within its sphere, possessed of exclusive jurisdiction to legislate with regard to the subject matter assigned to it under s. 91 or s. 92 as the case may be. Neither is capable, therefore, of delegating to the other the powers with which it has been vested nor of receiving from the other the power with which the other has been vested. The learned Chief Justice observed that the constitution of Canada "does not belong either to the Parliament or to the Legislatures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitl ed."

Although nothing was expressly mentioned either in s. 91 or s. 92 of the British North America Act a limitation was implied on the power of Parliament and the Provincial Legislatures to delegate legislative power. Mention may also made of fohn Switzman v. Freda Elbling(3 ) (to which we have already referred while dealing with the question of the use of the preamble.)· In that case the validity of the Act respecting communistic propaganda of the Province of Quebec was held to be ultra vires of the Provincial LegiSlaturc. Abbot J., after referring to various decisions of the Privy Council as also the Supreme Omrt of Canada(') said that the Canada Election Act, the provisions of

( 1) [1878] 3 A.C. 889.

( 1) [1951] Can. L. Rep. 31.

 ( 8) (1957) Can. L R. (Supreme Court) 285 at p. 327. (') See in particular the observation of Duff C.J. in Alberta Statutes Case {1938) SCR (Canada) 100 at pages 132-133.

274 SUPREME COUllT REPORTS [1973) Supp. S.c.L

the British North A1ncrica Act which provtidCd for Parliament meeting at least once a year and for the election of a new Parliament :it least every five years and the .Senate and House of Commons Act, were cxa mples of enactments which made specific statutory provisions for ensur

ing the exercise of the right of public debate and public discussion. "Implicit in all such legislation is the right-of candidates for Parliament. or for a Legislature and of citizens generally, to explain, to criticize, debate and discuss in the freest possible manner such matters JS the qualifications, the policies, and the political, economic and social principles advocated by such candidates or by the political parties or groups of which they may be member". That right could not be abrogated by a Provincial Legislature and its power was limited to what might be necessary to protect purely private rights. He was further of the opinion that according to the Canadian Constitution, as it stood, Parliament itself could not abrogate this right of discus.sion and debate.

The Advocate General of Mahariishtra has pointed out that thett decisions relate to the legislative competence of provicial legislatures to effect civil liberties like freedom of speech, religion or to legislate in respect of criminal. matters. They arc not relevant for the purpose of determining the amending power under the Constitution. So far as the civil rights are concerned in Canada it is noteworthy, according to the Advocate General, that the Canadian Bill of Rights 1960 makes the rights therein defeasible by an express declaration that an Act of Parliament shall operate notwithstanding the Canadian Bill of Rights. It has also been submitted that the well known writers of constitutional law both of Australia and Canada have not attached any signficancc or accepted the principle of implied limitations.(') The opinions of authors and writers have been cited before us so extensively, by both sides, that we find a great deal of conflict in their expression of opinion and it will not be safe to place any reliance on them. The judges who have read limitations by implication are well known and of recognised eminence and it is not fair to reject their views for the reasons suggested by the Advocate General.

We need hardly deal at lengllh with . the Irish decisions.

The principle emerging from the majority decision in The Stm (Ill the prosecution of /ermiah Ryan v. Captain Michael Lenons & Others(')

that under s. 50 of the 1922 constitution (which provided for constitutional amendment by ordinary legislation during the first period of 8 years which was subsequently extended to 16 years) an Ordinary la'ir inconsistent with the provisions of the constitutj.on. had the clfec:r. of amendment of the constitution, caused considerable .debate. Di!rin1, die

( 1) See W. A. Wynes, Legislative, Excaitivc ind' Judicial powers in Australia and Bor1 Laskin, The Canadian Constitutioaal Law; '

( 1) (1935) frish Reports 170.

JtESAVANANDA "· Kl!RALA (Shelat & Grover, JJ.) 275

controversy it was strongly urged that the power of constitlltional amendment was not identical with pouvoir const.itutent; that it was not within the competence of agencies invested with the power of constitutional amendment to drastically revise the structural organisation of a State, to change a monarchlcal into a republican and a representative into a direct form of government. The argument was based on the conception underlying Art. 2 of the French Law of 1884 which provided that the republican form of government could. not be made subject of constitutional amendment. Section 50 of that constitution, in partic cular, was criticized as being too pliant for the first period of 8 years and too rigid for the period following it.(') After the 1937 constitution which became a model for our constitution makers the trend of judicial thinking underwent a transformation and instead of treating an Act inconsistent with the constitution as having the effect of impliedly amending the constitution such an Act was regar.ded as invalid to the extent of its inconsistency with the constitution. See Ed rnund Burke v. Lenon(') and Margaret Buckley v. Att. Gen. of Eire('). The 1922 Constitution was considered to be of such "light weight" that there were no fewer than 27 Acts expressed to be Acts impliedly amending that Constitution(') within a period of 15 years. During the period 1922-27 the judges were used to the British idea of sovereignty of Parliament and notions of fundamental: law were foreign to their training and tradition. The 1937 Constitution is more rigid than its predecessor though Article 51 permits the Oireachtas to amend the Constitution during the first three years by ordinary legislation. Such legislation, however, is expressly excepted unlike Art. 50 of the 1922 Constitution from the amending power. Mention may be made of The State v. The Min; ster for fustice etc.(') in which it was held that rhe provisions of s. 13 of the Lunatic Asylums (Ireland) Act 1875 which prevented an accused person from appearing before the District Court on the return date of his remand constituted interference with an exercise of judicial power to admini.-ter justice. This case and similar ca5es e.g., Margaret Buckley v. Att. Gen. of Eire(') may not afford much assistance in determining the question about implied limitation to the amending power in a constitution because they deal with the question mostly of repugnancy of ordinary legislation to constitutional provisions. The main decision however, was 'in Ryan's(') case in which Kennedy C.J. drew

( 1) Leo Kohn, The Constitution of the Irish Free State pp. 257-259.

( 2) (1940) Ir. Reports 136. (') (1950) Ir. Reports 67, (') Sec cnerally J. M. Kelly, Fundamental Rights on the Irish Law and Constitution (1968) I-17. (') [1967] Ir. Rep. 106. (") [1950] Ir. Rep. 67.

( 7) [1935] Ir. Rep. 170.

276 SUPREME COURT REPORTS fJ973] Supp. S.C.R.

vari<;>us implications from the Constitution but the majority of judges declined to do so and read the word "amendment" as wide enough to allow the repeal of a number of articles, however important in substance they might be.

It is equally unnecessary to deal with the argument on behalf of the respondents that the Privy Council in Moore v. Attorney General of

Irish Free State(') rejected the contention of the counsel based on the reasoning of Kennedy C.J. Moore's case was decided principally on tbe effect of the passing of the statute of Westminster as is clear from the summing up of the position by their Lordships. (2)

As regards the position in the United States of America a great deal of reliance has been placed on behalf of the respondents on United States of America v. William H. Sprague.(') According to that decision the choice between submission of a proposed amendment to the federal Constitution to State Legislatures and submission to State Conventions under Article 5 of the Constitution was in the sole discretion of Congress irrespective of whether the amendment was one dealing with the machinery of government or with matters affecting the liberty of the citizen. It was argued that amendments may be of different kinds, e.g., mere changes in the character of federal means of machinery on the one hand, and matters affecting the liberty of the citizen, on the other.

It was said that the framers of the Constitution accepted the former sort t:O be ratified by the legislature whereas they intended that the latter must be 1 cf erred to the people because not only of lack of power in the legislature to ratify but also because of doubt as to their truly representing the people. The Court observed that where the intention was clear there was no room for construction and no excuse for interpolation or addition and it had been repeatedly and consistently declared in earlier decisions that the choice of mode rested solely in the discretion of the Congress. It is sought to be concluded from this decision that the Supreme Court of the United States refused to read ny implications of the nature argued in that case.

Mr. Palkhivala says that the decision in U. S. v. W. H. Spragr1e (Supra) has no relevance to the questions before us. All that it laid down was that the Congress had the sole discretion to decide whether a proposed amendment should be submitted to State Legislatures or to the State conventions. The language of Article 5 itself shows that

sole discretion in th.is matter is conferred on the Congress irrespective of whether the amendment deals with the machinery of government or with matters affecting the rights and liberties of the citizen. Sprague's

( 1) [1935] A.C. 484. ( 2) !hid p. 498.

( 1) 75 L. Ed. 640.

XESAVANANDA v. XIMLA (She/at 6' Grover, JJ.) 277

case it is suggested, wns merely a fresh attempt after the decision of the Supreme Court in the State of Rhode Island v. A. Mitchell Palmer(1) to argue that the 18th amendment which introduced prohibition was un constitutional since it was ratified by the State Legislatures and the attempt rightly faitlcd. For the reasons suggested by Mr. Palkhivala, which appear to have a iOod deal of substance we are unable: to derive any help from U.S. v W. H. S/lf'lli"'

The Advocate General of Maharashtra has invoked another prin ciple to the effect that unlc.!$ the power of amendment is co-extensive with the judicial power of invalidating laws made under the Constitll tion the judiciary would be supreme; therefore, the power of amendment should be ctensive with judicial power. This follows from what has been repeatedly held by this Court that under our Constin1tion none of the three great departments of the State is supreme and it is only the Constitution which is supreme and which provides for a government of laws and not of men. The reply of Mr. Palkhivala is that if the constitution is supreme, as it i.!, it necessarily follows that there must be limitation on the amending power because if there arc 'no limitations the legislature would be supreme and not the Constitu 1 tion. If the legislature's power of amending Constitution were coextensive with the judicial power of invalidating laws made under the Constitution, the legislature can bend the Constitution to its wheel in every way which will lead to a result contrary .to what has been provid'.

ed in the Constitution, namely, that there are three great departments of the State and no one can have supremacy over the other. When the. judiciary places a limitation on the amending powers, says, Mr. Palkhivala, only as a matter of true construction the consequence is nt that the judiciary is supreme but that the Constitution is supreme. It is claimed that on his arguments, the legislature,. executive and judiciary remain coordinate which is the correct position under the Constitution.

If the respondent's argument is accepted the amending power is abso-. lute and limitless. It can make the judiciary and the executive completely subordinate to it or take over their powers.

We are unable to see how the power of judicial review makes the judiciary supreme in any sense of the word. This power is of paramount importance in a federal Constitution. Indeed it has been said that the heart and core of a democracy lies in the iudicial process; (per Bose j., in Bidi Supply Co. v. The Union of India()). The observations

of Patanjali Sastri C.j. in State of Madras v. V. G. Row(') which ha, e

become locus classicus need alone be repeated in this connection. Judicial review is undertaken by the courts "not out of any desire to tilt at

( 1) 6-4 L. Ed. 9-46.

(2) [1956] S.C.R. 267.

(') [19; I] S.C.R. 597.

278 SUPllMI! OOUKT REPOl.TS [1973} Supp. S.C.J..

tive. authority in a crusador' s spirit, but in discharge of a duty pbinly laid upon them by the Constitution." The respondents have a!M> contended that to let the court have judicial review over const:itu- amendments would mean involving the court in political questlions. To this the answer may be given in the words of Lord Porter in Commonwealth of Australia v. Bank of New South Wales(') :-

'The problem to be solved will often be not so much legal as political, social or economic, ycc it muse be solved by a court of law.

For where the dispute is, as here, not only between Commonwealth and citizen but between Commonwealth and intervening States on the one hand and citizens and States on the other, it is only the Court that can decide the issue, it is vain to invoke the voice of Parliament."

There is ample evidence in the Constitution itself to indicate that it creates a system of checks and balances by reason of which powers are so distributed that none of the three organs it sets up can become so pre-dominant as to disable the others from exercising and discharging powers and functions entrusted to them. Though the Constitution does not lay down the principle of separation of powers in all its rigidity as is the case in the United Constitution but it envisages such a separation to a degree as was found in Ranatinghe's case. The judicial review provided expressly in our Constitution by means of Article 226 and 32 is one of the features upon which hinges the system of checks and balances. Apart from that, as already stated, the necessity for judicial decision on the competence or otherwise of an Act arises from the very federal nature of a Cotution (per Haldane, L.C. in Att.

Gen. for the Commonwealth of Australia v Colonial Sugar Refining Co.(") and Ex parte Walsh & fohnson, In re Yates.(") The functlop of interpretation of a Constitution being thus assigned to the judicial power of the State, the question whether the subject of a law is within the ambit of one or more powers of the legislature conferred by the constitution would always be a question ci interpretation of the Constitution. It may be added that at no suage the respondents have contested the proposition that the validity of a constitutional amendment can be the subjece of review by thia Court. The Advocate General of Maharasthra has. characterised judicial review as undemocratic. That cannot, however, be so in our Constitution because of the provmons relating to the appoi!ntment of judges, the specific. restrictim, i, to hieh the fundamental rights are made subject, the dehberate exclUSion of the due process clause in Art. 21 and the affinnataon in Article 141 that

(1) [1950] A.C. 235 at 310.

(') [1914] A.C. 237. (•) (1925) 37 C.L.R. 36 at p. 58.

• >

Jtl!SAVANANllA fl. ltEllALA (S/i4/at & Grotltr, JJ.) 279/

iudles ckclare but not.make law. To this may be added the none two' rigid amendatory process which authorises amendment by means of'

2/3 majority and the ; dditional requirement of ratification. ':

According to the learned Attorney General the entire argument on the basis of implied limitation,9 is fundamentally wrong. He has also relied greatly on the deciSion.in Burah's case and other similar decisions. It is pointed out that there can be no inherent limitation on the power of amendment having regard to the purpose for which the power is needed. The argument! about the non-amendability of the

essential frapJ.cwork of the Constitution is illusive because every part of a Constitutional document admits of the possi\>ility of imperfect drafting or ambiguity. Even basic concepts or ideals undergo progressive changes. It has been strenuously urged that the constitution read . as a whole did not contemplate the perpetuation of •the ting social and economic inequalities and a duty has been c~ on the State to organise a new social order. The Attorney General quoted the opinion of. cral. writers .and authors in support of his contention that there

must be express words of limitation in a provision which provides for amendment of the Constitution from w.hich it follows tht no implied !imitations can be read therein.

Tho correct approach to the question of limitations which may be . implied in any lcgi5lative provisions including a Constitutional document has to be made from the point of view of interpret!aon. It is not a nove1 theory or a doctrine which has to be treated as an innovation of th06C who evolve heterodox methods to substantiate their own thesis.

The argument that there are no implied limitations because there arc ilo express limitations is a contradiction in terms. Implied limitations can only arise where there are no express limitations. The contention of the learned Att0rney General that no implications can be read in an amending power in a Constitution must be repelled in the words of Dixon J. in West v. Commissi<mer of Taxatli:m (N.S. W,) (1):

... Since the Engineer/ case a notion seems to have gained cunency

that in interpreting the Constitution no implications can be made.

Such a method of construction would defeat the intention of any lnstrumcnt, but of all instruments a written Constitutiori seems the last to which it could be applied"

' .·. W c arc equally unable to hold that in the light of the Preamble, the entire scheme of the Constitution the Iclevant; 'provisions thereof and the context . in which the material expressions arc used in Art. 368 no implied limitations arise to the exercise of the power of amendment.

T~ respondents do not disj>µtc. at, . certain. limitations arise by

(l) [1936-37] S6 CL.R. 657.

280 SUPllMI COUKT UPOaTS [ 1973] Supp. s.c.Jt.

necessary implication e.g., the Conititution cannot be abrogated or rcpcal.:d in its entirety and that the India's polity has to be a Sovereign Democratic Republic, apart from several other implications arising from Art. 368 which have been not!Ced.

The arument that the Nation cannot grow and that the objectiYes set out in the Preamble cannot be achieved unless the amending power has the ambit and the width of the power of a Constitutent Assembly itself or the People themselves appears to be based on grounds which do not have a solid basil. The Conititution makers provided for development of the country in all the fields social, economic and political. The structure of the Conititution has been erected on the concept of an egalitarian society. But the Constitution makers did not desire that it should be a society where the citizen will not enjoy the variious freedoms and such lights ai arc the basic clements of those freedoms,. e.g., the right .to equality, freedom of religion etc., so that his dignity as an indivi'dual may be maintained. It has been strongly urged on behalf of the respondents that a citizen cannot have any dignity i£ he is economically or socially backward. No one can dispute uch a statement but the whole scheme underlying the Constitution is to bring about economic and social changes without taking away the dignity of the individual. Indeed, the same has been placed on such a high pedestal that to ensure the freedoms etc. their infringement has been made justiciable by the highest court in the land. The dictum of Das C.J. in Kera!• Education Bill case paints the true picture in which there must be harmony between Parts III and IV; indeed the picture will get distorted and blurred if any vtal provision out of them is cut out or denuded of its identity.

The basic structure of the Constitution is not a vague concept and the apprehensions expressed on behlf of the respondents that neither the citizen nor the Parliament would be able to understand it arc unfounded. If the historical background, the Preamble, the entire scheme of the Constitution, the relevant provisions thereof including Art .. 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the constitutional structure. (These cannot be catalogued but can only be illustrated).

1. The supremacy of the Constitution.

2. Republican and Democratic form of Government and sovereignty of the country.

3. Secular and federal character of the Constitution.

4. Demarcation of power between the legislature, the executiv( and the judiciary.

KESAVANANDA v. KERALA (Shelat & Grover, JI.) 281

5. The dignity of the individual $ecured by the various freedoms.

"nd basic rights in Part III and , the mandate to build a welfare State. contained in Part IV. '

6. The unity and the integrity of the nation.

The entire discussion from the point of view of the meaning of the expression "amendment" as employed in Art. 368 and the limitations. which arise by implications leads to the result that the amending power under Art. 368 is neither narrow nor unlimited. On the footing on which we have proceeded the validity of the 25th amendment can be sustained if article 368, as it originally stood and after the amendment, is read in the way we have.read it. The insertion of Arts. 13(4) and 368(3) and the other amendments made will not affect the resulr, namely, that the power in Art. 368 is wide enough to permit amendment of each and every Article of the Constitution by way of addition, variation or repeal so long as its basic elements are not abrogated or denuded of their identity.

We may next deal with the validity of the Constitution (25th Amendment) Act. Section 2 of the Amending Act provides:-

"2. In Article 31 of the Constitution,~

(a) for clause (2), the following clause shall be substituted~ namely:-

" (2) No property shall be compulsorily acquired or requisi- . tioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of the property for a amount which may be fixed by such law or which may be determined in accordance with such principle.~ and given in such manner as may be specified in such law;. and no such law shall be called in question in any court on: the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amount is to be given otherwise than in cash :

Provided .......•...• "

(b) after clause (2A); the following clause shall be inserted,

namely:-

(2B) Nothing in sub-clause (£) of clause (1) of Article 19 shall affect any such law as is referred to in clause (2)".

As stated in the Statement of Objects and Reasons to the Bill (No. 106 of 1971) the word "compensation" was sought to be omitted from Article 31(2) and replaced by the word "amount". It was being clarified that the said "amount" may be given otherwise than in cash. It

282 SUPUMi! COUlT lU!POaTS {1973] Supp- $-C.L

. was also provided that Article 19 ( 1) ( f) shall not apply to any law

relating to acquisil!on or rcquisi.llioning of property for a public purpose.

The position of the respondents is that "compensation" had been given the meaning of market value or the just equivalent of what the owner had been deprived of according to the decisions of this Court.(') That had led to the 4th Amendment Act 1955. 'The later decisions( 2) had continued ti> uphold the concept of "compensation" i.e. just equivalent of the value of the property acquired in spite of the amendments made in 1955. In State <>f Guiarat v. Shanti/al Mangaldas & Others(") the decision in Metal C<>rp<>ration of India(•)

was overruled which itself was virtually overruled by R. C. Cooper v.

Ilnion <>f India.(0 ) According to the Advocate General of Maharashtra,

if Shantilal Mangaldas etc. had not been overruled by R .• C. Cooper v.

U nz"on <>f India there would have been no ncces.ity of amending Art. 31(2).

The first question that has to be determined is the meaning of thr -word "amount". Unlike the word "compensation" it has no legal connota$n. It is a neutral, colourless word. The dictionary meanings do not help in arriving at its true import as used in a constitutional provision. It can be anything from one pan.a to an astronomical figure m rupees. Its meaning has, therefore, to be ascertained by turning to the .context in which it is used and the words preceding it as well as following it.

The scheme of Art. 31 (2) now is :-

(1) The property has to be compulsorily acquired or requisitioned.

(2) It has to be for a public purpo.se.

(3) .It has to be by a law.

( 4) The law must provide for an amount which may be-

( i) fixed by such law or

(ii) which may be determined in accordance with such principles as may be specified in such law.

-~~~~~~~-

(') Sec State of Wm Bengal v. Mrs. Bela Bannerji & .Others (1954) S.C.R. 558.

( 2) Vajravelu Mudaliar v. Special Depuiy Collector, Madras (1965) S.C.R. 614 and Union of India v. Metal Corporation of India & Anr. [1967] 1 S.C.R . . 255.

(') [1969] 3 S.C.R, l.


USAVANANDA "· XllALA (Sltelllt & Grover, JJ.) 283

(5) The law shall not be questioned in a Court on the ground :

(i) The amount so fixed or determined is not adequate or

(ii) the whole or any pan of 1ruch amount is to be given otherwise than in cash. '

It is significant that the amount can be determined in accordance with specified principle51 if ir is not fixed by the law itself. Morcovet, its / adequacy cannot be questioned in a court. The use of the word "principles" and the question of inadequacy can only arise if the amount has some norm. If it has no norm no question of specifying any, principles ariSCl! nor can there be any occasion for the determination of its adequacy. The very fact that the coun is debarred from going into the question of adequacy shows that the "amount" can be adequate or inadequate. Even if it is inadequate, the fixation or determination of that amount is immune from any challenge. It postulates the existence of some standard or norm without which any enquiry into adequacy becomes wholly unnecessary and irrelevant. Moreover, either method, of giving an amount must bring about the same result. In other words, !

if Rs. 1000 is the amount to be given for acquisition of a property, it:

must be either fixed or must be determinable by the principles specified in the event of its not .being fixed. It could not be intended that the two alternative modes should lead to varying results, i.e, it could be fixed at Rs. 1000 but if the principl~ are specified they do not yield that,!

figur~ '

The Advocate General of Maharashtra says that tlie right of the owner is just what the government determines it to be. It can give what it pleases and when it choses to do so. Such an argument is untenable and introduces an element of arbitrariness which cannot be attributed to the Parliament.

In Shanti/al Mangal Dar, whicb, on the ubmission of the Advocate General, enunciated the correct principles relating to Article 31 (2) as it then stood, it was laid down that something fixed or determined by the application of specified principles which was illusory or could in no sense be regarded as compensation was not bound to be upheld by the' Courts, "for to do so would be to grant a charter of arbitrariness and

permit a device to defeat the constitutional guarantees". It was added that the principles could he challenged on the ground that they were irrelevant to the determination of compensation but not on the plea that what was awarded was noi just or fair compensation. Thus it was open to the courts to go into the question of arbitrariness of the amount fixed or its being illusory even under the law laid down in Shanti!a/!1 Mangaldas (supra). The relevance of the principles had also been held to he justiciable. R. C. Cooper'; case did not lay down different'

284 SUPREME COURT REPORTS (1973] Supp. S.C.R.

principles. But the observations made therein were understood to mean that the concept of just equivalent not accepted in Shanti/al' s case was restored. The amendment now made is apparently aimed at removing that concept and for that rearon the word "amount" has been substituted in place of "compensation". This is particularly so as we find no reason for departing from the well-settled rule that in such circumstances the Parliament made the amendment knowing full well the ratio of the earlier decisions.

The Advocate General of Maharashtra has submitted that the fixing of the amount or alternatively specifying the principles for determining that amount is entirely within the judgment of the legislature and the whole object of the amendment is to exclude judicial review which had been introduced by the courts on the basis of the concept of compensation. But even then the members of the legislature must have some basis or principles before them to fix the amount as the same cannot be done in an arbitrary way. He, however, gave an unusual explanation that in the Cabinet svstem of government it is for the government to deterrnine the amount or specify such principles as it choses to do. The legislators belonging to the ruling party are bound to support the measure whether the basis on which the amount has been determined is disclosed to them or not. It is wholly incomprehensible how there can be any legislative judgment or decision unless there is room for debate and discussion both by members of the ruling party and the opposition. For any discussion on the "amount" fixed or the principles specified the entire basis has to be disclosed. There can be no basis if there is no standard or norm.

The learned Solici.tor General agrees that Article 31 (2) after amendment still binds the legislature to provide for the giving to. the owner a sum of money either in cash or otherwise. In fixing the "amount", the legislature has to act on some principle. This is not because of any particular obligation arising out of Article 31(2), but from the general nature of legislative power itself. Whatever, the subject or the nature of legislation it always proceeds on a principle it is based on legislative policy. The principle may include considerations of social justice: Judicial review on the ground of inadequacy of the "amount" and the manner of payment is excluded by express language. No other question is excluded. The expropriated owner still continues to have a fundamental right. This argument is not quite the same as that of the learned Solicitor General.

It is true that the "amount" to be paid to an owner may not be the market value. The price of the property might have increased owing to various factors to which no contribution has been made by the owner. The element of social justice may have to be taken into

KF.SAVANANDA v. KF.RALA (She/at & Grover, JJ.) 285

coruideration. But still on the learned Solicitor General's argument, the right to receive the "amount" continues to be a fundamental right.

That cannot be denuded of its identity. The obligation to act on some principle while fixing the amount arises bOth from Art. 31(2) and from l!he nat.ure of the legislative power. For, there can be no power which permits in a democratic system an arbitrary use of power. If an aggrieved owner approaches the court alleging that he tis being deprived of that right on the grounds now. open to him, the Court cannot decline to look into the matter. The Court will certainly give due weight to legislative judgment. But the norm or the principles of fixing or determining the "amount" will have to be disclosed to the Court. It will have to be satisfied that the. "amount" has reasonable relationship with the value of the property acquired or requisitioned and one or more of the relevant principle5 have been applied and further that the "amount" is neither illusory nor it has been fixed arbitrarily, nor at such a figure t ii: means virtual deprivation of the right under' Article 31 (2). The qucStion of adequacy or inadequacy, however, cannot be gone into.

As to the mode of payment, there is nothing to indicate in the amended Article that any arbitrary manner of payment is contemplated. It is well known thar a discretion has to be exercised reasonably.

As regards cl (2B) inserted in Article 31 which makes Article 19 (l)( f) inappble, there is no reason for assuming that a procedure will be provided which will not be reasonable or wiJI be opposed to the rules of natural justice. Section 2 of the 25th amendment can be sustained on the construction given to it above.

We now come to the most controversial provision of 25th Amend- . mcli.t, namdy, section 3 which inserted the following Article :-

"31 C. Notwithstanding anything contained in Article 13, no law

giving effect to the policy of the State towards securing the principle$ specified in clause (b) or clause ( c) of Article 39 shall be deemed io be void on the ground that it is incoruistent with, or takes way or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a decl, ration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy :

Provided thar where such law is 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".

Accoromg to the Statement! of Objects and Reasons contained in Bill No. 106 of 1971, the new Article has been introduced to provide that if any law is passed to give effect to the Directive Principles contained in

19-36 S.O. India7S

286 SUPREME COURT REPORTS [ 1973] Supp. s.c.11..

clauses (b) and ( c) of Article 39 and contains a declaration to that effect, such law shall not be deemed to be void on the ground that it takes away or abridges any of the rights colltlined in Articles 14, 19 or 31 and shall not be questioned on the ground that it does not give effect to these principles. For this provision to apply in case of laws made by State legislatures, it is necessary that the rele\lant Bill should be reserved for the consideration of the President and reccive his assent

Article 39 contains certain principles of policy to be followed by the State. It enjoins the State inter al.ia to direct its policy towards securing:

"39 '(b) that the ownership and control of the material resources of the community are so.distributed as best to sub. serve the common good ;

( c) that the operation of the economic system does not result

in the concentration of wealth and means of production to the common detriment;"

These provisions together with the other provisions of the Constitution contain one of the main objectives, namely, the building of a welfare State and an egalitarian social order in our country. As stated before, the fundamental rights and the directilve principles have been described as the "conscience of our Constitution". The Constitution makers had, among others, one dominant objective in view and that was to ameliorate and improve the lot of the common man and to bring about a socio.economic transformation based on principles of social justice. While the Constitution makers envisaged development in .the social, economic and political fields, they did not desire that it should be a society where a citizen will not have the dignity of the individual.

Part III of the Constitution shows that the founding fathers were equally anxious that it should be a society where the citizen will enjoy the various freedoms and such rights as arc_ the basic elements: of those free.. doms without which there can be no dignity of individual. Our Constitution makers did not contemplate any disharmony between, the fundamental rights and the directive principb. They were meant to supplement one another. It can well be 6'lid that the directive principles prescribed the goal to be attained and the fundament; il righ~ laid down the means by which that goal was to be achieved. While , on behalf of the petitioners greater emphasis has been laid on t:hc fundametal rights, counsel for the respondents say that the fund; lmental rights .should be subordinate to the directive principles. The Constituent Assembly did not accept such a proposal made by B. N. Rau. It has been suggested thar a stage has been reacbal where it has become necessary to abrogate some of the basic freedoms and rights providrd the end justifies the means. At an lier stage in the devdopmem of

Kl!SAVANANDA 11. KERALA (She/at & Grover, JJ.) 287

our constitutional law a view was taken that the Directive Principles of State Policy had to conform and run subsidiary to the Chapter on Fundamental Rights, but Das C. J. in Kera/a Education Bill, 1957, laid down the rule of harmonious construction and observed that an attempt should be made to give effect to both the fundamental rights and the directive principles.

According to Mr. Palkhivala, Article 31C destroys several essential features of the Constitution. He says that there is a vital distinction between o cases (a) where fundamental rights are amended to permit laws to be validly passed which would have been void before the amendment and (b) the fundamental rights remain unamended, but the laws which are void as offending those rights are validated by a legal fiction that they shall not be deemed to be void. He further points out that on the analogy of Article 3l(C) it would be permissible to have an omnibus Article that notwitbst'anding anything contained in the Constitution no law passed by Parliament or any State legislature shall be deemed to be void on any ground whatsoever. Article 31 ( C) according to him, gives a blank charter not only to Parliament but all the State Legislatures to amend the Constitution. On the other hand, the argument on behalf of the respondents is that Article 31(C) is similar to Articles 31(A) and 31(B) and that the object of inserting the Article is to free certain kinds of laws from the limitation on legi.sfative power imposed by conferment of fundamental rights by Part III of the Constitution. As those rights were justiciable under Art. 32, says the Advocate General of Maharashtra, the only way of doing so was to exclude judiciai review of legislation in respect of those laws.

If Article 31 (A) is valid, there is no reason or justification for saying that Article 31(C) suffers from all the vices pointed out by Mr. Palkhivala.

According to the Solicitor General, Article 31(C) protects only law and nor mere eirecutive action. Law can be_lJlade by cither Parlramcnt or the State Legislatures. Article 3l(C) has been enacted for the purpose of achieving the objectives t out in clauses (b) and ( c) of Article 39. The law enacted under it will operate on "material resources", concentration of wealth and "means of productil>n". The legislative effort would generally involve (i) nationalisation of material resources of the community and (ii) imposition of control on the production, supply and distribution of the products of key industries and essential commodities. It, therefore, impinges on a particular kind of economic system only.

The question of the validity of Article 3l(C) to our mind has to be examined mainly from two points of view; the first is its impact on the various freedoms guaranteed by Article 19, the abrogation of the right of equality guaranteed by Article 14 and the right to property contained in Article 31. The second is whether the amending body

288 SUPREME COUJlT llE~ORTS [1973] Supp. s.c.11.

under Article 368 could delegate its amending power to the legislatures of the Union and the States. Alternatively, whether the Parliament and the State Legislatures can, under Article 3l(C), amend the Constitution without complying with the form and manner laid down in Article 368. Now it is quite obvious that under Article 31(C) a law passed by the Parliament or the State Legislatures shall not be deemed to be void on the ground that it is inconsistent with or takes away or abridges any.of the rights conferred by Articles 14, 19 and 31 so long as the law is declared to be one for giving effect to the policy of the State towards securing the principles specified in clause (b) and clause ( c) of Article 39. If Art 3l(C) is aimed at the removal of a particular economic system, as suggested by the Solicitor General, it is difficult to understand why the freedoms contained in clauses (a) to (d) of Art. 19 as also the right of equality under Art. 14 had to be taken away. The power of enacting Constitution breaking laws has been entrusted even to a small majority in a State Legislature. Mr. Palkhivala points out that the freedom of the Press, for instance, can be destroyed under Article 3l(C) as the respondents claim the right to nationalise any industrial or economic activity. Moreover, a person can be put in prison for. commending a policy contrary to the government's policy. Such legislation cannot be challenged as Article 19(1)(a) will not apply and Article 21 permits deprivation of per.oonal liberty according to procedure established by law. The case in the State of Bombay & Another

v. F. N. Balsara(1 ) is in point. Commendingthe use of an intoxicant had been made an offence. It was struck down by this Court as violative of Article 19(1)(a). If Article31(C) is constitutional, such a provision made in a law enacted under it relating to matters falling within Article 39(a) and (b) would be valid. As a matter of fact no cogent or convincing explanation has been given as to why it was necessary to take away all the freedoms guaranteed by Article 19 and for the abrogation of the prized right of equality under Article 14 of which has been described as the basic principle of republicanism.{') This Article combines the English doctrine of the rule of law and the equal protection clause of the 14th Amendment to the American Constitution.(') I1 follows, therefore, that Article 31 (C) impinges with full force or several fundamental rights which are enabled to be abrogated by the Parliament and the State Legislatures.

As regards the question of delegation of amending power, it is noteworthy that no amendment has been made in Article 368 itself to eriabk delegation of constituent power. The delegation of such power

( 1) [1951] S.C.R. 682. (•) State of West Bengal v. Anwar Ali S11rkar (per Patanjali Sastri C.J.) [1952] S.C.R. 284 at pp. 293, (Ibid p. 313 Mahajan J.).

(') Basheshar Nath v. The Commissjoner of Income Taz, Delhi l!r Rajasthan (per Das C.J.) [1959] Supp. 1 S.C.R. 528 at 551.

IWAVANANDA 11. KUALA (She/at 6' Gro11er, JJ.) 289

to the State Legislatures, in particular, involves serious consequence1.

It is well settlrd that one legislature cannot create another leai1lative body. This has been laid down very clearly in two deciaiolu oi the Privy Cow1c:il. In the lniti4li11e 11ntl Refmnd11m Act(') which lw already been discumd~ 1 ) by us no doubt wu ened that a body that had the power of le8Jalation on the tubjectt entrusted to it, evC.11. thoup, the power was to ample u that enjoyed by a provincial leaitlature i.n Canada, could not create and endow with its own capacity a new legi1lative power not created by the Act to which it owed itt own exittence.

Attorney General of No1111 Scoli11 v. The Attorney Genertd of C1111111l11(1) is another direct authority for the view that the Parliament of Canada or any of the legislatures could not abdicate their powers and, invest for the purpose of legislation bodies, whlch by the very terms of the British North American Act were not empowered to accept such delegation and to legislate on such matters. The distinctipn made by counsel on behalf of the respondents and the cases relied on by them have been fully discus.iicd in the judgment of the learned Chief Justice and we need not go over the same ground.

The only way in which the Constitution can be amended, apart from Articles 4, 169 and the relevant paras in Schedules V and VI of the Constitution, is by the procedure laid down by Article 368. If that is the only procedure pmcribcd, it is not poesdble to understand how by ordinary Jaws the Parliament or the State Legislatures can amend the Constitution, particularly, when Ar.tide 368 does not contemplate any other mode of amendment or the setting up of another body to amend the Constitution. The other difficulty which immediately presents itself while examining Article 31 ( C) is the effect of the declaration provided for in the Article. It is possible to fit in the scheme of Article 31 ( C) any kind of social or economic legislation. If the courts are , debarred from going into the question whether the laws enacted are meant to give effect to the policy set out in Article 39(b) and ( c), the Court will be precluded from enquiring even ; mo the incidental encr011chment on rights guaranteed under Artides 14, 19 and 31. This is not possible with regard to laws enacted under Article 31(A). Those laws can be sustained if they infringe the aforesaid Articles only to the extent necessary for giving effect to them. Although on behalf of the respondents it is said that the Court can examine whether there is any nexus between the laws made under Article 31(C) and Article 39(b) and (c), there would hardly be any law which can be held to have no nexus with Article 39(b) and (c), the ambit of which is so wide.

( 1) (1919] A£. 935.

( 1) See page 88.

( 1) (1951 J Cao. L. R. 31.

2 90 SUPlll!M! COUllT ll!PORTS [ 1973] Supp. s.e.ll..

The essential distinction between Article 31(A) and 31(C) is. that the former is limited ro sper.ified topics,; whereas the latter does not give the particular subjects but leaves it to the )cgislatures to select any topic .. that may purport to have some nexus with the objectives iii Article 39(b) and (c). In other words, Article 31(C) deals with Qbjects with unlimited scope. .

 The argument that Article 31 ( C) lifts the ban placed on State L:Cgislature .and Parliament under Articles 14, 19 and 31 aud futther that it ttiay be considered as an amendment of Ariicle 368, has beCil discti!Sed by the learned Chief Justice in his judgment delivered today :ind . we adopt, witli respect, his reasoning for repelling them.

In OW' judglnent Article 31(C) suffers from two kinds of Vice which scrioU&ly affect its validity. The first is that it enables !Ota! abrogation of fundamental rightt contained in Articles 14, 19 and 31 and, secondly, the. power of amendt contained in Article 368 is of special nature which has been exclusively conferred on the Parliament and can be exercised only in the manner laid clown in that Article. It was never intended that the same could be delegated to any other legislature including the State Legislatures.

The purpose sought to be achieved by Article 31(C) may be highly laudable as pointed ()m by the !carried Solicitor General, but the same must be achieved by appropriate laws which can be constitu tionally upheld. We have tto option, in view of what has been s:l, id except to hold that the validity of Article 31 ( C) cannot be sustained. .

The last matter for determination is the validity of the 29th Amendment Act, 1m. The challenge is only against the lnc!U&ion of t:Wo.

Acts, namely. the Kerala Land Reforms (Amendment) Act 1969 and a similar Kerala Act of 1971 in the Ninth Schedule to the Constitu. tion.

The main argument on behalf cl. the petitioners ms betn tonfintd to the relationship between Article. 3l(A} and Article 3l(B); It hat been contended that Artkle 3I(B) is intimately llnked With Art. 31(A) arid, therefore, only those legislatite enactments which fall undeT Atticle 3l(A) can be included in the 9th Schedule under Article 3l(B).

This matter is no longer open to argument as the same stands settled by a series of , decisions of this Court. See State of Bih~ v .. Mah11ra; rulhira; Sir Kameshwar Singh of Darbhanga & OthN"s;(') 1'ilw~1!11Vl11' .R"tJ v.

(') [19S2] S.C.R. 889.

KESAVANANDA "· KEllALA (She/at & Grover JJ.) ~91

The State of Madhya Pradesh(') and N. B. fee; eebhoy v. Assistant Collector, T hana Prant, T hana.(') In all these cases it wu held that Article 31 (B) was independent of Article 31(A). A matter which has been settled for all these ye:irs cannot be re-opened now. It will still be open, however, to the Court to decide whether the Acts which were included in the Ninth Schedule by 29th Amendment Act or any provision thereof abrogates any of the bask clements of the constitutional structure or denudes the1n of their identity.

Our conclusions may be sumtnariscd as follows :

1. Thedecision in Golak Nath has beco:tne academic, for even if it be assumed that the majority judgment that the word 'law' in Article 13(2), covered constitutional amendrtients was not correct, the result on the questions, wider than those raised in Golak Nath, now raised before us would be just the same.

2. The discussion on the 24th Amendment leads to the result

that-

( a) the said amendment does no more than to clarify ib. express

language that which was implicit in the unamended Article 368 and that it does not or cannot add to the power originally conferred thereunder;

(b) though the power to amend cannot be narrowly construed and extends to all the Articles it is ilot unlimited so as to include the power to abrogate or change the identitv of the Constitution or its Qasic features; ( c) even if the amending power includes the power to amend Article 13(2), a question not decided in Golak Nath, the power is not so wide so as to include the power to abrc.gate

or take away the fundamental freedoms; and ( d) the 24th Amendment Act, read as aforesaid, is valid.

3. Clause (2) of Article 31, as substituted by s. 2 of the 25th Amendment, does not abrogate any basic clement of the

Constitution nor does it denude it of its identity because-

(a) the fixation or determination of "amount" under that Article has to be based on some norm or principle which must be relevant for the purpose of arriving at the amount payable in respect of the property acquired or requisitioned;

(b) the amount need not be the market value but it should have a reasonable relationship with the value of such property;

( 1) [1952] S.C.R. 1020.


292 suPlllMI cou11r lllPOATS [ 1973] Supp. s.c.1.

(c) the amount should neither be illusory nor fixed arbitrarily; and

(d) though the courts arc debarred from going into the question of adequacy of the amount and would give due weight to le!PJlativc judgment, the examination of all the matters in (a), (b) and ( c) above ia open to judicial review.

4. Aa regards clawe (2B) inserted in Article 31 which makes

Article 19(1)(£) inapplicable, there is no reason to suppose that for determination of the amount on the principles laid down in the law any such procedure will be frovided which will be unreasonable or opposed to the rules o natural justice.

S. On the above view section 2 of the 25th Amendment is valid.

6. The validity of section 3 of the 25th Amendment which introduced Anicle 31C in the Constitution cannot be sustained because the said Article suffers from two vices. T~ first is that it enables abrogation of the basic elements of the Constitution inasmuch as the fundamental rights contained in Articles 14, 19 and 31 can be completely taken away and, secondly, the power of amendment contained in Article 368 is of a special nature which has been exclusively conferred on Parliament and can be exercised only in the manner laid down in that Article. The same could not be delegated to any other legislature in the country. Section 3, therefore, must be declared to be unconstitutional and invalid.

7. The 29th Amendment is valid. However, the question whether the Acts included in the Ninth Schedule by that amendment or any provision of those Acts abrogates any of the basic elements of the constitutional structure or denudes them of their identity will have to be examined when the validity of those Acts comes up for consideration.

The petitions are remitted to the Constitution Bench to be decided in accordance with this judgment and the law. The Constitution Bench will also decide the validity of the 26th Amendment in the light of our judgment.

HEGDE AND MuKHERJEA JJ.-In these writ petitions questions of great constitutional importance have arisen for consideration. Herein we are called upon to decide the constitutional validity of the 24th, 25th, 26th and 29th Amendments to the Constituaon. We have had the ac!Yantage of hearing long and illuminating arguments cov~ing over 65-working days. We have been referred to numerous dec1S1ons of this Court and of the courts in England, United States, Canada,

KESAVANANDA v. KERALA (Hegde & Mukherjea, JJ.) 293

Australia, Germany, Ireland and Ceylon. Our attention has also been invited to various writings of jurists, present and past, of several countries. For paucity of time, we have not taken up the question of the validity of the 26th Amendment. That question can be conveniently considered later after this bench decides certain fundaniental questions of law arising for decision. For the same reason we have also refrained from going into the merits of various wcit petitions at this stage. At present we are merely deciding the scope and validity of the 24th, 25th and 29th Amendments to the Constitution.

In order to decide the validity of the Amendments referred to earlier, it is necessary to go into the scope of the power conferred on Parliament under Article 368 of the Constitution as it stood prior to its amendment by the 24th Aniendment Act which. came into force on November 5, 1971. Article 368 is the only article found in Part XX of the Constitution. The title of that part' is "Amendment of the Constitution." Its marginal note as it originally stood read ''Procedure for amendment of the Constitution". The Article read thus:

"An amendment of this Constitullion 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 twe>-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, artick 73, article 162 or article 241, or

(b) Chapter N 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 represent:ition 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 petitioners' learned Counsel, Mr. Palkhivala, advanced twe>- fold arguments as to the scope of that Article. His first contention was that in the exercise of its powers under. Article 368 as it stood

294 SUPREME COURT REPORTs [ 1973] Supp. s.c.a.

before its amendment, it was impermissible for Parliament to take away or abridge any of the rights conferred by Pan III of the Constitution. His second and more comprehensive argument was that the power conferred on the Parliament under Art. 368 did not permit it to damage or destroy any of the basic or fundamental features or ossential clements of the Constitution. The arguments on these two aspects naturally ran into each other. But for a prQjJCr legal approach, it is necessary to keep them apart as far as possible. Heru:c while considering the correctness of the first contention, we shall not take into consideration the importance of the Fundamental Rights. On this aspcc.t, our approach to Article 368 will be p11rely baStd on the language of Article. 368 and Article 13. 'rh.e importance or transcendental character of the Fundamental Rights as well as the implied or inherent fimitations on the amending power, if any, will be cmuidered wltlle dealing with the second of the rwo altcthative contentions advanced by Mr. Palkhivala.

We shall first take up the question whether by the exercise of the powet of amendment conferred by Article 368, as it originally stood, Parliament could have taken away any of the Fundamental Rights conferred by Part III. According to Mr. Palkhivala, Article 368 as 'tt stood before its amendment merely laid dciwn !the procedure for amendment; the power to amend the Constiiution must be found somewhere else in the Consllitution; the power to be exercised by Parliament under Article 368 in legislative in charaoter and the resulting product is 'law', hence such a law, in view of Article 13(2) which says "The State shall not make any law wltlch takes away or abridges the rights conferred by tltls Part and any law made in contravention of tltls clause shall, to the extent of the con!travention, be void", cannot validly take away or abridge any of the Fundamental Rights. He further contended that the word 'law' in Article 13(1) means and includes not merely legislative enactments but also constitutional measures. The Counsel urged, there is no reason why a different meaning should be given to the word 'law' in Atticle 13(2). A more impo!1tant argument of his was that the power to amend the Constilturion, even if, it is assumed to be contained in Article 368, is by no means an exclusive power because in ecrntin respects and subject to certain conditions, the Constitution can also be amended by Parliament by a simple majority by enacting a law in the same manner as other legislative measures are enacted. In this connection he drew our attention to Articles 4, 169, Paragraph 7 of the Vth Schedule and Paragraph 21 of the VIth Schedule. Counset urged that'if the amendment of the, provisions of the Constitution referred to therein is considered as the exercise of constituent power and comequcntly such an amendment is not a "law" within the meaning of that expression ill Article 13, then Parliament by a simple majoi'ity of the meinber!

KESAVANANDA v. KERALA (Hegde & Mukherjea, JJ.) 295

present and voting if the rule regarding the quorum is satisfied, can take away or abridge any of the Fundamental Rigtits of certain sections of the public in this country.

On the other hand, the learned Attorney General, the learned Advocate General fo~, the State of Maharashtra, appearing for the State of Kerala and the other Counsel appearing for the various States contended that a plain reading of Article' 368 shows that he power to amend the Constitlltion as weU as the procedure of amendment are both contained in that Article; once the form and the manner laid down in that Article have been complied with, the rt is the amendment of the Constitution. According to them, the expression "an amendment of this Constiltution" in Article 368 means an amendment of each and every provision or. part of the Comaitution; once the-form and manner provided in Article 368 have been complied with, the amended Article is as effective as the original Article itself; and, therefore, as in the case of the original Article, the validlty of the amended Article also cannot be chaengcd. They further contended that 'law' in Article 13 means only legislative enactments or ordinances, or orders or bye-laws or rules or regulations or notific:(tions or customs or usages having the force of law in the territory of India and that expression does not include a constitutiooal law, though in a comprehensive sense, a constitutional law is also a law. They further contended that the word 'law' in Article 13 muSlt be harmoniously construed with Article 368 and, if 'it is so construed, thero is no room for doubt that the expression 'law' in Article 13 does not include a,

constitutional law. They repudiated the contention of Mr. Palkhivala that there was any constitutional law as such in force when tthe Constitution came into force. Hence according to them the expression 'law' in Article 13(2) does not take in the amendment of the Constitution. According to them, laws enacted under Article 4, Article 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI are not to be deemed as amendments to the Consitituttion as is laid down in those provisions, though in fact they do amend the Constitution in certain respects and they are no different from the other kgislative measures enacted by Parliamnt; hence the laws enacted under those provisions cannot take away or abridge any of the Fundamentaf Rights. We have now to see which one of those lines of reasoning is acceptable.

The question whethr Fundamental Rights can be abridged by Parliament by the exercise of its power under Article 368 in accordance with the procedure laid down therein came up for consideration before this Court very soon after the Constitution came into force., The validity of the Constitution (1st 'Amendment) Act 1951 came up for the consideration of this Court in Sankari Prasad

296 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.

Singh Deo v Union of India and State of Bihar('). In that case the

scope of Article 368 vis-a-vis Article 13(2) was debated. This Court rejecting the contention of the pctiitioners therein that it was impcrmissibk for Parliament to abridge any of the Fundamental Rights under Article 368, held that "although 'law' must ordinarily include

constitu6onal law, there is a clear demarcation between ordinary jaw which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power". This Cow:t held that .. in the context of Article 13, 'law' must be taken to mean rules or

regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent powei;, with the result that Article 13(2) does not affe~ the amendments made under Article 368". In the case this Collilt also opined that the power to amend the Constitution was explicitly conferred on Parliament by Article 368 and the requirement of a different majority was merely procedural. It rejected the contention that Article 368 is a complete code by itself and upheld the contention of the Government that whik acting under Article 368, Parliament can adopt the procedures to be adopted, except to the extent provided in Article 368, in enacting other legislative measures.

The power of Parliament to abridge Fundamental Rights under Article 368 was again considered by this Court in Sajian Singh v.

State of Raiasthan ('). In that case two questions were considered viz. <

1) Whether the amendment of tlhe Constitution in so far as it purported to take away or abridge the rights conferred by Part Ill of the Constitution was within the prohibition of Article 13(2) and

(2) Whether Articles 31-A and 31-B (as amended by the li'th Amendment Act) sought to make changes in Article 132, Article 136 and Article 226 or any of the Lists in the VI!th Schedule and therefore the condit'ions prescribed in the prov!iso ID Article 368 had to be satisfied.

It is clear from the judgment of the Court that the first question was

not debated before the Court though the majority judges as well as the minority judges did consider that question evidently without any ass1ttance from, the bar. On both those questions Chief Justice Gajendragadkar speaking for himself and Wanchoo and Raghubar Dayal JJ. concurred with the view taken by this Court in Sankari Prasad's case. But Hidayatullah J. (as he then was) and Mudholkar J. doubted the correctness of that decision on the first question but concurred with the view taken by the majority of judges on the second question.

Hidayatullah and Mudholkar JJ. agreed in dismissing the writ petitions as the petitioners had not challenged the correctness of the decision of this Court in Sankari Prasad's case on the first question.

( 1 )

[ 1952] S.C.R. 89.


KESAVANANDA v. KEP.ALA (Hegde & Mukheriea, JJ.) 297

The question whether any of the Fundamental Rights can be abridged or taken away by Parliament in exercise of its power undtr Article 368 again came up for consideration before this Court in I. C. Golaknath and ors. v. State of Puniab('). This case was heard by a full court of eleven judges. In t!hat case by a majority of six to five this Court came to the conclusion that Sankari Prasad's case as well as Saiian Singh' s case were not correctly decided. The majority held that the expression 'law' in Article 13(2) includes constitutional amendments as well. The minority agreeing with the earlier decisions held that the expression 'law' in Article 13(2) does not include cons-· titutional amendments. Five of the majority judges namely . Subba Rao C.J., Shah, Sikri, Shellit and Vaidia1ingam JJ. held that;.Article 368 in terms only prescribes the various steps in the mater .of. a.mendment and that the Article assumes tihe existence of the power. toamend somewhere else in the Constitution. Accord'ing to them the mere completion of the procedural steps mentioned in Article 368 cannot bring about a valid amendment of the Constitution. In their opinion, the power to amend cannot be implied from Article 368. They declined to infer such a power by .implication in Article 368 as they thought it was not necessary since Parliament has under Article 248 read with Item 97 of List I of the VIIth• Schedule plenary power to make any law incliuding the law to amend the Constitution subject to the limitations contained therein. They observed that the power of Parliament to amend the Constitution may be derived from Article 245, Article 246 and Article 248 read wiith Item 97 of List I. The remaining six judges held that the power of amendment is no~ derived from Art. 248 read with Entry 97 of List I of the VII1ih Schedule. Wanchoo J. (as he then was) and Bhargava, Mit1ter and Bachawat JJ. held that the power to amend is to be found in Article 368 and Ramaswami J. held that Article 368 confers on Parliament the right (power) to amend the Constitution. Hidayatullah J. (as he then was) held that Article 368 outlines a process, which, if foUpwed striotly, results in the amendment of the Constitullion; that article gives the power to no particular person or persons, and that the power of amendment, if it can be called a power at all, is a leglslati.ve power but ic is sui generis

and exists outside the three Lists in Schedule VII of the Constitution.

This reasoning of Hidayatuulah J. may be reasonably read to suggest that the power of amendrnen~ is necessarily implied in Article 368.

The jority of the judges who held that it was impermissible for Parliament to take. away or abridge any of the Fundamental Rights by an amendment of the Constitution did not proceed to striko down the the 1st, 4th and 17th Amendments. Five of them relied on the doctrine of. "Prospective Overruling" (Subba Rao C.J., Shah, Sikri, Shclat and Vaidialingam JJ.) and Hidayatullah J. relied on the doctrine of

(1) (1957) 2 S.C.R. 7Q.

1298 CUPllME COURT REPORTS (1973) Supp. S.C.R,

acquiescence to save those amendments. Evidently in an attempt to get over the effect of the decision in Golak Nath' s case, Parliament has enacted the 24th Amendqient Act, 1971, and the same has been ratlified by more than one half of , the Legislatures of the States.

Now, turning back to the contentions :idvanced on behalf of the partiei, we shall first deal with the cQntention of the Union and s<>me of the States that once the "form and manner" prescribed in Artick 368 are complied with, the Constitution stands amended and thereafter the validity of the amendment is not open to challenge.

This contention d6es not appear to be a tenable one. Before a Constitution can be validly amended, two requirements mUSll be satisfied.

Firstly, there must be the power to amend the provision sought to be amended; and secondly, the "form and the manner" prescribed in J).rtide 368 must be satisfied. lf the power to amend the Article is wanting, the fact that Parliament has adhere;:! to the form and manner prescribed in Article 368 becomes immaterial. Hence !he primary question is whether Parliament has power to abridge or take away any of the Fundamental Rights prescribed in Part III of the Constitution ?

In order to find out whether Parliament has the power to take away or abridge any of the Fundamental Rights in exercise of its power under Article 368, we must first ascertain the true scope of that Article. As seen earlier in Sankari Prasad' s case, this Court ruled that the power to amend the Constitution is to be found in Article

368. The same view was taken by the majority of judges in Saiian Singh's case as well as in Golak Nath's case. We respectively hold that view to be the correct view As mentioned earlier, Part XX of the

Constitution which purports to dc; tl with amendment of the Constitution cont:!ins only one Article, i.e. Article 368. The title of that Part is "Amendment of the Constililltion." The fact that a separate part of the Constitution is reserved for the amendmellltl of the Constitution is a circumstance of great significance-see Don John Francis Douglas uyanage and ors. v. The Queen(') and State of UP. v.

Manbodhan Lal Srivastava(2 ). The provisions relating to the amendment of the Constitution are some of the most important features of any modern Constitution. All modern Constitutions assign an important place to the amending provisions.

It is difficult to accept the view expressed by Subba Rao C. J, and the learned judges who agree<l with him that the power to amend the Constitution is not to be found even by necessary implication in Article. 368 but must be found

( 1) (1967] I A.C. 259 at 287.

' 2) [1958] S.C.R. 533 at 544.

sAVANAND4 v. KERALA (Hegde & Mukher; ea, JJ.) 299

elsewhere. In their updoubtedly difficult task of finding out that power elsewhere they had to fall back on Entry 97 of List I. Lists I to III of the V!Ith Schedule of the Constitution merely divide the topics of legislation among the Union and the S11ates. It is obvious that these Lists have been very carefully prepared. They are by and large exhaustive. Entry 9Z, in List I was included to meet some unexpected

and unforeseen contingencies. It is difficult to believe that ollr Constitution-m; ikers who wiere keeply conscious of the impor1!.a!l.ce of the provision relating to the amendment of the Constitution and debated that question for sever:il days, would have left .this important power hidden in Entry 97 of J., iSll I leaving it to the off chance of the courts loca6iig that power in th; tt Entry. We are unable to agree witli those learned ju<)ges when they sought to place reliance on Article 245, Article 246 and Article 248 and Entry 97 of List I for the purpose of

loating power of ammdment in the residuary power conferred on the Union. Their reasoning in that regard fails to give due weight tp the fact that the exercise of the power under those ariticles is "subject tQ the provisi1>ns of this Constirution". Hardly few amendments to the Constitutil>n can be made subject to the existing proviions of the Constitution. M:ost amendments of the Constitution must necessarily impinge on one or the other of the existing provisions of the Constitutiol}. W r; have no doubt in our minds that Article 245 to Artie&! 248 as well as the Lists in the Vllth Schedule merely deal with the legislative power and not with the amending poer.

Now coming back to Ar.;..!e 368, it may be noted that it has tluee components; firstly, it deals with the amendment of the Constitullion; secondly, it designates the body or bodies which can amend the Constitution, and lastly, it prescibes the form and the manner in which the amendm-=nt of the Constitution can be effected. The Article does not expressly confer power In amend; the power is necessarily implied in the Article. The Atticle makes it clear that the amendment of the Constitution can only be made by Parliament but in cases fallipg under the proviso, ratification by legislatures of not less than one-half of the States is alro necessary. That Artitle stipulates various things. To start with, the amendment to the Constitution must be initiated only by the introduction of a Bill for that purpose in either House of Parliament. It must then be passed in each House by a majority of the total membership of that House and by a majority of not less than twO'thirds of the members of that House present and voting and if the amendment seeks to make any change in the provisions mentioped in the proviso, it must be ranified by not less than one-half of the State Legislatures. Thereafter, it should be presented to the President for his assent. It further says tihat upon such assent

be\ng given to the Bill "the Constillution shall stand amended in accordance with the terms of the Bil!l". To restate the position, Anicle

300 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.

368 deals with the amendment of the Constitution. The Article contains both the power and the procedure for amending the Constitution.

No undue importance should be attached to the marginal not.e which . says "Procedure for amendment of the Constitution". Marginal note plays a very little part in the construction of a stautory provision. It . should have much less importance in construing a constitutional provision. The language of Article 368 to our mind is plain and unanioiguous. Hence we need not call into aid any of the rules of constructlion about which there was great deal of debate at the hearing. As the power to amend under the Article as it originally stood was only implied, the marginal note rightly referred to the procedure of amendment. The reference to the procedure in the mar~ not.e does not negative the existence of the power implied in the Article.

; The next question is whether the power conferred under Art. 368 is available for amending each and every provision of the Constitution.

The Article opens by s~.ying "An amendment of this Constitution" whidi means an amendment of each and every provision and part ot the Constituti!>n. We find nothi.ng in that Article to restrict its

scope. If we read Article 368 by itself, there can be no doubt that the pomr of amendmt implied in that Article can reach each and every Article as well as every . part of the Constitution.

Having ascertained the '"true scope of Article 368, let us now turn to Article 13. A great deal of rel'iance was pliaced by the learned Counsel for the petitioners on the expression 'law' found in Articlo 13(1) and (2). As seen earlier, the two judges in Saiian Singh's case as well as the majority of judges in Golak Nath's case opined that 'law' in Article 13(2) also includes constitutional law i.e. law which amends the Constitution and we sec no substance in the contention that the amendment of a Constitution is not 'law'. The Constitution is amended by enacting Amendment Acts. The Constitution is not oniy a law but the paramount Jaw of the country. An amendment of that law must ru:ifcSsarily be a law. The fact that the word 'law' is .not used in Article 368 is of little significance. For than matlter Article

110 also does not provide that a Bill when assented to by the President becomes law. The amendment of a Constitution is initiated by a Bill and itt goes through the procedure laid down tin Article 368, supplemented wherever necessary by the yrooedurc prescn1icd in Article 107;

soe Siznkari PrasaJ's case. The Billl when passed by both the Houses of Parliament and, in matters coming under the proviso to Article 368, after securing the necessary ra.6fication by the State Legislatures, is prescnt.ed to the President for his assent. The procedure adopted is the same as that adopt.ed in c:nacting an ordinary statlltc except to the extent provided in Article 368. Even if it had been different, there can be hardly any doubt that the amendment of a Constitution is 'law'.

KESAVANANDA v. IWALA (Hegde &- Muk,.herjea, JJ.) 301

In Sank,.ari Prasad's case, Patanjali Sastri J. (as he then was) speaking for the Court had no doubt in ruling thaa the expression 'law' must ordinarily include 'constitutional law'. The same view was taken by all the judges in Saj; an Singh's case and also by most of the judges in Golak.. Nath' s case •

• But the question still remains whether our Constitution makers by using the expression 'law' in Article 13(2) intended that that expression should also include the exercise of Parliament's amending ' power under Article 368. W c have earlier &plained the scope and E extent of Article 368. In understanding the meaning of the word 'law'; in Article 13(2) we should bear in mind the scope of Article 368. The two Arti.clcs w'ill have to be construed harmoniously. The expression 'law' may mean one of two things, namely, either those measures which are enumerated in Article 13(3) as well as staliUtcs passed by legislatures or in addition thereto constitutional laws (amendments) as wc!L In this connection reference may be made to a passage in Corpus Juris Secundum (Vol. XVI-Title Constitutional Law Article 1, p. 20), which says :

"The term 'Constitution' is ordinatily employed to designate the organic law in contradistinction to the terms 'law' which is

generally used to dcsignaac 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 include the Constitution or a constitutional provision or amendment."

Ii is true that Article 13(3) contains an inclusive definition of the term 'law' and, therefore, the question whether it includes constitutional amendment also cannot be answered with reference to that clause. All the same, since the expression 'law' can have two meanings, as mentioned earlier, we must take that meaning which harmonises with Articlle 368. As mentioned earlier, Article 368 is unambiguous, whereas Article 13 is ambiguous because of the fact that the word 'law' may or may not include const\tutional amendment. Further, when we peak of 'law' we ordinarily refer to the exercise of legislative power. Hence, 'law' in Article 13(2) must be construed as referring to the exercise of an ordinary legislative power.

Ari. examination of the various provisions of our Constitution shows that it has made a distinction between "the Constitution" and "the laws". The two arc invariably treated separately-sec Article 60, 61, proviso to Article 73 ( 1), Article 75 ( 4) read with the Third

Schdule, Article 76(2); Article 124(6) read wifu the Third

Scheduk, Article 148(5), Article 159 and Article 219 read with the

20-36 S. C. India/73

3()2 SUPREME COURT REPORTS (1973) Supp- SC.R.

Third Schedule. These provisions clearly establish that the Constitutioners have not used the expression 'law' in the Constitution as indudmg constitutional law.

Mr. Palkhivala contended that the term 'law' in Article 13(1) includes constl:tutional law also. Wanchoo J. speaking for himself and on behalf of two otlher judges in Golaknath' s case held that on the day the Constitution came into force, no constitutional law was in force. Therefore in his view, the term 'law' in Article 13(1) can only refer to legislative measures or ordinances or bye-laws, rules, regulations, notifications, customs and usages. Mr. Palkhivala contended that the said finding is not correct. In that connection he referred to the treaties and agreements entered into between the former Rulers of the Indian States and the Central Government as well as to certain other measures which were in force when the Constitution came into force which, according to him, are 'constitutional law' and, on that basis, he contended that certain constitutional laws were in force on the day when the Constitution came into force. We are not satisfied that this contention is correct. Under Article 395, the Indian Independence Act, 1947 as well as the Government of India Act, 1935, were repealed. The laws whkh were continued under Article 372 after the Constitution came into force did not operate on their own strength. For their validity they had to depend on Arricle 372 and that Article made it clear that those laws will continue to be in force "subject to the other provisions of .the Constitution". Anyway it is not necessary to decide the question whether those laws are constitutional •laws. Article 13( 1) does not refer to 'laws' as such. It refors to "laws in force in the territory of India immediately before the commencement of this Constitution". It identifies certain laws and determines the extent of their validity. The scope of Article 13 ( 1) does not bear on the interpretation of the expression 'law' in Article 13(2).

We shall now examine the contention of Mr.' Palkhivala based on Articles 4, 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI. He contended and we have no doubt that he did so rightly,-that the Constitution can be amended not only under Article 368 but alo under Article 4, Article 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI. Amendments under these provisions can be effected by Parliament by a simple majority vote of the members present in the House and voting, if the prescribed quorum is there. If the two Houses do not agree on any amendment under those provisions, the same has to be decided by a Joint sitting of the two Houses as provided in Article 108. That is

because of the exprCM exclusion of the application of Article 368 to the amendments made under those provisions.

According to Mr.

PalkhiTala, by the exercise of its power under the aforementioned

KESAVANANDA v. KERALA (Hegde & Mukhel'jea, JJ.) 303

prnvisions, Parliament can in certain respects take away or abridge the Fundamental Rights of a section of the people of this country.

He painted a gloomy picture as to what can happen by the exercise of power by Parliament under those provisions. It is true that the power conferred under the aforementioned provisions is amending power but those provisions make it clear that the exercise of the power under those provisions shall not be "deemed to be the amend ment of the Constitution for the purpose of Arlick 368".

This brings us to a consideration, wha~ exacty is the intent of the expression "No such law as aforesaid shall be deemed to be an

amendment of this Constitution for the purpose of Article 368".

There can be little doubt that these words merely mean that the form and manner prescribed in Art:icle 368 need not be compiled with.

Once this position is accepted any law made under those provisions takes the character of an ordinary law and that law becomes subject to the other provisions of the Constitution including Article 13(2).

Counsel either side took us through the debates of the Constituent Assembly relating to Article 368. Naturally each one of them relied on those passages from the speeches of the various members who took part in the debate and, in particular, on the speeches of late Prime Minister Nehru and the then Law Minister Dr. Ambedkar, which supported their contention. Having gone through those speeches, we feel convinced that no conclusive inference can be drawn from those speeches as to the intention of those speakers. Hence, we need not go into the question at this stage whether it is permissible for us to place reliance on' those speeches for finding out the true scope of Article 368.

Mr. Palkhivala placed a great deal of reliance on the stages through which the present Article 13 passed. It is seen from the Constituent Assembly records that when the Constituent Assembly was considering the provision which resulted in Article 13(2), Mr.

Santhanam one of the members of the Constituent Assembly moved an amendment to make it clear that the expression 'law' in Article 13(2) does not include an amendment of the Consiitution under draft Article 304 (present Article 368) and that the amendment was accepted by Sardar Patel, Chairman of the Advisory Committee. On the basis of that deci&ion, Sir jl. N. Rau, the Constitutional Adviser redrafted the concerned provision by specifically excluding from its operation amendments of the Constitution. When this matter went before the Drafting Committee consisting of emient lawyers, they redrafted the clause thus :

"The State shall not make any law which takes away or abridges the rights conferred by this part and any Jaw made in contravention of this clause shall to the extent of contravention be void."

304 SUPREME COURT REPGRTS (1973) Supp- S-0.Il.

In other words, the drafting committee deleted from Sir B. N.

R:m's draft those words which specifically excluded from the operation of the clause amendments of the Constitution. From these circumstances, Mr. Palkhivala seeks to draw the inference that the Constituent Assembly finally decided to bring within the scope of Article 13(2) constitutional amendments also. We are unable to accept this contention. It is not ckar why the drafting .committee deleted the reference to the amendment of the Constitution in Article 13(2).

It is possible that they were of the opinion that in view of the plain language ot the provision relating to the amendment of the Constitution i.c draft Article 304, it was unnecessary to provide in Article 13(2) that the amendment of the Constitution does not come within its scope.

It is true that this Court has characterised the Fundamental rights as "paramount" in A. K. Gopalan v. Slate of Madras('), as "sacrosanct'' in State of M.Jras v. Smt. Champakam Dorairaian,('), as "rights served b¥ the people" in Pandtt M. S. M. Sharma v. Shn" Sri

Knshna Sinha,( ) as "inalicnabk and inviolable" -in Smt. Uiiam Bhai

v. State of U J'.(') and as "transcendental" in several other cases. In so descnbing the Fundamental Rights in those cases, this Court could not have intended to say that the Fundamentaf Rights alone arc the basic elements or fundamental features of the Constitution. Mr.

Palkhiwala conceded that the basic clement;, and fundamental features of the Constitution arc found not merely in Pan III of the Constitution but they arc spread out in various other parts of the Constitution.

They arc also found in some of the Directive Principles set out in Part IV of the Constitution and in the provi&ons relating to the sovereignty of the country, the Republic and the Democratic character of the Constitution. According tx> the Counsel, even the provisions relating to tho unity of the country arc basic clements of the Constitiltion. ·

It was urged that since even amcndmcnll of several provisions of minor significance requires the concurrence of the legislatures of the majority of the States it is not likcliy that the Constitution makers would have made the amendment. of the provisions relating to Fundamental Rights a plaything of the Parliament. Th'.is argument, however, does not lead to any definite conclusion. It is not unli1'lv that the Constitution-makers thought that the states arc specially interested in the provisions mentioned in the proviso l'O . Article 368,

( ') [ 1950] S.C.R. 88 at 198.

( 2) (1951] S.C.R. 525. (') .[1959] Supp. 1 s.c.R. 806. (') [1963] 1 S.C.lt 778.

KESAVANANDA v. KERALA (Hegde & Mukherjea, JJ.) 305

so that the amendment of those provisions should require ratification by the legislatures of the majority of the States. When the language of Article 368 is plain, as we think it is, no question of construction of than Article arisei. There is no need to delve into the intention of the Constitution-makers.

Every Constitution is expected to endure for a long time. Therefore, it must necessarily be . elastic.. It is not possible to place the society in a straight jacket. The .society grows, its requirements change.

The Constitution and the laws may have to be changed to suit those needs. No single generation can bind the course of the generation to come. Hence every Constitution wisely drawn up provides for its own amendment. We shall separatdy consider the contention of Mr.

Palkhivala that our Constitution embodies certain features which arc so basic that no free and civilised society can afford to discard them and in no foreseeable future can those features become irrelevant in this country. For t'he present we shall keep apart, for later consideration. Mt. Palkhivala's contention that the Parliament which is only a constituted body cannot damage or destroy the essential features of the Constitution. Up till now we have merely confined our attention to the question as to the scope and reach of Article 368. This Court has always attached great importance to the Fundamental Rights guaranteed under our Constitution. It has given no less. imporotance to some of the Directive Principles set out in Part IV. The Directive Principles

embodied in Part IV of the Constitution or at any rate most of them are as important as the rights of individuals. To quote the words of Graville Austin (The Indian Constitution-Corner Stone of a Nation, page 50) :

"The Indian Constitution is first and foremost a social document.

The majority of its provisions are either directly aimed at furthering the goals of social revolution by establishing the conditions necessary for its achievement yet despite the permeation of the entire Constitution by the aim of national renaissance, the core of the commitment to the social revolution lies in Parts III and IV, in the Fundamental Rights and the Directive Principles of State Policy. These are the conscience of the Constitution."

Therefore to implement the duties imposed on the States under

Part IV, it may be necessary to abridge in certain respects the rights conferred on the citizens or individuals under Part III, as in the case of incorporation of clause 4 in Article 15 to benefit the backward classes and Scheduled Castes and Scheduled Tribes and the amendment of Article 19(2) with a view to maintain effectively public order and friendly relations with foreign States. Hence we are unable to construe the amending power in a narrow or pedantic manner. That power,

306 SUPREME COURT REPORTS (1973 j Supp. S.C.Il.

under any circumstance, must receive a broad and hbcral interpretation. How large it should be is a question that requires closer examination. Both on principle as well as on the language of Article 368, we are unable to accede to the contention that no right guaranteed by Part III can be abridged.

This Court is al'ways reluctant to overrule its earlier decisions.

There inust be compelling reasons for overruling an earlier decision of this Court. As seen earlier, there are already conflicting decisions as to the scope of Article 368. As far back as 1951, in Sankari Prasad' s case, thls Court took the view that the power of amendment conferred Wlder Arlicle 368 included withiin itself the power to abridge and take

away the Fundamental Rights incorporated in Part III of the Constitution. The correctness of that view was not challenged in several other decisions. The same view was taken in Saiian Singh's case. That view was negatived in Golakhnath's case by a very narrow majority.

Bearing in mind the disastrous effect that decision would have had on many important laws that had been enacted by the Union and the States between the years 1951 to 1967, this Court by relying on the doctrines of prospective overruling and the doctrine of acquiescence did not invalidate those laws.

One other circumstance of great significance is that the !st Amendment to the Constitution was carried out by the provisional Parliament whlch consisted of the very members who were the members of the Const'ituent Assembly. It should be remembered that members of the Constituent Assembly continued as the members of the provisional Parliament till the General Election in 1952. They must have been aware of the intention with which Article 368 was enacted.

These are important circumstances. The interpretation we place on a constitutional provision, particularly on a provision of such great importance as Article 368 must subserve national interest. It must be such as to further the objectives intended to be achleved by the Constitution and to effectuate the philosophy underlying it. To quote the memorable words of Chief Justlice Marshall we !IlUSt not forget that we are expounding a Constitution.

We now come to the second contention of Mr. Palkhlvala that the word 'amendment' has a limited meaning and Article 368 docs not permit any damage to or destruction of the basic or fundamental features or essential elements of the Constitution. Mr. Palkhivala urged that the word "amendment" or "amend" ordinarily means 'to make certain changes or effect some improvements in a text'. Those words do not, according to him, except under special circumstances mean the widest power to make any and every change in a document, including a power to abrogate or repeal the basic features of

KESAVANANDA v. llllALA (Hegde & Mukheriea, JJ.) 307

that document. The same,. he contended, is true of a power to amend a statute or a Constitution. In support of his contention, he invited our attention to the various meanings given to the word "amendment" or "amend" 'in several dictionaries. He further urged that in construing the meaning of the word "amendment" 'in Article 368, we must take into consideration the donee oo whom the power to amend the Constitution is granted, the atmosphere in which the Constitution came to be enacteci, the consequences of holding that power is unlimited in scope as well as the Sf:heme of the Constitution. He urged that in the final analysis, the duty of the Court is to find out the true intention of the founding fathers and therefore the question before us is whether the founding fathers intended to confer on Parliament, a body constituted under the Constitution, power to damage or destroy the very basis on which our Conscitution was erected. On the other hand it was contended on behalf of the Union of India, State of Kerala as well as the other States that the power of amend!J1ent conferred under Article 368 is of tho widest -amplitude.

It brooks no limitation. It is a power which can be used to preserve the Constitution, to destroy the Constitution and to re-create a new Cons'itution. It was contended that the society can never be static, social ideals and political and economic theories go on changing and every Constitution in order to preserve itself needs to be changed now and then to keep in line with the growth of the society. It was further contended that no generation can impose its w'ill permanently on the future generations. Wise as our founding fathers were, wisdom was not their sole monopoly. They themselves realised it. They knew that in a changing world, there can be nothing permanent and, therefore, in order to attune the Constitution to the changing concepts of politics, economics and social ideas, they provided in Article 368 a machinery which is neither too flexible nor too rigid and makes it possible to so reshape the Constitution as to meet the requirements of the time. According to them by following the form and manner prescribed in Article 368, Parliament can exercise the same power which the Constituent Assembly could have exercised. We have now to consider which one of the two contentions is acceptable.

While interpretating a provision in a statute or, Constitution the primary duty of the court is to find out the legislative intent. In the present case our duty is to find out the intenfion of the founding fathers in enacting Article 368. Oridnarily the legislative intent is gathered from the language used. If the language employed is plain and unambiguous, the same must be given effect to irrespective of the consequences that may arise. But if the language employed is reasonably capable of more meanings than one, then the Court will have to call into aid various well settled rules of construction and in particular, the history of the legislation-to find out the evil that was sought to

308 SUPREME CXlURT ltBPORTS (1973] Supp. S.c.R.

be remedied and also in some cases the underlying purpose of the legislation-:-the legislative scheme and the consequences that may possibly flow from accepting one or the other of the interpretations because no/ legislative body is presumed to confer a power which is capable of misuse.

It was conceded at the bar that generally speaking, the word "amendment" like most words in English or for that matter. in any language, has no precise meaning. Unllke "sale" or "exercise", it is not a term of law. Ir is capable of receiving a wide meaning as well as a . narrow meaning. The power to amend a Constitution in certain context may include even a power to abrogate or repeal that Constitution.

It may under certain circumstances mean a power to effect. changes within narrow 1:1mits. It may sometime mean a power that is quite

large but yet subject to certain lim1tations. To put it shortly, the word ., amendment" without more, is a colourless word. It has no precise meaning. It takes its colour from the context in which it is used. It cannot be interpreted in vacuo. Few words in English language have .a natural or ordinary meaning in the sense that they must be so read that their meaning is entirely independent of the context. As observed . by Holmes J. in Towne v. Eiser.(') "A word is not a crystal, transpa- . rent and unchanged; it is the skin of a f1ving thought and may vary , greatly in colour and content according to circumstances and the time :in which it is used". We must read the word "amendment" in Article 368 not in isolaion but as occurring in a single complex instrument, Article 368 is a part of the Constitution. The Constitution confers vari- cius powers on legislatures as well as on other authorities. It also imposes duties on those authorities. The power conferred under Article 368 :is only one such power. Unless it is plain from the constitutional scheme

that the power conferred under Article 368 is a super power and is capable of destroying all other powers, as contended on behalf of the Union and the States, the various parts of the Constitution must be .construed harmoniously for ascertaining the true purpose of Article 368.

In our Constitution unlike in the Constitution of the United States -of America the words "amendment" and '.'amend" have been used to

convey different meanings in different places: In some Articles they are used to confer a narrow power, a power merely to effect changes within prescribed limtts-see Articles 4, 107(2), 111, 169(2), 1%(2), 197(2) and 200. Under Paragraph 7 of the Fifth Schedule as well as Paragraph 21 of the Sixth Schedule to the Constitution, a much larger power to amend those Schedules has been conferred on Parliament.

That power includes power to amend "by way of addition, variation or repea£''. Similar is the position under the repealed Article 243(2),

( 1 ) 215 U.S. 418 at 425.

\ r.

-.'~

XESAVANANDA "· XERALA (Hegde & Mukherjea, JJ.) 309

.Article 252(2) and 350(5). !tis true that the power to amend con 'fcrred under the Fifth and Sixth Schedules is merely a power to amend

th<ll!e Schedules but if the Constitution-makers were of the opinion that the word "amendment'' or "amend" included within its scope, unless limited otherwise, a power to add, vary, or repeal, there was no pur- POl!C in mentioning in th= Articles or parts "amend by way of addition, variation or repeal". In this connection it may also be remembered that the Constituent Assembly amended s. 291 of the Government of India Act, 1935 on August 21, 1949 just a few days before it approved .Article 368 i.e. on September 17, 1949. The amended s. 291 empowered the Governor-General to amend certain provisions of the 1935 Act "by way of addition, modification or repeal". From these circumstances, there is prima facie reason to believe that our Constitution makers made a distinction between a mere power to amend and a power to amend by way of "addition, modification or repeal". It is one of the accepted rules of construction that the courts should presume that ordinarily the legislature uses the same words in a statute to convey the same meaning.

If different words arc used in the same statute, it is reasonable . to assume that, unless the context otherwise indicates, the legiislature intended to convey different meanings by those words: This rule of interpretation is applicable in construing a Consnitution as well.

Now that we have come to the conclusion that the word "amendment" in Article 368 is not a word .of precise import and has not been used in the various Articles and parts of the Consti.tution to convey always the same precise meariing, it is necessary to take the aid of the other relevant rules of construction to find out the intention of the Constitution makers.

The question whether there is any impliied limitation on the amending power under Article 368 has not been decided by th'is Court till now. Tha~ question did not come up for consideration in Sankari

Prasad's case.

In Sajjan Singh's case neither the majority speaking through Gajendragadkar C. J. nor Hidayatullah J; (as he then was) went into that question. But Mudholkar J. did foresee the importance <>f that aspect. He observed in the course of his judgment : ·

"We may also have to bear in mind the fact that ours is a written Constitution. The Constituent Assembly which was the repository of sovereignty could well have created a sovereign Parliament on the British model. But instead it enacted a written Constitution, created three organs of State, made the Union executive responsible to Parliament and the State executive to the State legislatures, erected a federal structure and distributed kgislative power between Parliament and the State Legislatures; recognised certain rights as fundamental and provided for their enforcement, prescribed forms of oaths of office br affirmations which require those who subscribe

310 SUPREME COURT REPORTS (1973] Supp. S.C.R.

to them to owe true allegiance to the Constitution and further require the members of the Union Judiciary and of the Higher judiciary in the States, to uphold the Constitution. Above all, it formulated a solemn and dignified preamble which appears to be an epitome of the basic fearut:es of the Constitution. Can it not be said that these are indicia of the intention of the Constituent Assembly to give a premanency to the basic features of the Constitution ?

It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, \n effect, rewriting a part of the Constitlution ; and if the latter, would it be withfo the purview of Article 368" ?

For the first time in Golak Nath's case, the contention that the power of amendment under Article 368 is subject to certain inherent and implied limitations was urged. Subba Rao C.J. speaking for himself and four of his colleagues, while recognising 'the force of that contention refrained from pronouncing on the same. Wanchoo J. (as he then was) speaking for himself and two other judges opined that the power under Art4cle 368 is a very wide power but it may not include a power to abrogate the Constitution. He did explain what he meant by "abrogate the Constitution''. HidayatuLlah J. (as he then was) did not address himself to that question. Bachawat J. side-stepped that question by saying that the impugned amendments did not destroy any basic feature of the Constitution. The only judge who rejected the contention that there are 'inherent or implied limitations on the amending power was Ramaswami J. From the above discussion it is seen that in cases that came up for consideration before this Court in the past several judges did consider the possibility of having some limitation on the amending power under Article 368 though they did not definitely pronounce on that question.

One of the well-recognised rules of construction is the rule laid down 'in Heydon's case. What was the mischief that the Constitutionmakers intended to remedy? What was the purpose intended to be achieved by the Constitution? To answer this question it is necessary to make a brief survey of our Nationalist movement ever since 1885

nd the objectives sought to be achieved by that movement.

The objectives underlying our Constitution began to rake their shape as a result of the forces that operated in the nati?nal struggk during the British rule when the British resorted to ab1t; ary acts of oppression such as brutal assaults on unarmed satyagrah1s, internments, deportations, detention without trial and muzzling of the press. The

I \""-

KESAVANANDA v. KERALA (Hegde & Mukherjea, JJ.) 311

harshness with which the executive. operated its repressive measures strengthened the demand for constitutional guarantees of Fundamental Rights. As far back as 1895, the Const!itution of India Bill, prepared by some .eminent Indians, envisaged for India a Constitution guaranteeing to everyone of. our citizens freedom of expression, inviolability of one's ' house, right to property, equality before the law, equal opportunity of admission to public offices, right to present claims, petitions and complaints and right to personal liberty. After the publication of the Montague-Chelmsford Report, the Indian Nanional Congress at its special session held in Bombay In August 1918 demanded that the new Government of India Act should contain "Declaration of Rights of the people of India as British citizens". The proposed declaration was to embody among other things, guarantees in regard to equality before the law, protection in respect of life and liberty, freedom of speech and press and right of association. In its Delhi Session in December of the same year, the Congress passed another resolution demanding the immediate repeal of all' laws, regulations and ordinances restricting the free discussion of political questions and conferring on the executive the power to arrest, detain, intern, extern or imprison any British subject in India outside the process of ordinary Civil or Criminal law and the assimilation of the law of sedition to that of England. The Corrunonwealth of India Bill, finalised by the National Convention in 1926 embodied a specific declaration of rights visualising for every person certain rights in terms practicaUy identical with tbe relevant provisions of tbe Irish Constitution. The problems of minorities in India further strengthened the general argument in favour of inclusion of Fundamental Rights in the Indian Constitution. In its Madras Session in 1927, the Indian National Congress firmly laid down tht the basis of the future Constitution must be a declaration of Fundamental Rights. In 1928, the Nehru Committee in its report incorporated a provision for enumeration of such rights, recommending their adop-· Ilion as a part of the future Constitution of India. The Simon Commissiorn rejected the demand on the plea that an abstract declaration of such rights was useless unless there existed "the will and the mean5 to make them effective". In 1932, in its KaracHi Session, the Indian National Congress reiterated its resolve to regard a written guarantee of Fundamental Rights as essential in any future constitutional set up in India. The demand for the incorporation of 'the Fundamental R'ights in the constitutional document was reiterated by the Indian leaders at the Round Table Conferences. The Joint Select Committee of the British Parliament rejected those demands. The Sapru Committee (1944-45) was of the opinion that in the peculiar circumstances of India, the Fundamental Rights were necessary not only as assurance and guarantees to the minorities but also prescribing a standard of conduct for the legislatures, governments and the courts. The Committee felt that it was for the Constitution-making body to enumerate

312 SUPIU!ME COURT IU!POllTS ( 1973 j Supp. S.CJl,

 fust the list of Fundamental Rights and then to undertake their further &vision into justiciable and non-justiciable rights and provide a suitable .machinery for their enforcement.

The atrocities committed during the Second World War and the , world wide agitation for human rights, the liberties guaranteed fn the Atlantic Charter, the U. N. Charter and the Declaration of Human Rights by the Human Rights' Commission strengthened the demand for the incorporation of Fundamental Rights in our Constitut.ic>n. The British Cabinet Mission in 1946 recognised the need for a . written guarantee of Fundamental Rights in the Constitution of India. It accordingly recommended the setting up of an advisory committee for reporting, inter alia, on Fundamental Rights. By the Objectives Resolution adopted on January 22, 1947, the Constituent Assembly solemnly , pledged itself to draw up for India's future governance a Cons.t'itution wherein "shall be guaranteed and secured to alil the people of India

justice, social, economic and political, equality of status, of opportunity :and before the law; freedom of. thought, expression, belief, faith, wor- • 'ship, vocation, assoc!.iation and action subject to law and public mora- . r. : ' lity and wherein adequate safeguard would be provided for minorities,

"'.';, backward and tribal areas and depressed and other backward classes", ·· The close association between political freedom and social justice has 'become a common concept since the French Revolution. Since the end •of the first World War, it was increasingly recognised that peace in the world can be established only if it is based on social justice. The :most modern Constitutions contain declaratlion of social and economic

principles, which emphasise, among other things, the duty of the State to strive for social security and to provide work, education and proper condition of omployment for its citizens. In evolving the Fundamental Rights and the Directive Prihciples, our founding fathers, in addition to the xperience gathered by them from the events tltat took :place in other parts of the world, also drew largely on their experience

~,, .in the past. The Directive Principlos and the Fundamental Rights mainly proceed on the basis of Human Rights. Representative dern<>- -cracies will have no meaning without economic and social justice to

1 .the common man. This is a universal experience. Freedom from foreign ' ' rule can be looked \lpon only as an opporl'Wlity to bril\g about economic

.and social advancement. After all freedom is nothing else but a chance to be better. It is this liberty to do better that is the theme of the Directive Principles of State Policy in Part IV of the Constitution.

The Objectives Resolution passed by the Constituent Assembly in January 1947, is a definite landmark. It is a precursor to the preamble to our Constitution. It sets out in detail the objeclives .that were before

KESAVANANDA ti. KERALA (Hegde & Mukheriea, JJ.) 313

our Constitution-makers. Those objectives have now been incorporated in the preamble to our Constitution whlch 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, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all :t.l

FRATERNITY assuring the dignity of the individual and the unity of the Na ti on;

IN.OUR CONSTJTI)ENT ASSEMBLY this twenty-sixth day of November, 1949 do HEREBY ADOPT, ENACT AND GIVE.

TO OURSELVES THIS CONSTITUTION".

From the preamble it is quite clear that the two primary objectives. that were before the Constituent Assembly were (1) to constitute India into a Sovereign Democratic Republic and (2) to secure to its citizens the rigllts mentioned therein. Our founding fathers, at any rate, most of them had made immense sacrifices for tho; sake of securing those objectives. For them freedom from British rule was an essential step to render social justice to the teeming millions in this country and to. secure to one and all in this country the essential human rights. Their constitut'tonal plan was to build a welfare state and an egalitarian _ society.

Now that we have set out the objectives intended to be achieved by our founding fathers, the question arises whether those very persons could have intended to empower the Parliament, a body constituted under the Constitution to destroy the ideals that they dearly cherished and for which they fought and saccificed.

If the nature of the power granted is clear and beyond doubt the fact that it may be misused is wholly irrelevant. But, if there is reasonable doubt as to the 'nature of the power granted then the Court has to take into consideration the consequences that might ensue by interpreting the same as an unlimited power. We have earlier come to the .conclusion that the word "amendment" is not an expression having a precise cannotation. It has more than one meaning. Hence it is necessary to examine the consequence of accepting the contention of the Union and the States. Therefore let us understand the consequences of conceding the power claimed. According to the Union and the States that power inter alia, includes the power to (1) destroy the

314 SUPREME COURT REPORTS [1973] Supp- S-C.R.

sovereignty of this country and make this count!I"y a satellite of any other country; (2) substitute the democratic form of government by monarchical or authoritarian form of government; (3) break up the unity of this country and form various independent States; (4) destroy the secular character of this country and substil\lte the same by a the<>- .cratic form of government; (5) abrogate completely the various rights conferred on the citizens as well as on the minorities; ( 6) revoke the mandate given to the States to build a Welfare State; (7) extend the life of the two Houses of Parliament indefinitely; and (8) amend the amending power in _such a way as to make the Constitution legally or at any rate pract:lcally unamendablt. In fact, their contention was that the legal sovereignty, in the ultimate analysis rests only in the amending power. At one stage, Counsel for the Union and the States had grudgingly conceded that the power conferred under Article 368 cannot be used to abrogate the Constitution but. later under pressure of questioning by some of us they ch:rngod their position and said that by 'abrogation' they meant repeal of the Constituliion as a whole.

When they were asked as to what (hey meant by saying that tlhe power conferred under Article 368 cannot be used to repeal the Constitution, all that they said was that while amending the Constitution, at least one clause in the Constirution must be retained though every other clause or part of the Constitution including the preamble can be deleted and some other provlsions substituted. Their submission in short was this that so long as the expression the "Constitution of India" is retained, every other article or part of ot can be replaced. They tried to tone down the effect of their claim by saying that, though legally, there is no limitation on the amending power, there are bound to be political compulsions which make it impermissible for Parliament to

exercise its amending power in a manner unacceptable to the people at large. The strength of polit'ieal reaction _is uni:ertain. It depends upon various factors such as the poliitical consciousness of the people, their level of education, strength of the various political organizations in the country, the manner in which the mass media is used and finally the capacity of.. the government to suppress agitations. Hence the peoples' will to resist an unwanted amendment cannot be taken into consideration in interpreting the ambit of the amending power. Extra legal forces work in a different plane altogether.

We find it difficult to accept the contention tli:i.t our Constitutionmakers after making immense sacrifices for achieving certain ideals made provision in the Constitution itself for the destruction of those ideals. There is no doubt as men of experience and sound political knowledge, they must! have known that social, economic and political changes are bound to come with the passage of time and the Co!llltitution must be capa~ of boing so adjusted as to be able to respond to those new demands. Our Constitution is not a mere political

KESAVANANDA v. KEllALA (Hegde & Mukheriea, JJ.) 315

<locument.

It is essentially a social document.

It is based <Jn a social philosophy and every social philosophy like every religion has two main features, namely, basic and circumstantial. The former remains constant but the latter is subject to change.

The core of a religion always remains constant but the practices associated with it may change. Likewise, a Constitution like ours contains certain features which are so essential that they cannot be changed or

destroyed. In any event it cannot be destroyed from within. In other words, one cannot legally use the Constitution to destroy itself. Under Article 368 the amended Constitution must remain 'the Constitution' which means the original Constitution. When we speak of the 'abroga.- tion' or 'repeal' of the Constitution, we do not refer to any form but to substance. If one or more of the basic features of the Constitution are taken away to that extent the Constitution is abrogated or repealed.

If all the basic features of the Constit!ution are repealed and some other provisions inconsistent with those features arc incorporated, it cannot still remain the Constitution referred t.o in Article 368. The personality of the Constitution must remain unchanged.

It is also necessary to bear in mind that the power to amend the Constitution is conferred on Parliament, a body constituted under the Constitution. The people as such are not associated with the amendment of the Constitution. From the preamble we get that it 'is the people of this country who conferred this Constitution on themselves. The statement in the preamble that the people of this country conferred the O;>nstitution on themselivcs is not open t.o challenge before this Coun. Its factual correctness cannot be gone into by this Court which again is a creature of the Constitution. The faats set out in the preamble have to be accepted by this Court as correct. Anyone who knows the composition of the Constituent Assembly can hardly dispute the claim of the members of that Assembly that their voice was the voice of the people. They were truly the representatives of the people, even though they had been elected under a narrow franchise. The Constitution framed by them has been accepted and worked by the people for the last 23 years and it is too late in the day now to quesfion, as was sought to be done an one stage by the Advocate-General of Maharashtra, the fact, that the people of th.is country gave the Con"6tution to themselves.

When a power to amend the Constitution is given to the people, its contents can be construed to be larger than when that power is given to a body constituted under that Consltution. Two-thirds of the members of the l!Wo Houses of Parliament need not necessarily represent even the majority of the peopk of this country. bur dcctoral system is such that even a minority of voter~ can elect more than two-thirds of the members of the either House of Parliament. That is seen from our

316 SUPREME COURT REPORTS [1973 j Supp SC.R.

experience in the past. That apart, our Constitution was framed nn the basis of consensus and not on the basis of majority votes. It provides for the protection of the minorities. If the majority opinion is taken as the guiding factor then the guarantees given to the minorities may become valueless. It is well known that the representatives of the minorities in the Constituent Assembly gave up their claim for special protection which they were demanding in the past because of the guarantee of Fundamental Rights. Therefore the contention on behalf of the Union and the States that the two-thirds of the members in th'~ two Houses of Parliament are always authorised to speak on behalf of the entire people of this country is unacceptable.

The President of India under Article 60 of the Constitution is required to take an oath before he assumes his office to the effect that he will "to the best of llis ability preserve, protect and defend the

Constitution". Somewhat similar oaths have to be taken by the Governors of States, Ministers at the Centre and in the States, Judges of the superior courts and other important functionaries. When the President of India is compelled to give assent to a constitutional amendment which might destroy the basic features of the Constitution, can it be said that he is true to his oath to "preserve, protect and defend the Constitution" or does his oath merely mean that he is to defend the amendmg power of Parliament ? Can the amending power of Parliament be considered as the Constitution? The whole scheme and the \ structure of our Constitution proceeds on the basis that there are certain basic features which are expected to be permanent.

Implied limitations on the powers conferred under a statute constitute a' general feature of all statutes. The position cannot be different in the case of powers conferred under a Constitution. A grant of power in generaV terms of even in absolute terms may be qualified by other express provisions in the same enactment or may be qualified by the implications of the context or even by considerations arising out of what appears to be the general scheme of the statute. Zn Re The Central

Provinces and Berar (Central Provinces and Berar Act No. XIV of 1938(1 ), Sir Maurice Gwyer C. J. observed at p. 42 :

"A grant of the power In general terms, standing by itself, would no doubt be construed in the wider sense; but it may be qualified by other express provisions in the same enactment, by the implicat; ons of the context, and even by considerations arising out of what appears to be the general scheme of the Act."

( 1 ) [1939] F.C.R. p. 18.

IClSAy,\K~ ll .. ltEM.LA (Hegd' &-Mukherjea, JJ.) 317

1.ord Wright in James v. Commonwetilth '1f Australia(') stated thelaw thus: •

'.", The questi<m, then,. is one of construction, and in the ultimdtC rc:oort must be determined upon the actual words . used, read not in t1QCt10 but as occurting in a Single complex instrument, in which one part may throw ]light on another. The Constitution has b~ described as the federal compact, . and the construction must hold

a balance between all its parts."

Several of the powers conferred under. our Constitution have been held to be subject to implied limitations though thooc powers arc expressed in general -terms or even in absolute terms. The executive power of the Union is ves!M in the President and he is authorised to exercise the same either directil y or through officers subordinate to him in accordance with the Constitution. Under Art. 75, it is the PreSident who can appoint the Prime Minister and the Ministers are to hold office during his pleasµre. Despite this conferment ci power in general and absolute terms, because of the scheme of the Constitution, its underlying principh and the implications arising from the other provisions in the Constitution, this Court has held in several cases that the President is a constitutional head and the real executive power vests in the Cabinet.

Similarly though plenary powers of legislation have been conferred on the Parliament and the Stat.e legislatures in respect of the legislative topics allotted to them, yet this Court has opined that by the exercise of that power neither Parliament nor the State legisla1!Ures can delegate to other authorities their essential legislative functions nor could they invade on the judicial power. These limitations were spelled out from the nature of the J>OWer conferred and from the scheme of the Constitution. But, it was urged on behalf of the Union and the States that, though there. might be implied limitations on other powers conferred under the Constitution, there cannot be any implied limitations on the amending power. W c see no basis for this distinction. The amending power is one of the powers conferred under the Constitution whatC-Ver the nature of that power might be. That apart, during the course of hearing the learned Solicitor-General had to concede that there are certai.1' Implied limitations .on the amending power itself.

The. amending power of Parliament in certain respects is subject to the express limitations placed on it bythe proviso to Article 368. Article 368 -prescribes that if Parliament wants to amend Article 54, thr:

Artl.cle dealing with the election of the President, the amendment in question must be ratified by the legislatures of not less than one half of the States. No such express limitation is placed on the amending power of Parliament in respect of Artide 52 which provides that there shall be a President of India. If it be held that Atticlc 52 can be amend•

( 1) [1936] A.C. 578 at 613. 21-36 s.c.. Inclia/73

318 SUPUME IJOUJ.T IU!POllTS ( 11/3] Supp. s.c.a.

'al without romplying with the requirements of the proviso to A¢clc

368, the ljmitation placed on Parliament in respect of the amendment of Article 54 betomes meaningless. When this incongruity was pointed out to the learned Solicitor-Genera~ he conceded that in view of the fact that before Article 54 can be amendetl, the forI!l and the manner laid down In proviso to Articlie 368 has to be followed, it follows as a matter of implication that the same would be the position for the amendment of Article 52. The only other alternative inference is that Article 52 can never be amended ar all. It is not necessary to go into the other implications that may arise from the language of Aiticle 368.

From what has betn said above, it is clear that the amending power under Article 368 is also subjeot to implied limitations. The contentio.1 rhat a power to amend a Constitution cannot be subject to any implied limitation is negatived by the observations of the Judicial Committee in The Bribery Commissioner v. Rana Singhe.(1) The decision of the Judicial Committee in Liyange's case (supra) held that Ceylon Parliament was incompetent to encroach upon the judicial power also lends support to our conclusion that there can be implied limitations on the amending power. '

In support of the contention that there can be no implied limitations on the amending power, our attention was invited to writings of various jurists of eminence. Most of the writings rebte to the amending power under Article 5 of .the United States Constitution. It is true that in the United States most of the writers, are of opinion that there is no implied limitation on the amending power under the United States Constitution. The Supreme Court of the United States has not spccilicall.y pronounced oo th'is question. The only case in which the question of implied limitation on the amending power under the

United States Constitution came up for consideration was Rhotle ls/and

v. Palmer.(') In that case the Supreme Court of United States rejecting the contention that the 18th Amendment-National Prohibition Amendment-was outside the amending power under Article 5 because of implied limitations on that power, held that the Amendment was valid. The Supreme Court, however, did not discuss the question of jmplied limitations on rli.e amending power as such In fact the judgment that was rendered in that case gave no reasons. Only certain

questions were formulated and answered. It is not clear from the judgment whether the particular limitation pleaded was rejected. or whether the plea of implied limitation on the ameJ:i.ding power was rejected though writers of most text books have taken the view that the court rejected the plea of implied limitations on the amending power. It may be noted that in the United States not a single human

( 1) [1965] A.C. 172. {') 64 L. Edn. 946.

KESAVANANDA v. KllRALA (Hegtie :,- Mukherjea, JJ.) 319

right has been taken away or even its scope narrowed. There the controversy centred round two questions viz. (1) abolition of slavery and

(2) prohibition of sale and consumption of liquor. We w"11 not be justified in expounding our Constitution on the basis of the controversies relating to those issues. Article 5 of the U.S. Constitution is not similar to Article 368 of our Constitution. In the former Article, there is an express limitation on the amending power i.e. regarding the representation of the States in the Senate. Further the amendment under Article 5 of the. United States Constitution can be proposed either by the Congress or by State Conventions. They may be ratified either by a minimum of 3/4th of the State Legislatures or by Conventions held in at least 3/4th of the States. Whother a particular amendment should be ratified by the State Legislatures or by the State Conventions is entirely left to the discretion of the Congress. As held by the United States Supreme Court, the deciSion of the Congress on that question is final. The Constitution makers must have proceeded on the basis that the Congress is likely to require the amendment of basic elements or fundamental features of the Constitution to be ratified by

State Conventions. The scheme of no two Constitutions is similar.

Their provisions are not similar. The language employed in the amending clauses differ from Constitution to Constiitution . The objectives

lying behind them also are bound to differ. Each country has its own needs, its own philosophy, its own way of life and above all its own problems. Hence in our opinion, we will be clouding the issues, if we allow oursees ID be . burdened either by the writings of the various writers on other Constitutions or by the decisions rendered on the basis of the provisions of the other Constittuions, though Counset on either side spared no efforts to place before us various opinions expressed by various writers as well as the decisions renderod by several courts including the State Courts in United States of America.

The rule laid down by the Judicial Committee 'in R. v. Burah(') that "'if what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited it is not for any court of Justice to inquire further, or to enlarge constructively those conditions and restrictions" was hcaviliy relied on by Mr. Seervai.

That decision, however, has been confined to the interpretation of conditional legislations and the rule that it laid down has not been applied while considering the question whether there are any implied limitations on any of the powers conferred under a statute or Constitution.

It was strenuously urged on behalf of the Union and the States that if we come to the conclusion that there are implied or inherent

(1) (1878) LA. 178.

320 . SUPREME COUR'i' Ui'OllTS [1973] Sup,!). s.c.ll,

limitafions on the amending power of Parli, iament under Article 368, it would.be: well nigh impossible for Parliament to decide before hand as to what' amendments it could make and what amendments it is forbidden to make. According to the Counsel for the Union and the States, the conceptions of basic elements and fundamental features are illusive conceptions and their determination may differ from judge to judge and therefore we would be making the task of Parliament impossible if we uphold the content>ion that there are implied or inherent limitations on the amending power under Article 368. We are unable to accept this contention. The broad contours of the basic elements. or fundamental features of our Constitution are clearliy delineated in the preamble. Unlike in most of the other Constitutions, it is comparatively easy in the case of our Constitution to discern and dett:rmine the basic clements or the fundamental features of our Constitution. For doing so, one has only to look to the preamble. It is true that there are bound to be border line cases where there can be difference of opinion. That is so in all important legal: questions. But the courts generally proceed on the presumption of constitutionality of all legislations. The presumption of the consoitutional validity of a statute will also apply to constitutional amendmenm. It is not correct to say that what is difficult to decide does not exist at all. For that matter, there are no clear guidelines before the Parliament to determine what arc essential legislative functions which cannot be delegated, what legislations do invade on the judicial power or what restrictions are reasonable restrictions in public interest under Article 19(2) to 19(6) and yet by arid large the legislations made by Parliament or the State slatures in those respects have been upheld by courts, No doubt, there were. occasions when courts were constrained to strike down some legislations as ultra vires the Constitution. The position as regard the ascertainment of the basic elements or fundamental features of the Constitution can by no means be more difficuh than the difficulty of the legislatures .to "determine before hand the constitutionality of legislations made under various other heads. Arguments based on the difficulties hikely to be faced by the legislatures are of very little importance and they are essentially arguments against judicial review.

Large number of decisions rendered by collrts in U.S.A., Canada, Australia, United .Kingdom, C.cylon and Ireland, dealing with the question of 'implied limitations on the amending power and also as regards the meaning of the word "amendment" were read to us at the hearing. Such of those that are rclevan~ have been considered by the learned Chief Justice in the judgment just now delivered. We entirely agree with the views expressed by him and we cannot usefully add to the same.

It was contended on behalf of the Union and the States t.bat, the Constitution should not be treated as something sacred. It should be regarded just in the same way as we regard other human institlitions.

KESAVANANDA I/, _KEJIALA (Hegde & Mukherjea, JJ.) 321

It should be possible tb alter every part of it from time to time so as to bring it in harmony with the new and changed conditions. In support of this contention we were invited to the writings of the various writers such as Burgess, Bryce, Willis, Orfield, Weaver Livingston

etc. It was further urged that the Constituent Assembly knowing that, it will disperse, had arranged for tho recreation of a Constituent A; sembly, under Article 368 in order to so shape the Constitution as to meet the demands of the time. However, al!tractive these theories may sound in the abstract, on a closer examination, it will be seen that they are fallacious, more part'icularly in a constitutionat set up like ours. We have earlier noticed hat under our electoral system, it is possible for a par'.y to get a 2/3rd majority in the two Houses of Parliament even if that party does not get an absolute majority of votes cast at the .electlion. That apart, when a party goes to election, it presents to the electoiate diverse programmes and holds out various promises. The programmes presented or the promises held out need not necessarily include proposals for amending the Constitution. During

the General Elections to Parliament in 1952, 1957, 1962 and 1967. no proposal to amend the Constitution appears to have been placed before the electorate. Even when proposals for amendment of. the Constitution arc placed before the electorate as was don~ by the Congress Party in 1971, the proposed amendments are not usually placed before the

.. electorate. Under these circumstances, the claim that the electorate had

.given a mandate to the party to amend the Constitution in any parti- .cular manner is unjustified. Further a Parliiamentary Democracy like ours functions on the basis of the party system. The n:iechanics of operation of the parry. system as well as the system of Cabinet government are such that the people as a whole can have little control in the matter of detailed law-making. " ........ on practically every issue 'in the modern State, the serried millions of voters cannot do more . than accept or reject tl1e solutions offered. The stage is too vast to permit of the nice shades of quantitative distinction impressing themselves upon the public mind. It has rarely the lieisure, and seldom the .information, to do more than indicate the general tendency of its will.

It is. in the process of law-making that the subtler adjustments must be dfectcd." (Laski: A Grammar of Politics; Fifth Edn. pp 313-314).

The assertion t11at either the majority of. members of Parliament 'or even 2/3rd members of Parliament speak on behalf of t11e nation

has no basis in fact. Indeed 'it may be possible for the ruling party to carry through important constitutional amendments even after it has

lost the confidence of the electorate. The members of Lok Sahha are ekcted for a term of five years. The ruling party or its membrs may -or may not enjoy the confidence of the electorate throughout their tm!'s

<if office. Therefore it will not be correct to say that whenever Parha- .ment amends the Constitution, it must be held to have don~ it as desired by the people.

322 sUPIU!Mll cou&T UPOJ.TS L1973] Supp. s.c.11.

There is a further fallacy in the contention that whenever Constitution is amended, we should presume that the amendment in question was made in order to adapu the Constitutlon to respond to the growing needs of the people. We have earlier seen that by using the amending power, it is theoratically p0ssible for Parliament to extend its own life indefinitely and also, to amend the. Constitution in such a manner as to make it cither legally or practically unamcndable ever afterwards.

A power which is capable of being used against the people themselves cannot be considered as a power exercised on behalf of the people or in their interest. ·

On a careful consideration of the various aspects of the case, we are convinced that the Parliament has no power to abrogate or emasculate the basic clements or fundamental features of the Constitution such as the sovereignty of India, the democratic character of our polity, the unity of' the country, the essential features of die individual freedoms secured to the citizens. Nor has the Parliamen11 'the power to revoke the mandate to build a Welfare State and egalitarian society.

These limitations arc only illustrative and not exhaustive. Despite these limitations, however, there can be no question that th~ amending power is a wide power and it reaches every Article and every part of the Constitution. That power can be used to reshape the Constitution to fulfil the obligatiOhS imposed on the State. It can also be used to reshape the Constitution within the limits mentioned earlier, to make it an effective instrument for social good. We are unable to agree with the contention that in order to build a W e.lfare State, it is necessary to destroy some of the human freedoms. That, at any rate is not the perspective of our Constitution. Our Constitution envisages that the States should without delay make available to all the citizens of this country the real benefits of those freedoms in a democratic way.

Human freedoms are lost. gradually and impcrecpti"bly and their destruction 'is generally followed by authoritarian rule. That is what history has taught us. Struggle between liberty and power is eternal.

Vigilance' is the price that we like every other democratic society ha"re to pay to safeguard the democratic values enshrined in our Constitution.

Even the best of governments are not averse to have more and more power to carry out their plans and programmes which they may sincerely believe to be in public interest. But a freedom once IPst is hardly ever regained except by revolution. Every encroachment on freedoms sets a pattern for further encroachments. Our rorutirutional plan is to eradicate poverty without dcstructi-On of individual freedoms.

In the result we uphold the contention of Mr. Palkhivala that the word "amendment" in Article 368 carries with it certain limitation and, further, that the power conferred under Article 368 is subject to certain implied limitations though that power is quite large.

KESAVANANDA 11. KEMLA (Hegtle & Muklier; ea, JJ.) 323

Next, we shall take up for consideration the contentions of Mr. Palkhivala regarding the validity of the 24th, 25th and 29th Amendments.

It was contended on behalf of the petitioners that in enacting the 24th Amendment Aot, the Parliament has exceeded its powers. It has purported to enlarge its limited power of amendment into an unlimited power, by the exercise of which it can damage or destroy the basic clements or fundamental features of the Constitution. It was said that such an exercise is an unla..yfu\ usurpation of power. Consequently, the 24th Amendment Act. is liable to be struck down. To pronounce on that contention, it is necessary to examine at the very outset whether the 24th Amendment Act has really enlarged the powers of the Pa11iament. If we come to the conclusion that it has not enlarged the power of the Parliament, as we think it has not, the various contentions of Mr. Palkhivala do not arise for consideration.

Now let us sec what is the true effect uf the Constitution 24th Amendment Act, 1971. That Act amended Article 13 and Article 368.

By that Act one more sub-article has been added to Article 13 viz. sul>-article ( 4) which reads thus :

"Nothing in this article shall apply to any amendment of this Constitution made under Article 368".

Section 3 of that Act which amends Article 368 reads . "Article 368 of die Constitution shall be renumbered as clause (2} thereof, and- ( a) for the marginal heading to. that article the following marginal heading shall be substituted, namely :- "Power of Parliament to amend the Constitution and procedure therefor".

(b) before clause (2) as so-renumbered, the following clause

shall be inserted, namely : "Notwithstanding anything in the Constitution, Parliament

may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitu'

tion in accordance with the procedure laid . down in this article."

(c) in clause (2) as so re-numbered, for the words "it shall be

presented to the President for his assent and upon such as..cnt being given to the Bill", the words "it shall be presented to the President who shall give his assent to the Bill and thereupon" shall be substituted;

.324 SUPREME couu REPOP.TS [1973] Supp. s.c.11..

( d) after cbuse (2) as so re-numbered, the following clause shall be inserted, namely-

" (3) Nothing in article 13 shall apply to any amendment made under this Article."

The material changes effected under this Act are :

l. Addition of clause ( 4) to Article 13 and clause (3) to Article

368;

2. Change in the marginal heading;

3. Specific mention of the fact that the power is conferred on the Parliament to amend the Constitution;

4. The power conferred on the Parliament is claimed to be a constituent power;

5. That power is described as a power to "amend by way of

addition, variation or repeal of any provision of this Constitution" and

6. Making it obligatory for the President to give assent to the Bill amending the Constitution.

In our opinion the 24th Amendment has nor made any material change in Article 368 as it stood originally. It is true the original Article did not say specifically that the power to amend rested with Parliament.

On the other hand, while setting out the procedure of amendment, it referred to the functions of the two Houses of Parliament and the President. Because of the fact that Parliament was not specifically referred to in Article 368, as it originally stood, the learned Advocate General of Maharashtra wanted us to spell out that the power confefred under Article 368, as it originally stood was not conferred on Parliament as such but on the two Houses of Parliament. We have earlier rejected that contention. We agree with the learned Attorney General that the power in question had been conferred on Parliament.

Article 79 says that "There shall be a Parliament for the Union, which shall consist of the President and two Houses to be knownrespeetively as the Council of States and the House of the People". Whether an enactment refers to the three components of Parliament separately or whether all the three of them are compendiously referred to as Parliament, in law it makes no difference. In Sankari Pr1uad's case, in Sajja11 Singh's case as well as in Golak11ath's case, each one of the Judges who delivered judgments specifically mentioned that the power to amend the Constitution was vested in Parliament though there was difference of opinion on the question whether that power could be traced to Article 368 or Article 248 read with Entry 97 of List I. There is no ground for taking a different view. •

KESAVANAN)>A 11. KEMLA (/;!egde & Mukherjea, JJ.) 325

We have already come to the conclusion that Article 368 as it originally stood comprehended both power as well as procedure to

:imend the Constitution. Hence the change effected in the marginal note has no signilicance whatsoever. The marginal note as it stood earlier was in a sense incomplete. The expression 'constituent .power' is used to describe only the nature of the power of amendment. Every amending power, however large or however small it might be, is a fact of a constituent, power. The power, though described to be 'constituent power', still continues to be an 'amending power'. The scope irid ambit of the power is essentially contained in the word 'amendment'. Hence, from the fact that the !)CW article specifically refers to that power as a constituent power, it cannot be nnderstood that the contents of the power have undergone any change. The power conferred under the original Article being a limited power to

amend the Constitution, the constituent power to amend the Constitution referred to in the amended Article must :ilso be held to carry with it the limitation to which that power was '1!bject earlier. There is also no signilicance in the substitution of the expression "amend by way of addition, variation or' repeal of any provision of. this Constitution" found in the amended Article in th, e place of the expression "amendment of the Constitution" found in the. original Article. Every power to amend a statute must necessarily include within itself some power to make addition, variation or repeal of any provision of the statute. Here again, the power conferred under the original Article being a limited one, that limitation will continue to operate' notwitflstanding the change in the phraseolc:>gy. The words 'addition, variation or repeal' only prescribe the modes or . manner by' which an 'amendment' may be made, but they do not determine the scope of the . p0wer of 'amendment'. The original Miele 368 mentioned that after the bill for amendment of the Co.nstitution is passed. by the two HoUses of Parliament in the manner prescribed in Article 368 "it shall be presented to the President for .his. assent and upon such assent being given io the Bill, the Constitution slµJJ stand amended in accordance with the terms of the bill". The amended Article makes • change. It prescribes that when the Bill is presented to the Pred, ent, , he "shall give his assent to the Bill". Some comment was made t the bar abounhc inappropriateness of commanding ! the President to. give his assent. to the Bill. That is 'a question of propriety. The substance of the matter is that when the Bill is presented to. the President, he shall not withhold his assent. This change cannot be said to have damaged or destroyed any basic element of the ConstitutiGn. In fact Article 111 which deals with the assent to' the Bills specificall~ prescribes that when a money Bill, after having been passed by the HoUses of. Parliament is presented to the President he "shall not withhold. assent therefrom". Hence it cannot be said that the change made in. Article 368 relating to the assent of the Presicjenr

 326 suPREME coullT J1.EPORTS [1973) Supp. s.cJt.

has any great importance in the scheme of our Constitution. In fact under our Constitution the President is only a constitutional head.

Ordinarily he has to act on the advice of the cabinc-t. There is no possibility of the Constitution being amended in opposition to the wishes of the cabinet.

The only change that remains to be considered is as to the exclusion of the application of Article 13 to an amendment of the Constitution. We have earlier come to the conclusion that Article 13 as it stood earlier did not bar the amendment of the Constitution.

Article 13(~) and 368(3) make explicit what was implicit.

It was contended that by means of the 24th Amendment Parliament intended to and in fact purported to enlarge its amending power.

In this connection reliance was placed on the statement of objects and reasons attached to the Bill which resulted in the 24th Amendment.

The power of Parliament docs not rest upon its professed intention.

It cannot acquire a power which it otherwise did not possess. We are unable to accept the contention that clause ( e) to the proviso to Article 368 confers power on Parliament to enlarge its own power. In our judgment the power to amend the Constitution as well as the ordinary procedure to amend any pan of the Constitution was and is contained in the main part of the Article. The proviso merely placts further restrictions on the procedure to amend the articles mentioned therein. Clause ( e) to the proviso stipulates that Article 368 cannot be amended except in the manner provided in the proviso. In the absence of that clause, Article 368 could have been amended by following the procedure laid down in the main part. At best clause ( e) of the proviso merely indicates that Article 368 itself comes within its own purview. As we have already seen, the main part of Article 368. as it stood earlier, expressly lays down only the procedure to be followed in amending the Constitution. The power to amend is onl:r implied therei11.

It is difficult to accept the contention that an implied power was impliedly permitted to be enlarged. If that was so, there was no meaning .in limiting that power originally. Limitation on the power to amend the Constitution would operate even when Article 368 is amended. A limited power cannot be used to enlarge the same power into an absolute power. We respectfully agree with the observation of Hidayatullah J. (as he then was) in Golaknath's case that what Parliament cannot do directly, it also cannot do indirectly. We have earlier heW that the "amendment of this Constitution" means the amendment of every part of the Constitution. It cannot be denied that Article 368 is but a part of the Constitution. Hence, the mere fact

KESAVANANDA v. KllALA (Hegde & Mukner; ea, JI.) 327

that the mover of the Z4th Amendment Act, in the Statement of Objects and Reasons laid claim to certain power docs not go to show that Parliament either endorsed that claim or could have conferred on itself such a power. It must be deemed to have exercised only such power as it possessed. It is a well-accepted rule of construction that if a provision is reasonably capable of two interpretations the Court must accept that interpretation which makes the provsion valid.

If the power conferred on Parliament to amend the Constitution under Article 368 as it stood originally is a limited power, as we think it is, Parliament cannot enlarge the scope of that power-sec Attorney General for the State of New South Wales v. The Brewery Employees

Union of New South Wales;(1) Ex Parte Walsh and fohnson; In Re Yates;(") and Australian Communist Party v. The Commonwealth.(')

For the reasons mentioned heretofore, the scope of Parliament's power to amend the Constitution or any part thereof must be held to have remained as it was before the 24th Amendment notwithstanding the alterations made in the phraseology of Article 368.

The 24t11 Amendment made explicit, what was implicit in the unamended Article 368. In this view of the matter the .24th Amendment must be held to be valid.

This takes us to the validity of the Constitution 25th Amendment Act. It is necessary to examine the scope and effect of that Act for deciding the question whether that Act or any one of its provisions can be held to be outside the amending power of the Parliament. That Act has three sections. We are not concerned with the first section which sets out the short title. Clause (a) of the second section amends Article 31(2). Clause (b) of that section incorporates into the Constitution Article 31(2B). Sectibn 3 introduces into the Constitution a new Article viz. Article 31C.

Let us first take up the newly substituted Artie.le 31 (2) in the place of the old Article 31(2) and examine its scope. To do so, it is

necessary to examine the history of that Article.

Article 31 (2) has undergone several changes.

As originally enacted it read thus :

"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

( 1) 6, C.L.R. 469.

( 2) 37, CL.R. 36 at p. 67.

( 1) 83, c.LR. p I.

328 SUP:REME COURT Bl!PORTS (1973] Supp. S.c.tl.

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 principles on which, and the manner in which, the compensation is to be determined and given."

That Article was amended first by the Fourth Amendment Act 1955 and, thereafter by the Twenty-fifth Amendment Act, 1971. At a later stage, it will be necessary for us to compare Article 31 (2) as it stood after the Fourth Amendment Act and as it stands after the Twenty-fifth Amendment Act. Hence we shall quote them side by side.

Article 31 (2) as substituted by the 4th Amendment Act 1955

No pnperty shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for .compen"1tion for the property so acquired or requisitioned and either

fixes the amount of the compensation or specifics the principles on which and the manner in which, the compensation is to be dctcr- Iliined and given; andno such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate.

Article 3 (2) as susbtituted by the 25th Amendment. Act 1971

No property hall be compul•orily acquired Or requisitioned save for a public purpose and save by authority of a law' which provides "for acqui1ition Oi' reqtiisi tioning of the property for an amount which may be fixed by such iaw or which may be determined in accordance with ruch principles and given in suchmal)ner as may be specified in such law; and no such law shall be called in question in any court on the ground that the amount so fixed or determined is n0t adequate or that the whole or any part of such amount is to be given otherwise than in ash:

Provided that in making any law providing for the compulsory acquisition of any property of an ed ... catioanl institution established an, d administered by i minority, referred to clause (I) of article SO, the State shall eusure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed uder that clause.

.KESAtANAND.\ fl. KERALA. (Htgdt & M•k~, JJ.) 32~

For finding out the true Scope of Atticle 31(2), as it stands now, the learned Advocate General of Maharashlra as wdl as the Solicitor General has taken \Is duough the history of this Article. Accordllig to them the .Article as it stand~ nOIV truly represents the intr.ntiou ci the Constitution makers. In support of that contention.· we were asked to go through the Constituent Assembly debates relating to that article. In particul:u-, we were invitied to go through the speeches niade by Pandit Nehru, Sir Alladi Krishnaswami Ayyar, Dr. Munshi and Dr. Ambcdkar. In our opinion. it is impermissible for us to do so.

It is a wdl settled rule of construction that speeches made by members of a kgislaturc m the course of debates rdating to the enactment of a statute cannot be used as aids for. interpreting any of the provisions of the statute. The same rule is applicable when we arc called upon to interpret the provisions of a Constituticn. Court ruled in Stllte of Trtltlflllcort: Cochin (JfZd ors. v. Bombay Co. Ltd.(') that speeches made by the members of the Constituent Assembly in the coorsc of the debates on the draft Constitution cannot be used as aid for interpreting the Constitution. In the course of his judgment Patanjai Sastri C.J. speaking for the Constitution Bench observed at p. 1121 af. the Report :

"It remains only to point out that the use made by the learned Judges below of the speeches made l>y the members of the Constil; Ucnt Assembly in the course of the debates on the draft Constitution is unwarranted. That this form of extrinsic aid to the interpretation of statutes is not admissible has been generally accepted in England, and the same rule has been observed in the construction of Indian Statutes-sec Administrator-General of

Bengal v. Prem Nath Mallick [(1895 22 I.A. 107, 118]. The reason behind the rule was explained by one of us in Gopalan's case(') thus:

"A speech made in the course !If the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the Bill. Nor is it reasonable to assume that the minds of all those legislators were in

accord", or as it is more tersely put. in a American case-

Those who did not speak may not have agreed with those who did; and those who spoke might differ from each other- U nited States v. Trans-Missouri Freight Association."(')

( 1 ) [1952] S.C.R. 113.

( 2 ) [1950] S.C.R. 88, at 144.

(') 169. U.S. 290, 318.

330 SUPREME COURT llP<>llTS [1973) Supp. s.~.

No deci; ion of this Coun dissenting from the view taken in the above case was brought to our notiec. But it was urged that this Court bad ignored the rule laid down in Bombay Co.'s case (supra) in Go/aknath's case as well as in what is popularly known as the Priuy

Purse(') case. We do not think that this statement is accurate. In Golaknath's case, Subba Rao C.J. referred to certain portions of speeches made by Pandit Nehru and Dr. Ambedkar. But he made it clear at p. 792 of the Report, the specific purpose for which he was referring to those speeches. This is what he stated :

"We have referred to the speeches of Pandit Jawaharlal Nehru and Dr. Ambedkar not with a view to interpret the provisions of Art. 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."

Bachawat J. in the course of his judgment also referred to some -0f the speeches made during the debates on Article 368. But before doing so this is what he observed at p. 922 of the report :

"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 Ors. v. 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. Ambcdkar. 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 .. "

From these observations, it is cleai that the learned judges were not referring to the speeches as aids for interpretin~ any of the provisions of the Constitution.

Now, let us turn to this Court's Judgment in the Privy Purse casi:.

Shah J. (as he then was) in the course of his judgment {at p. 83 of the report) quoted a portion of the speech of the Home Minister Sardar Patel not for the purpose of interpreting any provi- >ion of the Constitution but for showing the circumstances which necessitated the giving of certain guarantees to the former ruler.

That speech succinctly sets out why certain guarantees had to be given to the rulers. Hence it is not correct to say that Shah J. speaking for himself and six other Judges had used the speech of Sardar Patel

( 1 ) (1971) 3, S.C.R. 9.

KESAVANANJ>A tJ. KllALA (Hegde & Mukheriea, JJ.J 331

in aid of the construction of any of the articles of the Constitution It is true Mitter J. in his dissenting judgment (at p. 121 of the report) used the speech of Shri T. T. Krishnamachari i.n aid of the con.struction of Art. 363 but the learned judge no where in his judgment discussed the question whether the speeches made by the members of the Constituent Asembly were admisible in aid of interpreting any provision of the Constitution.

Before concluding the discussion on this topic, it is necessary to refer to one more decision of this Court i.e. Union of India v. H. S.

Dhillon.(') In that case this Court was called upon to decide whether the provision in the Wealth Tax Act, 1957 providing for the levy of tax on the capital value of agricultural property were constitutionally sustainable.

By a majority of four against three, this Court upheld the levy. Sikri C.J. who spoke for himself and two other judges after sustaining the validity of the provision on an examination of the relevant provisions of the Constitution as well as the decided cases referred to some of the speeches made during the debates in the Constituent Assembly in support of the conclusion already reached by him. Before referring to those speeches this is what the learned judge observed at p. 58:

"We are, however, glad to find from the following extracts from the debates that our interpretation accords with what was intended."

From this it is clear that the learned Judge did not seek any aid from the speeches for the purpose of interpreting the relevant provision. It is necessary to note that the learned judge did not dissent from the view earlier taken by the Court in Bombay Co. Ltd.'s case (supra).

Hence the law as laid down in Bombay Co.' s case is binding on us and its correctness was not challenged before us.

The learned Advocate General of Maharashtra is right in his contention that for finding out the true scope of Article 31(2), as it stands at present, it is necessary for us to find out the mischief that was intended to be i:emedied by the present amendment. In other words, we must find out what was the objective intended to be achieved by that amendment. The original Article 31 (2) first came up for consideration by this Court in State of West Bengal v. Mrs. Bela Bannerjee and ors.,( 2) wherein Patanjali Sastri C.J. speaking for the Court observed :

"While it is true that the legislature is given the discretionary power of laying down the principle which should govern the determination of the amount to be given to the owner for the

( 1 ) [19721 2 S.C.R. 33.

( 2) [1954) S.C.R. 558.

332 suPREME OOOJ.T lll!POKTs [1973] Supp. s.c.1t.

property appropriated, such principles must ensure that what is determined as payable niust be compensation, that is, a. just equivalent of what the owner has been deprived of. Within the limits of this basic requirement of full indemnification of the expropriated owner, the Constitution allows free play to the legislative judgment as to what principles should guide the determination of the amount payable. Whether such principles take into account all the clements which make up the true value of the property appropriated and exclude matters which are to be neglected is a justiciable L.sue to be adjudicated by the Court.

This, indeed, was not disputed."

We are told that Article 31(2) came to be amended by means of the 4th Amendment Act in view of the decision of this Court in Mrs. Bela Banerjee's ease. The scope of the article as amended by the 4th Amendment Act was considered by this Court in P. Vazraydu Mudaliar v. Spedal Deputy Collect<>r, Madras and anr.(') Therein Subba Rao J. (as he then was) speaking for a bench consisting of himself, Wanchoo, Hidayatullah, Raghubar Dayal and Sikri JJ. observed (at p. 626) :

"The fact that Parliament used the same expressions namely "compensation" and "Principles" as were found in Article 31 before the Amendment is a clear indication that it accepted the meaning given by this Court to those expressions in Mrs. Bela Banerjee' s case. It follows that a Legislature in making a law of acquisition or requisition shall provide for a just equivalent of w~ the owner has been deprived of or specify the principles for the purpose of ascertaining the "just equivalent" of what the owner has been deprived of. If Parliament intended to enable a Legislature to make such a law without providing for compensation so defined, it would have used other expressions like "price", '' coruideration" etc."

Proceeding further the learned judge observed :

"The real difficulty is, what is the effect of ouster of jurisdiction of the court to question the law on the ground that the "compensation" provided by the law is not adequate ? It will be noticed that the law of acquisition or requisition is not wholly immune from scrutiny by the Court. But what is excluded from the court'• jurisdiction is that the said law cannot be questioned on the ground that the compensation provided by that law is not adequate.

It will further be noticed that the clause excluding the jurisdiction

( 1 ) [1965] I S.C.R. 614.

• .

KESAVANANDA ti. KERALA (Hegde & Mukheriea, JJ.) 333

of the Court also used the word "compensation" indicating thereby that what is excluded from the court's jurisdiction is the adequacy of the compensation fixed by the legislature. The argument that the word "compensation'' means a just equivalent for the property acquired and, therefore, the court can ascertain whether it is a "just equivalent" or not makes the amendment of the Constitution nugatory. It will be arguing in a circle.

Therefore, a more reasonable interpretation is that neither the principles prescribing the "just equivalent" nor the "just equivalent" can be questioned by the court on the ground of the inadequacy of the compensation fixed or arrived at by the working of the principles. To illustrate ; a law is made to acquire a house, its value at the time of acquisition has to be fixed ; there arc many modes of valuation namely estimate by the engineer, value reflected by comparable sales, capitalisation of rent and similar others.

The application of different principles may lead to different results. The adoption of one principle may give a higher value and the adoption of another principle may give a lesser value.

But nonetheless they arc principles on which and the manner in :which compensation is determined. The court cannot obviously say that the law should have adopted one principle and not the other, for it relates only to the question of adequacy.

On the other hand, if a law lays down principles which are not relevant to the property acquired'

or to the value of the property at or about the time it is acquired, it may be said that they are not principles contemplated by Article 31(2) of the Constitution .... In such cases the validity of the

principles can be scrutinized. The law may also prescribe a compensation which is illusory it may provide for the acquisition of a property worth lakhs of rupees for a paltry sum of Rs. 100. The question in that context does not relate to the adequacy of the compensation for it is no compensation at all The illustrations given by us are not exhaustive. There may be many others falling on either side of the line. But this much is clear. If the compensation is illusory or if the principles prescribed are irrelevant to the

value of the property at or about the time of its acquisition, zt can be said that the legislature committed a fraud on power, and therefore, the law is bad. It is a use of the protection of Article 31 in a manner which the Article hardly intended." (emphasis supplied).

The principles that emerge from the decision in Vairavelu's case are: (I) compensation means iust equivalent of the value of the property acquired ; (2) principles prescribed must be principles which provide for compensation ; (3) adequacy of compensation fixed or to.

22-36 s. c. India/73

334 SUPREME COURT REPORTS [ 1973] Supp. s.C.R.

be determined on the basis of the principles set out cannot be gone into by the court ; ( 4) the principles fixed must be relevant to the property acquired or to the value of the property at about the time it is acquired ; (5) the compensation fixed should not be illusory and

(6) courts have power to strike down a law on the ground of fraud on power if the principles fixed are irrelevant or if tbe compensation granted is illusory.

The next decision cited to us is the decision of this Court in Union of India v. Metal Corporation of India Ltd. and anr.(1 ) It is a decision of a Division Bench consisting of Subba Rao C.J. and Shelat J. As that decision was overruled by this Court in State of Guiarat v. Shanti/al Mangaldas and ors.,(') it is not necessary to refer to its ratio.

This takes us to the decision of this Court in Shanti/al' s case. This case related to the acquisition of some landed property on behalf of the Borough Municipality of Ahmedabad for maloing town planning scheme under the Bombay Town Planning Act, 1955.

Sections 53 and 57 of that Act fixed certain principles for the determination of compensation for the land acquired. The High Court of Gujarat

declred that those provisions were ultra vires in so far as they authorised the local authority to acquire land under a Town Planning Scheme and as a corollary to that view declared invalid the City Wall ImpNvm; tent Town Planning Scheme No. 5 framed in exercise of the powers conferred under the Act. In doing so they purported to follow the decis, ion of this Court in Vajravelu M uda/iar' s case. A Constitution Bench of this Court reversed the decision of the Gujarat High Court. In that case Shah J. speaking for the Court elaborately reviewed the earlier decisions of this Court bearing on Article 31(2).

After doing so, he observed at p. 365 of the report :

"Reverting to the amendment made in cl. (2) of Article 31 by the Constitution (Fourth Amendment) Act, 1955, it is clear that adequacy of compensation fixed by the Legislature or awarded according to the principles specified by the Legislature for determination is not justiciable. It clearly follows from the terms of Article 31 (2) as amended that the amount ' of compensation payable if fixed by the Legislature, is not justiciable, because the challenge in such a case, apart from a plea of abuse of legislative power, would be only a challenge to the adequacy of compensation. If compensation fixed by the Legislature-and by the use of the expression "compensation" we mean what the legfrlature

(1) (1967) 1, S.C.R. p. 255.

( 2) (1969) 3, S.C.R. 341.

KESAVANANDA tJ. KERALA (Hegde & Mukheriea, JJ.) 335

iustly regards as proper and fair recompense for compulsory expropriation of property and not something which by abuse of legislative power though called compensation is not a recompense at all or is something illusory-is not justiciable, on the plea that it is not a just equivalent of the property compulsorily acquired is it open to the courts to enter upon an enquiry whether the principles which are specified by the Legislature for determining compensation do not award to the expropriated owner a just equivalent ?

In our view, such an enquiry is not open to the Court under the statutes enacted after the amendments made in the Constitution by the Constitution (Fourth Amendment) Act. If the quantum of compensation fixed by the Legislature is not liable to be canvassed before the Court on the ground that it is not a just equivalent, the principles specified for determination of compensation will also not be open to challenge on the plea that the compensa(ion determined by the application of those principles is not a just equivalent. The right declared by the Constitution guarantees that compensation shall be given before a person is compulsorily expropriated of his property for a public purpose. What is fixed as compensation by statute, or by the application of principles specified for determination of compensation is guaranteed ; it does not mean however that something fixed or determined by the application of specified principles which is illusory or can in no sense be rega,.ded as compensation m11st be upheld by the Co11rts, for, to do so, would be to grant a charter of arbitrariness and permit a device to defeat the constitutional guarantee. But compensation fixed or determined on principles specified by the Legislature cannot be permitted to be challenged on the somewhat indefinite plea that it is not a just or fair equivalent. Principles may be challenged on the ground that they are irrelevant to the determination of compensa- 1ion, but not on the plea that what is awarded as a result of the application of those principles is not iust or fair compensation. A challenge to a statute that the principles specified by it do. not award a just equivalent will be in clear violation of the constitutional declaration that inadequacy of compensation provided is not justicabk". (emphasis supplied)

. 'fhc Advocate Geera) of Maharashtra contended that if only this dec1s!On had not been md1rectly overruled by the Bank Nationalisation case (R. C. Cooper v. Union of India},(') there would have been no occasion to further amend Article 31(2). That being so, it is necessary to find out dearly as to what 'are µie pinciplcs enunciated in this

( 1) [l!l'/O'J 3 S.c.R. 530.

336 SUPREMF COURT REPORTS [1973] Supp. s.c.R.

decision. This decision firmly laid down that any arbitrary fixation of recompense is liable to be struck down by the court as an abuse of legislative power. It further laid down that the principles laid down may be challenged on the ground that they are not relevant for the purpose of determining the recompense payable to the owner of the property acquired. If the recompense fixed or determined is either not arbitary or illusory or if the principles fixed are relevant to the purpose of acquisition or requisition of the property in question, the courts cannot go into the question of adequacy of the payment.

Then came the Bank Nationalisation case. The majority judgment in that case was delivered by Shah J. (~ he then was).

In that judgment he referred somewhat extensively to the decision in Shanti- /al Mangaldals case and other cases rendered by this Court. He did not purport to deviate from the rule laid down in Shantt'lrd's case.

The ratio of that decision relating to Article 31 (2) is found at p. 598 of the report. The learned judge observed :

"Both the lines of thought (in Vajravclu's case and Shantilal's case) which converge in the ultimtc result, support the view that the principle specified by the law for dC':l"llllination of compensation is beyond the pale of challenge, if it is relevant to the determination of compensation and is a recognised principle applicable in the determination of compcnsa.tion for property compulsorily acquired and the principle is appropriate in determining the value of the class of property sought to be acquired. On the application of the view expressed in P. Vajravclu Mudaliar's case or in Shaotilal Mangaldas' s case, the Act in our judgment is liable to be struck down as it fails to provide Ii<> the expropriated banks compensation determined according to relevant principles".

Proceeding further the !carnal judge observed at p. 599 :

''We arc unable to hold that a principle specified by the Parliament for determining compensation of the property to be acquired is conclusive. If that view be expressed, the Parliament will be invested with a charter of arbitrariness and by abuse of legislative process, the constitutional guarantee of the right to compensation may be severely impaired. The principle specified must be appropriate to the determination of compensation for the particular class of property sought to be acquired.

If scvcral principics are appropriate and one is selected for determination of the value of. the property to be acquir.:d, sc:kction of that principle to the exclusion of other principles is not open to the challenge foe the selection must be left to the wisdom of the Parliament"

KESAVANANDA v. KERALA (Hegde & Mukherjea, JJ.) 337

It is clear from the passages we have quoted above that this case also emphasised that the power of the Parliament to fix the compensation for the property acquired is not an arbitrary power. Further, the

principles prescribed for determining the compensation must be relevant to the subject matter of acquisition or requisition. That decision also laid down that both the questions whether the compensation has been fixed arbitrarily or whether the principles laid down. are irrelevant are open to judicial review.

Let us now examine Article 31 (2) as it stands now in the light of the decisions already referred to. The only material changes made in that Article under the 25th Amendment Act are :

(1) in place of the word 'compensation', the word 'amount' has been used and

(2) an additional clause viz. "or that the whole or any part oc

such amount is to be given otherwise than in cash" has been added.

We are not concerned in this case as to the effect of the additional clause. No arguments were advanced on that aspect. All that we are concerned with is as to what is the effect of the substitution of the word "amount" in place of the word "compensation". As seen earlier, the word "compensation" has been interpreted in the various decisions referred to earlier as "just equivalent" of the value of the property taken. That concept has now been removed. In other respects, the Article has not been altered. It remains what it was. We have earlier noticed that the decisions of this Court have firmly laid down that while examining the validity of law made under Article 31(2) as it stood after it was amended under the 4th Amendment Act, it was open to the Court to go into the questions whether the compensation had been fixed arbitrarily and whether the same was illusory. Those decisions further ruled that the Court can go into the relevant of the principles fixed.

Parliament would have undoubtedly known the ratio of those decisions.

That is also the lt'gal presumption. Hence if the Parliament intended to take away the judicial review in any respect other than relating to the adequacy of the amount fixed, it would have expressed its intention by appropriate words. We find no such words in the Article as it stands. Therefore, it is reasonable to assume that it has accepted the interpretation placed by this Court in all respects except as regards the concept of compensation. That this is the mischief which the 25th Amendment seeks to remedy by amending Article 31 (2) is also cle:ir from the language of the amended Article itself. It says that the law shall not be called in question on the ground that the amount fixed

338 SUPREME COURT REPORTS (1973) Supp. S.C.Jt.

or determined is not adequate. What is an adequate amount ?

AD amount can be said to be adequate only when the owner of the property i.s fully compensated, that is when he is paid an amount which is equivalent in value to the property acquired or requisitioned. And that is also what is connoted by the concept of 'compensation' as interpreted by this Court. Therefore, stated briefly, what the 25th Amendment makes non-justiciable is an enquiry into the question whether the amount fixed or determined is an equivalent value of or 'compensation' for the property acquired or requisitioned.

The word "amount" is a neutral word. Standing by itself, it has no norm and is completely colourless. The dictionary meaning of the word appropriate to the present context is "sum total or a figure". We have to find out its connotation from the context. In so doing, we have to bear in mind the fact that Article 31 (2) still continues to be a fundamental right. It is not possible to accept the contention of the learned Advocate General of Maharashtra and the learned Solicitor General that the right of the owner at present is just to get whatever the Government pleases to give, whenever it pleases to give and however it pleases to give. A position so nebulous as that cannot be considered as a right much less a fundamental right, which Article 31 (2) still claims to be.

It is difficult to believe that Parliament intended to make a mockery of the fundamental right conferred under Article 31(2). It cannot be that the Constitution while purporting to preserve the fundamental right of the citizens to get an "amount" in lieu of the property taken for public purpose has in fact robbed him of all hit right.

Undoubtedly Article 31 empowers the legislature to acquire or requisition the property of a citizen for an "amount". What does the word "amount" mean in that Article ? As we have already said, that word by itself does not disclose any norm.

But then the word "amount" is followed by the words "which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law and no such law shall be called in question in any court on the ground that the amount so fixed or determined is not adequate."

If the expression "amount" has no norm and is just what the Parliament stipulates, there can be no question of prescribing principles for determining that "amount" ; nor is there any scope for finding out its adequacy. The legislatures are pcrmitt.ed under the amended Article 31 (2) either to fix the "amount" to be paid in lieu of the

KESAVANANDA v. KERALA (Hegde & Mukherjea, JJ.) 33~

property acquired or to lay down the princi pies for determining that "amount". These two alternative methods must bring about nearly the same result. If the relevancy of the principles fixed can b~ )d1cially reviewed-as indee~ they must be-in viw of the "d1c1S10~~ referred to earlier, we fail to see how the fixation of the amount which is the alternative method of determining the recompense to be paid in lieu of the property taken is excluded from judicial review

The word "fixed" in Article 31 (2) connotes or postulates that there must be some standard or principle by the application of which the legislature calculates or ascertains definitely the amount.

In Bouviar's Law Dictionary (1946) at p. 421, the word 'fix' is defined thus : "To determine ; to settle. A Constitutional provision to the effect that the General Assembly shall fix the compenS11tion of officers means that it shall prescribe or 'fix' the rule by which such compensation is to be determined". (See also Fraser Henlein Pvy. Ltd. v.

Cody(') cited in Saunders, Words and Phrases: Legally Defined Vol. 2, p. 258 ( 1969). This being the meaning of the word 'fix' it would be necessary for the legi$lature to lay down in the law itself or otherwise indicate the principles on the basis of which it fixes the amount for the acquisition or requisitioning of the property. If this construction is placed on the first mode of determining the amount, then there would be no difference between this method, and the other method whereby the legislature lays down the principles and leaves it for any other authority to determine the amount in accordance with such principles. Whether the legislature adopts one or the other method, the requirement of Article 31 (2) would be the same, namely, there must be principles on the basis of which the amount is determined. Such an amount may be determined either by the legislature or by some other authority authorised by the legislature. The content of the right in Article 31 (2) is not dependent upon whether the legislature chooses one or the other method of determining the amount.

There is no contradiction between these two methods. It is true that in both cases, the judicial review is necessarily limited because it cannot extend to the examination of the adequacy of the amount fixed or to be determined. It was conceded on behalf of the contesting respondents that the court can go into the question whether the "amount" fixed is illusory. This very concession shows the untenability of the contention advanced on behalf of the Union. For determining whether the "amount" fixed is illusory or not, one has first to determine the value of the property because without knowing the true value of the property, no court can say that the "amount" fixed is illusory. Further, when Article 31 (2) says that it is not open to the court to examine wheter the "amount" fixed or determined is adequate or not, it necessanly

( 1) (194;) 70, C.L.R. 100 at 128.

340 SUPREME COURT REPORTS [1973] Supp. s.c.R.

means that the "amount" payable has to be determined on the basis or principles relevant for determining the value of the property acquired or requisitioned. There can be no question of adequacy unless the "amount" payable has been determined on the basis of certain norms and not arbitrarily, without having regard to the value of the property.

Further, Article 31 (2) provides for fixing or determining the amount for the acquisition or requisitioning of the property.

The

Ste action is still described as 'acquisition or requisition' and not 'confiscation'. Therefore, the principles for fixing or determining the amount must be relevant to the 'acquisition or requisition', and not to 'confiscation'. The amount fixed or determined should not make it appear that the measure is one of confiscation. The principles for fixing or determining the amount may be said to be relevant to the acquisition or requisition when they bear reasonable relationship to the value of the property acquired or requisitioned.

Further there is practical difliculty in accepting the contentiol\ that the word "amount" in the context in which it is used, has no norm.

The amount has to be fixed by the legislatures which means by the members of the legislatures. When a law for acquisition of certain types of property is enacted, it is not as if the members of the legisla. turch and every one of them who participates in the making ol the law would first go and inspect the property to be acquired and then assess the value of that property. In the ., ery nature of thingw, the "amount" payable has to be determined on the basis of certain ·

principles. If that be so, as it appears to us to be obvious, then the legislators must have some principles before them to determine the amount. In this connection the 'Advocate-General of Maharashtra tried to give an explanation, which appears to us to be unsatisfactory and unacceptable. His contention was that our democracy is worked on the basis of party system. The ruling party has the majority of the m=bcrs of the legislature behind it. Therefore, the members. of the opposition party need not know the basis of fixation af the value of the. property acquired. Even the members of the ruling party need not be told .about .the basis on which the value is fixed. The option before them is either to accept the amount fixed by the cabinet or by the ?dinistu concerned or to reject the proposal and face the consequences. If this is the true position, it is, in our opiion, a negation . of parliamentary ?cm?'racy. OUr dcmocraq µkc all

tru~ parliamentary democracies ts ased , ~~ tc pnnc1ples of debate and discussion. As far as possible, decmons m the legislatures arc arrived at on the basis of consensus. Our Constitution docs not provide for one party rule where there is no room for opposition.

- •

, '

KESAVANANDA v. KEM.LA (Hegde & Mukherjea, JJ.) 341

Opposition parties have an important role to play under our Constitu tion •. Members belonging to the opposition parties have as much right to participate in making laws as the members belonging to the ruling party. Further the learned Advocate General is not correct in his assumption that the function of the members belonging to the ruling party is to blindly support a measure sponsored by the executive. They also have a right, nay, a duty to mould every measure by debate and discussion. If the question of fixation of "amount" under Article 31 (2) is considered as the exclusive function of the executive, then, not only the judicial review will be taken away, even the legislature will not

have the opportunity of examining the correctness or appropriateness of the "amount" fixed. A power so arbitrary as that can speedily dege nerate into an instrument of oppression and is likely to be used for collateral purposes. Our Constitution has created checks and balances to minimise the possibility of power being misused. We have no doubt that the theory propounded by the Advocate General of Maharashtra will be repudiated by our legislatures and the cabinets as something wholly foreign to our Constitution.

If we bear in mind the fact that the "amount" in question is to be paid in lieu of the property taken, then, it follows that it must have a reasonable relationship with the value of the property taken.

It may not be the market value of the property taken.

The market value of a property is the result of an inter-action of various forces.

It may not have any reasonable relationship with the investment made by its successive owners. The price of the property acquired might have shot up because of various contributions made by the society such as improvements effected by the State in the locality in question or the conversion of a rural area into an urban area. It is undoubted! y open to the State to appropriate to itself that part of the market .value of a property which is not the result of any contribution made by its owners. There may be several other relevant grounds for fixing a particular "amount" in a given case or for adopting one or more of the relevant principles for the determination of the price to be paid. In all these matters the legislative judgment is entitled to great weight. It will be for the aggrieved party to clearly satisfy the Court that the basis adopted by the legislature has no reasonable relationship to the value of the property acquired or that the "amount" to be paid has been arbitrarily fixed or that the same is an illusory return for the property taken. So long as the basis adopted for computing the value of the property is relevant to the acquisition in question or the amcunt fixed can be justified on any such basis, it is no more open to the court to consider whether the amount fixed or to be determined is adequate. But it is stilt open to the coun to consi der whether "amount'' in question has been aribtrarily determined or whether the same is an illusory return for the property taken. It is

342 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.

also open to the court to consider whether the principles laid down for the determination of the amount are irrelevant for the acquisition or requisition in question. To put it differently, the juclicial review under the amended Article 31 (2) lies within narrow limits. The court cannot go into the question whether what is paid or is payable is compensation. It can only go into the question whether the "amount" in question was aribtrarily fixed as illusory or whether the principles laid down for the purpose of determining the "amount" payable have reasonable relationship with the value of the property acquired or requisitioned.

If the amended Article 31 (2) is understood in the manner as laid down above, the right to property cannot be said to have been damaged or destroyed. The amended Article 31 (2) aceording to us fully protects the interest~ of the individual as well as that of the society. Hence its validity is not open to challenge.

Now,- let us rum to Article 31(2B). It says that ''Nothing In sulxlause (£) of cl. (1) of Article 19 shall affect any such law as is referred to in cl. (2)". This provision has no real impact on the right conferred under Article 31(2). Article 31(2) empowers the State to compulsorily acquire or requisition property for public purpose. When property is acquired or requisitioned for public purpose, the right of the owner of that property to hold or dispose of that property is necessarily lost. Hence there is no anti-thesis between Article 19(1}(f) and Article 31(2). That being so, the only assistance that the owner of the property acquired or rcquisitiioned would have obtained from Article 19(1)(f) read with sub-article (5) of that article would be the right to insist that the law made under Article 31 (2) as it stood before its recent amendment, should have to conform to some reasonable procedure both in the matter of dispossessing him as well as in the matter of determining the "amount" payable to him. In a way, those rights are protected by the principles of natural jwtice.

For the reasons mentioned above, we are unable to accept the £-Ontention urged on behalf of the petitioners that s. 2 of the 25th Amendment Act, 1971 is invalid.

This takes us to s. 3 of the 25th Amendment Act which now stands as Article 31C of the Constitution. This Article empowers the Parliament as well as the Local Legislatures to enact law• giving elfect to, the policy of the State towards securing the principles •pecificd i'1 clause (b) or clause ( c) of Article 39, completely ignoring in the pracess, Articles 14, 19 and 31. Further it lays down that if the law in question contains a declaration that it is for giving effect to such policy, that law shall not

be called in question in any court on the ground that it does not give effect to such policy. The proviso to that Article prescribes that where

such law is made by the legislature of a State, the provisions of Article

; •

KESAVANANDA v. KERALA (Hegde & M11kheriett, JJ.) 343

31C shall not apply thereto unless such law, having been reserved for the consideration of the President has received his assent. This Article has two parts. The first part says that laws enacted by Parliament as well as by the Local Legislatures for giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39 shall not be deemed to be void on the ground that it is in. consistent with or takes away or abridges any of the rights conferred by Articles 14, 19 and 31 notwithstanding anything contained in Article 13 and the second part provides that no law containing a declaration that is for giving effect to such poliy shall be called in question in any court on the ground that it does not give effect to such policy. Clauses (b) and ( c) of Article 39 do not prescribe any subject matter of legislation. They contain certain objectives to be achieved. The methods to be adopted to achieve those objectives may be numerous. Those clauses cover a very large field of social and economic activities of the Union and the States. Clause (b) of Article 39 says that the State shall 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 and clause ( c) of that Article says that the State shall direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. These two provisions lay down a particular political philosophy. They in conjunction with some other provisions of the Constitution direct the State to build a Welfare State.

No one can deny. the importance of the Directive Principles. The Fundamental Rights and the Directive Principles constitute the 'conscience' of our Constitution. The purpose of the Fundamental Rights is to create an egalitarian society, to free all citizens from coercion or restriction by society and to make liberty available for all.

The purpose of the Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution. Through such a social revolution the Constitution seeks to fulfil the basic needs of the common man and to change the structure of

our society. It aims at making the Indian masses free in the positive sense.

Part IV of the Constitution is designed to bring about the social and economic revolution that remained to be fulfilled after independence. The aim "Of the Constitution is not to guarantee certain liberties to only a few of the citizens but for all. The Constitution visualizes our society as a whole and contemplates that every member d the society should participate in the freedoms guaranteed. To ignore Part IV is to

ignore the substance provided for in the Constitution, the hopes held out to the Nation and the very ideals on which our Constitution is built. Without faithfully implementing the Directive Principles, it is

344 SUPl\EME COURT l\EPORTS [ 1973] Supp. s.c.R.

not possible to achieve the W clfarc State contemplated by the Constitu tion. A society like ours steeped in poverty and ignorance satisfying the minimum economic needs of every citizen of this country.

Any Government which fails to fulfil the pledge taken under the Constitution cannot be said to have been faithful to the Constitution and to its commitments.

Equally, the danger to democracy by an over emphasis on duty cannot be minimised. Kurt Reizler, a German Scholar, from his experience of the tragedy of the Nazi Germany warned :

"If. . . . these duties of man should be duties towards the "public welfare" of the "society" and the State, and rights are made conditional on the fulfilment of these duties, the duties will uproot the rights. The rights will wither away ... (the) State can use the allegedly unfulfilled duties to shove aside rights.-Any Bill of Rights that makes the rights conditional on duties towards society or the State, however strong its emphasis on human dignity, freedom, God or whatever else, can be accepted by any totalitarian leader.

He will enforce the duties while disregarding the right".

Indeed the balancing process between the individual rights and the social needs is a delicate one. This is primarily the responsibility of the

"State" and in the ultimate analysis of the courts as interpreters of the Constitution and the laws.

Our founding fathers were satisfied that there is no anti-thesis between the Fundamental Rights and the Directive Principles. One

supplements the other. The Directives lay down the end to be achieved and Part III prescribes the means through which the goal is to be reached. Our Constitution does not subscribe to the theory that end justifies the means adopted. The Counsel for the petitioners urged that the Fundamental Rights are not the cause of our failure to implement the Directive Principles. According to him, it is not the Constituion that has failed as ; but we have failed to rise up to its expectaiions. He 1.1rged that the attack against Fundamental Rights is merely an alibi and an attempt to find a scape-goat on the part of those .. who . were µnable or willing to implement the Directives. These allegations are /denied on behalf of the Union and the States. It was urged on their behalf that interpretations placed by the courts on some of the Articles in Part III of the Constitution have placed impediments in the way of States, in implementing the Directives. These controversies arc not capable of being decided by courts.

There is no doubt that the power conferred under Article 31C, if in!'erpreted in the manner contended on behalf of the Union and . the

States would result in denuding substantially the contents of the nght

~VANANDA v. XERALA (Hegde & Mukherjea, JJ.) 345

to equality, the right to the seven freedoms guarantced under Article 19 and the right to get some reasonable return by the person whose property is taken for public purpose. Unlike Article 31A, Article 31C is not confined to some particular subjects. It can take in a very wide area of human activities. The power conferred under it, is an arbitrary power. It is capable of being us.:d for collateral purposes. It can be used to stifle the freedom of speech, freedom to assemble peaceably, freedom to move freely throughout India, freedom to reside and settle in any part of India, freedom to acquiie, hold and dispose of proprty and freedom to practise any profession or carry on any occupation, trade or business. The power conferred under that provision is a blanket power. Even a small majority in a legislature can use that power to truncate or even destroy democracy. That power can be used to weaken the unity and integrity of this country. That Article is wholly out of tune with our Constitution. Its implications arc manifold. There is force in the contention of the petitioners that this Article has the potentiality of shaking the very foundation of our Constitution.

What is the nature of the power conferred under Article 31C? It is claimed to have empowered Parliament and the State Legislatures to enact laws pro tanto abrogating Articles 14, 19 and 31. A power to take away directly or indirectly a right guaranteed or a duty imposed under a Constitution, by an ordinary law, is a power to pro tanto abrogate the Constitution. If the legislature is empowered to amend the Constitution by ordinary legislative procedure, any law enacted by it, even if it does not purport to amend the Constitution, but all the same, is inconsistent with one or more of the provisions of the Constitution has the effect of abrogating the Constitution to the extent of inconsistency. That position is clear from the judgment of the Judicial Committee in McCawley v. The King.(') In other words, the power conferred under the Article is a power to amend the Consatution in certain essential respects while enacting legislations coming within the purview of that Article. It is a power not merely to abridge but even to take away the rights guaranteed under Articles 14, 19 and 31 by ordinary law. Further that power is conferred not only on the Parliament but also on the State Legislatures.

Article 368 specifically provides that amendment of the Constitution can be done only in the manner provided therein. It is true that there arc provisions in the Constitution under which the Parliament can amend some parts of the Constitution by ordinary law-see Article 2 to 4, Article 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI. But these provisions clearly provide that the laws enacted under those provisions "are not to be deemed as amendments

(~) [1920] A.C. 691.

::146 SUPREME COUJl.T REPORTS [ 1973] Supp. s.c.R.

to the Constitution for the purpose of Article 368". There an: also some transitional provisions in the Constitution which can be changed by the Parliament by law. Leaving aside for separate consideration Article 31-A, which was first introduced by the 1st Amendment Act, 1951, there is no provision in the Constitution apart from Article 31 ( 4) which permitted the State Legislatures to enact laws contravening one or more of the provisions in Part III. Article 31(4) relates to legislations pending before the State Legislatures at the time the Constitution came into force. Their scope was known to the Constitution. rhakers. That provision was enacted to protect certain Zamindari Abolition laws which were on the anvil. But it must be remembered that the original provisions in the Constitution were not controlled by

l\rticle 368. That Article is as much a creature of the Constitution as the other Articles are. The form and manner prescribed in Article 368 did not govern the procedure of the Constituent Assembly. The mandates contained in Article 368 are applicable only to the amendments made to the Constitution. The power to amend the Constitutio11 was exclusively given to the Parliament and to no other body.

The manner of exercising that power is clearly prescribed. Article 31C gives a very large power to the State Legislatures as well as to Parliament to pro tanto amend . the Constitution by enacting laws coming within its ambit. To put it differently, Article 31C permits the State Legislatures and the Parliament to enact Constitution-breaking laws by a simple majority vote of the members present and voting, if the rule regarding quorum is satisfied.

It cannot be said that Article 31C is similar to Articles 4, 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI. Each one of those Articles makes it clear that the laws passed under those Articles are not to be deemed to be an amendment of the Constitution for the purpose of Article 368. Those laws cannot affect the basic features of the Constitu!ion. They operate within narrow fields.

The learned Advocate-General of Maharashtra contended that Article 31C lifts the ban placffioo the State Legislatures and Parliament under Articles 14, 19 and 31. It is true that there are several provisions in the Constitution which lift the ban placed by one or the other Article of the Constitution on the legislative power of the State Legislatures and Parliament e.g. Articles 15(4), 16(3), 16(4), 16(5), 19(2) to 19(6), 22(3), 22(6), 23(2), 28(2), 31(4), 31(6) etc. Each one of these Articles lifts the limitations placed on the legislative power of the legislatures by one or more of the provisions of the Constitution particularly those contained in Part III.

But when the limitation is so lifted, there will be no conflict between the law enacted and Article 13. In such a situation, there is no occasion for providing that the law enacted will not be deemed to be void notwithstanding anything contained in Article 13. The laws made under the

KESAVANANDA v. KERALA (Hegde & Mukheriea, JJ.) 347

provisions set out earlier cannot in their very nature take away any of the fundamental features of the Constitution. They can merely modify one or other of those features. Article 31C proceeds on the basis that the laws enacted under that Article arc in conflict with Article 13 and ate prima facie void. Otherwise there was no purpose in providing in that Article "Notwithstanding anything contained in Article 13, no law giving effect to the policy of the . State towards securing the principles specified in clause (b) or clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any rights conferred by Article 14, Article 19 or Article 31 .... " Hence the contention that limitations imposed by Articles 14, 19 and 31 on the legislative power of the Union and the States are lifted to the extent provided in Article 31C cannot be accepted.

It is true that there is some similarity between the laws made under Article 31A and those made under Article 31C. The fiCOpe of the latter article is much wider than that of the former. The character of the laws made under both those Articles is somewhat similar. It was urged that if laws made under Article' 31-A, withoqt more, are valid even if they take away or abridge the rights conferred under Articles 14, 19 and 31, for the same reason, laws made under Article 31C must also be held valid. It was contended, now that this Court has upheld the valiclity of Article 31-A, we should also uphold the validity of Article 31C. In that connection, reliance was placed on the following observations of Brandies J. of the United States Supreme Court in Lesser v. Garnett : (')

''This Amendment (19th 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 .... has been recognised and acted upon for half a century ... The suggestion that the 15th was incorporated in the Constitution not in accordance with law, but practically as a war measure which has been validated by acquiescence cannot be entertained."

These observations do not lay down any principle of law. The validity of the 19th Amendment was upheld on various grounds and not merely because the 15th amendment was upheld.

The laws enacted under Article 31A by their very nature can hardly abrogate the rights embodied in Articles 14, 19 and 31. Those laws can encroach upon the rights guarant.eed under Articles i4, 19 and 31 only to the extent necessary for giving effect to them. The laws

(') 66 L. Ed. p. 595(511)=258 U.S. 13.

348 SUPREME COURT REPOllTS (1973] Supp. s.C.ll.

made must be those made under the topics of legislation mentioned in Article 31A. Hence the encroachment of the rights guaranteed under Article 14, 19 and 31 must necessarily be incidental.

If the encroachment is found to be excessive, the same can be struck down.

In this connection reference may be usefully made to the decision of this Court in Akadasi Padhan v. State of Oris; a.(') Therein the validity of a provision of a statute enacted under Article 19(6) (ii) i.e. law providing for State monopoly in Kendu Leaves, came up for amsideration. The question for decision before the Court was whether that Jaw can unreasonably encroach upon the right guaranteed under Article 19(1)(g). That question was answered by Gajendragadkar J. (as he then was) speaking for the Court, thus :

" "A law relating to" a State monopoly cannot, in the context include all the provisions contained in the said law whether they have direct relation with the creation of the monopoly or not. In our opinion, the said expression should be construed to mean the law relating to the monopoly in its absolutely essential feature. If a law ls passed creating a State monopoly, the Court should enquire what are the provisions of the said law which are basically and essentially necessary for creating the State monopoly. It is only those essential and basic provisions which are protected by the latter part of Article 19(6). If there are other provisions made by the Act which are subsidiary, incidental or helpful to the operation of the monopoly, they do not fall under the said part and their validity must be judged under the first part of Article 19( 6). In other words, the effect of the amendment made in Article 19( 6) is to protect the law relating to the creation of monopoly and that means that it is only the provisions of the law which are integrally and essentially connected with the creation of the monopoly that are protected. The rest of the provisions which may be incidental do not fall under the latter part of Article 19(6) and would inevitably have to satisfy the test of the first part of Article 19(6)."

The same principle was reiterated by the full Court in the Bank Nationalisation ease.

As far back as in 1951 this Court ruled in State of Bombay and anr. v. F. N. Balsara(") that merely because law was enacted to implement one of the Directive Principles, the same cannot with impunity encroach upon the Fundamental Rights. The ratio of Akadasi

( 1) [1963] Supp. 2 S.C.R. 691

(') [ 1951) S.C.R. 682.

KESAVANANDA ti. KERALA (Hegd: & Mukherjea, JJ.) 349

Padhan's case would be equally applicable in respect of the laws mad~ under Article 31A which speaks of the "law providing for the" topics mentioned therein. But that ratio cannot be effectively applied when we come to Jaws made under Article 31C. The reach of Article 31C is very wide. It is possible to fit into the scheme of that Article almost any economic and social legislation. Further, the Court cannot go into

the question whether the laws encted do give effect to the policy set out in Article 39(b) and (c). We were told on behalf of the Union and the States that it is open to the courts to examine whether there is a nexus between the laws made uncfer Article 31C and Article 39(b) , and ( c) and all that the courts are precluded from examining is the effectiveness of the law in achieving the intended purpose. But, such a power in its very nature is tenuous. There can be few laws which can be held to have no nexus with Article 39(b) and (c). At any rate, most laws may be given the appearance of aiming to achieve the objectives mentioned in Article 39(b) and (c). Once that facade is projected, the laws made can proceed to destroy the very foundation of our Constitution. Encroachment of valuable constitutional guarantees generally begins imperceptibly and is made with the best of intentions but, once that attempt is successful further encroachments follow as a matter of course, not perhaps with any evil motives, and may be, out of strong convictions regarding the righteousness of the

course adopted and the objectives intended to be achieved but they may all the same be wholly unconstitutional. Lord Atkin observed in Proprietary Articles Traders Association and ors. v. Attorney General

for Canada and ors.(')

"Both the Act and the sections have a legislative history which is relevant to the discussion. Their Lordships entertain no doubt that time alone will not validate an Act which when challenged is found to be ultea vires; nor will a history of a gradial series of advances till this boundary is finally crossed avail to protect the ultimate encroachment."

The observation of Lord Atkin "nor will a history of a gradual series of advances till this boundary is finally crossed avail to protect the ultimate encroachment" is extremely apposite for our present purpose. The First Amendment Act permitted enactment of Constitution breaking Laws in respect of one subject ; the Fourth Amendment Act enlarged that field and permitted the Legislatures to make laws ignoring Articles 14, 19 and 31 in respect of five subjects. Now the Twenty-Fifth Amendment has finally crossed the boundary.

( 1) [1931] A.C. 311at317. 23-36 S. C. I ndi•/73

350 SUPREME COURT REPORTS [ 1973 J Supp. s.C.R.

It cannot be said that under Article 31C Parliament me.rely delegated its own amending power to State Legislatures and such a delegation is valid. The power conferred on Parliament under Article 368 in its very nature is one that cannot be delegated. It is a special power to be exclusively exercised by Parliament and that in the manner pmcribcd in Article 368. The State Legislatures arc not institutions subordinate to Parliament. Parliament as well as State Legislatures in their respective allocated fields arc supreme.

Parliament cannot delegate its legislative powers-much less the amending power-to the State Legislatures. The question whether the legislatures can confer power on some other independent legislative body to exercise its legislative power came .up for consideration before the Judicial Committee in re The Initiative and Referendum Act(') Therein Viscount Haldane speaking for the Board observed:

"Sction 92 of the Act of 1867 (British North American Act) entrusts the legislative power in a Province to its legislature and to that legislature only.

No toubt a body with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capacity intact, seek the assistance of subordinate agencies, as had been done in Hodge v. The Queen(') the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to Tavcrnes ; but it docs not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence. Their Lordships do no more than draw attention to the gravity of the Constitutional questions which thus arise."

In Queen v. Burah,(8 ) the Judicial Committee observed :

"Their Lordships agree that the Governor General in Council could not, by any form of enactment, create in India, and arm with general legislative authority, a new legislative power, not created or authorised by the Councils' Act."

We respectfully agr<e with these observations.

From these observat ons it follows that Parliament was incompetent to create a new power-a power to ignore some of the provisions of the Constitutionand endow the same on the State Legislatures.

That power was exclusively conferred on Parliament so that the unity and integrity of this country may not be jeopardised by parochial considerations. The Constitution make.rs were evidently of the opinion that the sovereignty

(') [1919] A.C. p. 935 at 945 P.C. (") 19 App. Cas. 117. (') (1878) 5 I.A. 178 at 194.

KESAVANANDA v. KEMLA (Hegde & Mukhn; ea, JJ.) 351

of the country, the democratic character of the polity, and the individual liberties etc. would be better safeguarded if the amending power is exclusively left in the hands of the Parliament. This exclusive conferment of amending power on the Parliament is one of the basic features of the Constitution and the same cannot be violated directly or indirectly. Article 31A made a small dent on this feature and that went unnoticed. That provision is now protected by the principle of stare decisis. Public interest will suffer if we go back on these decisions and take away the protection given to many statutes, Now, to use the words of Lord Atkin in the Proprietary Articles

Traders Auociation's case, the 'boundary line has been crossed' and a challenge to the very basic conceptions of the Constitution is posed.

Hence the neglect or avoidance of the question in previous cases cannot be accepted as a sound argument.

In Queen v. Kirby and ilrs. (') Dixon C. J. observed :

"These cases, and perhaps other examples exist, do no doubt add to the weight of the general con.siderations arising from lapse of time, the neglect or avoidance of the question in previous cases and the very evident desirability of leaving undisturbed assumptions that have been accepted as to the validity of the provisions in question. At the same time, the Court is not entitled to place very great reliance upon the fact that, in cases, before it where occasions might have been made to raise the question for argument and decision, this was not done by any member of the Court and that on the contrary all acceptcd the common assumption of the parties and decided the case accordingly. Undesirable as it is 'that doubtful questions of validity should go by default, the fact is that, the court usually acts upon the presumption of validity until the law is specifically challenged.''

Similar was the view expressed by Viscount Simonds speaking for the Judicial Committee in Attorney-General of Commonwealth t1f Australia v. The Queen and ors.(')

"It is therefore asked and no one can doubt that it is a tormidable question, why for a quarter of a century no litigant has attacked the validity of this obvwusly illegitimate unions. Why in

Alcxanndc~'s case (1918) 25, C.L.R. 434) itself was no challenge made ? How came it that in a series of cases, which arc enumerated in the majority and the dissentient, judgments it was assumed without question that the provisions now impugned were valid ?"

( 1) (1956) 94, Cl.R. 295.

(') 95, Cl.R. 529 at 547.

352 SUpJIEME COURT REPORTS ( 1973) Supp. S.C.R.

lt is clear from the majority judgment that the learned Chief Justice and the Judges who shared his opinion were heavily pressed by this consideration. It could not be otherwise. Yet they were impelled to their conclusion by the clear conviction that consistently with the Constitution the validity of the impugned provision could not be sustained. Whether the result would have been different if their validity had previously been judicially determined after full argument directed to the precise question and had not rested on judicial dicta and common assumption it is not for their Lordships to say. Upon a question of the applicability of the doctrine of stare decisis to matters of far reaching constitutional importance they would imperatively require the assistance of the High Court itself. But here no such question arises. Whatever the reason may be, just as there was a patent invalidity in the original Act whlch for a number of years went unchallenged, so far a greater number of years an invalidity whlch to their Lordships as to the majority of the High Court has been convincingly demonstrated, has been disregarded. Such clear conviction must find expression, in the appropriate judgment."

The contention that Article 31C may be considered as an amendment of Article 368 is not tenable. It does not purport to be so. That Article does not find a place in Part XX of the Constitution. It is not shown as a proviso to Article 368, the only Article which deals with the amendment of the Constitution as such. Article 31 C does not say that the powers conferred under that Article are available "notwithstanding anything contained in Article 368" or "notwithstanding anythlng in this Constituion". There is no basis for holding that the Parliament intended that Article 31C should operate as an amendment of Article 368. We have earlier come to the conclusion that the State Legislatures cannot be invested with the power to amend the Constitution.

If the purpose of Article 31C is to secure for the Government, the control of means of production in certain economic spheres exclusively or otherwise, the same can be achieved by the exercise of legis-.

lative power under Article 31 (2) or under Article 31 (2) read with Article 19(6) (ii). I£ on the other hand, the object is to reduce the existing economic disparity in the country, that object can be achleved by exercising the various powers conferred on the legislatures under the Constitution, in particufar by the exercise of the power to tax, a power of the largest amplitude. That power can be exercise4 withot discriminating against any section of the people. One of the baste underlying principles of our Constitution is that evry governmental power, which includes both the power of te executives as well .as of the legislatures, must be so exercised as to give no room for !eg1t1matc complaint, that it was exercised with an evil eye or an uneven hand.

KESAVANANDA v. KERALA (Hegde & Mukherjea, JJ.) 353

For the reasons mentioned above, we hold that Article 31C pcrmi!I the destruction of some of the basic features of our Constitution and consequently, it is void.

Lastly, we come to the validity of the 29th Amendment Act, 1972.

Contentions relating to the 29th Amendment Act of. the Constitution lie within narrower limits. The only plea taken was that if any of the provisions in the two Acts included in the IXth Schedule to the Constitution by means of the 29th Amendment A't does . not satisfy the requirements of Article 31A(l)(a), the said provision docs not get the protection of Article 31-B.

& a result of. the 29th Amendment Act, tire Kcrala Land Reforms (Amendment) Act, 1969, (Kcrala Act 33. of 1969) and Kerala Land Reforms (Amendment) Act, 197°1 (Kcrala Act 25 of 1971) were added as ittms 65 and 66 in the IXth Schedule of the Constitution.

The IXth Schedule is an appendage to Article 31-B, which says :

"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 A.ct, Regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by, any provisions 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 repeal or amend it, continue in force."

The learned Counsel for the petitioners did not challenge the validity of Article 3IB. Its validity has been accepted in a number of cases decided by this Court. His only contention was that before y Act or any provision in an Act, included in the !Xtb Schedule

can get the protection of Artide 31B, the A.ct or the provision in question must satisfy the requirements of one or the other of the provisions in Article 31A. For this contention of his, he relied on the opening words of Article 31B namely "without prejudice to the gen~ rality of the provisions contained in Article 31A". He urged thot, if Article 31B had been an independent provision having no connection whatsoever with Article 31A as contended on behalf of the conte1ting respondents, there was no occasion for using the word~ referred t? earlier in Article 31B. He also attempted to trace the history of Articles 31A. and 31B and establish that there is link between those two Articles. Though there is some force in those contentions, the qustion of law raised is no more res integra. It ls concluded by a series of decisions of this Court and we see no justification to reopen that question.

3 54 SVPJEME COUJ.T UPORTS [ 1973] Supp. s.c.Jt.

In Sta~ of Bihar v. Maharajatlhiraja Sir Kamethwar Singh of Darbhanga_ and orJ.(') a contention similar to that advanced by Mr. Palkh1vala was advanced by Mr. Somayya. That contention was rejected by Patanjali Sastri C.J. speaking for the Court with th= observations :

~Mi. Somayya, however, submitted that the opeAing words of Article 31-B, namely "Without prejudice to the generality of the

provision~ contained in Article 31A" showed that the mention of particular statutes in Article 3L-B read with the Ninth Schedule was only illustrative, and that, accordingly, Article 31-B could not be wider in scope.. Reliance was placed in support of this argument upon the decision of the Privy Council in Sibnath Banerp's case

(1945) F.C.R. 195). I cannot agree with that view.

There is nothing in Article 31-B to indicate that the specific intention of certain statutes was only intended to illustrate the application of the general words of Article 31-A. The opening words of Article 31-B are only intended to make clear that Article 31-A should not be restricted in its application by reason of anythi"ng contained in Article 31-B and arc in no way calculated to restrict the application of the latter article or of the enactments referred to therein to acquisition ot "estates".

In Vishweshwar Rao v. The State of Madhya Pradesh(') Mahajan J. (as he then was) reiterated the same view. He observed:

"It was contended that Article 31-B was merely illustrative of the rule stated in Article 31-A and if Article 31-A had no application, that article also should be left out of consideration ..... .

On the basis of the similarity of the language in the opening part of Article 31-B with that of sub-sectiOn (2) of section 2 of the Defence of India Act "without prejudice to the. generality of the provisions contained in Article 31-A'', it was urged that Article 31-B was merely illustrative of Art. 31-A and as the latter was limited in its application to estates as defined therein, Article 31-B was also so limited. In my opinion, the observations in Sibnath

Bannerjee's case far from supporting the contention raised, negatives it. Article 31-B specifically validates certain Acts mentioned in the Schedule despite the provisions of Article 31-A, but stands independent of it. The impugned Acts in this situation qua the acquisition of the eight malguzari villages cannot be questioned on the ground that it contravenes the provisions of article 31(2) of the Constitution or any of the other provisions of Part Ill."

(I) II 9521 S.C.R. 889.

(') (1952) S.C.R. 1020.

KESAVANANDA "· KEMLA (Hegde & Mul(/1erjea, JJ.)

3SS

A similar view was cxpresed by this C.Ourt in N. B. /eeieebhoy v.

Assi!Pant Colkct<>r, ThatA:J Prant, Thana(') Therein Sobba Rao J. (as he then was) speaking for the C.OUrt observed thus :

"The learned Attorney General contended that Article .3lA and Article 31-B should be read together and that if so read Article

31-B would only illustrate cases that would otherwise fall under Article 31.A and, therefore, the same construction as put upon

ArtU:le 31-B should also apply to Article 31-A of the Constitut'on ..

This COl1$truction was sought to be based upon the opening words

of Article 31-B, namely "without prejudice to the generality of the provisions contained in Article 31.A". We find it difficult to accept this argument. The words "Without prejudice to the generality of the provisions" indicate that the Acts and regulations specified in the Ninth Schedule would have the immunity even if they did not attract Article 31-A of the Constitution. If every Act in the 9th Schedule would be covered by Article 31-A, this article would become redundant. Indeed, some of the Acts mentioned therein, namely, items 14 to 20 and many other Acts added to the 9th Schedule, do not appear to relate to estates as defined in Article 31-A(Z) of the Constitution. We, therefore, hold that

Article 31-B is not governed by Artkle 31A and that Article 31B is a constitutional device to place the specified statutes beyond any attack on the ground that they infringe Part III of the C.Onstitution . .. "

Several other decisions of this Court proceed on the basis that ArtiCle 31-B is independent of the Article 31A. It is too late in the day to reopen that question. Whether the Acts which were brought into the IXth Schedule by the 29th Amendment Act or any provision in any of them abrogate any of the basic elements or essential features of the C.Onstitution can be examined when the validity of those Acts is gone into.

For the foregoing reasons, we reject the contention of the petitioners that before an Act can be included in the !Xth Schedule, it must satisfy the requirements of Article 31-A.

In the result we hold:

(1) The power to amend the Constitution under Article 368 as it stood before its amendment empowered the Parliament by following the form and manner laid down in that Article, to amend each and every Article and each and every Part of the C.Onstitution. ---------·-

(') [1965] I, S.C.R. 636.

356 sUPllMI! cou:u REPO!lTS (1973] Supp. s.c.a.

(2) The expression "law" in Article 13(2) even be.tore Article

13 was amended by the 24th Amendment Act, did not include amendments to the Constitution.

(3) Thgh the er to amend the Constitution under ,\rticl~ 368 1s a very wide power, it does not yet include the power to destroy or emasculate the basic elements or the fundamental features of the Constitution.

(4) The 24th Amendment Act did not enlarge the amendmg power of the Parliament. It mcrdy made explicit what was implicit in the original Article. Hence it is valid.

(5)(A) The newly substituted Article 31(2) does not destroy the right to property becau"-

(i) the fixation of "amolll'lt" under that Article should have reasonable relationship with the value of the property acquired or requisitioned ;

(ii) the principles laid down must be relevant for the purpo1c

of ardving at the "amount" payable in respect ii the property acquired or requisitioned;

(iii) the "amount" fixed should not be illusory and

(iv) the same should not be fixed arbitrarily.

5(B) The question whether the "amount" in question has been

fixed arbitrarily or the same is illusory or the principles laid down for the determination of the same arc relevant to the subject matter of acquisition or requisition at about the time when the property in question is acquired or requisitioned are open to judicial review. But it is no more open to the court to consider whether the "amount" fixed or to be determined on the basis of the principles laid down is adequate.

(6) Claus, Z(b) of the 25th Amendment Act which incorporated Article 31 (2B) is also valid as it did not damage or destroy any essential features of the Constitution.

(7) Clause (3) of the 25th Amendment Act which introduced into the Constitution Article 31C is invalid for two reasons i.e. ( 1) it was beyond the amending power of the Parliament in so far as the amendment in question permits destruction of several ba:sic clements or fundamental features of the Constitution and (2) it empowers the Parliament and the State

Legislatures to pro tanto amend certa!n human. free?oms guaranteed to the citizens by the exemse of their ordinary legislative power.

• _,

USAVANANDA V, llRALA (Ray, J,) 357

(8) The 29th Amendment Act is valid but whether the Acts which were brought into the IXth Schedule by that Amendment or any provision in any of them abroaatc any of the basic clements or essential features of the Constitution will have to be aamincd when the validity of those Acts is gone into.

In the circumstances of the case we direct the parties to bear their own costs in these cases uptill this stage.

RAY, J.-The validity of the Consti.tution 24th, 25th and 29th .Amendment Acts is challen,.•ed. The Constitution 24th Amendment Act amended Article 368. Article 368 in the unamended form siieaks -0f "Amendment of this Constitution" and how the Constitution shall $tand amended. The Constitution 24th Amendment Act enacts that Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in that Article. The other

part of the amendment is that nothing in Article 13 shall apply to .any amendment under Article 368. The Constitution 25th Amendment Act has amended Article 31 (2) and also Article

31 (2A ).

The effect of these two amendments with regard to Articles 31(2) .and 31(2A) is two-fold. First, no property shall be compulsorily

.acquired or requsitioned save for a public purpose and save by authority of law which provides for an amount which may be fixed by law or which may be determined in accordance . with such principles.

Secondly, nothing in Article 19(1) (f) shall affect any law as is reterred to in Article 31(2). The second pan of the Constitution 25th Amendment Act is introduction of Article 31C which enacts that notwithstanding anything contained in Article 13 no law giving effect to the policy of the State towards securing principles prescribed in clauses (b) and ( c) of Article 39 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 Articles 14, 19 and 31; and no law containing a _declarat!on _that it is for giving effect to such policy shall be called m question m any court on the ground llhat it does not give effect to such policy, By the Constitution 29th Amendment Act the Kerala Land Reforms Amendment Act 1969 and the Kerala Land Reforms Amendment Act 1971 have been introduced into the Ninth Schedule of the Constitution.

The principal question which falls for determination is whether the power to med is _under any express limitation of Article 13(").

nother question 1s whether there are implied and inherent limitation on the power of amendment.

Can there be any implied or inherent limitation in the face of any express power of amendment

358 SUPREME COURT ItEl'OllTS [1973} Supp.: LC.II..

without' any exception? Question have been raised that esscnl fca-· tures of the Constitution cannot be amended. Does the Constitution admit of distinction between essential and non-essential features ?

Who is to determine what the essential featw-es arc? . Who is the authority to pronounce as to what features are essential?· The preeminent question is whether the power of amendment is to be cil- \ ed or restricted, though the Constitution does not contain any exception to the power of amendment. The people gave ihe Constitution to the people. The people gave the power of amendment to Parliament. Democracy proceeds on the faith and capacity of the people to elect their representatives and faith in the representatives to represent the people. Thoroughout the history of man-kind if any motive power . has been more potent than another it is that of faith in themselves. The ideal of faith in ourself is of the great.est help to us.

Grote the historian of Greece said that the diffusion of constitutional morality, not merely among the majority of any community but throughout the whole, is the indispcnsible condition of a government at once free a11d peaceful. By constitutional morality Grote meant a paramount reverence for the forms of the Constitution, with a perfect conlidcnee in the bosom of every citizen amidst the bitterness of party contest that the forms of the Constitution will not be less sacred in the eyes of opponents than in his own. The question is "He that planted the car, shall he nor hear? or he that made the eye, shall he no sec''.

The real question is whether there is any power !P amend the< Constitution and if so whether there is any limitation on the power.

The answer to this question depends on these considerations. First, what is the correct ratio and effect of the decision in I. C. Golak Nath & Ors. v. State af Punjab & Anr. (1967) 2 S.C.R. 762. Second, should that ratio be upheld. Third, is there any limi!tltion on the power to amend the Constitution.

Fourth, was the 24th Amendment validly enacted. If it was, is there any inherent and implied limitation on that power under Article 368 as amended.

The scope and power under Article 368 as it stood prior to the Constitution (24th) Amendment Act to amend the Constitution folk for consideration.

Two principal questions arise. First, is the Constitution as well as an amendment to the Constitlltion law within the meaning of Article 13(2). Second, is there any implied and inherent limitation on the power a{ amendment apart from Article 13(2).

Mr. Palkhivala contends that the unamended Article 368 was subject to Article 13(2). It is said that amendment of the Constitution is law, 3nd, therefore, any law which contravenes fundamental

I '

r I

KESAVANANDA V, KEllALA (Ray, J.) 359

rights is void. It is also said that Article 368 does not prevail over or override Article 13. The four bars under Article 13 arc said to be these. The bar is impoocd against the State, that is to say the totality of all the forces of the State. Second, all categories of law arc covered by the bar, whether they are constitutional amendments or bye-laws or executive Orders <111d Notifications. Third, all laws in force under Article 372 and all laws to be brought into force at any future date arc brought within the scope of this bar. Fourth, the effect of the bar is to render the law void.

Mr. Palkhivala said that the preamble makes it clear that the object of the Constitution is to secure basic human freedom, and this guarantee will be meaningless if the Legislature against whom the guarantee is to operate is .ak' liberty to abrogate the guarantees. It is id that law is comprehensive enough t.o include both ordinary law and constitutional law. The various forms of oath in the Third

Schedule of the Constitution refer 1!o "constitution as by law established". It is, therefore, submitted by the petitioner that the Constitution itself was originally established by law and every amendment has likewise to be established by law in order to take effect. It is emphasised that the constitutional amendment is a law, and, therefore, the word "law" in Article 13(2) includes constitutional amendments.

The Attorney General and Mr. Scervai said that the Constitution is the supreme higher law. An amendment to the Constitution is in exercise of constituent power. The amending power is not a legislative power. Law in Article 13(2) embodies the doctrine of ultra vires to render vaid any law enacted under the Constitution.

This Court in Shankari Prasad Singh Deo v. Union of India and State of Bihar (1952) S.C.R. 89 and Sajjan Singh v. State of Rajasthan ( 1965) 1 S.C.R. 933 examined the power to amend the Constitution.

In Shankari Prasad case the Constitutipn First Amendment Act was challenged. The principal contention was that the First Amendment in so far as it purported to take away ar abridge the rights conferred by Part Ill of the Constitution fell within the prohibition of Article 13(2) of the Constitution.

The unanimous view of this Court in Shankari Prasad case was thnt 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. In the absence of a clear indication

36'0 SUPREME COURT REPORTS [1973] Supp. s.c.11.

to •he contrary it is difficult to hold that the framers of the Oonsti" tution intended to make the fundamental rights immune of constitutional amendment'.. The terms of Article 368 are general to empower Parliament to amend the Constitution without any exception. Article 13(2) oonstrued in the context of Article 13 means Uhat law in Article 13(2) would be relateable to exercise of ordinary legislative power and not amendment to the Constitution.

The Constitution Fourth Amendment Act came mo existence on 5 October, 1963. The Constitution Seventeenth Amendment Act came into llorce on 20 June, 1964. By the Seventeenth Amendment Act Article 31A clause (1) was amended by inserlling one more proviso.

A fresh sul>-clause (a) was substituted for original sub.clause

(a) of clause (2) of Article 31 retrospectively. 44 Acts were added in the Ninth Schedule. The validity of the Seventeenth Amendment was challenged before this Court in Saijan Singh case.

The main contention in Sajjan Singh case was that the power prescribed by Article 226 was likely to be affected by the Seventeenth Amendment, and, therefore, it was necessary that the special procedure laid down in the proviso to Article 368 sliould have been followed. The Seventeenth Amendment Act was said to be invalid because that procedure was not followed.

The majority view of this Court in Sajjan Singh case was that Article 368 plainly and unambiguously meant amendment of all the

provisions of the Constitution. The word "law" in Article 13(2) was held not to take in the Constitution Amendmenn Acts passed under Article 368. It was also said that fundamental rights in Article 19 could be regulated as specified in clauses (2) to ( 6) and, t!herefore, it could not be said to hav~ been assumed by the Constitution makers that fundamental rights were static and incapable of expansion. It was said that the concept of public interest and other important considerations which arc the basis of clauses (2) to ( 6) in Article 19 "may change and may even expand". The majority view said that "The Constitution makers knew that Parliament could be competent to make amendments in those rights (meaning thereby fundan1ental rights) so as to meet the challenge of the problem which may arise in the course of socio economic progress and the development of the country".

The minority view in Sajjan Singh case doubted the corrctncss of the unanimous view in Shankari Prasad case. The doubt was on a question as to whether fundamental rights could be abridgeJ by

KESAVANANDA v. KERALA (Ray, J.) 361

exercise of power under Article 368. The minority view in Sajjan Singh case was that the rights of . society are made paramount and

arc placed above those of the individual. But the minority view was abo that though fundamental rights could be restricted under clause

(2) to (6) of Article 19 there could be no "removal or debilitation" of such rights.

In Golak Nath case the Punjab Security of Land Tenures Act, 1953 was challenged as violative of fundamental rights and as not being protected by the Constitutikm. First Amendment Act, 1951, the Constitution Fourth Amendment Act, 1955 and the Constitution Seventeenth Amendment Act, 1964. The validity of the Mysore Reforfus Act, 1962 as amended by Act 14 of 1965 was also challenged on the same grounds. The Punjab Act and the Mysore Act were included in the Ninth Schedule. It was common case that if the Seventeenth Amendment Act adding the Punjab Act and the Mysore Act in the Ninth Schedule was valid the two Acts could no~ be impugned on any ground.

The majority decision of this Court in Golak Nath case was that an amendment of the Constitution was law within the meaning of Article 13(2). There were two reasonings in the majority view arriving at the same conclusion. The majority view where Subba Rao, C.J., spoke was as follows : The power to amend the Constitution is derived from Articles 245, 246 and 248 of the. Constitution and not from Article 368. Article 368 deals only with procedure. Amendment is a legislative process. Amendment is law wilthin the meaning of Article 13. Therefore, if an amendment !lakes away or abridges rights conferred by Part III of the Constitutiion it is void. The Cons- tiitution First Amendment Act, the Constitution Fourth Amendment Act and the Constitution Seventeenth Amendment Act abridged the scope of fundamental rights. On the basis of earlier decisioos of this Court the Constitution Amendment Acts were declared oo be valid.

On the application of the doctrine of prospecllive over-ruling the amendments will continue to be valid.

Parliamen~ will have no power from the date of this decision (meaning thereby the decision in G.olak Nath case). to amend any of the prov1).ions of Part III of the Constitution as o:i take away or abridge the fundamental rights.

The Constitution Seventeenth Amendment Act holds the field. Therefore, the .Punjab Act and the Mysore Act cannot be questioned.

The concurring majority view of Hidayatullah, J. was this. The fundamental rights arc outside the amcndatory proccS& if the amendment seeks to abridge or take away any of the rights. The First, the Fourth and the Seventh Amendment Acts being Part of the Constitut'Oll by acquiescence for a long time cannot be chcllcngcd. These

362 SUPREME COURT REPORTS (1973) Supp. S.CJI,

Oxistitution Amendment Acts contain authority for the Seventeenth Amendmei; it Act.

Any further iinroad into fundamental i; ights as they exist on the date of the deci.ion will be illegal and unconstitutional unless it complies with Part Ill in general and Article 13(2) in particular. The constituent body will have oo be convened for abridging or taking away fundamental rights. The Punjab Act and the Mysore Act are valid not because they are included in the Ninth Schedule of the Cpnstitution but because they are protected by Article 31A and the assent of the President.

The two views forming the majority arrived at the same conclusion that an amendment of the Constitution being law within Qhe meaning of Article 13(2) would be unconstitutional if such an amendment abridged any fundamer.tal right. The leading majority view did not express any final opinion as to whether fundamental rights could be abridged by Parliament exercising its residuary power and calling a Constituent Assembly "for making a new Constitution . or radically changing it". The concurring majority view held that the fundamental rights could be abridged by suitably amending Article 368 to convoke Constituent Assembly. The concurring majority view was that a Constituent Assembly could be called by passing a Jaw under Entry 97 of List I and llhen that Assembly would be able .to abridge or take away fundamental rights.

The minority view of five learned Judges expressed n 3 judgments as against the majority view of six learned Judges in Golak Nath case was this.

Wanchoo, J. spoke for himself and two com:urring learned Judges -as follows.

Article 368 contains both the power and the pro- .ccdure for amendment of the Constitution. It is incomprehensible

that the residuary power of Parliament will apply to amendment of the Constitui:icm when the procedure for amendment speaks of amendment by ratification by the States. When an entire part of the Constitution is devoted to amendment it will be more appropiate to read Article 368 as containing the power to amend because there is no specific mention of amendment in Article 248 or in any Entry of List I. The Constitution is the fundamental law and without .express power to affect change legislative power cannot effect any change in the Constitution. Legislative Acts are passed under ihe power conferred by the Constitution. Article 245 which gives power to make law for the whole or any part of India is subject to the pro- ,_ visions of the Constitution.

If, however, power to amend is in Article 248 read with the residuary Entry in List I that power is to be acrciscd subject to the Constitution and it can1*Jt change the Constitution which is the fundamental law. It is because of the

KESAVANANDA V. KERALA (Ray, J.) 363

<lilference between the fundamental law and the legislative power under the Constitution that the power lP amend cannot be located in the Residuary Entry which is law making power under the Constitution.

Article 368 confers power on Prliament subject lP the procedure provided therein for amendment of any provision of the Constitution, It is impossible to introduce in the concept of amendment, any idea of improvement. The word "amendment" must be given its full meaning. This means . that. by amendment an existing Constitution or law can be changed. 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. An amendment of the Cons:itution is not an ordinary law made iinder the powers conferred und, er Chapter I of Part XI of the Constitution, and therefure, it cannot be subject to Article 13(2). It is strange that the power conferred by Article 368 will be limited by putting an interpretation on the word "law" in Article 13(2) which will include constitutional law also. The possibility of the abuse of any power has no relevance in considering the question about the existence of the power itself. The power of amendment is the safety valve which to a large extent provides for stable growth and makes violent revolution more or less unnecessary.

The two other supporting minority views were these. Bachawat, J. arrived at these conclusions. No limitation on the amending power can be gathered from the la!lgllllge of Article 368. Therefore, each and every part of the Constitution may be amended under Article

368. The distinction between the Constitution and the laws is so fundamental that the Constitution is not regarded as a law or a legislative Act. It is because a Constitution Amendment Act can amend the Constitution that it is not a law a•, d Article 368 avoids all reference to law making by Parliament. As soon as a Bill is passed in cqnformity with Article 368 the Constitution stands amended in accordance with the terms of the Bill. Amendment or change in certain Articles does not mean necessarily improvement.

Ral)laswami, J. expressed these views. The definition of law in Article 13(3) docs include in terms a constitutional amendnent though it includes any ordinance, order, bye-law, rule, regulation, norilica.t:ion, custom or usage. The language of Article 368 is perfectly general and empowers Parliament to amend the Constitution without any exception whatever. If it had been intended by the Constitution maken that the fundamental righas guaranteed under Part III should be completely outside the scope of Article 368 it. !s reasonable to assume that they would have made an express proviSwn to that effect.

364 SUPREME COURT REPORTS [1973] Supp. s.c.R.

The expression "fundamental" does not lift the fundamental rights above the Constitution illself.

In a matter of constitutional amendment it is not permissible to assume that there will be abuse of power and then utilise it as a test for finding out the scope of amending power.

The majority view in Golak Nath case was that au amendment of the Constirution pursuant to Article 368 is law within the meaning of Article 13(2), and, therefore, an amendment of the Constirution abridging fundamental rights will be void. The majority view was on the basis that there was conflict between Article 13(2) and Artit1e 368 and this basis was the result of the narure and quality of fundamental rights in the scheme of the Constitution.

It is, therefore, to be seen at the threshold as to whether there is any conflict between Article 13(2) and Article 368, namely, whether amendment of Constitution is law within the meaning of law in Article 13(2). Article 368 provides in clear and unambiguous terms that an amendment bill after compliance with the procedure stated therein and uppn the President giving assent to such bill the Constitution shall stand amended in accordance with the terms of the bill.

This constitutional mandate does not admit or provide any scope for any conflict with any other Article of the Constitution. This is the fundamental law. No other Artick of the Constitution has limited its scope. The moment the President gilves his assent to an amendment bi:ll the amendment becomes a part of the Constitution.

There cannot be a law before the assent of the President. Therefore, the validity of any such supposed law cannot arise. An amendment of the Constitution becomes a part of the fundamental law. The legality of an amendment i!s no more open to attack than of the Constitution itself. The opening part of amended Article 368, l!i11., "An Amendment of this Constitution may be initiated" and its concluding part before the proviso, vi111., "The Constitutlion shall stand amended" show clearly that the whole Constitution can be amended and no part of the Constirution is excluded from the amendment.

Herein lies the vital distinction between the ConstitlUtion and the ordinary law. ·

The distinction lies in the criterion of validity. The ~111idity of an ordinary law can be questioned. When it is questioned it must be justified by reference to a higher Jaw. In the case of the Constitution the validity is inherent and lies within itself. The validity of constitutional law cannot be justilied by reference to another higher law.

Every legal rule or norm owes its validty to some higher legal rule or norm. The Constitution iS the basic norm. . The Constirution

KESAVANANDA V, KERALA (Ray, J,) 365

generate$ its own validity. It is valid because it exist!!. The Constitution is binding because it is the constitution. Any other law is binding only if and in so far as it is in conformity with the Constitution. The validity of the Constitution lies in the social fact of its acceptance by the community. The constitutional rules are themselves the basic rules of the legal system. The Constitution pre- . vails over any other form of law not because of any provision to that

effect either in the Constitution or else where bug because of the underlying assumption to that effect by the community. If Parliament passes a law under any of the items in the Union List :bridging a fundamental right and also provides in that law itself that it shall not be invalid notwithstanding anything in Article 13 or Part

III of the Constitution, yet the law made by Parliament will be invalid to the extent of: its inconsistency with Part III of the Constitution. It will be invalid because Arti!; le 13 occurs in the Constitution which is supreme. The impugned Act cannot enact that it will be valid notwithstanding the Constitution.

The real distinction is that Constitutional law is the source of al1' legal. validity and is itself always valid. Ordinary law on the other hand must derive its validity from a higher legal source, which is ultimately the Constitution. Law in Article 13(2) of the Constitution could only mean that law which needs validity from a higher source and which can and ought ID be regarded as invalid when it comes in conflict with higher law. It cannot possibly include a law which is self validating and which 1, never invalid. The definition al: law in Article 13 enum.eralles more or J.css exhaustively all forms of law which need validation from higher source and which arc invalid when they arc in conflict with the Constitution. The dcfinitim docs not mention constitutional amendment. In is because an amendment being the Constitution itself can never be invalid. An amendment is made if the procedure is complied with. Once the procedure is complied With it is a part of the Constitution.

!'he expression "I.aw" has been used in several Articles in Part III cl. the Constitution. These a:re Articles 17, 19 clauses (2) to (6),. 21; 22, 25, 26, 31; 33, 34 and 35. To illustrate, Article 17 states that

untouchability is abol!)!hcd ap~ its practice in any form is furbiddcn.

Atr; icle 17 also states that the enforcement of any disability arising

out oE untouchability shall be an offence punishable iii accordance with I.aw. The word "I.aw" in Article 17 docs not mean the Constitution. The Constitution leaves the mat1ICr cf enforcement and punishment to I.aw,

The foundation. of the majority view in Golak Nlllh case that Article 13(2) takes in constitu~ law within its purview is that an amendment is a legjsl.ative process and is .an exercise of legislative power. The majority relied on the decision in McCawley v. The King

24-36 S. C. Indla/73

366 SUPR.EME COUP.T JtEpORTS [1973] Supp. s.c.R.

(1920) A.C. 69! and the Bribery Commissi®er v. Pedrick Ranasinghe 1965 A.C. 172 in suppon of the view that there is no distinction between ordinary legislation and constitutional amendment. The basis of the unanimous decision in Shankari Prasad case was on the distinction between legislative power and the . constituent 'power.

Therefore, the majority view in Golak Nath case overruled the view in Slwnkari Prasad case. Article 13(2) expressly d!clares that law taking away or abridging the rights conferred by Part Ill shall be void. This principle embodies the doctrine of ultra vires in a written Constitution. The observation of Kania, C.J. in A. K. Gopalan v. The State of Madras 1950 S.C.R. 88 that Article 13(2) was introduced ex maiore cautela because even if Article 13 were not thre any law abridging or taking away fundamental rights would be void to the extent of contravention or repugnancy with fundamental rights in Part Ill refers to the doctrinie of ultra vires which i5 a necessary implication of our Constitution. Therefore, there is no distinction between Article 13(2) which expressly affirms the doctrine of. ultra oires and the necessary impliCation of the doctrine of. ultra llires which has been applied to every part of our Constitution.. If the express doctrine of ultra vires prevented an amendment of Part III of the Constitution contrary to its terms, equally an amendment oE other parts of the Constitution contrary to their terms would be prevented by the implied doctrine of 14/tra vires. The result would be that an amendment of the Constitution which contravened the tCll'JDS oE the -existing Constitution would be void. This would result in absurdity.

That is why Article 368 expressly provides for the amendment of the Constitution.

Mr. Palkhivala on behalf of the petitioner submitti:d that C90stitution amendment was law. within Article 13(2) . and was void to the extent to which it contravened the fvnd:ltncnta! rights aud Article 368 did not prevail oer or override Article 13 for these reawns. Reference was made to the form of oath in the Third Schedule which uses the words "Constirotion as by law established". This is said to mean that our Constitution was originally established lif l:lw and, therefore, every amendment thereto was likewise to be established by law. Article 13(1) is also said to rover constitutionallav( because though Article 395 repealed the Indian Independence Act, 1947 and the Government of India Act 1935 the constitutional laws or the Indian Princely States or some other constitutional. laws cf llritish

India were in existence. Therefore, the word "Law'~ in' Article 13(2) will also include constitutional law. The word "law" in Article 13(2) will in its ordinary sense embrace constitutional -law, and there is no reason for reading the word "law", in a restricted sense io confine it to ordinary laws. The real question i$ not whether there arc any words of limitation in Articles 36&-but whether .there arc any .

IWAVANANDA V. !WALA (Ray, J,) 367

words of limitation in Article 13(2). It was amplified to mean if a limitation has to be read in either .of the two Articles 368 and 13(2) there is no reason why it should be read in such a way as to enable parliament to take away or abridge fundamental rights.

In Article 368 the word "law" is not used at all. Chnsequently the language of Article 368 raises no question about the applicability of Article 13(2). It is inconceivable that constitutional laws of Indian Princely States or Constitutional laws of British India exist as constitutional laws after the coming inl!l existence of our Constitution. Our Constitution is the only fundamental law. All other laws which continue under our Constitution are ordinary laws. The fundamental error in including amendment of the Constitution in law under Article 13(2) is by overlooking the vital difference between the constituent and the legislative powers and in wrongly equating these powers. The definition of "State" in Article 12 includes Parliament. Part V of the Constitution cont.ailns provisions relating to the powers of the three organs of the Union Government, Chapter II of Part V relates to the legislative power of Parliament. Under Article 79 Parliament is the Union Legislature provided fior by the Constituti'on. Therefore, law in Article 13(2) must mean a w of Parliament functioning under Chapter II of Part. V; It cannot 111ean the Constitution itself or an amendment of the Constitution.

The reason is that the Constitution with its amend=nt is the supreme authority and the three organs of the State derive their powers from this supreme authority.

The word "law" when used in relation to constitutional law which is fundamental law and ordinary law is not a mqe homonym.

If the word "law" here .is not a mere homonym then it is a mistake to, think that all the instances. to which it . is applied must possess

either a single quality or a single set of qualities in c0mmon. There is some general test or criterion whereby the rules of the fundamen tal law or the rules of the system of ordinary laws are tested and identified. When the word "law" is spoken ;111 connecti'on with ronstitutional law it cannot have the same meaning as ordinary law. It is not trary to use the WIOrd "law" in relation to constitutional Jaw in spite of itlS difference from ordinary law ..

Mr. Palkhivala contended that coostitutional laws o{ Princely States and of British India prior tn our Constitution survived as laws in force under Article '572. Article 372 became necessary to make a provision similar to section 292 of the Government of India Act, 1935 following the repeal of the 1935 Act and the Indian Independence Act, 1947. The purpose of Article 372 is to negative the possi~ bility of any existing law in India being held to be no longer in force by reason of the repeal of the. law authorising its enactment.

368 SUPREME COURT REPORTS (1973 j Supp. S.C.R,

A saving clause of the type of Article 372 is put in to avoid challenge to laws made under the repealed Constitution. The total volume of law in the then British India had the legal authority up to 14 August 1947 by reason of the Government of India Act 1935. The Government of India Act 1935 with adaptations and the Indian Independence Act 1947 preserved the authority of those laws upto 25 January

1950. In so far as it iis indisputable that the Government of India Ar.t, 1935 and the Indian Independence Act, 1947 were repealed, the repeal of those Acts was repeal of the constitutional law represented by

those Acts. By our Constitution there was a repeal of all other oonsti tutional laws operating in our country. There was repeal of "Constitu• tion" in Princely States.

A distinction arises between the provisions of a Constitution which are described as constitutional law and provisions of a statute dealing with a statute which is treated to have constitutional aspects.

An example of the latter type is a statute which proviides for the judicature. Mr. Seervai rightly said that the two distinct senses of constitutional law are mixed up in the contention of Mr. Palkhivala. In the first sense, constitutional law is applicable to a provision of the Constitution, and in the second sense, to a law enacted under the Constitution dealing with certain classes of subject matter.

Laws of the second class fluctuate. An amendment of the Constitution becomes a part of the Constitution itself. Mr. Scervail rightly contended that in order to show that law in Article 13(2) includes amendment of the Constitution it is also necessary tn show that the expression "laws in force" in Article 13( 1) includes constitution amendment or the Constitution itself. It is impossible to accept the submission that the word "law" in Article 13(2) includes the Constitution. The Constitution itself cannot include the Constitution. It is the Constitution which continues the laws in force. Therefore, law in Article 13 is law other than the Constitution and a fortiori it is other than amendment to tl1e Constitution.

In non-British territory on the Constitution coming into force the Constitution of Princely States lost its character as constitutional law in the strict sense. 'It is in that strict sense that Wanchoo, J. rightly said in Golak Nath case that on our Constitution coming into existence no other constitutional law survived. Article 393 of our Cons. titution says that the Constitution may be called the "Constitution of India". The Preamble recites that the People in the ConstitucnO Assembly gave this Constitution meaning thereby the Constitution of India. Therefore, the people gave themselves no other Constitution.

All other laws whatever their previous status as swict constitutional law became subordinate laws subject to the provisions of our Constitution and this position is clear from the language of Artiicle m .

KESAVANANDA V. KEllALA (Ray, J.) 369

In a broad sense law may include 11he Constitution and the law enacted by the legislature. There is however a dear demarcation between ordinary law in exercise of legislative power and constitutional law which is made in exercise of constituent power.

Therefore, a power to amend the Constitution is different from the power to amend ordinary law. It was said by Mr. Palkhivala that legislative power is power to inake law and constituent power is the power to make or amend constitutional law and since law in its ordinary sense, includes constitutional law the legislative power is the genus of which the constituent power is the species. The difference between legislative and constit~nt power in a flexibk or uncontrol\ed Constitution is conceptual depending upon the subject matter. A Dog A!Ot in England is prima facie made in exercise of legislative , power. The Bill of Rights was made in the exercise of constituent power as modifying the existing <i>nstitutional arrangement.

But this conceptual difference docs not produce different legal consequences, since the provis'ions of a Dog Act inconsistent with the earlier provisions of the Bill of Rights would repeal those provisions pro tanto. In a rigid or controlled Constitution the distinction between legislative power and constituent power is not only conceptual but material and vital ' in introducing legal consequences. In a aontrolled Constitution it is not correct to say that legislatiye p0wer is the genus of which constituent power is the species. The queston immediately arises as to what the differentia is which distinguishes that species from other species of the same genus. It would be correct to say that the law making power is the genus of which leglative power and constituent power are the species. The differentia is found in the different procedure prescribed for the exercise of const'tuent power as distinguished from that prescribed for making ordinary laws. The distinction between legislative power and constituent power is vital in a rig'd or controlled Constitution, because it is that distinction "'.hich brings ; n the doctrine that a law ultra vires the Constitution is void, since the Constitution is tlx touchstone of validity and that no provision of the Constitution can be ultra vires.

The legislatures constituted under our Constitution have the power to enact laws on the topics indicated in Lists I oo III in the Seventh Schedule or embodied specifically in certain provisions of the Constitution. The power to enact laws carries with it the power to amend or repeal them. But these powers of legislatures do not include any power to amend the Constitution, because it is the Costi rucnt Assembly which enacted the Constitution and the status g11en by Article 368 to Parliament and the State legislatures, is the status of a Constituent Assembly. The distinction between the power ta

370 SUPREME COURT REPORTS [1973] Supp. s.c.R.

amend the Constitution and the ordinary power to enact laws is fundamental to all federal Constitution. When Parliament is engaged in the amending process it is not legislating. It is exercising a particular power which is ; ui generi; bestowed upon it by the amending clause in the Constitution. Thus an amendment of the Constitution under Article 368 is constituent law and not law within the meaning of Article 13(2) and law as defined in Article 13(3)(a).

The procedure that Bill for amendment of the Constitu:ion has to be introduced in either House of Parliament and passed by both Houses does not alter the sta11us of Parliament to amend the Constitution as a Constituent Assembly and does not assimilate it to that of the Union legislature. At this stage it may be stated that in Shankari Prasad case it was said that law in general sense may include the Constitution and the procedure of amendment is assimilated to ordinary legislative procedure. Assimilation of procedure does not make both the procedure same. Nor are the two separate powers to be lost sight of. The Comtituent Assembly which has summoned on 19 December, 1946 to frame a Constitution was also invested after independence with legislative power. It framed the Constitution as the Co1tstituent Assembly. It enacted ordinary laws as legislature. Under Article V of the American Constitution the Congress functions not as a legislature but as a Constituent Assembly. In Australia when a Bill for amendment has to be passed by Commonwealth Parliament and then has to be submitted to the verdict of the electorate the process is not' ordinary legislative process of the Commonwealth Parliament. In our Constitution when the amendment falls within the proviso to Article 368 it requires that the amenclment must be ratitie.J by at least one half of the State legislatures and the process is radicaHy different from ordinary legislative procedure. The Union legislature acting under Chapter II of Part V has no connection with the State legislatures. Therefore, when amendment is affected under the proviso to Article 368 Parliament does not act as a Union legislature. The feature that in the passage of the bill for amendment of the Constitution the Hlouse of Parliament has to adopt the procedure for ordinary legislation has little bearing. If the intention of the framers of the Constitution was to leave to the Union legislature the power to effect amendments of the Constitution it would have been sufficient to insert a provision in Chapter II of Part V in that behalf without enacting a separate part and inserting a provision therein for amendment of the Constitution.

Under clause (e) of Article 368 the Article itself can be amended. Therefore, an amendment of Article 368 providing that provisions in Part III can be amended will be constitutional. If it was intended by Article 13(2) ro exclude Part III altogether from the

KESAVANANDA V. KERALA (Ray, J.) 371

operation of Article 368 clause (e) would not have been enacted. The Constituent Assembly thus enacted Article 368 so that the power tD amend should not be too rigid nor too flexible. Clause ( s) of Article 368 requires an amendment to be ratified by not less than half the nti, mber of States. The title of Part XX and the opening words of Article 368 show that a provision is being made for "amendment of .Ws Constitution" which in its ordinary sense means every part of the Constitution. This would include Article 368 itself.

There is no limitation imposed upon or exception made to the amendments which can be made. I~ is not permissible to add to Article 368 words. of limitation which are not there. ' The initiative for an amendment of the Constitution is with Parliament and oot with the States.

A bill for amendment is to be introduced in either House of Parliament.

Again, a bill must be passed by each House by not less than two thirds of the members present and voting, the requisite quorum in each House being a lll:!jority of its total membership. In cases coming under the proviso the amendment must be ratified by the legislatures of not less rhan

half the number of States. Ordinary legislative process is very different; A bill initiating a law may be passed by majority of members present nd voting at a sitting of each House and at a joint sitting of. House, the quorum for the meeting of either House being one tenth .of the total members of the House.

The legislative procedure is prescribed in Articles 107 to 111 read with Article JOO.

Article 100 states "save as otherwise provided in the Constitution all questions at any sitting of either House or joint sitting shali be determined by a majority of votes of the members present and voting". Though Article 368 falls into two parts of the Article is one integral whole as is clear from the words "the amendment shall also require to be ratified''. The first part of Article 368 requires that a bill must be passed in each House (I) by majority of the total membership of that House and (2) by a majority of not less than two thirds of the members of that House present and voting.

These provisions rule out a joint sitting of either House under Article 108 to resolve the disagreement between the two Hlouses. Again the majority required to pass a bill in each House is not a majority of members of that House present and voting as in Article 100 but a majority of the total membership of each House ancl a majority 10f

not less than two thirds of the members of that House present and voting.

These provisions are not only important safeguards when amending the Constitution, but also distinguishing features of C'.onstituent power as opposed to legislative power. U n<ler the first part of unamended Article 368 when a bill is passed bv requisite majority of each House the bill must be presented for the President's assent.

372 SUPREME COURT REPORTS [1973] Supp. S.C.R.

Parliament's power to enact laws is not dependent on State legislature, nor can it be frustrated by a majority of State legislatures.

The provisions in the proviso to Article 368 for ratification by the legislatures of the State constitute a radical departure from the ordinary legislative process of Parliament, State legislative process of ratification cannot possibly be equated with ordinary legislative process. If the bill is not ratified the bill fails. If it is ratified it is to be presented to the President for his assent. If the President assents the procedure prescribed by Article 368 comes tX> an end and the consequence prescribed comes into operation that the . Constitution shall stand amended in accordance with the bill. But the result is not law, but a part of the Constitution and no court can pronounce any part of the Constitution to be invalid.

The exercise of the power of ratification by the State legislatures is constituent power and not ordinary law making power. It cannot be said that Article 368 confers constituent power under its proviso but not under the main part. If the procedure has been followed the invalidity of an amendment cannot arise.

The provisions in Article 4, 169, paragraph 7(2) of the Fifth Schedule and paragraph 21(2) of the Sixth Schedule were referred to for the purpose of showing that the word "law" is used in those. provisions relating to amendments ro the Constitution. It is, therefore, said that similar result will follow ih the case of all amendments.

These four provisions confer on Parliament limited power of amendment. There are two features common to all these provisions. First, they confer on Parliament a power to make a law which inter alia provides for the specific class of amendments. Second .. each of these provisions states that "no such law as aforesaid shall be deemed to be an amendment of the Constitution for the purpose ot Article 368".

The power to amend under any of these four provisions is a specific power for specific amendments and not a legislative power contained in the Legislative List or Residuary Legislative List.

The amendment under Article 4 follows a law providing for the formation of new States and alteration of areas, boundaries and names of existing States. It is obligatory on Parliament to make amendment . of Schedules I and 4 and it is necessary to make amendments which are supplemental, incidental and consequential.

In making such a law in so far as it affects the State but not Union territory a special procedure has to be followed.

Under Article 169 which provides for the abolition or creation of a State legislative Council Parliament has power to make a necessary law on a resolution being passed by the State Legislative Assembly for such abolition or creation by a majority of the membership

KESAVANANDA V. KERALA (Ray, J.) 373

of the Assembly and by majority of not less than two thirds of the members present and voting. It Parliament makes snch a law that law must make the necessry amendments to the Consti<tution.

Schedules 5 and 6 pmvide for the administration of the Scheduled and Tribal areas which are governed by Part X and not by Part XI by which the Union and States are governed. The Scheduleds provide a mode of governance of those areas which is radically different from the Government of the Scates and the Union. Part X of the Constitution unlike Part XI is not "subject no the provisions of this Constitution". Paragraph 7 of Schedule 5 and paragraph 21 of Schedule 6 confer on Parliament a power to amend the schedules by law but no special procedure is prescribed for making such a law.

No question relating to those four provisions, however arises in the present case. In Article 368 the word "law" is not based at all.

These four provisions for amendment deal with matters in respect of which it was considered desirable not to impose requirements of Article 368, and, therefore, it became necessary expressly to provide that , such amendments shall not be deemed to be amendments of the Constitution for the purpose of Article 368. These four provisions indicate the distinction between the constituent power and the legislative power. If the power of amendment was located in the residuary Entry No. 97 in the Union List it would not have been necessary to grant that power of amendment again in these four provisions. These four provisions indicai.: that the Constitution makers intended to confer on Parliament power to make amendments in the. provisio11s of the Constitution and having provided for a particular procedure to be followed in respect of matters covered by those four provisions it conferred a general power on Patliament to make an amendment to the other Articles after complying with the requirements of Article 368.

The majority view in Golak Nath case said that Parliament could rail a Constituent Assembly either directly under the residuary power <>r pass a law under the Residu•ry Entry to call a Constituent Assembly for amendment of fundamental rights. Of the two views forming the majority one view did not express any opinion as to whether such a Constituent Assembly could take away or abridge fundamental rights but the other view expressed the opinion that such a Constitu ent Assembly oould abridge fundamental rights. The majority view in Golak Nath case was that Parliament is a constituted body and not a constituent body and a constituted body cannot abridge or take .away fundamental rights. The majority view indicates that a comtituent power was required to amend the fundamental rights.

The majority view has totally ignored the aspect that constituent power is located in Article 368, and, liherefore, amendment under the

374 SUPREME COURT REPORTS [1973] Supp. s.c.R.

Article is not a law within the meaning of Article 13(2). If Parliament is a constituted body as was said by the majority view in Golak Nath case it would be difficult to hold that such a body could bring about a Constituent Assembly. The well-known principle that what cannot be done directly cannot be achieved indirectly will establish the basic infirmity in that majority view. If fundamental rights can be abridged by Parliament calling a Constituent Assembly under the Residuary Entry such Constituent Assembly will be a body different from Parliament and will frame its own rules of business and Article 368 cannot have any application. That will have a strange and startling result.

In the scheme of the Constitution containing Article 368 a Constituent Assembly will be called extra constitutional means and oot one under the Constitution. A constitution can be amended only in accordance with the process laid down in the Constitution. No other method is constitutionally possible than that indicated in the provision for amendment of the Constitution. Once the Constitution has vested the power to amend in the bodies mentioned therein that is the only body for amending the Constitution. The people who gave the Constitution have expressed how it is to be changed.

The distinction between constituent and legislative power is brought out by the feature in a rigid Constitution that the amendment is by a different procedure than that by which ordinary laws may be altered. The amending power is, therefore, said to be a re-creation of the Constituent Assembly every time Parliament amends. re-creation in accordance with Article 368.

The two decisions in McCawley v. The King Im A.C. 691 and The Bribery Commissioner v. Pedrick Ranasinghe 1965 A.C. 172 on which the majority view in Golak Nath case relied II'.) hold that amendment to the Constitiut1on is an ordinary legislative process do not support that conclusion. The difference between flexible or uncontrollr.d and rigid or controlled Constitutions in regard to amendment is that there may be special methods of amendment in rigid or ' controlkd Constitution. In a rigid Constitution amendment is not b1' exercise of ordinary legislative power. The power to amend is, therefore, described in a rigid Constitution as constituent .power because of the nature of the power. In a flexible Constitutron the pr<>- cedure for amendment i; the same as that of making ordinary law. :\ Constitution being uncontrolled the distinction between legislativeand constituent powers gets obliterated because any law repugnant to the Constitution pro tanto repeals a Constitution as wa> held in McCawley case. Dicey in his Law of the Constitution (10th Ed.)

KESAVANANDA V. KER.ALA (Ray, J,) 375

illustrates the view by his opinion that if the Dentisrs Act said anything contrary to the Bill of Rights which can be described as constitutional document the Dentists Act would prevail. In a flexible or unwritten Constitution the word constitutional law is imprecise as it is used in respect of subject matter of law, e.g. a law dealing wi:th the legislature. In a rigid or written ConstitutiPn whatever is in the Constitution would be the law of the Constitution.

In M cCawley case the validity of the appointment of Mccawley as a Judge of the Supreme Coun of Queensland was challenged as void on the allegation that section 6 sub-section (6) of the Industrial Arbitration Act of 1916 was contrary to the provisions of the Constitution of Queensland

1867. The Industrial Arbitration Act of 1916 by section 6 sub-section ( 6) authorised the Governor to appoint any Judge of tl1e Court of Industrial Arbitration to be a Judge of the Supreme Court of Queensland and provided that a Judge so appointed shall have the jurisdiction of both offices and shall hold office as a Judge c>f ilie Supreme Coun during good behaviour. The sub-section further provided that Judge of the Court of Industrial Arbitration shall hold office for seven years. The Governor in Counci<l by commission reciting section 6 sub-section (6) appointed Mccawley who was a Judge and the President of the Court of Industrial Arbitration to be a Judge of the Supreme Court during good behaviour. By sections 15 and 16 of the Oonstitution of 1867 the period during which Judges of the Supreme Court were to hold office was during good behaviour. The oontention was that the appointment of Mccawley under the Industrial Arbitration Act 1916 for a limited period of seven years was invalid since the Act was inconsistent with the Constitution Act 1867 and further that the Act of 1916 could not repeal or modify the provisions of the Constirution Act.

The Privy Council held that the Legislature of Queensland had power both under the Colonial Laws Validity Act 1865 section 5 and apan therefrom under clauses 2 and 22 of the Order-in-Council of , 1859, section 7 of the Act 18 & 19 Viet. c. 54 and sections 2 and 9 of the Constitution Att of 1867 to authorise the appointment of a Judge of the Supreme Court for a limited period. Section 7 of the Act 18 & 19 Viet. c. 54 intended an order in Council to' make provision for the government of ilie Colony and for the establishment of a legislature. The Order-in-Council 1859 by clause 2 gave full power to ilie legislature of the Colony to malce further provision in iliat bee

half. The Order-in-Council of 1859 by clause 22 gave the legislarure full power and auiliority from time to time to make laws altering or repealing all or any of ilie provisions of this Order in the same manner as any other laws for the good Government of the colnny.

376 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.

Section 5 of the Colonial Laws Validity Act gave the legislature full power to alter the Constitution.

Section 2 of the Constitution Act of 1867 gave the legislature power to make laws for the peace, welfare and good government of the Oolony.

Section 9 of the Constitution required a two thirds maiority of the legislative Council antl Legislative Assembly as a condition precedent of the validity of legislation altering the Constitution qf the Legislative Council. Section 6 sub-section (6) which authorised an appointment as a Judge of the Supreme Court only during the period during which the person appointed was a Judge of the Court of Industrial Arbitration was found to be valid legislation. It was found that the Constitution of Queensland was a flexiable as distinct from rigid Constitution. Power to alter the Constitution by ordinary law was also said to exist both in virtlUe of the Colonial Laws Validity Act, 1865 section 5 and independently of that Act in virtue of dause 22 of the Order in Gouncil 1859 and sections 2 and 9 of the Constitution Act of 1867.

The decision in McCawlay case shows that unless there 1.s a special procedure prescribed for amending any part of the Constitution tht Constitution is uncontrolled and can be amended bv the manner prescribed for enacting an ordinary law and therefo; e a subsequent law inconsistent with the Constitution would pro tanto repeal the Coustitution. The decision also established that a Constitution largely or generally uncontrolled may contain one or more provisions which prescribe a different procedure for amending the provisions of the Constitution. If this is prescribed the procedure for amendment must be strictly followed.

The legislature of Queenslaml was found to be master of its own household except in so far as its powers were restricned in special cases. No such restriction was established in the case before the Privy Council. The legislature had plenary power there. The legislature was not required to follow any particular procedure or to comply with any specified conditions before it made any law inconsistent with any of the provisions of constitutional document.

The contention of the respondent in Mccawley case was that the Constitution of Queensland was controlled and that it could not be

altered merely by enacting legislation inconsistent with its Articles but tlut it could be altered by an Act which in plain and unmistakable intention of the legislature to alter consequently gave effect to that intention by C1perative provisions.

The Judicial Committee thought this Constitution would amount to a Constitution which was neither

KESAVANANDA V. KERALA (Ray, J.) 377

controlled nor uncontrolled. It was not controlled because the future generation could by a merely formal Act correct it at pleasure.

It was said to be not uncontrolled because the framers prescribed to their successors a particular mode by which they are allowed to effect constitutional changes. Section 22 of the Order in Council conferred power and authority in legislature from time to time to make laws altering or repealing all or any of the provisions of the Order in Council in the same manner as any other laws for the good government of the country. The Constitution Act of 1867 was contended to enact certain fundamental organic provisions of such a nature as to render the Constitutioo controlled. It was found impossible to point

to any document or instruction giving or imposing on the Constitution of Queensland such a quality. The decision in McCawley case related to uncontrolled Constitution which gave the legislature full power to make laws except on one subject and, therefore, a law made by the legislature under such a Constitution could pro tanto conflict with and repeal the Constitution. That is not our Constitution.

In Ranasinghe case the validity of the appointment of Bribery Tribunal was challenged. The Supreme Court of Ceylon took the view that the Bribery Tribunal was not appointed by the Judicial Service Commission in accordance wicli the provisions of section SS of the Ceylon Constitution Order in Council. It was, therefore, not lawfully appointed. It was common ground that the appointment of the Bribery Tribunal was not in accordance with section SS of the Ceylon Constitution Order in Council, 1946. Section SS vested in the Judicial Service Commissioner the appointment, dismissal and disciplinary control of JudiciaU Officers, viz., Judges of lesser rank. The removal of Judges of the Supreme Court could be by the Governor General on an address of the Senate and the House of Repesentatives.

Section 29 of the Ceylon (Ooostitution) Order in Council provided in sub-sections (1), (2), (3) and (4) as follows:-

"29(1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island.

(2) No such law shall-(a) prohibit or restrict the free exercise of any religion;_

(3) Any law made in contravention of sub-section (2) of this section shall, to the extent of such contravention, be void.

( 4) In the exercise of its powers under this section Parliament may amend or repeal any of the provisions of this Order, or of

3 78 SUPREME COURT REPORTS [1973 j Supp. S.C.L

any other Order of Her Majesty in Council in its application to the I.sland:

Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a cercificatie 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 (including those not present).

Every certificate of the Speaker under this sub-section shall be conclusive for all purposes and shall not be questioned in arw court of law".

The Judicial Committee found that there was a conflict betwe{n section 55 of the Ceylon Constitution Order and section 41*1the.

Bribery Amendment Act. The Privy Council found that section (4) of the order was attracted but the requirements of section 29 had not been complied with and, therefore, the appointment of the Bribery Tribunal was invalid. The certificate of the Speaker under .the proviso to section 29(4) of the Ceylon Constitution Order was an essential part of the legislative process. There was no such certificate in the case of the legislation under which the appoinltmcnt of the impugned Tribunal was made. The Judicial Commiee said that .a legislature has no I".>wer to ignore the conditions of law niaking

that are imposed by the regulating instrument. This restriction exists independently of the question whether the legislature is sovereign as the legislature of Ceylon or whether the Constitution is uncontrolled as happened in M cCawley case with regard to the Constitution d Queensland.

The Judicial Committee said "A Constitution can, indeed, be altered or amended by the legislature, i£ the regulating instrument so provides and if the terms of those provisions arc complied with; and the alteration or amendment may include the change or abolition of these provisions. But the proposition which is not acceptable i~. thar .a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution d a bare majority which its own constituent instrument has s:iid shall not be valid law unless made by a different type of maj()rity or by a different legislative process".

It was contended that just as the legislature of the Colony of Queensland had power by mere majority voile to pass an Act that was inconsistent with the prpvisions of the existing Constitutiol). of. that Colony as oo the tenure of Judicial Office so the legislature of Ceylon had no less a power to depart from the requi'rcments of a section such

KESAVANANDA V. KERALA (Ray, J.) 379

as section 55 of the Ceylon Omstitution, notwithstanding the wording of sections 18 and 29(4). Section 18 in effect says that a legislation can be passed by a majority of votes subject to the provisions in section 29(4) ri. the Constitution. The Judicial Committee said that in

A..-Cawley case the legislature had full power to make laws by a majority except upon one subject that was not in question and the legislation was held to be valid because it was treated as pro tanto an alternation llf the ConstitutilOO which was neither fundamental i,, the sense of being beyond change nor so constiltUted as to require any special process to pass a law upon the topic dealt with. The word .. "fundamental" in the sense of "being beyond change" refers to express limitations as to power or manner and form of change. These words do not mean as Mr. Palkhivala contended that there are fundamental features of the Constitution which cannot be amended.

The legislature purwrted to pass a law which being in conflict with section 55 of the Order in Council must be treated if it is to .be valid; as an implied alteration of the constiutional provisions about the appointment of judicial officers. Such alterations could only he made by laws which complied with the special legislative procedure laid down in section 29( 4). The provisions in section 29( 4) were found not to confer on the Ceylon legislature the general power ti>

legMature so as to amend the Constitution by ordinary majority res<>- lution which the Queensland legislature was found to have under section 2 of the Queensland Constitution Act.

Rantuinghe case shows that Parliament which by its own Act imposed procedural conditions upon the legislative process is no more limited or non-sovereign than a legislature which has such conditions imposed on it by the constitutional instrument. A constitutional instrument which places procedural restraints upon the forms of law making places the legislature under a compulsion to obey them. In

McCawley case it was said that the Colonial Legislature with plenarv powers could treat the constitutional document which defined its powers as if it were a Dog Act. This proposition as a result of Ranasinghe case is narrowed to the extent that where provisions for procedural special majority are laid down in the constitutional document they cannot be treated as a provision in the l)()g Act might be.

These decisions indicate the distinction between procedural and .substantive limitations on the legislative process. In Ranafinghe case the issue was one of personal liberty in the sense that the respondent claimed the right not to be imprisoned except by a valid law. No question was raised about the right of religion protected by sections 29(2) and (3) of the Ceylon Constitution. It was also not the respondent's case there that any provision was unamendable. It would be

380 SUPREME c; ouRT REPORTS (1973] Supp. S.C.R.

unusual for the Privy Council to say by way of an obiter dictum that a provision was not amendable contrary to the respondent's submission. Though the Privy Council did nl>o use the words "legislative and constituent" in distinguishing ordinary law from law amending the Constitution, the Privy Council in referring to. the Ceylon Constitution instrument showed that the familiar distinction is the basis of the judgment.

The Privy Council is dealing with section 29 took note of the special heading under which section 29 appears in the Constitution.

That special heading is "legislative power and procedure". The opening words of section 29 are that subject to the provisions of this order Parliament shall have powers to make laws. These are similar to the opening words in Article 245 of our Constitution. Section 18 of the Ceylon Constitution prescribes the ordinary legislative procedure for making laws by a bare majority unless otherwise provided for by the Constitution, which I.< to be found in section 29( 4) of the Ceylon Constitution. Our Constitution in Article 100 makes an identical provision for ordinary legislative procedure. Section 29(2) confers rights of freedom of religion and section 29(3) states that no laws shall be made prohibiting or resoricting such freedom. Part III of our Constitution contains among other fundamental rights, rights to freedom of religion. Section 29(3) expressly makes laws in contravention of section 29(2) void to the extent of contravention. Article 13(2) of our Can, titution expressly makes law which takes away or abridges fundamental rights void to the extent of the QC>n!'ravention.

Section 29( 4) of the Ceylon Constitution dealing with the amendment of the Constitution does not expressly make void a law amending the Constitution.

It follows from McCawley case and Ranasinghe case that a legislature has no power to ignore the conditions of law making imposed upon it which regulate its power t.o make law. The Ceylon legislature had no general power to legislate so as IKl amend its general power by ordinary majority resolution such as Queensland legislature was found to have under section 2 of the Queensland Constitution.

Pe>ce, order and good government in sectibn 29(1) of the Ceylon Constitution is not the same as amendment contemplated in section 29(4) of the Ceylon Constitution. In Ranasinghe case the Judicial Committee referred to the social compact. The compact is this. The inhabitants of Ceylon accepted the Ceylon Constitution on the footing that the various rights conferred, liabilities imposed and duties prescribed under the law cannot be altered in the ordinary course of legislation by a bare majority. But if all these were to be changed then such a change could only be made under the strongest safeguard of the amending process which in the case of Ceylon was not less

KESAVANANDA fl. KERALA (Ray, J.) 381

than two-third of the absolute membership. These rights arc the solemn compact. These valuable rights are conferred on the people.

Under ordinary law by ordinary majority they cannot be taken away.

The absence of an express provision in section 29(4) of the Ceylon Constitution that an amendment of the Gmstitution in contravention of the terms of that sub-section shall be void need not support the conclusion that such an amendment was valid. Section 29(1) of the Ceylon Constitution is expressed to be "subject to the provisions of

this Order" and any power under section 29(4) is expressly subject to the proviso there. The Privy Council held that the opening words of section 29 introduced into the Constitution of Ceylon the necessarily implied doctrine of ultra virefi The proposition will apply directly to the same opening words of our Article 245. The Privy Council accepted the distinction made in McCawlay case between controlled and uncontrolled Constitutions by emphasising the observation in McCawley case with reference to section 9 of the Queensland Constitution.

The description of section 29(2) of the Ceylon Constitution as an entrenched provision means that it can be amended bun only by special procedure in section 29(4). That is the meaning of the word "entrenched". This meaning alone is consistent with the clear language of the amending power and also with the decision. Section J:l( 4) docs not limit the sovereignty of the Ceylon legislature because the legislature can always pass the amendment after getting tw<>-thirds majority and the certificate.

C'..ounsel for the respondent in Ranasinghe case stated that there was no limitation except the procedure and even that limitation could be removed by amendment complying with sub-section ( 4). The Privy Council affirmed that position. There is nothing to prevent by appropriate amendment a deletion of section 29( 4) of the Ceylon Constitution which would then empower Parliament to achieve the power to amend by an ordinary majority. Section 29(1) is not legislative power alone but a composite power when read along with section 29( 4) in the context of the Ceylon Constitution. It includes both legislative and constituent power. Sub-sections ,(2) and (3) of section 29 ace not. the grant of power but limitation on power. Its terms show that limitation is at any rate on the legislative power of enacting laws contrary to sub-sections (2) and

(3) , of sectibn 29. If section 29(1) is a composite legislative and constituent power and sub-section (2) and (3) arc a restraint on legislative power the constituent power under sub-section ( 4) remains unaffected. The seqni

ter is that section 29( 4) is consisrcnt ooly with the view that so far as amendment of sub-sections (2) and (3) is concerned amendment is permited and there is no limitation on constituent power under section 29( 4). The Privy Council took the widest view of the amending power. In fact the narrower view was not argued.

2S-36 S. C. India/73

382 SuPUME COUllT Jll!POllTS [ 1973] Supp. s.c.ll.

Our Constitution in Article 13(2) by its express declaration with reference to law and the State widely defined has no higher dlicacy in rendering a law in contravention of its terms void than the opening words of Article 245 have in rendering a Jaw void in contravention of term mentioned therein. Therefore, in treating Article 13(2) as having that effect in regard to constitutional amendment the majority judgment in Golak Nath case was inept. In rejecting the distinction between legislative and constitutent powers the leading majority view in Gola!( Nath case was induced by the absence of the use of the labels but the same concept.- were clearly indicated by the Privy Council by wholly describing the characteristic features of legislative and constituent powers.

If Article 368 had begun with a non-0bstantc clause it could not have been said that amendment under Arti<:le 368 would be law within the meaning of Article 13(2). The Attorney General rightly said that there is no non-0bstante clause in Arti<:le 368 because of the quality of amending power and because the amending power is a constituent power and not ordinary legislative power. This is the position of the amending clause in a written Constitution. When the power under Article 368 is exercised Parliament acts as a recreation of Constituent Assembly. Therefore, such power cannot be restricted by or widened by any other provi.<ion. As soon as an amendment is made it becomes a part of the Constitution. An amendment prevails over the Article or Articles amended. The fact that Article 368 confers constitutent powers is apparent from the special conditions prescribed in the Article. Those conditions are different from ordinary Jaw making process. Article 368 puts restraints on the ordinary law making process and thus confers constituent power. The Constituent Assembly was fully aware that if any limitation was to be put on the amending power the limitati<Jn would have to be expressly provided foi.- Arti<; Je 305 ., f the Draft Constitution provided reservation of seats for certain sections of people in the legislature for 10 years. This reservation was not accepted by the Constituent Assembly. This shows that if the Drafting Committee or the Constituent Assembly wanted to exclude fundamenal rights from the operation of Article 368 corresponding to Article 304 jn the Draft Constitution they could have expressly done so. .

In Ghulam Sarwar v. Union of India (1967 2 S.C.R. 271 it was $aid there was a distinction between deprivation of fundamental rights by force of a constitutional provision itself and such deprivation by an order made by President in exercise of a power conferred on him under constitutional provision. The dissenting view in Ghulam Sarwar case was that an order of the President was not a law within the meaning of Article 13(2). In Mohd. Yakub v. State of fammu & Kashmir (1968) .2 S.C.R. 227 the majority view of the Constitution Bench was that an

KESAVANANDA V, KERALA (Ray, J.) 3&3

order of clie President under Article 359 was not Jaw within the meaning of Article 13(2). There is no distinction between Article 358 nd Article 359(1). Article 358 by its own force suspends the fundamental rights guaranteed by Article 19. Article 359(1) on the other hand does not suspend any fundamental rights of its own force but it gives force to order by tbe President declaring suspension of tbe enforcement of any fundamental right during the period of emergency. In Mohd.

Y akub case it was said that it could not mean tha.t an order under Article 359(1) suspending the enforcement of a particular fundamental right had still to be tested under the vary fundamental right which it suspended. Mohd. Yakttb case establishes that tbe expression "law" in Article 13(2) is not all embracing in spite of the exclusive definition of law in Article 13(3) (a).

The word "law" appears in various Articles of our Constitution but not in Article 368. The reason is that the power under Article 368 is not a power to make ordinary laws under the Constitution but is the constituent power. There could be no law within tbe meMing of Article 13(2) at any stage before the amendment became a part of the Constitution under Article 368. There is no hiatus between an amendment being a law and thereafter a part of tbe Constitution. Immediate ly upon the passage of the Bill for tbe amendment the Constitution stands amended.

The historical background of Article 13(2) throws some light on the question as to whether Article 13(2) prevails over Article 368. On

17 March, 1947 tbe Constitutional Advisor Sir B. N. Rau had addressed a letter to the members of Central and Provincial legislatures. A questio1U1aire was annexed to that letter. Question No. 27 was "What provisions should be made regarding amendments to the Constitution". A note was appended to that question which will be found in Shiva Rao Framing of India's Constitution referred to as Shiva Rao Vol. II pp. 44~451. The methods of amendment of Constitution in the United Kingdom, Canada, Australia, United States of America, Switzerland and Ireland were elucidated in that note. The note also drew attention that the fact that in various Constitution express limitations were put on amending certain provisions of tbe Constitution. The portion of the note relating to the Constitution of Australia indicated such limitations.

The draft report of the sub-Committee on fundamental rights dated 3 April 1947 contained an annexure which dealt with fundamental rights. See Shiva Rao Vol. II p. 137 seq. Clause 2 of the annexure was as follows :

"Any law or usage in force within tbe territories of the Union immediately before the commencement of this Constitution and anv law which may hereafter be made by the State inconsistent witb

384 SUPREME COURT REPORTS (1973] Supp. S.C.R.

the provisions of this Chapter/Constitution shall be void to the extent of such inconsistency".

The Constitutional Adviser suggested that the word "Constitution" was preferable to the word "chapter" because the entire Constitution was to prevail over law.

On 23 April, 1947 the Advisory Committee on Fundamental Rights presented an interim repon addressed to the President of the Con. f'tituent Assembly containing an a.nnexure providing for justiciable fundamental rights. See Shiva Rao Vol. II pp. 294-296 seq. Clause 2 of the Annexure to that repon was as follows :

"All existing laws, notification, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this pan of the Constitution shall stand abrogated to the extent of such inconsistency nor shall the Union or any unit may make any law taking away or abridging any such right".

Clause 2 of the annexure to the interim report was discussed in the Constituent Assembly on 29 April, 1947. Shri K. Santhanam moved an amendment to clause 2. The amendment was as follows : In clause 2 for the words "nor shall the Union or any unit make any law taking away or abridging any such right" the following be substituted: "Nor shall any such right be taken away or abridged except by an amendment of the Constitution". The amendment was accepted as will appear in Constituent Assembly Debates Vol. III p. 416.

In October, 1947 the Draft Constitution was prepared by the Constitutional Advi:SOr. Clause 9(2) of the said Draft Constitution which later on corresponded to Anicle 13(2) of our Constitution was as follows:

"Nothing in this Constitution s)lall be taken to empower the State to make any Jaw which cunails or taking away any of the right~ conferred by Chapter II of this Pan except by way of amendment of this Constitution under section 232 and any law made in contravention of this sub-section shall, to die extent of the Contravention, be void''.

It will be seen that clause 9(2) in the Draft Constitution included the qualification "except by way of amendment of the Constitution under 6C(:tion 232". Clause 232 in the Draft Constitution prepared by the Constitutional Advisor became Article 304 in the Constitution prepared by the Drafting Committee and eventually became Article 368 of our Constitution. In Shiva Rao, Vol. III p. 325 it appears that the Drafting Committee on 30 October, 1947 at a meeting gave a note

KESAVANANDA V. KERALA (Ray, J.) 385

forming the minutes of that meeting that clause 9(2) should be revised as follows :-

"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 sub.section shall, to the extent of the contravention, be void".

No reason is recorded in these minutes as to why the resolution adopted by the Constit!Uent Assembly by passing Shri Santhanam's amendment was disregarded. No indication was given in the forwarding letter of Dr. Ambcdkar in the Note appended thereto as to why the amendment of Shri Santhanarn which had been accepted by the Constituent Assembly was deleted. Nor docs the Draft Constitutron indicate either by sidelines or in any other manner that the decision of the Constituent Assembly had been disregarded.

This history of the formation and framing of Article 13(2) shows that the intention of the Constitutent Assembly was that Article 13(2) does not control the Article relating to the amending of the Constitution. It must be assumed that the Drafting' Committee consisting of eminent men considered that an expres.< exclusion of the amending Article from the operation of the clause corresponding to Article 13(2) was u=cssary and the fear that that Article would cover the amending Article was groundless. It also appears that no discussion took place after the Draft Constitution had been presdlted to the Constituent Assembly by Dr. Ambcdkar o~ the deletion or disregard of Shri Santha nam's amendment. The history of Article 13(2) shows that the Constituent Assembly clearly found that it did not apply to an amendment of the Constitution.

The distinction between constitutent and legislative power in a written Constitution is of enormous magnitude. No provision of the C..onstitution can be declared void because the Constitution is the touchstone of validity. There is no touchstone of validity outside the Constitution. Every provision in a controlled Constitution is essential or So thbught by the frers because of the protection of being amendable only in accordance with the Constitution. Every Article has that protection. The histnrical background of Article 13(2) indicates that the Constitution-makers dealt separately with legislative power by providing for the same in Part XI and entrusted the constituent power to authoritic$ mentioned in Article 368 and that authority has the same power as the Constituent Assembly because it has not put any fetter upon it. The draft Article 305 which provided for a limitation as to time for amendment of certain matters was eventually dted. If the framers of the Constitution wanted to forbid something they .would say so.

386 SUPREME COURT llEPOllTS [ 1973] Supp. s.c.a.

The vitality of the constituenr power not only indicates that the Constitution is in the words of Maitland the suprema potestas but also the fact that the amending power is put in a separate Article and Part of the Constitution establishing that it deals with a topic other than legislative power and the power is meant to be exhaustive leaving nothing uncovered. The vary fact that amending power is not put in any legislative power or is not attached to a subject which is the subject matter of legislative power leaving aside the four sets of provisions, namely, Articles 4, 169, paragraph 7 Schedule 5 and paragraph 21 Schedule 6 containing specific power of amendmenr shows that that amending power was meant to be exhaustive and plenary. If a power of amendment without any express limitation was given it was because a legal constitutional way of bringing a change in the Constitution was desirable or necessary. Otherwise there would be no legal way of effecting the change, It cannot be attributed to the framers of the Constitution that they intended thar the Constitution or any part of it could be changed by unconstitutional or illegal methods.

If an amendment of the Constitution is made subject to Article 13

(2) the necessary conclusion then is that no amendment of the Constit11tion is possjble. The opening words of Article 245 which deals with legislative power indicate that any law made under Article 246(1) read with List I of the Seventh Schedule is subject to the limitations on legislative power imposed by all the Articles in the Constitution. These limitations cannot be altered or amended in exercise of legislative power, if the power of amendment is ..aid to be located in the Residuary Entry 97 in List I. The history of residuary power in the Government of India Act, 1935 whose scheme was adopted in the Constitution shows that the topic of amendment was not only present to the mind of the Constitutent Assembly but also that the Constituent power could not reside in the residuary power.

I The conclu.ions on the question as to whether Article 13(2) overrides Articles 368 are these. Article 13(2) relates to laws under the Constitution. Laws under the Constitution arc governed by Article 13 (2). Article 368 relates to power and procedure of amendment of the Constitution. Upon amendment of the Constitution the Constitution shall stand amended. The Constitution is self validating and self cxo. cuting. Article 13(2) does not override Article 368. Article 13(2) is not a fundamental right. The Constitution is the touchstone. The constituent power is sui generis. The majority view in Gola!{ Nath case that Article 13(2) prevails over Article 368 was on the basis that there was no distinction between constituent and legislative power and. an amendment of the Constitution was law and that such law attracted the opening words of Article 245 which in its turn atiractcd the provisions of Article 13(2). Parliament took notice of the two conflicting

KESAVANANDA ti, KEllALA (Ray, J.) 387

view$ which had been taken of the unamended Article 368, took notice of the fact that the preponderating judicial opinion, namely, the decisions in Shankari Prasad case Saiian Singh case and the minority views of live learned Judges in Golak Nath case were in favour of the view that Article 368 contained the power of amendment and that power was the constituent power belonging to Parliament. Wanchoo, J~ rightly said in Golak Nath case that the power under Article 368 is a constituent power to change_ the fundamental law, that is to say, the Constitution and is distinct from ord.inary legislative power. So long as this distinction is kept in mind Parliament will have 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. This view of W anchOO, J. was adopted by Parliament in the Constitution 24th Amendment Act which made explicit that under Article 368 Parliament has the constituent power to amend this Constitution.

In order to appreciate and assess Mr. Palkhivala's other contention of implied and inherent limitations on the amending power, it is necessary to find out the necessity and importance of die amending power to arrive at the true meaning of the expression "amendment".

Mr. Palkhivala made these submi.s.<ions. The word "amendment" mea;1s on the one hand not the power to alter or destroy the essential features and on the other there are inherent and implied limitations on the power of amendment. It is imperative to consider the consequences of the plea of limited power and also of the pica of limitless power.

The test of the true width of a power is not how probable it is that it may be exercised, but what can possibly be Jone under it. The hope and expectation that it will never be used is not relevant. Reliance is placed on the observations in Maxwell on the Interpretation of Statutes, 12th Ed. (1969) pp. 103-106 that it is important to consider the effect• or consequences which would result from it, for they often point out the real mean.ing of the words, before adopting any proposed construction of a passage susceptible of more than one meaning. The reasonablcncis of the consequences which follow from a particular construction on the one hand and the unreasonable result on the other are the two alternatives in the quest for the true intention of Parliament. Crawford Construction uf Statutes (1940 Ed.) pp. 286-290 was referred to for the proposition that where the statute is ambiguous or susceptible to more than one meaning, the construction which tends t'I make the statute unreasonable should be avoided. Uncertainty, friction or confusion on a construction is to be avoided becall,!C preference is to be given to the smooth working of the statute. The Court adopts which is jmt

reasonable and sensible rather than that which is none of these things.

388 SUPREM!. COURT REPORTS [1973] Supp. s.c.R.

It is not to be presumed that the legWarure intended the legislation to produce inequitable results. Usurpation of power contrary to the Constitution is to be avoided,

Reliance was placed by Mr. Palkbivala on American Jurisprudenc~ 2d. Vol 16 Article 59 at pp. 231-232, Article 72 at p. 251, Article 287 at pp. 270-71 and Article 88 at pp. 273-74 in support of these propositions.

First, questions of constitutional construction are in the main governed by thc same general principles which control in ascertaining the me'dning of all written instruments particularly statutes. External aids or arbitrary rules applied to the construction of a Constitution are of uncertain value and should be used with hesitation and circumspection.

Second, Constitutions are general and many of the essentials with which Constitutions treat are impliedly controlled or dealt with by them and implication plays a very important part in constitutional construction.

What is implied is as much a part of the instrument as what is expressed. Third, a Court may look to the history of the times and examine the state of things existing when the Constitution was framed and adopted. The Court should look to the nature and object of the particular powers, duties and rights in question with all the light and aid&

of the contemporary history. Fourth, proceedings of conventions and debates are of limited value as explaining doubtful phrases. Similarly, the opinions of the individual members are seldom considered as of material value.

Mr. Palkhivala said that the word "amend" may have three meanings. First, it may mean to improve or bettJcr to remove an error, the quality of improvement being considered from the stand point of the basic philosophy underlying the Constitution. Second, it may mean to

make changes which may not fall within the first meaning but which do not alter or destroy any of the basic essential or any of the essential fcarures of the Constition. Third, it may mean to make any changes in the Constitution including changes falling outside the second meaning. The first meaning was preferred: The second was said to be a possible construction. The third was ruled out.

The crux of the matter is the meaning of the word "amendment" The Oxford Dictionary meaning of the word is 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 Oxford Dictionary meanings are also alteration of a bill before Parliament; a clause, paragraph, or words proposed to be substituted for others, or to be inserted in a bill (the 'result of the adoption of which may even be to dcfeam the measure). In Words and Phrases Permanent Edition, Volume 3 the meaning of the word "amend" and "amendment" arc change or alteration. Amendment involves an alteration or

if""• ,...,_

' '

Kl!SAVANANDA V. Kl!llALA (Ray, J.) 389

change, as by addition, taking away or modification. A broad defirution of the word "amendment" ; vill include any alteration or change.

The word "amendment" when used in connection with the Constitution may refer to the addition of a provision on a new independent subject, complete in itself and wholly disconnected from other provisions, or to some pai:ticular article or clause, and is then used to indi- an addition to, the striking out, or some change in that particular article or clause.

The contention that the word "amendment" iq Article 368 should bear a limited meaning in view of the expressioo "amend by way of addition, variation or repeal any of the provisions of this Schedule" occurring i.n paragraphs 7 and 21 in Schedules 5 and 6, is unsound for the following reasons.

First, the power of amendment conferred by the four pravisions, namely, Article 4 read with Articles 2 and 3, Artie! ! 169, paragraphs 7 and 21 in Schedules 5 and 6 is a limited power. It is limil:ed to specific subjects. The exercise of the power of amendment under those four

provisions, if treated by Articles themselves,. is an uncontrolled power since the power can be exercised by an ordinary law. But as a part of the Constitution the power is a subordinate power because these Articles themselves are subject to the amending provisions of Article 368.

Article 368 is the only provision of the Constitution which provides for the amendment of this Constitution which means the Constitution of India and every part hereto. It may be mentioned that in construing Article 368 the title of the part "Amendment of the Constitution" is an important aid to construction. The marginal note which speaks of the procedure of amendment is not complete by itself because the procedure when followed results in the product, namely, an amendment of the Constitution which is not only a matter of procedure.

Second, these four provisions which are in the same terms, namcl y, "no such law shall be deemed to be an amendment of this Constitution

for the purpose of Article 368" show that but for these terms the ; amendment would have fallen within Article 368 and was being taken out of it. This is an important consideration particularly in connection with Schedules 5 and 6 which provide that Parliament may, from time to time by law, amend by way of addition, variation or repeal my of the provisions of this Schedule. These provisions show that an amendment by way of addition, variation or repeal will also fall within the amendment of the Constitution provided for in Article 368 but is being taken out of Article 368. This express exclusion contains intrinsic evidence that the meaning of the word "amendment" in Article 368 includes amendment by way of addition, alteration or repeal.

390 SUPREME COURT REPORTS (1973] Supp. S.C.R.

Third, paragraphs 7 and 21 in Schedules 5 and 6 which provide that Parliament may from time to time by law, amend by way of addition, variation or repeal indicate the necessity of amendments from time to time. The expression "by way of" does not enlarge the meaning of the word "amendment" but clarifies. The expression "by way of" shows that the words addition, variation or repeal are substitutes of the word "amendment" and are forms of intention. The whole Schedule cannot be repealed either by paragraph 7 or by paragraph 21, because Article 244 provides for the administration of Scheduled Areas and tribal areas on the applica, tion of the two respective Schedules. The words "from time to time" also indicate that because of subject matter amendments may be from time to time. The history behind the two Schedules originates in section 91 and 92 of the Government of India Act. 1935 dealing with excluded areas and partially excluded areas.

Fourth, reference was made to section 9(1)(c) of the India Jn. dependence Act 1947 which empowered the Governor General to make omissions from, additions to and adaptations and modification to the Government of India Act, 1935. The Government of India Third Amendment Act 1949 amended section 291 of the 1935 Act and empowered the Governor General to make such amendments as he con- $iders necessary whether by way of addition, modification or repeal. It was, therefore, said that when our Constitution did not use the cxpressicm "by way of addition, modification or repeal" the word "amendment" in Article 368 will have a narrower meaning. The expression "amendment" has been used in several Articles of the Constitution.

Thcie are Articles 4(1) and (2), 108(4), 109(3), and 4, 111, 114(2), 169(2), 196(2), 198(3) and (4), 200, 201, 204(2), 207(1), (2), 240(2),

274(1), 304(b) and 349. In every case amendment is to be by way of variation, addition or rqpeal. Again, different expression have been used .in other Articles. In Article 35(b) the words ate alter, repeal. In Article 243(1) the words are repeal or amend. In Article 252(2), the expression is amend or repeal. In Article 254(2) proviso the words are add to, amending, variation or repeal. In Article 320(4) the words are such modifications whether by way of repeal or amendment. In Article 372(1) the words are altered or repealed or amended. In Article m

(2) the words are such adaptations and modifications by way of repeal or amendment. In Article 392(1) the expression is such adaptations by way of modifica6on, addition or commission. Again, in Article 241(2) the words are modification or exceptions. In Article 364 the words used are exceptions or modifications. In Article 370(l)(d) and (3) the words arc modifications and exceptions. Again, in Schedule 5 para.. graph 5(1) and Schedule 6 paragraphs 12(a), (b), 19(l)(a) the words used are exceptions or modifications. Modifications in Article 370(1)>

(d) must be given.the widest meaning in the context of a Constitution

K.ESAVANANDA V. K.ERALA (Ray, J.) 391

and in that sense it includes an amendment and it cannot be limited to such modifications as do not make any radical transformation.

The several Constitution Amendment Acts show that amendments to the Constitution arc made by way of addition, substitution, repeal.

The Attorney General is right in his submission that the expression "amendment of this Constitution" has a clear substantive meaning in the context of a written Constitution and it means that any part of the Constitution can be amended by changing the same either by variation, addition of repeal. ·

The words "Amendment of this Constitution may be initiated" and the words "Constitution shall stand amended in accordance with the terms of the Bill" in Article 368 indicate that the word "amendment" is used in an unambiguous and clear manner. The Attorney General said that our Constitution is not the first nor is the last one to

u:>'!! the word "amendment". The American Constitution in 1787 used. the word "amend". Several Constitutions of other countries have used the word "amend". The word "amend" is used in a Constitution to mean any kind of change. In some Constitutions the words alteration or revision have been used in place of the word amend or along with the word amendment. Some times alteration and revision of the Constitution arc also spoken of as amendment of the Constitution.

Constitutional provisions are presumed to have been carefully and deliberately framed. The words alterations or amendments, the words amendments or revisions, the words revision and alteration arc used together to indicate that these words have the same meaning in relation to amendment and change in Constitution.

The qieaning and scope of amending power is in the object and necessity for amendment in a written. Constitution. •.

The various amendments which have already been carried out to our Constitution indicate that provisions have been added, or varied or substituted. The Attorney General gave two correct reasons for ' the object and necessity of the power of amendment in a written Constitution. First, the object and necessity of amendment in a written Constitution means that the necessity is for changing the Constitution in an orderly manner, for otherwise the Constitution can be changed only by an extra constitutional method or by revolution, Second, the very object of amendment is to make changes in the fundamental law or organic law to make fundamental changes in the Constitution, to change the fundamental or the basic principles in the Constitution. Otherwise

there will be no necessity to give that importance to the high amending power to avoid revolution.

392 SUPREME COURT REPORTS [ 1973] Supp. S.C.R.

1he object of amendment is to see that the Constitution is prescrv ed. Rebellion or revolution is an illegal channel of giving expression to change. The "con.sent of the governed" is that each generation has a right to establish its own law. Conditions change. Men Change, Opportunities for corresponding change in political institutions and principles of Government therefore arise. An unamendable Constitution was the French Constitution which by an amendment to the Constitution adopted in 1884 declared that the National Assembly shall never entertain a proposal for abolition of the republican form of Government. The United States Constituti!)ll provided that no amendment could be made prior to 1808 affecting the First and Fourth Clauses of

section 9 of Article 1 relative to .the prohibition of the importation of slaves, and that no State without its consent shall be deprived of equal suffrage in the Senate. These are examples of limiting the sovereign power of the people to change the Constitution.

An unarnendable Constitution is said to be the worst tyranny of time. Jefferson said in 1789 that each generation has a right to determine a law under which it Lives. The eartlh belongs in usufruct to the living; the dead have neither powers nor.rights over it. The machinery of amendment -is like a safety valve. Ir should nor be used with tbo great faciliry nor should be too difficult. That will explode and erode the Constitution.

Most Constitutions are rigid in .the sense that they are amendable only by a different process than t!hat by which ordinary laws may be 'lltered. Thus they distinguish cl.early between the constituent power :and the legislative power, each being exercble by different organs according to different processes. Chief Justice Marshall said that the -0pponents of change want changes just as much as any one else. They want however to determine what the 'changes shall be.

Amendment is a form of growth of the Constitution inasmuch_ as amendment means fundamental changes. The Constitution devises special organs or special methods to amend or change the fundamental principles thar cre,,.te the Government. The methods of amendment may be by ordfuary law making body as in Great Britain or by the ordinary law making body with special procedure or. unusual majority or loy special organs of government created for the purpose such as constitutional convention or by the electorate in the form af referendum or cof initiating a referendum. In case a written Constitution makes no provision for amendment it is usuallyheld that the national law making body by ordinary procedure may amend the Constitution. If a Constitution provides the method of amendment that method alone is legal. Any other method of amendment would be a revolution. The

KESAVANANDA ti. KJ!RALA (Ray, J.) 393.

deliberative and restrictive processes and procedure ensure a change in the Constitution in an orderly fashion in order ro give the expression to social necessity and to give permanence to the Constitution.

The people expressed in the Preamble to our Constitution gave the Constitution including the power o amend the Constitution to the bodies mentioned in Article 368. These bodies represent the people.

The method to amend any part of the Constitution as provided for in Article 368 must be followed. Any other method as for example convening Constituent Assembly -or Referendum will be extra constitutional or revolutionary. In our Constitution Article 368 restricts only rhe procedure or the manner and form required for amendment J:me not the kind or the character of the amendment that may be made. There are no implied limitations to the amending powet_ The Attorney General summed up pithily that tho Constitution Acts not only for the people but on the people.

The Attorney General relied on several American decisions in support of these propositions. First, the word "amendment" does not mean improvement. The view in Livermore v. Waite 102 Cal. 118 of a single learned Judge that amendment means improvement was not accepted in Edwards v Lesseur South Western Reporter Vol. 33, p. 1130.

Second, ratification by people of States would be void when a federal amendment proposed by Congress is required to be ratified by the legislatures of the States. Ex-pa.rte Dillon Federal Reporter No. 262 p. 563.

The legi<lature is a mere agency for ratification of a praposed amendment. Ex-parte Dillon did not accept the view of the learned single

Judges in Livermore v Waite that amendment means only improvement. Third, the argument that the word "amendment" carries its own Jimitatioll5 regarding fundamental principles or power of State or control of the conduct of the individuals by devising a method .of referendum by State legislatures is adding a new method of amendment. This is not permissible. Feigenspan v Bodine 264 Federal Reporter 186. The only method of amendment is that prescribed by the Constitution. The theory of referendum by State legislatures is not valid. Fourth, the assumption that ratification by State legislatures will voice the will of the people is against the prescribed method of amendment and grant of a, uthority by the people to Congress in the manner laid down in Article V of the American Constitution. It is not the function of Courts or legislative bodies to alter the method which the Constitu.tion has fixed. Ratification is not an act of legislation. fo derives its authe>- rity from the Constitution. Hawke v Smith 253 U.S. 221; Dillon Y

Gloss 256 U.S. 358, Leser v Garnett 258 U.S. 130. Fiftli, the powet of amendment extends to every part of the Constitution. In amending the Constitution the General Assembly acts in the character and capacity .,[ . a convention expressing the irupreme will or the sovereign poople and.

394 SUPREME COURT REroRTS [ 1973] Supp. s.c.R.

is unlimited in its power save by the Constitution. Ex-parte Mrs. D. C.

Kerby American Law Reports Annotated, Vol. 36, p. 1451. Sixth, the argument that amendments which touch rights of the people must be by convention is rejected by Supreme Court in American Article V of the American Constitution is clear in statement and meaning and contains no ambiguity. Where the intention i.'l clear there is no room for construction. Rhode Island v Palmer 253 U.S. 350; U.S. v Sprag11e 282 U.S. 716. Seventh, principles of the Constitution can be changed under Article V Schneiderman v United States of America 320 U.S. "

118. Eight, the Constitution provides the method of alteration. While the procedure for amending the Constitution is restricted here is no restraint on the kind of amendment that may be made. W hiteh11ll v Elkins 389 U.S. 54.

Except for special methods of amendment in a rigid or controlled Cowtimtion although the methods may vary in different Constitutions and except for express limitations, if any, in rigid or controlled Constitutions, the meaning and scope of the amending power is the same in both the flexible and rigid forms.

The flexible Constirution is one under which every law of every description can be legally changed with the same case and in the same manner by one and the same body. Laws in a flexible Constitution .are called constitutional because they refer to subjects supposed to affect

the fundamenal inst.1'tutions of the State, and not because they are legally more sacred or difficult to change than other laws.

A rigid Constitution is one under which certain laws gencrally known as cowtitutional or fundamental laws cannot be changed in the same manner as ordinary laws. The rigidity of the Constitution consists in the absence of any right of the legislatures when acting iii its ordinary capacity to modify or repeal definite laws termed constitu- J:ional or fundan1ental. In a rigid Constitution the term "Constitution"

means a particular enactment belongi]Jg to the Articles of the Constitution which cannot be legally changed with the same ease and in the same manner as ordinary laws.

The special machinery for constitutional. amendment is the limitation of the power of the legislature by greater law than by the !aw of the ordinary legislation. The Constituent Assembly knowing that it will disperse and leave the actual business of legislation to another bodv, attempts to bring into the Constitution that it proulgates as many guides to future action as possible. 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. There may be some elements of the Constitution which the constituent assembly wants

KESAVANANDA ti. KERALA (Ray, J.) 395

to remain unalterable. These elements are to be distinguished from the rest. The Fifth Clause in the United States Constitution is that no State without its own consent shall be deprived of its equal suffrage in the Senate. The Attorney General rightly said that just as there are no implied limitation in flexible Constitutions similarly there are no implied limitations in a rigid Constitunion. The difference is only in the method of amendment. Amendment can be made by ordinary legislature under certain restrictions, or by people through referendum or by majority of all the units of a federal State or by a special convention.

In a rigid Constitution the legislatures by reason of their well matured long end deliberate!iy formed opinion represent the will of the undoubted majority. But even such will can be thwarted in the amendment of the organic law by the will of the minority. In ase where the requisite majority is not obtained by the minority thwarting an amend- )nent, there is just as much danger to the State from ; evolution and violence as there is from what is said to be the caprice of the majority.

The safeguards against radical changcy thus represent a better way alld a natural way of securing deliberation, maturity and clear consciousness of purpose without antagonising the actual source of power in the democratic state.

The term "amendment" connotes a definite and formal process of constitutional change. The force of tradition and custom and the judicial interpretation may all affect the organic structure of the State. These processes of change are the evolution of Constitution.

The background in which Article 368 was enacted by the Constituent Assembly has an important aspect on the meaning and scope of the power of amendment.

On 12 November, 1946 Sir B. N. Rau Constitutional Adviser prepared a brochure containing Coruititution of the British Commonwealth Countries and the Constitutions of other countries. Different countries having different modes of amendments were referred to. In the same volume the fundamental rights under 13 heads were extracted from 13 selected countries like U.S.A., Switzerland, Germany, Russia, Ireland, Canada, Australia. Two features follow from that list. First, there is no absolute standard as to what .constitutes fundamental right. There is no such thing as agreed fundamental rights of the world. Second, fundamental. rights which are accepted in our Constitution are not superior to fundamental rights in other Constitutions nor can it be said that the fundamental rights are superior to Directive Principles in our Constitution.

On 17 March, 1947 a questionnaire was circulated under the subject as to what provisions should be made regarding the amendment of ..he Constitution. The draft clause of amendment to the Constitution

396 SUPREME COURT REPORTS [1973] Supp. S.C.R.

prepared by the Constitutional Adviser at that time indicates that an amendment may be initiated in either House of the Union Parliament and when the proposed amendment is passed in each House by a majority of not less than two thirds of the total number of members of that House and is ratified by the legislatures of not less than two thirds of the units of the Union, excluding the Chief Commissioners' Provinces, it sha11 be presented to the President for his assent; and upon such assent being given the amendment shall come into operation. There were two explanations to that clause.

On 29 April, 1947 Shri Santhanam' s amendment to the draft clause was accepted. The amendment was "that this clause also if necessary may be amended in the same way as any other clause in the Constitution". In June, 1947 the drafting of the amending cla= started.

Originally it was numbered 232. Eventually, Articles 304 and 305 came into existence in place of draft Article 232. The first draft of the amendment clause was given by Sir B. N. Rau in March, 1947. By June, 1947 and thereafter he recommended the procedure favoured by Sir Alladt Krishnaswami Ayyar and Sir Gopalswamt Ayyangar, namely, passage by two thirds majority in Parliament and ratification by like majority of Provincial legislatures. On .21 February, 1948 the draft Constitution w311 ready. Draft Articles 304 and 305 related to amendment. Article 305 provided for reservation of seats.for minorities for ten years unless continued in operation by an amendment of the Constitution.

The following features emerge. First, the Constituent Assembly made no distinction between essential and non, essential features.

Secondly, no one in the Constituent Assembly said that fundamental

righ1"1 could not be amended. The framers of the Constitution did not have any debate on that. Thirdly, even in the First Constitution Amendment debate no one doubted change or amendment of fundamental rights. At no stage it appeared that fundamental rights are absolute. While a Constitution should be made sound and basic i~ should be flexible and for a period it should be possibae to make necessary changes with relative facility.

Certain amendments to Article 304 were proposed. One proposed amendment No. 118 was that amendment was 1X> be passed in two Houses by a clear majority of the total membership of each House.

Another proposed amendment No. 210 was that for a period of three years from the commencement of the Constitution, any amendment certified by the President to be not one of substance might be made by a simple majority. This also stated that it would include any formal amendment recommended by a majority of the Judges of the Supreme Court on the ground of removing difficulties in the administration of the Constitution or for the plll'pOl'ilC of carrying out the Constitution in

KESAVANANDA V. KERALA (Ray, J.) 397

public interest. The third proposed amendment No. 212 was that no amendment which is calculated to infringe or restrict or diminish the scope of any individual rights, any rights of a person or persons with respect to propertv or otherwise, shall be permissible and any amendment which is or is Ekely to have such an effect sholl be wid and ultra

vires of any legislature. It is noteworthy that this amendment was withdrawn. See Constituent Assembly Debates Vol. IX p. 1665.

In the first category the framers devised amendment by Parliament by .a simple majority. These are Articles 2 and 4 which deal with States.

As far as creation or re-constitution of States is concerned, it is left to Parliament to achieve that by a simple majority. Again, draft Article 148A which eventually became Article 169 dealing with Upper

Chambers in the States gave Parliament power to abolish the Upper Chambers or to create new Second Chambers. Schedules 5 and 6 were left to be amended by Parliament by simple majority. The second category of amendment requires two thirds majority. It is in that connection that the statement of Dr. Ambedkar "If the future Parliament wishes to amend any particular Article which is not mentioned in Part Ill or Article 304 all that is necessary for them is to have the two thirds majority then they can amend it" was i11\'0ked by Mr. Palkhivala to support his submission that Part III was unamendable. That is totally _ misreading the speech. The speech shows that some Articles wou1d be amendable by bare majority, others would require two thirds majority and the third category would require two thirds majority plus ratification by the States.

Proceedings in the Constituent Assembly 'how that the whole Constitution was taken in broad prospective and the amendments fell under three categories providing for simple majority, or two thirdsmajority or two thirds majority and ratification by the States. Thesediiferent procedures were laid down to avoid rigidity:

The Constitution First Amendment Act which added Article 15 (4), substituted words in Articles 19(2) and Article 19(6), inserted Article 31A indicates interesting features. The two criticisms at that time were as to what was the hurry and econdly that the Government was trying to take more power to itself. The answers are that a Constitution which is responsive to the people's will and their ideas and which can be varied here and there, will command respect and people will not fight against change. Otherwise, if people feel that it is unchangeable and cannot be touched, the only thing to be done by those who wish to change it is to try to break it. That is a dangerous thing and a bad thing.

26-36 S. G. lndia/73

398 SUPREME COURT REPORTS [J973] Supp. s.c.R.

In. this background there is no doubt about the meaning and scope of Article 368. The Attorney GeneraL rightly said that if there be any doubt contemporaneous practical exposition of the Constitution is too strong and obstinate to be shaken or controlled. In Mopherson v. Blacker 146 U.S. 1 = 36 L.Ed. 869 it is said that where plain and dear words occur there is no difficulty but where there is doubt and ambiguity contemporaneous and practical exposition is a great weight. In The Automobile Transport (Raiasthan) Ltd. v. The State of Raiasthan tr Or,.

(1%3) 1 S.C.R. 491 this Court took notice of the feature that Constitution makers had deep knowledge of Constitutions and constitutional problems of other countries.

Mr. Seervai relying on British Coal Corporation v. King (1935) A.C. 500 submitted that in interpreting a constituent or organic statute that construction most beneficial to the widest possible amplitude of powers must be adopted. A strict construction applicable tP penal or taxing Statute will be subversive of the real intention of Parliament if applied to an Act passed to ensure peace, order and good government. Largest meaning is given to the a!Iocated specific power. If there are no limitations on the wwer it is the whole power. Grant of power df amendment cannot be cut down except by express or implied limitations. The conclusion is that the meaning of the word amendment is wide and not restricted.

The contention of Mr. Palkhivala on behalf of the petitioner is that under Article 368 as it stood prior to the amendment there were implied and inherent limitations on the power of amendment. It was said that the word "amendment" would preclude the power to alter or destroy the essential features and the basic element); and the fundamental principles of the Constitution. This contenvion was amplified as follows. The Ooostitution is given by the people unto themselves. The power to decide upon amendment is given to the 5 year Parliament which is a creature of the Constitution. Article 368 does not start with the non-obstante clause. Article 368 uses the word "amendment" simpliciter. Less significant amendment powers in others parts of the Constitution use the words "add, alter, repeal or vary" in addition to the word "amendment", as will appear in Articles 31B, 25(b), 252(2), 372, 372A(2), paragraph 7 Schedule 5, paragraph 21 Schedule 6. Article 368 talks of an amendment of this Constitution and does not extend the amending power to "all or any of nhe provisions of this Constitution". On a wide construction of the word "amendment" all fundamental rights can be taken away by the requisite majority whereas much less significant matters require the concurrence of at least half the States under the proviso to that Article.

KESAVANANDA V. KEllAl.A (Ray, J.) 399

The basic human freedom are all of the most fundamental importance to all the States and all the citizens. Arlicle 32 is no less important to the citizens of States than Article 226. The Preamble is not a part or provision of the Constitution. Therefore, the Preamble cannot be a)llended under Article 368. The nature and the contents of the Preamble are such that it is incapable of being amended. If the Preamble is unalterble it necessarily follows that those features of the Constitution which are necessary to give effect 110 the Preamble are unalterable. Fundamental rights are intended tlO give effect to the Preamble. They cannot, therefore, be abridged or taken away.

The provisions of Artide 368 themselves can be amended under that very Article. If the word "amendment" is read in the widest sense Parliament will have the power to get rid of the requisite majority required by Article 368 and make any constitutional amendments possible by bare majority, Parliament <:an provide that hereafter the COnstitution shall be unamendable. Parliament can reduce India to a status which is neither sovereign nor democratic nor republic and where the basic human rights are conspicuous by their absence.

Mr. Palkhivala submits that the principle of inherent or implied limitations on power to amend the controlled Constitution stems frc-m

three basic features.

First, the ultimate legal sovereignty resides m the people. Second, Parliament is only a creature of the Constitution.

Third, power to amend the Constitution m destroy the essential features of the Constitution is an application of ultimate legal sovereignty.

Mr. Palkhivala enumerated 1:1 essential features. These were as follows : (I) The supremacy of the Constitution. (2) The sovereignty of India. (3) The integrity of the country. (4) The democratic way of life.

(5) The republican form of Government. (6) The guarantee of basic human right:s elaborated in Part III of the Constitution.

(7) A secular State. (8) A free and independent judiciary. (9) The dual structure of the Union and the States.

(10) The balance between the legislature. the executive and the judiciary. (11) a Parliamentary form of Government as distmct from the presidential form of Government. ( 12) Article 368 can be amended but cannot be amended to empower Parliament to alter or destroy any of the essential features of the Constitution, make tlhe Constitution literally or practically unamendable, make it generally amendable by a bare majority in Parliament, confer the power of amendment either expres- . sly or in effect on the State Legislatures , and delete the proviso and deprive the States of the power of ratification which is today available to them in certain broad area1.

4(J( SUPREME COURT REPORTS [19731 Supp. S.C.R.

T'ie GJnstitution 24th A .nendment Act was impeached by Mr.

Palkhivala un three grounds. First by substituting the words ·•amenJ by way of addition, variaticn 01 repeal" in place of the word "amendment" in Article 368 the power was widened. Second, the 24th Amendment made explicit that when Parliament makes a constitutional amendment under Article 368 it acts in exercise of constituent power.

T!urd, it had provided by amendment in Articles 13 and 368 that the power in Article 13(2) agamst abridging or taking away af the fundamental rights shall not apply to any amendment u:ider A acle 36S.

The Constitution 24th Amendment Act is, therefore, to ]e construed as empowering Parliament to exercise full constituent power of the peoole and to vest in Parliament the ult\imate legal sovereignty of the people as authorising Parliament tci alter or destroy all or any of the essential features, basic elements and fundamental principles of the Ooinstitution. Likewise, Parliament is construed by the Constitution 24th Amendment Act to be authorised to damage or , stroy the essence of all or any of the fundamental rights. Therefore, the amendment must be illegal and invalid.

In the alternative it was submitted on behalf of the petitioner that if the Constitution 24th Amendme11t is valid it cap. be only on a reading down of the amended provisions of Article 13 and 368 which reading would preserve the angina! inherent and implied limitations.

Even after the Constitution 24th Amend"ment Act Parliament will have no power to alter or destroy the essential features of the Constitution and secondly, fundamental rights are among the essential features of the O>nstitution and, therefore, the e ; sence of any of the fun, damental rights cannot be altered or destroyed or damaged even when they are sought to be abridged.

The Attorney General stressed the background in which Article 368 was enacted by the Constituent Assembly to show tliat any li"mitation on the amending powei was never in cont:roversy. The only controversy was regarding the degree of flexibility of an amendmem of all the provisions of the Constitution. Our Constitution has adopted three methods of amendment of the Constitution. Gert, in provisions of the Constitution may be amended by a simple majority in Parliament.

Others may b~ amended by tw0-thirds majority. The third category relates to provisions where amendments must be ratified by o'lc half of the States. This scheme strikes a good balance by protecting the rights of the States while leaving the remainder c:/ the Constitutio'l easy to amend. Of the three ways of amending the Constitution tWC> are laid down m Article 368 itself and the third is provided for in about 24 other Articles.

The Constitutional Adviser incorporated in his draft Constitution prcnared by lum in October, 1947 a recommendation contained in the suppleme'ltary Report of •he Union Gonstitutien Committee.

I I I

KESAVANANDA V. KERALA (Ray, J.) 401

Following the recommendauon of the Advisory Committee he included a proviso that the provisions in the Constitution relating to the reservation of seats for the Muslims, nhe Scheduled Castes, the Scheduled Tribes, the rndian Christians and the Sikhs, either in the Federal Parliament <Yr in any Provincial Legislatu, e, should not be amended before the expiry of ten years from the commencement of the Constitution.

The Drafong Committee in Februory, 1948 considered the provi s1ons for amendme.ot. It made three n 4terial changes in the provisions made by the Constitution Adviser. First, the Committee framed a self contained and independent Art1clr regarding the reser.vation of seats in the legislatures fo.r minorities. These provisions could not be amended for a period of ten years an<l would then cease to have effect unless continued in operation by an amendment of the Constitution.

The sec,, nd proposed change gave a limited power of initiating constitutional amendments ro the State legislatures. This power related to two matters. Thece were the methods ol choosing Governors and the establishment or abolition of Legislative Councils in the States. The third amendment suggested was that chonges in any of the legislative lists (not merely federal List) should receive ratification of at least <me half of the Provincial leislatures and one third of the legislatures of Indian States.

The entire history of the power of amendment of 1he Constitution shows first that the Draft Constitution eliminates the elaborate and difficult procedures such as a decision by convention °or a reterendum. The powers of amendments are left with the legislatures of the Union and the States.

Secondly, it is only for amendments of specific matters that the ratification by the State legislatures is required.

All other Articles are left to be amended by Parliament with only limitation of majority of not less than a two-thirds of the members of each House prsent and voting and the majority of the total membership of each Bouse. Thirdly, the provisions for amendment of the Constitution were made simple and not difficult when comparison is made with the American and the Australian Constitutions.

The theory of inherent and implied limitations on the amending power is ba<ed on the assumption of a narrow and restricted meaning of the word amenciment to suggest that the basic features or the essential features and the democratic republican character of the Constitution cannot be damaged and destroyed. Emphasis is laid on the Preamble of the Constitution to suggest that inherent and implied limitations all spring from the Preamble. The .Preamble is said not

402 SUPREME COURT REpORTS [ 1973] Supp. s.c.R.

to be a part of the Constitution. The Preamble is said to be unalterable.

Therefore, it is contended that other provisions which gave effect to the Preamble cannot be amended.

Reliance is pllleed on the decision of this Court in Berubari case

(1960) 3 S.C.R. 250 in support of the proposition that the Preamble is not a part of the Constitution. The conclusion drawn is that no amendment of the Constitution inconsistent with the Preamble can be made. The Preamble is said to be an implied limitation on the power of amendment. This Court in Berubari case said that the Preamble has never been regarded as the source of any , ubstantive power, because such powers arc expressly granted in the body of the Constitution. This Court said "what is true about the powers is equally true about prohibitions and limitations". In Berubari case it was suggested that the Preamble to the Constitution postulated that like a democratic republican form of clie Government the entire territory of India was beyond the reach of Parliament and could not be affected either by ordinary legislation or even by constitutional amendment. The Preamble was invoked to cut down the power to cede territory either by ordinary law or by amendment of the Constitution. This Court said that the Preamble is, in the words of Story "a key to open the minds of the makers, but nevertheless the Preamble could not be said to postulate a limitation on one of the very important attributes of sovereignty". This Court rejected the theory that the Preamble can impose serious limitations on the essential attribute of sovereignty. The suggested limitation that the Preamble affirmed the inviolability of the territory of India so that the power of amendment should be implied limited to exclude the ceding territory, is negatived by this decision.

The petitioner's contention that the Preamble is not a part of the Constitution is nullified by the petitioner's reference ta and reliance on the Preamble as the source of all inherent limitations. The Berubari case held that Article I could be amended under Article 368 and a part of the territory of India could be ceded by such amendment. The Preamble did not limit the power to cede territory by amendment of Article I.

In the Berubari case there is an observation that the Preamble is not a part of the Constitution. The Preamble was taken up by the Constituent Assembly at the end as it had to be in conformity with the Constitution. The Preamble was debated and voted upon and the motion "The Preamble stand part of the Constitution" was adopted. Therefore, Mr. Seervai rightly contended that the Preamble is an integral part of the status. The Preamble can be repealed (See Craics on Statute 6th Ed. page 200 seq. and Halsbury Laws of England, 3rd Ed. Vol 36 p. 370).

KESA<VA'NANDA V. KERALA (Ray, J.) 403

In Gopalan case (1950) S.C.R. 88 an argument was advanced on the Preamble that the people gave themselves guaranteeing to the citizens fundamental righ11S, and, therefore, the provisions of Part III must be construed as beirig paramount to the legislative will as otherwise the fundamental rights to life and personal liberty would have no protection against legislative action. Patanjali Sastri, J., said that th¢ high purpose and spirit of the Preamble as well as the constitutional significance of a declaration of Fundamental Rights should be borne in mind. The language of the provisions, in was said there, could not be stretched in disregard of the cardinal rule of interpretation of any enactment, constitution or other, that its spirit no less than its intendment should be collected primarily from the natural meaning of the words wed. The words "procedure established by law" in Article 21 must be taken to refer to a procedure which had a statutory origin. The word "law" was said not to mean the immutable and universal principle of natural justice. The reasoning given by Patanjali Sastri, J. was "no procedure is known or can be said to have been established by such vague and uncertain concepts as the immputable and universal principles of natural justice". This Court in Gopalan case refused to read due process as an implication of the Constitution.

Jn the K<ra/a Education Bill 1957 case (1959) S.C.R. 995 Das, C.J. referred to the Preamble and said "to implement and fortify the $Upreme purpose set forth in the Preamble, Part Ill of our Constitution has provided for us certain fundamental rights". In the same case, Das, C.J. said "so long as the Constitution stands as it is and is not altered, it is inconceiveably the duty of this Court to uphold the fundamental rights and thereby honour our sacred obligation to the minority community who are of our own". This observation shows that fundamental rights can be amended and the Preamble does not stand in the way.

In Basheshar N<Jth v. The CJ.T. Delhi (1955) Supp. 1 S.C.R. 528 Bhagwati, J. referred to the Preamble i:n discussing the question -Of waiver of fundamcrual right and compared our Preamble to the Preamble ta the United, Sta'P.· Constitution;. The. Prcamhle to the. erican Constitution is without the Bill of Righu and the Bill of Blghts which bec pan of the United States Constitution substan tially altered .its ehara£r and. broadly speaking, diJfered. in no way, in principle, from our fundamental right&.

The Prcamble is properly resorted to where doubts or ambiguities arise upon the words of the enacting part. If the enacting words arc clear and unambii!JOUS, there is little room for interpretation, except the cases leading to an obvious absurdity, or IX> a direct overthrow of

404 SUPREMJ! COURT REPORTS [1973] Supp. s.c.R.

the intention expressed in the Preamble. Tills is the view of Story.

The Pr=ble can never be resorted to eplarge the powers confided to the general government. The Preanible can expound the nature, extent and application of the powers actually conferred by the Conti tution and not substantively create them.

The decision of this Court in Gopalan case, the Coal Bearing t1.reas Act case (1962) 1 S.C.R. 44, and S/Jate of Rajasthan v. Leela Jain

(1965) 1 S.C.R. 276 are that if the language of the enactment•is clear the Preamble cannot nullify or cut down the enactment. The Judicial Committee in The Secretary of State for India in Council v. Maharajah of Bobbili I.L.R.. 43 Mad. 529 8aid that the legislature may well intend that the enacting part should extend beyond the apparent ambit of the Preamble or the immediate mischief. See also Attorney General v. Prince ErneJt Augustus of Haneyar 1957 A.C. 436. The American decision in Henning /acobsan v. Commonwealth of Massachusetts 197 U.S. 11 indicates that power is not conferred by the Preamble but must be found in the Constitution.

The Preamble may be relevant in the case of an ambil!'lity in an enactment in a statute. A statute does not contain an amending power for the .simple reason that the statute can be amended under legislative power. The Attorney General tightly said that the Prear:ible in a Constitution refers to the frame of the Constitution at the time of the Preamble, and, therefore, it can possibly have no relevance to the constituent power in llhe future, when that Constitution itself can be changed. The position. would be the same so far as the Preamble is concerned whether the constituent power is exercised by the amending body provided for by the people themselves in the Constitution or by referendum if so provided for in the Constitution. The Attorney General supported his submission by relying on the views of Canaway and Wynes on the similar interpretation of section 128 of the Australian Constitution.

Canaway in the Failure of Federalism in Australia in discussing section 128 of the Australian Constitution under the heading "Alteration of the Constitution" expresses. the view that the section must be read as a substantive grant of power to alter the Constitution and that the negative form of the section pi no way de-, tracts from the amplitude of that power.

Canaway further says that it is not permissible ro refer to the Preamble in connection with the effect of section 128 and if nevertheless such reference is made there is nothing adverse to the collclusion that there is full power of amendment. The Preamble recires a preliminary agreement to unite in one indissoluble Federal Commonwealth. Section 128 of the Australian Constitution forms an integral part o£ the Constitution •.

KEOAVANANDA V. KERALA (Ray, J.) 405

As from the time o! the agreement it mt have been contemplated that the Constitution should be alterable to the full extent of power conferred by that section. Therefore, the word "alter" in section 128 of the Arntralian Constitution is not restricted by any reference to the

Preamble.

Wynes in Legislative, Executive and Judicial Powers in Australia 4th Ed. at pp. 505-506 expresses the view that apart from the rnle which excludes the Preamble generally from consideration in statutory interpretation it is clear that, when all is said and done, the Preamble at the most is only a recital of a present intention. The insertion of an express reference to an amendment in the Constitution itself is said tJo operate as a qualification upon the mere recital of the reasons for its creation.

At the second reading of the Draft Constitution in the Constituent Assembly a res0lution was adopted that the Preamble do form part of our Constitution. The Preamble is a part of the Constitution. On 26 November, 1949 certain Articles of the Constitution were brought into force.

Article 393 did come into force on 26 November, 1949.

Therefore, the Preamble did oot come into force on 26 November, 1949.

As regards general laws the position is that the Preamble has been treated as part of the statute.

Clear constitutional provisions are imperative both on the legislatures a11d the Courts. Where a constitutional provision is comprehensive in scope and leaves no oom for interpretation the Court i! without power to amend, add to or detract from a constitutional provision or to create exceptions thereof by implication (See Corpus Juris Secumdum Vol. 16 p. 65). Where rhe people express themselves in carecul od measured terms in framing the Constitution and they leave as little as possible to implications, amendments or cli.anges in the existing order or conditions cannot be left to insert; ng implications by reference to the Preamble which is an expression of the intention at the time of the framing •Of the Constitution. Therefore, the power to amend the Constitution is not restricted and controlled by the Preamble.

The contention that essential features are not amendable under Article 368 as it stood before the Constitution 24th Amendment Act is not only reading negative restrictions on the express power of amendment but is also putting the clock back. One of the salutarv principles of construction of a statute is to be found in R . .V B''."a(' 3 A. C. 889. It was a case to determine whether the prescnbed hm1tations of a colonial legislature had been exceeded.

T.he Judicial Committee said that a duty must be performed by looking to the

406 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.

terms of the instrument by which affirmatively legislative powers are created, and by which, negatively, they are restricted. "If what has been done is legislation within the geheral scope of the affirmative words which give power, and if it violates no express condition or restriction by which that power is limited, it i.• not for, any aoort of justice to enquire further or to tnlarge constructively those conditions and restrictions". The maxim Expressum facit cessare taciturn was similarly applied in Webb v. Outrim 1907 A.C. 89. The clieory of implied and inherent limitations can be best described as a subtle attempt to annihilate the affirmative power of amendment.

L'Oi'd Halsbury in Fielding v. Thomas 1896 A.C. 600 said that if the legislature had full power to make laws it was difficult to see how the power was taken away. The power is alvyays sufficient for the pW'- pose. Lord Dunedin in Whiteman v. Sadler 1910 A.c; 514 said "express enactment shuts the door to further implication".

It was said that the essential features could be amended by way of improvement but could not be damaged or destroyed. It was said India could not be converted into a totalitarian dictatorship. The entire approach of the petitioner to the power of amendment contained in Article 368 ignores the fact that the object of the Constitution is to provide for the organs of State like the judicature, legislature and the executive for the governance of the country. Apart from the essential functions of defence against external aggression and of maintenance of internal order a modern State is organised to secure the welfare of the people, India is a sovereign democratic republic which means that Parliament and State legislatures are elected on adult u~ versa! suffrage, The country is governed by the Cabinet sym of government with ministries responsible to the House of the People and ro the Legislative Assemblies respectively. In a democracy the determination of policies to be pursued can only be determined by a majority vote cast at election and then by a majority o£ the elected representatives in the legislature, Holmes, J., said "In a acy the people have the right to embody their opinion iD law".

The argument that if unbridled power were conferred the.. Coi:wii tution could be subverted or destroyed is not supported by actual ex perience in India Mr. Scervai cmpha.siscd that sim; c 1951 when Shankari Prasad cas¢ rcoognised. 11nlimited power of amendmcDt till Golak Nath case in 1967 die normal dcmocr~ proceu ci W: departments of the State functioned as provided. by the Constiucion. Elec tions have been held as provided by the Constitution. Ii allJ' .bad¥ or organised party were bent upon subverting our free Canst:i&til'.'n, then even if there were no power af amendmel!l.t, Parliament has powers which would enable such Jestruction to be brought about Great and wide powers are conferred for the governance of great

KESAVANANDA V, KERALA (Ray, J.) 407

sovereign countries and such powers cannot be withheld on the ground that they may be used externally or oppressively. Well settled principles of construction in interpreting constitutions preclude limiting the language of the Constitution by political, juristic or social concepts independently of the language of the Qi.nstitution to be interpreted. This Court in Deep Chand v. State of Uttar Pradesh & Others

(1959) Supp. 2 S.C.R. 8 relied on the test laid down in Queen v.

Burah (1878) 5 I.A. 179 that the terms of the instrument by which affirmatively the powers are created, and by which they are negative ly restricted are to be looked into. The Judicial Committee in Attorney General for Ontario v." Attorney General for Canada 1912 A.C. 571 tersely stated the legal principles as follows : "If the text is explicit the text is conclusive, alike in what it directs and what it forbids". This is the golden rule of construction of a written Constitution.

In Gopalan case 1950 S.C.R. 88 this Court was invited to read inlD the Constitution implications derived from the "spirit of the Constitution". Kania, C.J. said that to strike down the law on an assumed principle of construction would be "llO place in the hands of the judiciary powers too great and too indefinite either for its own security or the protection of private rights".

Kania, C.J. also said that a large and liberal inrpretation should be given to the Constitution. That does not mean that a Court is free to stret<:h or pervert the language of the Constitution in the interest of any legal or constitutional theory. This Court in Keshavan Madhavan Menon v. The State of Bombay 1951 S.C.R. 228 rejected the contention that the spirit of the Constitution should be invoked in interpreting die Constitution. In Benoari Lal Sharma case 72 I.A. 57, the Privy Council reversed the judgment of the Federal Court observing that questions of jurisprudence or policy were not relevant to the construction of power conferred in an affirmative language and not restricted in any negative terms.

A constitution is essentially a frame of government laying down governmental powers exercisable by the legislature, executive and the judiciary. Even so other provisions are included in the Constitution of a country which provisions are considered by the framers of that Constitution to have such special importance that those "1ould be included in the Constitution or 'organic law. Thus all provisions of the Constitution are essential and no distinction can be made between essential and non-essential features from the point of view of amendment unless the makers of the Constitution make it expressly clear in the. Constitution itself. The Attome)! General rightly said that if the positive power of "amendment of this Constitution" in

408 SUPREME COURT REPORTS [ 1973] Supp. S.C.R.

Article 368 is restricted by raising the walls of essential features or core of essential features, the clear intention of the Constituent Assembly will be nullified and that "•ould make a mockery of the Constitution and that would lead to destruction of the Constitution by paving the way for extra constitutional or revolutionary changes in the Constitution. The theory of implied and inherent limitations cannot be allowed to act as a boa constrictor to the clear and unambiguous power of amendment.

If the": is no express prohibition against amendment in Article 368 the ommission of any such restriction did not intend to impose any restriction.

When certain restrictions are imposed it is not intended that other undefined restrictions shou'ld be imposed by implication. The general rule is not to import into statutes words which are not found there. Words are not to be added by implication into the language of a statute unless it is necessary 'to do so to give the paragraph sense and meaning in its context. If a matter is altogether omitted from statute it is not allowable to insert it by implication. Where the language d an Act is clear and explicit, effect is to be given to it whatever may be the consequences. The words of the statute speak the intention of the legislature. Where the reading of a statute produces an intelligible result there is no ground for reading any words or changing any words according o what may be supposed intention of the legislature. If a statute is passed for the purpose of enabling something to be done but omits to mention in terms some detail which is of great importance to the proper performance of the work which the statute has in contemplation the courts are at liberty to infer that the statute by implication empowers :the details to be carried out. The implication is to empower the authority to do that which is necessary in order to accomplish the ultimate Qbject.

The implication sought to be raised by Mr. Palkhivala is for the purpose of reading negative words into Article 368 IX> destroy the positive power to amend. The provisions of our Constitution in the light of historical background and special problems of the country will show that no provision can be considered as non-essential. The Constitution-makers did oot think so. The Attorney General rightly contended that no one has the power or authority to say that anv single provision is more essential than another or that the amending power under Article 368 does not operate on any prnvision on the ground of alleaed essentialitv when Article 368 provides amendment of this

Cotitution which obviously means the whole Constitution including everv provision.

In a Con; titution different methods of amendment may be laid down depending upon the degree of importance attached to particular parts of the Constitution. Apart from the language of

KESAVANANDA ti. KERALA (Ray, J.) 409

Article 368 the draft Constitution as it emerged through the Constitutuent Assembly shows that no provision of the Constitution was excepted from the amending power.

The provisions for the purpose of amendment were divided into four categories. The first two categories are to be found in Article 368.

Certain provisions require ratification by the requisite number of States as are mentioned in the proviso.

Other provisions which do not fall within the proviso are amendable by a double majority provided there. The third category consists of Articles 4, 169, 240(1), paragraph 7 Schedule 5, and paragraph 21 Schedule 6. The fourth

category consists of provisions which were said by the Attorney General to confer enabling power on Parliament to change the provisions by by the expression "unless Parliament otherwise provides" or similar expression. He gave the examples which are Articles 73(2), 100(3),

105(3), 118(2), 120(2), 125, 133(3), 171(2), 189(3), 194(3), 210(2), 241(2), 283(1) and (2), 285(1) and (2), 343(3), 345, 348(1).

The character of the provisions which are amendable under the proviso to Article 368 itself shows that petitioner's submission that essential features are unamendable is a baseless vision. Article 54 speaks of the method of election of the President. This may be changed. The manner or scale of representation of the different States in regard to the election pf the President may also be changed. The executive power of the

Uruon and the Statx:s may be .changed. Chapter IV of Part V (the Union Judiciary), Chapter V of Part VI (the High Courts in the States) are also mentioned in Article 368 as liable to be changed.

Article 141 may also be changed. Chapter I of Part XI and the Seventh Schedule (legislative relations between Union and the States) may be changed. The representation of the States in Parliament ( Articles 80 and 81) may be changed. The number of representation may be increased or reduced. The method of election of such representatives as Parliament may by law prescribe and the number of the members of the House of the People may be increased or reduced. Thi: method of election to the House of People may be changed. Finally the provisions of Article 368 itself, which is the mlost important part of the Constitution may be changed.

To find out essential or non-essential features is an exercise in imponderables. When the Constitution does not make any distinction between essential and non-essential features it is incomprehensible as to how such a distinction can be made. Again, the question arises as to who will make such a distinction.

Both aspects expose the egregious character of inherent and implied limitations as to essential features or core of essential features of the Constitution being unamendable. Who is to judge what the essential features are ? On

410 SUPREME COURT REPORTS ( 1973] Supp. S.C.R.

what touchstxme are the essential features to be measured?

Is then: an1 yardstick by which it can be gauged? How much is essential and how much is not essential? How can the essential features or th•: core of the essential features be determined? If there are no indications in the Constitution as to what the essential features are the task of amendment of the Constitution becomes an unpredictable and indeterminate task. There must be an objective data and standard by which it can be preclicaQed as to what is essential and what is not essential.

If Parliament cannot judge these features Parliament cannot. amend the Constitution. If, on the other hand, amendments are canied out by Parliament the petitioner contends that eventually court will find out as to whether the amendment violates or abridge> essential features or the <Pre of essential features. In the ultimaite analysis it is the Court which will pronounce on the amendment as to whether it is permissible or not. This construction will have the effect of robbing Parliament of the power of amendment and reposing the final power of expressing validity of amendment in the courts.

Mr. Palkhivala said that though the essential features could be amended the core of essential features could not be amended. He said that there was no esoteric test to find out what is essential and what is not essential and if no precise definition could be given that was no reason ro hold that the essential features and the core of essential features could be amended. It was said that the appreciation of the trained judicial mind is the only way to find out what essential features are.

Mr. Seervai rightly contended that there is no foundation for the analogy that just as Judges test reasonableness in law, similarly the judicial mind will find out the essential features on the test of reasonableness. Reasonableness in law is treated as an objective criterion because reason inheres in man as rational being. The citi:zen whose rights are affected applies reason and when he assails a '.aw he possesses a standard by which he can persuade the Court that the law is unreasonable.

The legislature which makes a law has the standard of reasonableness and has the further qualification to apply the standard because of familiarity with the needs, desires and the wants of the people whom the legislature represents. As regards the Judge not only does he share the reasonableness of the reasonable man but his trained mind enables him to see certain aspects clearly. The process of judicial review of legislation as laid down by Courts is that the Court will start with the presumption that laws enacted are reasonable. The objective standard is reasonableness. That is why in the law of contract reasonable price is to be ascertained by the Courts. In the law of torts the Courts find out what reasonable care is. In the iaw of

KESAVANANDA V. KERALA (Ray, ).) 411

property reasonable conduct is found out by the Courts to avoid evil consequences. Reasonableness is to be judged with reference to the right which is restricted when Article 19 is considered.

The American Courts evolved a test of reasonableness by the doctrine of substantive due process which means not that the law is unreasonable but that on political, social and economic grounds the majority of Judges consider that the law ought not be permitted to be made. The crucial point is that in contradistinction to the American Constitution where rights <\fe couched in wide general terms leaving it to the Courts to evolve necessary limitations our Constitution limited it by precise words of limitation as f.ox example in Articles 19 and 21. In Article 21 the Constitution-makers substituted "procedure established by law" for the words "due process of law". The reason for the change was that the procedure established by law was specific. The framers of the Constitution negatived the vague undefinite reasonableness of Jaws on political, social and economic grounds.

In Gopalan case due process was rejected, by clearly limiting the rights acquired and by eliminating the indefinite due process. The Constitution makers freed judicial review of subjective determination.

Due process as a test of invalidity of law was deliberately withheld or denied. Courts are not concerned with the wisdom or piolicy of legislation. The Court:s are equally not concerned with the wisdom and policy of amendments to the Constitu!ion.

Reliance was placed by Mr. Palkhivala on Ridge v. Baldwin 1964 A.C. 40 where it is said that opinions that natural justice is so vague as to be practically meaningless, are tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. In the same case it was said that the idea of negligence is equally insusceptible or exact definition, but what a reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligence in particular circumstances are equally capable of serving as tests in law. Extracting those observations it was said by Mr. Palkhivala that though the border-line between essential features and non-essential features could not be stated or it was not possible ro specify exhautively the amendment which could be invalid on that principle yet there was no reason why the principle of inherent and implied limitations to amend our Constitution should not be accepted. Inherent and implied limitations cannot originate in an oracle when the Constitution does not contain any express prohibition against amending any provision.

When Article 368 speaks of change, g in the provisions of the Constitution as arc set out in clauses (a) to ( d) of the proviso it is manifest that the makers of the Constitution expressed their intention with unerring accuracy that features which can broadly be described as

412 SUPREME COURT REPORTS ( 1973] Supp. S.C.R.

federal features, and from that point of view "Essential features"

could be amended.

In the face 1of these express prov1s1ons it is impossible to hold that the Constitution does not -(:ontemplate an amendment of the so called essential features of the Constitution. The proviso confers that power with relation to the judiciary, the executive and the legislature, none of which could be said to be inessential.

Indeed it is. difficult to imagine that the Constitution contained any provision which was inessential. h need be hardly said that amendment not only means alteration, addition or repeal of provision but also deletion of some part, partial repeal and additlon of a new part.

It was said that if our Parliamentary system was changed to a Presidential system it would be amending the core of our Consl'itution. But such a change is permissible under Article 368. Whether the people would adopt such an amendment is a different matter and does not fall for consideration here. The core of the federal form of Government in our country is greater power in the Union Parliament than States for preserving the iategrity of the country. There can be changes by having a confederation or by conferring greater power on the Centre. Those contentions about unamendability of essential features do not take into consideration that the extent and character of any change in the provisions of the Constitutibn is to be determined by legislatures as amending bodies under Article 368 and as representatives of the people in a democracy and it is not the function of the Courts to make any such determination.

Mr. Palkhivala contends that the Const''Ption 24th Amendment Act is unconstitutional because Parliament cannot exceed the alleged implied and inherent limitations on the amending power as it stood before the 24th Amendment. The 24th Amendment has substituted the marginal note "Power of Parliament to amend the Constitution and procedure therefor" for the original note "procedure for amendment of the Constitution". This change is due to the fact that according to the leading majority judgment in Golak N a:th case the unamended Artide dealt only with the procedure for amendment and that the power of amendment was in the residuary power of b:islation. The 24th Amendment has declared tllat the power to amend the Constitution is in Article 368. That was the view of this Court in earlier decisions. That was the minority view in Golak Nath case.

By amendment that view has become the constitutional mandate.

The other change as a result of the 24th Amendment is . that "Parliament may in the exercise of its constituent power amcO<l" in place of words "amendment of this Constitution may be initiated".

The reasons for this change are to give effect to the decisions of this Court in Shankari Prasad case which in considering the validity of

KESAVANANDA ti. KERALA (Ray, J.) 413

the First Amendment recognised and affirmed the vital 'distinction between constituent power and legislative power and decided that the word "law" in Article 13(2) applied to the exercise of legislative power and did not apply to an amendmen~ of the Constitution.

In Sajjan Singh case the same distinction was upheld by the majority of this Court. In Golak Nath case the majority and the concurring judgment denied the distinction between legislative and constituent power and held that Article 13(2) applied to an amendment of the Constitution under Article 368 because there was no distinction between legislative and constituent power. As a consequence the leading majority judgment in Golak Nath case held that Parliament could not amend fundamental rights. The dissenting judgments in Golak Nath case upheld the vital distinction between legislative and constituent powers and held that the decisiol). in Shankari Prasad case and the majority decision in Sajjan Singh case were correct and that Parliament had power to amend the fundamental rights since an amendment of the Constitution was not law within the meaning of Article 13(2). These features give the reason why the expression "Parliament may in the exercise of constituent power" was introduced by the 24th Amendment.

Parliament took notice of two conflicting views and the unamended Article 368. Parliament took notice of the preponderating judicial opinion in favour of the view that Article 368 contained the power of amendment and that power was a constituent power. Wanchoo, J. held that the power under Article 368 is constituent power to change the fundamental law, that is to say the Constitution.

The constituent power under the Constitution belonged to Parliament because the Constitution gave it. The Amendment made explicit what the judgment in Shankari

Pasad case and the majority judgment in Sajjan Singh case and the dis; enting juJgment in Golak Nath case said, namely that Parliament has the constituent power to amend the Constitution.

The unamended Article used the words "An amendment of this' Constitution". The 24th Amendment used the words "Parliament may ............ amend by way of addition, variation or repeal any provision of this Constitution". This has been done because the lead~ ing majority judgment in Golak Nath case expressed the view that there is considerable force in the argument that the expression "amendment" in Article 368 has a positive and negative content rn exercise of which Parliament cannot destroy the structure of the Constitution but it can only modify tlic provisions thereof within the framework of the original instrument for its better effect. This observation in Golak Nath case raised a doubt as to the meaning of the word "amendment". The 24th Amendment has expressly clarified that duubt. 27-36 S.C. Jndia/73

414 SUPREME COUJIT REPORTS (1973] Supp. S.C.R,

The leading majority judgment and the concurring judgment in Golak Nath case both held that the fundamental rights could not be amended by Parliament. The leading majority judgment with reference to the meaning of the word "amendment" and without deciding the matter observed that there was great force in clie argument that certain fundamental features e.g. the concept of federalism, the institutions of the President and the Parliamentary executive could not be abolished by amendment. Shankari Prasad case, Sajjan Singh case and the dissenting minority judgment in Golak Nath case wok the view that every provision of the Constitution could be amended in exercise of constituent power. As a necessary corollary, the 24th Amendment excludes the operation of Article 13 by amending Article 13 by a new ; ub-Article (4) that nothing in Article 13 shall apply to any amendment of this Constitution under Article 368. The amendment of Article 13 by an insertion of sub-Article (4) is also reinforced by the opening words introduced in Article 368 by the 24th Amendment, viz., notwithstanding anything contained in this Constitution, which would certainly exclude Article 13.

The Constitution 24th Amendment Act raises three aspects. First, does the word "amend" include abrogation or repeal of the whole Constitution?

Does amendment mean that there is some feature of the Constitution which cannot be changed. Secondly, what light does the proviso to Article 368 throw on the nature of the amending power and on the doctrine of inherent and implied limitations on the amending power that essential features of the Constitution cannot be damaged or destroyed. Thirdly, does clause (e) of the proviso to Article 368 enable Parliament and the requisite majority of the States to increase the power of amendment that was conferred by Article 368.

Article 368 in the unamended form contained power as well as self executing procedure which if followed by the prescribed authorities would result in an amendment af the Constitution. Both the Attorney General and Mr. Seervai rightly said that the words "Constitution shall stand amended" in Article 368 will exclude a simple repeal that is without substituting anything in place of the repealed Constitution. If the Constitution were totally repealed and a vacuum was created it could not be said that uhe Constitution stands amended.

The Constitution means the mode in which a State is constituted or organised specially as to the location of sovereign power. The Constitution also means the system or body of fundamental principles according to which the nation, State and body politic is constituted and governed. In the case of a written Constitution the Constitution is more fundam"ntal than any particular law and contains a principle with which all legislation must be in harmony. Therefore, an amendmen~ of the Constitution is an amendment of something which provides

K.ESAVANANDA V, KERI.LA (Ray, J.) 415

a system aocording to which a State or nation is governed. An amendment of the Constitution is to make fundamental changes in the Constitution. Fundamental or basic principles can be changed.

There can be radical change in the Constitution like iritroducing a Presidential system of government for a cabinet system or a unitary system for a federal system. But such amendment would ill its wake bring all consequential changes for the smooth working Qf the new system.

However radical the change the .amendment must provide for the mode in which the State is constituted or organised. The question which was often put by Mr. Palkhivala drawing a panorama of a totalitarian State in place of the existing Constitution qn be simply answered by saying that the words "The Constitution shall stand amended" indicate that the Constitution of India is being referred to.

The power of amendment is unlimited so long as the result is an amended Constitution, that is to say, an organic instrumept which provides for the making interpretation and implementation of law.

The theory of unamendability of so called essential featl\(es is unmeritorious in the face of express provisions in Article 368 particularly in chuses (a) to ( d) of the proviso. Clauses (a) to ( d) relate to 66 Articles dealing with some of the most importan~ features of the Comtitution. Those Articles relate to the judiciary, the legislature and the executive. The legislative relations between the Union and the States and the distribution of legislative power between them are all within the ambit d amendment.

The question which was raised by Mr. Palkhivala as to whether under proviso ( e) to the unamended Article 368 the power of amendment could be increased is answered in the affirmative. The reasons broadly stated arc three.

First, under Article 368 proviso ( e) any limitation on the power of amendment alleged to be found in any other Article of the Constitution can be removed. The full magnitude of the power of amendment which would have existed but for the limitation could be restored and the power of amendment increase. In Golak Nath case the majority view was that Article 13(2) operated as a limitation on the power of amendment. The 24th Amendment took note of that decision and removed all doubts by amending Article 13(2) and providing a new sub-Article ( 4) there and also by amending Article 368 to the effect that Article 13(2) shall not apply to any amendment of the Constitution. If the express limitation which had been judicially held to constitute a bar to the amendment of fundamental rights could be removed by amending Article 368 under clause ( c) to the proviso any other alleged implied limitation can be similarly removed.

416 SUPREME COURT REPORTS [ 1973 j Supp. s.c.R.

Secondly, judicial decisions show that by amending the Article conferring the power of amendment a greater power to amend the Constitution can be obtained than was conferred by the original Article. In Ryan case 1935 Irish Report 170 all the learned Judges excepting the Chief Justice held that by first amending section 50 of the Irish Constitution which conferred the power of amendment subject to certain restrictions thereon so as to remove the restrictions contained in that section, the Irish Parliament effectively increased its power in the sense that an amendment could be made which those express restrictions would have prohibited. Again in Ranasinghe case 1%5 A.C. 172 it was said that a legislature has no power to ignore the conditions of law making that are imposed by the instrument which regulates its power. This restriction created by the instrument exists independently of the question whether the legislature is sovereign or whether the Constitution is uncontrolled. The Judicial Committee held that "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 and the alteration or amendment may include the change or abolition of those very provision". Thus a controlled Oonstirution can be converted into an uncontrolled Constitution vastly increasing the power of amendment.

Thirdly, the power to amend the amending Article must include the power to add, alter or repeal any part of that Article and there is no reason why the addition cannot confer a power of amendment which the authorities named in Article 368 did not possess.

By the exercise of the amending power provision can be made which can increase the powers of Parliament or increase the powers of the States.

Again, by amendment future amendments can be made more difficult.

The picrure drawn by Mr. Palkhivala that a furure amendment would be rendered impossible either by absolutely forbidding amendment or by prescribing an impractically large majority does not present any legal impediment to such an amendment. The safeguard against such action is external. The contingency of any such amendment being proposed and accepted is extremely remote because such an amendment might sow the seeds of revolution which would be the onlv way to bring about the change in the Constitution. The Solicitor General rightly said that the effect of the amendment is that "it shall stand amended in accordance with the terms of the Bill". The product is not required to be "this Constitution". It will not be identically the old Constitution. It will be a changed or amended Constirution and its resemblance will depend on the extent of the change.

More rigid process like referendum or initiative or greater majority or ratification by a larger number of States might be introduced by amendment.

KESAVANANDA V. KERALA (Ray, J.) 417

It is important to note nhat proviso ( e) to Article 368, namely, the power to ameud Article 368 is unlike perhaps some Constitutions which were before the Constituent Assembly when our Constitution was framed. Neither the American nor the Australian Constitution provided for any power to amend the amending provision itself. The Attorney General rightly contended that this forcefully expresses a clear and deliberate intention of the Constituent Assembly that apart from providing for a less rigid amending formula the Constituent Assembly took care to avoid the controversy in America as to whether <:xpress limitation on Article V of the American Constitution itself regarding equal suffrage of the States in the Senate could be amended or the controversy in Australia as to whether section 128 of the Australian Constitution itself could be amended as there was no express limitation on such amendment.

The Q)nstituent Assembly provided in clause ( e) to Article 368 express and specilic power of 2mendment of Article 368 itself.

The amplitude of the amending power in our Constitution stands in bold relief in comparison with Article V of the American CoiJ.Stitution, section 128 of the Australian Constitution and section 50 of the Irish Constitution mane of which confers such a power.

Dr.

Wynes in his Legislative Powers in Australia 4th Ed. p. 505 expresses the view that though section 128 is negative . in form but the power of amendment extends to alteration "of this Constitution" and this power is implied by its terms.

Dr. Wynes also states that by the consent of the States the last part of section 128 could be amended.

This is only to illustrate as to how other Constitutions are understood by jurists in their countries.

Our Article 368 contains no express limitation on the power of amendment. The provision of clause (~) in the proviso to .Article 368 is not limited to federal features.

The words "amendment of this Constitution" in section 50 of the Irish Constitution which formed the subject of decision in Ryan case 1935 Irish Report 170 were read by Kennedy, C.J. in his dissenting view to mean that if power to amend section 50 itself was intended to be given the framers of the Constitution would have said so. 'v!r.

Palkhivala relied on this dissenting view. Other learned Judges who formed the majority held that the words "amendment of this Constitution" conferred power to amend that section 50 as well. If no intention to amend that section itself is expressed there is nothing which can be impliep was the dissent. Therefore, it would follow even according to the dissent that no implied limitations on the power of amendment can be read in section 50 if an express power of amendment has been conferred by the Constitution.

Mr. Palkhivala contended that the people reserved the power to themselves to amend the essential features of the Constitution and if any such amendment were to be made it should be referred to the

418 SUPREME COURT REpORTS [ 1973] Supp. s.c.R.

people by referendum. It was said that the Constitution makers did not intend that ssential fatures should be damaged or destroyed even by the people, and therefore, the Constitution did not provide for referendum. The other contention on behalf of the petitioner was that referendum was not provided for because it might have been difficult to have the Constitution accepted on those terms. The second view would not eliminate the introduction of referendum as a method of amendment. If a referendum were introduced by an amendment people would have complete power to deal with essential features. The other question would be as to whether the Preamble and the fundamental rights would be a limitation on the power of the people. On behalf of the petitioner it was said that it was not necessary to decide the questions. Both the Attorney General and Mr.

Seervai correctly said that the submissions made on behalf of the petitioner indicated that if essential features could be amended by the people the very fact that the Constituent Assembly did not include referendum as one of the methods of amendment and that the Constitution makers excluded no part of the Constitution from amendment established that the amendment of a written Constitution can be legally done only by the method prescribed by the Constitution. If the method of referendum be adopted for purpose of amendment as suggested by Mr. Palkhivala that would be extra constitutional or revolutionary. The amending body to amend the Constitution represents the will of the people.

Therefore, as long as Article 368 may be amended under proviso ( e) any amendment of the Constitution by recourse to referendum would be revolutionary.

Mr. Palkhivala on behalf of the petitioner did not rely on the majority decision in Golak Nath case that the fundamental rights could be abridged or taken away only by convening a Constituent Assembly, but based his argument on a theory of legal sovereignty of the people. The Constitution is binding on all the organs of government as well as on the people. The Attorney General rightly submitted that the concept of popular sovereignty is well settled in parliamentary democracy and it means that (he people express their will through th(!ir representatives elected by them at the general election as the amending body prescribed by the Constitution.

Are fundamental rights unamendable?

Mr. Palkhivala contended that apart from Article 13(2) fundamental rights are based on Universal Declaration of Human Rights and are natural rights, and, therefore, they are outside the scope of amendment. In Go~:ik Nath case rhe majority view declined to pronounce any opinion on alleged esiential features other than fundamental rights. The concurring view was that fundamental rights were unamendable because they were

KESAVANANDA ti, KERALA (Ray, J,) 419

fundamental. W anchoo, J, for himself and two other learned Judges and Ramaswami, J. rightly rejected the theory of implied limitations. The three reasons given by Wanchoo, J. are these. First, the doctrine of essential and non-essential features would introduce uncertainty. Secondly, constituent power of amendment does not admit of any impediment of implied restrictions. Thirdly, because there is no express limitation there can be no implied limitation.

Mr. Seervai correctly contended that there is intrinsic evidence in the provisions of Part III itself that our Constitution does not adopt the theory that fundamental rights are natural rights or moral rights which every human being is at all times to have simply because of the fact that as opposed to other things he is rational and moral. The language of Article 13(2) shows that these rights are conferred by the people of India under the Constitution and they are such rights as the people thought fit to be in the organised society or State which they were creating. These rights did not belong to the people of India before 26 January 1950 and would not have been

~!aimed by them. Article 19 embodies valuable rights. Rights under Article 19 are limited only to citizens. Foreigners are human beings but they are not given fundamental rights because these rights are conferred only on citizens as citizens.

Article 33 enacts that Parliament may by .law modify rights conferred by Part lII in their application to Armed Forces. Parliament may restrict or abrogate any of the rights conferred by Part III so as to ensure the proper discharge of the duties of the Armed Forces and the maintenance of discipline among them. Therefore, Article 33 shows that citizens can be denied some of these rights. If these are natural rights these cannot be abrogated. Article 34 shows that Parliament may by law indemnify any person in respect of any act done . by him in connection with the maintenance or restoration of order in any area where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area. Article 34 again shows restriction on rights conferred by Part III while martial law is in force in any area. The dominant concept is social good.

Where there is no restraint the society fails.

Articles 352 and 358 also illustrate as to how while the proclamation of emergency is in operation provisions of Article 19 are suspended during emergency. The framers of the Constitution empha.- sised the social content of those rights. The basic concept of funda-· mental right is therefore a social one and it has a social function.

These rights are conferred by the Constitution. The nature of restriction on fundamental rights shows that there is nothin.g natural about tl.ose rights. The restrictions contemplated under Arttclc 19(2)

420 SUPREME COURT REPORTS [1973] Supp. s.c.R.

with regard to freedom of speech are essential pars of a well organised developed society.

One must not look at location of power but one should see how it acts. The restrictions contemplated in Article 19 are basically social and political. Friendly relations with foreign states illustrate the political aspect of restrictions. There are similar restrictions on right to move freely. The protection of Scheduled Tribes is also reasonable in llhe interest of society. This Court in Basheshar Nath v. C.l.T. Dr/hi (1959) Supp. !. S.C.R. 528 sJitl that there are no natural rights under our Constitution and natural rights played no part in the formulation of the provisions therein.

Articles 25 and 26 by their opening words show that the right to the freedom of religion is subject to the paramount interest of society and there is no part of the right however important to devotee which cannot and in many cases have not been denied in civilised society.

Subba Rao, C.J. in Golak Nath case equated fundamental rights with natural rights or promodial rights.

The concurring majority view in Golak Nath case, however, said that there is no natural right in property and natural rights embrace the activity outside the status of citizen.

Fundamental rights as both the Attorney General and Mr. Seervai rightly contended are given by the Comtitution, and, therefore, they can be abridged or taken away by the people themselves acting as an organised society in a State by the representatives of the people by means of the amending process laid down in the Constitution itself. There are many Articles in Part III of our Constitution which cannot in any event be equated with any fundamental right in the sense of natural right. To illustrate Article 17 deals with , abolition of untouchability. Article 18 speaks of abolition of titles.

Article 20 deals with protection in respect of conviction for offences.

Article 23 refers to prohibition of ttaflie in human beings and forced labour. Article 24 deals with prohibition of employment of children in factories, etc. Article 27 speaks of freedom as to liability for taxes levied for promotion of any particular religion.

Article 28 contemplates freedom as to attendance at religious instruction or religious worship in certain educational institutions. Article 29 deals wifh protection of interests of minorities. Article 31 (2) prior to the Constitution 25th Amendment Act spoke of payment of just equivalent for acquisition or requisition of property. Article 31(4) deals with legislation pending at the commencement of the Constitution. Articles 31(5) and (6) save certain types of laws. Article 31A saves laws providing for acquisition of estates etc. Article 32 confers right to move the Supreme Cuurt.

The Constitution is the higher law and it attllins a form wl1ich makes possible the attribution to it of an entirely new sen of vali- -dity, the validity of a statute emanating from the sovereign people.

KESAVANANDA V. KE!lALA (Ray, J.) 421

Jnvested with statutory form and implemented by judicial review higher law becomes juristically the most fruitful tor people. There is no higher law above the Constitution. .

Mr. Palkhivala relied on an Article by Conrad on Limitation of Amendment Procedure and the Constitutional Power. The writer

refers to the Wtst Grman Provincial Coustitution which has express!~· excluded basic rights from amendment. If that is so he question of basic rights being unamendable on the basis of higher law or natural law does not arise. The conclusion of the writer is that whereas the American courts ditl not consider declaring a constitutional uorm void because of a conflict with higher law the German Jurispruden'e broadened the concept of judicial review by recourse to natural law.

The post-war Constitution of West Germany distinguished between superior and inferior co'nstitutional norms in so far as certain norm> are not subject to amendment whereas others are.

The Attorney General relied on Friedmann Legal Theory 5th Ed. on pp. 350 seq. to show that there was a revival of natural law theory in contemporary German Legal Philosophy. This theory of

ntural law springs from the reaction against the excess of the Nazi regime. The view of Friedmann is that natural law may disguie to pose itself the conflict between the values which is a problem of constant anti painful adjustment between competing interests, purpo'es and policies.

This conflict is resolved by ethical or political evolution which finds place in legi5lative policies and also on the impact of chr.nging ideas on the growth of law.

Fundamental rights are social rights conferred by the Constitution. There is no law above the Constitution. The Constitution dues

not recognise any type of law as natural law. Natural rightS"are mmmed up under the formula which became common during the Puritan Revolution namely life, liberty and property.

The theory of evolution of positive norms by supra-positive law as distinguished from superior positive law had.important consequences in the post-war revival of natural law in some countries particularly Germany.

Most of the German Constitutions from the early 19th Century to the Nazi Regime did not provide for judicial review.

Under the Wdmar regime, the legislature reigned supreme and le; zal positivism was brought to an extreme. The re•action after World War II was characterised by decreases of legislative power matched by an increaie of judicial power. It is in this context that Conrad's

writing on which Mr. Palkhivala relied is to be understood. The

entire suggestion is that norrns could not only be judged by a superior law namely consdtutional law but by natural law to broaden the scope of judicial review. The acceptance of the doctrine of judicial

422 SUPIU!ME cotll\T IU!POlTS [1973] Supp. s.c.:a.

review has been considered as a progress in constitutional theory made berween Declaration of Independence and the Federal Convention at Philadelphia.

On the one hand there is a school of extreme natural law philosophers who claim that a natural order establi5hes that private capitalism is good and socialism is bad.

On the other hand, the Il)IOrc extreme versions of totalitarian legal philosophy deny the basic value of the human personality as such. Outside these extremes, there is a far greater degree of common aspirations. The basic autonomy and dignity of human personality is the moral foundation of the teaching of modern natural law philosophers, like Maritain. It is in this context that our fundamental rights and Directive Principles are to be read as having in the ultimate analysis a common good. The Directive Principles do not constitute a set of subsidiary principles to fundamental rights of individuals. The Directive Principles embody the set of social principles to shape fundamental rights to grant a freer scope to the large scale welfare activities of the Staae. Therefore, it will be wrong to equate fundamental rights as natural, inalienable, primodial rights which are beyond the reach of the amendment of the Constitution. It is in this context that this Court in Baslkshar Nath

v. CJ.T. Delhi (1959) Supp. I S.C.R. 528 said that the doctrine of natural rights is nothing but a foundation of shiftmg sand.

Mr. Seervai rightly said that if the power of amendment of the Constitution is co-extensive with the power of the judiciary to invalidate laws, the democratic process and the co-ordinate nature of the great departments of the State are maintained. The demqcratic process is maintained because the wiU of the people to secure the necessary power to enact laws by amendment of the Constitution is not defeated. The democratic process is also respected because when the judiciary strikes down a law on the ground of lack of power, or on the ground of violating a limitation on power, it is the dutv of the legislature to accept that position, bu~ if it is desired to pass the same law by acquiring the necessarv power, an amendment validly enacted enables the legislatures to do so and the democratic will to prevail. This process harmonises with the theory of or Constitution that the three great departments o.f the State, the leg1slature, the judiciary and the executive are co-ordinate and that none is superior to the other. The normal interaction of enactment of law by the legislation, of interpretation by the courts, and of the amendment of the Constitution by the legislature, go on as they were intended to go on.

If the power of amendment does not contain any limitation and if this power is .denied by reading into the Constitution inherent limitations to extinguish the validity of aU amendments on the principles

DSAVANANDA I/, KERALA (Ray, 1;) 423

of essential features of the Constitution which arc undefined and un termed, the courts will have to lay down a new Constitution.

It is said that the frame of the Government cannot be changed or abrogated by amendment of the Constitution. There is before us no aspect of abrogation of the form of Government of the changes apprehended by the petitioners like the abrogation of the judiciary o~· extending the life of Parliament.

The problems of the times and the solutions of those problems are considered at the time of framing the Constitution. But those who frame the Constitution also know that new and unforseen problems may emerge, that problems once considered important may lose their importance, because priorities have changed; that solutions to problems once considered right and inevitable are shown to be wrong or to require considerable modification; that judicial interpretation may rob certain provisions of their intended effect; that public opinion may shift from one philosophy of government to another. Changes in the ConSlitution arc thus actuated by a sense of duty to the people to help them gca what they want out of life. There is no destiny of man in whose service some m; n can rightfully control others; there are onlY the desires and performances and ambitions that men actually ha, e.

The duty to maximise happiness means that it is easier to give people what they wan~ than to make them want what you can easily give.

The framers of the Constitution did not put any limitation on the amending power because the end of a Constitution is the safety, the greatness and well being of the people. Changes in the Constitution serve .these great ends and carry out the real purposes of the Constitution.

' The way in which the doctrine of inherent and implied limitations was invoked by Mr. Palkhivala in interpreting the Constitution was that the test of power unrle.r the Constitution must be to ascertain the worst that can be done in exercise of such power. Mr. Palkhivala submitted that if unbridled power of amendment were allowed the

basic features of our constitution, namely, the republican and/or democratic form of governmer..t and fundamental Tights could be destroyed and India could be converted into a rotalitarian dictatorship.

The Court was invited to take into account the consequences of tho kind described. Mr. Palkhivala suggested that a wide power of amend

ment would lead to borrow his words to the liquidation of our Constitution.

The Attorney General rightly said that the unambiguous meaning of amendment could not be destroyed to nurse the theory of implied limitations. He also said that the live distinction between power and exercise of power is subject to popular will and popular control. The

'424 SUPREME COURT REPORTS [1973] Supp. s.c.11.

theory of implied and inherent limil!ltion was a repudiation of dcin<>- cratic process. The Attorney General and Mr. Seervai also rightly said that the approach of the petitioner to die power of amendment contained in Article 368 of the Constit, Uti.on ignores the fact that the object of the Constkution is to provide for departments of Sta~ like the judiciary, the legislature and the executive for the governance of a {; Ountry. Apart from the essential functions ofdefence against external .aggression and of maintenance of internal; order a modern State is

organised to secure the welfare of the people. Parliament and State legislatures are elected on adult universal suffrage. The country is :governed by the Cabinet system of Government with ministries responsible to the Houses of Parliament and to the Legislative Assemblies.

In a democracy the determination of the right policies to be pur sued can only be determined by a majority vote cast at election and then by a majority of the elected representatives in the legislature. Dem<>- cracy proceeds on the faith in the capacity to elect their representatives, and faith in the representatives to represent the people. The argument that the Constitution of India could be subverted or destroyed might have hortative appeal but it is oot suppole by the actual experience in our country or in any countr~. The two basic postulates in dem<>- cracy arc faith in human reason and faith in human nature. There is no higher faith than faith in democratic process. Democracy on adult suffrage is a great experiment in our country. The roots pf our democracy are in the country and . faith in the common man. That is how Mr. Seervai said that between 1951 when this Court recognised in Sankari Prasad case unlimited power of amendment till Gola/(. Nath decision in 1967 the normal democratic process in our country functioned as provided by the Constitution.

The principle underlying the theory of taking consequences into • account is best expressed in Vacher & Sons v. London Society of Com. positors 1913 A. C. 107, where it was said that if any particular construction in construing the words of a statute was susceptible to mo~ than one meaning, it was legitimate to consider the consequences which would result from any particultu construction. The reason is that there are many things which the legislation is presumed not to have intended to bring about and therefore a construction which. would not .lead to any of these things should be preferred to one which would

lead to one or more of them.

The doctrine of consequences has no application in construing a grant of power conferred by a Constitution. In considering a grant of power the largest meaning should be given to the words oi: the power in order to effectuate It fully. The two exceptions to this rule are these.

First, in order to reconcile powers exdusivcly conferred Oil ditfc1ent legislatures, a narrower meaning can be given to one oE the powers

KESAVANANDA V. KERALA (Ray, J.) 425

in order that both may operate as fully as is possible. (See C. P. & Berar case 1938 F.C.R. 18 and Province of Madras v. Governor General 72 I.A. 93). Second, technical terms must be given their technical meaning even though it is narrower than the ordinary or popular meaning.

The State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. 1959 S.C.R. 379. In our Constitution powers are divided between federation and the States. An attempt must be made to find the power in some entry or other because it must be assumed that no power was intended to be left out.

The theory of conseguentes is misconstrued if it is taken to mean that considerations of policy, wisdom and social or economic policies are included in the theory of consequences. In Vacher case it was said that the judicial tribunal has nothing to cio with the policy of any Act and the only duty of the Court is to expound the language of the Act in accordance with the settled rules of construction. In Attorney Genera! for Ontario v. Attorney General for Dominions 1912 A.C. 571 the Privy Council refused to read an implication in the Constitution ot Canada that there was no power to refer a matter for the advisory opinion of the highest Court because advisory opinions were prejudicial to the correct administration of justice and were embarrassing to Judges themselves who pronounced them, for humanly speaking it would be diflicult for them to hear a case on merits if they have already expressed an opinion. The Privy Council rejected this argument and said that so far as it was a matter of wisdom and policy it was for the determination of Parliament. In Bank of Toronto v. Lambe ( 1887) 12 A.C. 575 the Privy Council was invited to hold that the legislature of a province could not levy a tax on capital stock of the Bank, for that power might be exercised to destroy the Bank altogether. The Privy

Council observed that if on a true construction of section 92 of the British North America Act the power fell within the section, it would be wrong to deny its existence because by some possibility it might be abused.

The absurdity of the test of the worst that can be done in exercise of power is demonstrated by the judgment of Chief Justice Taft in Gross-man 69 L.Ed. 527=267 U.S. 86 where it was said that if those who were fo separate control of each of the three branches of Government were bent upon defeating the action of the other, normal operations of Government would come to a hak and could be paralysed.

Normal operations of the Government assume that all three branches must oo-operate if Government is to go .on. Where the meaning is plain the Court must give effoct to t even if it considers that such a meaning would produce unreasonable result.. In the Bihar Land Reforms case 1952 S.C.R. 889 Mahajan, J. said that agrarian laws enacted by the legislature and protected by Articles 31(3) and (4) provided compensation which-

426 SUPREME COURT REPORTS [1973] Supp. s.c.11.

might appear to the Court unjust and inequi11able. But the Court gave effect to Articles 31(3) and (4) because the results were intended and the remedy for the injustice lay with the legislanure and not with the Court. The construction to avoid absurdity must be used with great caution.

In Grundt case 1948 Ch. 145 it was said in choosing between two possible meanings of ambiguouos words, the absurdity or the nonabsurdity of one conclusion as compared with another might be of assistance and in any event was not to be applied as to result in twisting the language into a meaning which it could not bear.

The Attorney General rightly submitted that if power is conferred which is in clear and unambiguous language and does not admit of more than one construction there can be no scope for narrowing the clear meaning and width of the power by oonsidering the consequences of the exercise of the power and by so reading down the power. The question is not what may he supposed to be intended but what has been said. See Ross v. lllison 1930 A.C. 1. The Supreme Court in Damselle Hotvard v. Illinois Central Rail Road Co. 207 U.S. 463 said that you cannot destroy in order to save or save in order to destroy.

The real import is that a new law cannot be made by construction.

The question is one of intention. A meaning cannot be different which it cannot reasonably bear or will be inconsistent with the intention.

The very basis of Parliamentary democracy is that the exercise of power is always subject to the populiar will and popular control. The petitioner's theory of implied and inherent limitations is a repudiation of this democratic process. The underlying theory of democratic go,, ernment is "the right of a majority to embody their opinion in law subject to the limitations imposed by the Constitution", per Holmes, J. in Lochner v. Netv York 198 U.S. 45=49 L. Ed. 937. In our Constitution Article 368 contains no express limitation on the amendment of any provision of the Constitution.

fr. Palkhivala relied on the amending provisions 'in the Constitution of America, Canada, Australia, Ireland and Ceylon and also decisions on the power of amendment in those countries in support of his submissions that a restricted meaning should be attributed to the word ''amendment" and implied and inherent limitations should be read into the meaning and power of amendment.

Mr. Palkhivala also relied on the opinion of Cooley in a Treatise on the Constitutional Limitations at pages '36-37 that "a written Constitution is in every instance a limitation upon the powers of government in the hands of agents; for there never was a written republican constitution which delegated to functionaries all the latent powers which lie dormant in every nation, and arc boundless in extent, and

KESAVANANDA ti, KERALA (Ray, J,) 427

incapable of definition". This view of Cooley is not relevant to the amending power in Article V of the American Constitution. This view relates to the legislative power that a written Constitution is a limitation upon the powers of the Government, namely, the legislature, the executive and the judiciary.

The other views of Cooley in Constitutional Limitations at pages 341-343, 345-348, 351-354 are these. First except where the Constitution has imposed limitations upon the legislative power it must be considered as practically absolute, whether it operates according to natural justice or not in any particular case. Second, in the absence of constitutional restraint the legislative department of a State Government has exclusive and ample power and its utterance is the public policy of the State upon that subject, and the Courts are withour power to read into the Constitution a restraint of the legi::lature with respect thereto.

Third, if the Courts are not at liberty to declare statutes \'oid because of their apparent injustice of impolicy, neither can they do , so because they appear to the minds of the Judges to violate fundamental principles of republican Government, unless it shall be found that those principles are placed beyond legislative encroachment by the Constitution. The principles of republican government are not a set of inflexible rules, vital and active in the Constitution, though unexpressed, but they are subject to variation and modification from motives of policy and public necessity. Fourth, the Courts are not at liberty to declare an act void, because in their opinion it is opposed to a spirit supposed to pervade the Constitution, but not expressed in words.

Mr. Palkhivala relied on the views of George Skinner published in 18 Michigan Law Review (1919-1920) pages 21-225 to build the theory of implied and inherent limitations. The views extracted are these. The power given by the Constitution cannot be construed to authorise a destruction of other powers in the same instrument. The essential form and character of the Government, being determined by the location and distribution of power, cannot be changed, only the exercise of governmental functions can be regulated. A somewhat different view of Skinner in the same Law Review is that it is not likely that the Supreme Court would put any !imitations upon the power 0£, Congress to propose amendments and in construing the Fifth Article it would be unwilling to say Congress had proposed an amendment which it did not deem necessary. The discretion is left entirely with Congress.

The other View on which Mr. Palkhivala relied is of William L.

Marbury published in 33 Harvard Law Review (1919-1920) at pp. 223-

235. The views which Mr. Palkhivala extracted are that it may be safely premised that the power to amend the Constitution was not intended to include the power to destroy it. Marbury relies on Livermore v.

428 SUPREME COURT RJ!pORTS (1973] Supp. S.C.ll.

W iu'te 102 Cal 118 where it is stated that 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.

There are other views of Marbury on which the Attorney General relied and which were not extracted by Mr. Palkhivala. Those views are .that after excluding from the scope of its amending power in Article V of the American Constitution such amendments as take away legislative 1'9Wers of the State there is still left a very broad field for its operation. All sorts of amendments might be adopted which would change the framework of the federal Government, the thing which the- Constitution was created to establish, which would change the distribution of power among the various departments of the Government, place additional limitations upon them, or abolish old guarantees of civil liberty and establish new ones.

The Attorney Generai also relied on the view of Frierson published in 33 Harvard Law Review pp. 659-066 as a reply to Marbury.

Frierson's view is that tlhe security for the States was provided for by the prov'ision for the necessity of ratification by . three-fourths of the- States. The Constitution committed to Congress and not to the Courts the duty of determining what amendments were necessary. The rights of the States would certainly be safer in the hands of three-fourths of the States themselves. This is considered by the framers of the Constitution to ensure integrity of States.

The Attorney General also relied on the view of McGovney published in Vol. 20 Columbia Law Review. McGovney points out a distinction between a polirical society or Ste on the one hand and governmental organs on the other to appreciate that constit111tional limitations are against governmental organs. The writer's view is that an individual has no legal rights against a sovereign organised political society except what the society gives. The doctrine of national sovereignty means that people who made the existing distribution of powers between the federal and the State Governments may alter it. Amendment is left to legislatures because as a matter of convenience the legislatures generally express the will of the people. In the Constitution the people prescribe the . manner in which they shall amend the Constitution. McGovney states that_ an amendment of a particular statute means 'Usually it is a change germane to the subject matter of that statute. Any change in the GOvernment of the nation is germane to the Constirution.

Any change altering the disposition$ of power would therefore be germane to the purposes of the instrument. McGovney's view is that it is clear that no limitation on the amending power can be found in this notion of necessity for germaneness.

Kl!SAVANANDA I), KERALA (Ray, J.)

The AttQrney General also relied on an Article "On the views of W. F. Dodd published in 30 Yale Law Journal p. 321 seq. and of H. W.

Taft, published in 16 Virginia Law Review p. 647 seq. The view of Dodd is this. There are no implied limitations on the amending power.

The Supreme Court in the National Prohibition cases rejected the arguments presented in favour of implied limitations. To narrow down the meaning of amendment Of to adopt implied limitations would not only narrow down the use of the amending power but would also leave the question of amending power in ea.ch case to judicial decision without the guidance of any legal principle. Taft's view is that by reason of the Tenth Amendment which provided that the powers not delegated tJo the Uruted States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people, the amending power in Article V of the American Constitution was not limited by .the Tenth Amendment.

The question which has arisen on the Fifth Article of the American Constitutioo is whether there are implied limitatioru; upon the power to amend. The two express limitations were these. First, r, o amendment . which may be made prior to 1808 shall in any manner effect the First and the Fourth cbauses in the Ninth Section of the First Article. That Limitation became exhausted by passage of time.

The second exnress limitation is that no State without its consent shall be deprived of its equal suffrage in the Senate. The express limitation is to safeguard the equal representation of the smaller States in the Senate. The limitation can only be changed by unanimous consent of the States.

The 18th Amendment was vigorously attacked in the National Prohibition Cases on the ground that it overstepped alleged implied limitations on the Constitution amending power. The arguments

advanced were these. First, the 18th Amendment which introduced prohibition was not in fact an amendment for an amendment is an alteration or improvement of that which is already contained in the Constitution and the term is not intended to include any addition of entirely new grants of power. Secondly, the amendment was not an amendment within the meaning of the Constitution because it is in its nature legislation and that an amendment of the Constitution can only attect the: powers of government and cannot act directly upon the rights of individuals. Third, that the Constitution in all its parts looks to an indestructible nation composed of indestructible States.

The power of amendment was given for the purpose of making alterations and improvements and any attempt to change the fundamental basis of the Union is beyond the power delegated by the Fifth Article. 28-36 S, C. lndia/71

430 SUPRl!Mll COUllT REPOll.TS [ 1973] Supp. s.c.R.

The decision in the National Prohibition Cases is that there is no limit on the power to amend the Constitution except that State may not without its consent be deprived of its equal suffrage in the Senate.

In Rhode Island v. Palmer 253 U.S. 350=64 L. Ed. 947 the 18th Amendment was challenged to be not within the purview of Article V.

The iutlgment in Rhode Island case was that the amendment was valid.

In Rhode Island case the grounds of attack were that the amendment was legislative in character and an invas\on of nallural rights and . an encroachment on the fundamental principles of dual sovereignty but the contentions were overruled.

In Hawke v. Smith 253 U.S. 221 a question arose as to whether the action of the General Assembly of Ohio ratifying the 18th Amendment known as National ProhiLition could be referred to the electors of the State under the provisions of the State Constitution. It was held that these provisions of. he State were inconsistent with the Constitution of the United States. The decision of the Court was unanimous. The two methods of ratification prescribed by Article V of the Constitution are by action of the legislatures of the three-fourths of the States or conventions in the like number of States. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution~ That power is conferred upon Congress.

Article V was held to be plain and to admit of no doubt in its interpretation. The choice of means of ratification was wisely withheld from conflicting action in the several States.

Again, in Lesser v. Garnett 258 U.S. 130 there was a suit to strike out the names of women from the register of voters on the ground chat the State Constitution limited suffrage to men and that the 19th Amendment to the Federal Constitution was not validity adopted. The 19th Amendment stared that right of ciens to vote shall not be denied on account of sex. It was contended that the amending power did not extend to that situation. The Supreme Court there rejected that contention. The Supreme Court said tlhat the function of a State legislature in ratifying the proposed amendment to the federal Constitution l'ike the function of Congress in proposing the amendment is a federal function derived from the federal Constitution; and it transcend! any limitations sought to be imposed by the people of a. tate.

In United States v. Sprague 282 U.S. 716 a contention was advanced that the 10th Amendment recognised a distinction between powers reserved to the States and powers reserved to the people and that State legislatures were competent to delegate only the former to the National .

Government; delegation of the latter required action of the people

KESAVANANDA V. KERAi.A (Ray, J.) 431

through conventions in the severa~ states. The 18th Amendment being of the latter character, the ratifiqtion by State legislatures was contended to be invalid. The Supreme Court rejected the argument. It found the language of Article V too clear to admit of reading any exceptions into it by implication.

The decisions iii Rhode Island v. Palmer 253 U.S. 350, Hawke v.

Smith 253 U.S. 221, Leser v. Garnett 258 U.S. 130 and United States v.

Sprague 282 U.S. 716 are all authorities for the proposition that there is no implied limitation on the power to amend. The 18th Amendment was challenged on the ground that ordinary legislation could not be embudied in a constitutional amendment and that Congress cannot constitutionally propose any amendment which involves the exercise or relinquishment of the sovereign powers of a State. The 19th Amendment was attacked on the narrower ground 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. The Supreme Court brushed aside these arguments as wholly unworthy of serious attention and held both the amendments valid.

Mr. Palkhivala contended the word "amendment" in Article 368 would take its colour from the words "change in the provisions" occurring in the proviso. The American decisions illustrate how the Supreme Court consistently rejected the attempts to limit the meanings of the word "amend" in Article V of their constitution because of the reference to ratification by legislatures or conventions. Where words are read in their context there is no question of implication for cor.- text means parts that precede or follow any particular passage or text and fix its meaning.

The rule of nosciitur a sociis means that where two or more words which are susceptible of analogous meaning are couplied together, they are understood to be used in their cognate sense. They take their colour from each other, the meaning of the more general being restricted to a sense analogous to that of the less general.

This rule has been found to have no application to Article V of the American Constitution because conventions and legislatures are both deliberative bodies and if an amendment can be submitted either to the legislatures of States or to conventions at the absolute discretion of the Congress, it is difficult to say that the character of the amendment is in any way affected by the machinery by which the amendment is to be ratified. In Rhode Island case the contention that an amendment of the Constitution should be ratified by conventions and not by legislatures was rejected. In Sprague case the ; ontention that matters

432 SUPREME COURT REPORTS [1973] Supp. s.c.R.

affecting the liberty of citizens could only be ratified by conventions was not accepted and the Supreme Cour.t refused to read any implication into Article V of the American Constitution. The Supreme O:Jurt said that in spite of the clear phraseology of Article V, the Court was asked to insert into it a limitation on the discretion conferred on it by the Congress. The Supreme Court did not accept any implied limitation. Where the intention is clear there is no room for construction and no excuse for interpolation or addition. In Feigenspan v. Bodine 264 F. 186 It has been said when the people delegated the power of. amendment ro their representatives the power of amendment cannot be excluded in any way other than prescribed nor by any instrumentality other than there designated.

Mr. Palkhivala relied on some Canadian decisions the Initiative anti Referendum case 1919 A.C. 935, Switzmen v. Elbling 1957 Canada Law Reports 285, Rex v. Hess (1949) 4 Dominion Law Report 199; and Saumur v. City of Quebec and Attorney General of Quebec (1953) 4 D.L.R. 641 and Chabot v. School Commissioners of Lamordiere anil Attorney General for Quebec (1958) 12 D.L.R. 796, in support of three propositions. First, unlimited legislative jurisdiction of the Dominion Parliament in Canada is under inherent limitation. by reason of the preamble to the British North America Act which states that the Constitution is similar in principle to the United Kingdom. Second, the Dominion legislature cannot-detract from the basic rights of freedom of speech and political association which are available in the United Kingdom. Third, rights which find their source in natural law cannot be taken away by positive law.

In the Initiative and Referendum case the Judicial Commitke said that section 92 of the Briti5h North America Act entrusted legislative. power in a province to1 its legislature and to that legislature only. A power ot legislation enjoyed by a provincial legislatare in Canada can while preserving its own capacity intaot seek the assistance of subordinate agencies as in Hodge v. Queen 9 App. Cas. 117 the legislature of Ontario was held to be entitled to entrust to the Board of Commissioners authority to enact regulations. It does not follow that such a legislature can create and endow with its own capacity a legislative power. The Initiative and Referandum case decided that in the absence of clear and unmistakable language the power which the Crown possessed through a person directly representing the Crown could not be abrogated. The Lieutenant Governor under the British North America Act referred to as the B. N. A. Act was an integral part of the legislature. The Initiative and Referendum Act was found to be one which wholly excluded the Lieutenant Governor from legislative authority. The only powers of veto and disallowancc preserved by the Initiative and Referendum Act were related to acts of legislative

Xl!SAVANANDA I/, KERALA (Ray, J.) 433

Assembly as distinguished from Bills. Therefore the powers of veto and disaJowancc referred to could only be those of the Governor General under section 90 of the B. N. A. Act and not the powers of the Lieutenant Governor whlch arc at an end when a Bill has become an Act.

Section 11 of the Act provided that when a proposal for repeal of some law has been approved by majority of the electors voting that law is automatically to be deemed repealed, at the end of 30 days after the publication in tlie Gazette. Thus the Lieutenant Governor appears to be wholly excluded from the lcgisltive authority. The Initiative and Referendum decision related to 'an Act of the legislature and secondly to the Act being ultra vires the provwons of the B.N.A. Act. This is not at all relevant to the amending power of a Constitution. The Act was found to be 'invalid because the machinery which it provided for making the Laws was contrary to the machinery set up by the B.N.A.

Act. The impugned Act rendered the Lieutenant Governor powerless to prevent a law which had been submitted to voters from becoming an actual law if approved by the voters. The impugned Act set up a legislature different from that constlituted by the B.N.A. Act and this the legislature had no power to do.

The other Canadian decisions arc based on three views. The first view is based on the preamble to the B.N.A. Act that the Provinces expressed their desire to be federally united into one Dominion, with a Constitution similar to that of the United Kingdom. The corollary extracted from the preamble is that neither Parliament nor Provincial legislat'Ures may infringe on the traditional liberties because of the Preamble to the B.N.A. Act and a reference to British Constitutional History. The second view expressed in the decisions is that the basic liberties are guaranteed by implication in certain sections of the B.N.A.

Act. Section 17 establishes a Parliament for Canada. Section 50 provides that no House of Commons shall continue longer than five years. These sections are read by the Canadian decisions to mean that freedom of speech and freedom of political association should continue. The third view is that some rights find thci.F source in natural law which cannot be taken away by positive law.

The first view found expression in Switzman case. There was an Act respecting communistic propaganda. The majority Judges found that the subject matter was not within the powers assigned to the Province by section 92 of the B. N. A. Act. They further held that the Act constituted unjustifiable inl'Crfc_rcncc with freedom of speech and expression essential under the democratic form of government established in Canada. The Canada Elections Act, the B.N.A. Act provided for election of Parliament every five years, meeting of Parliament once a year. It was contended that it was implicit in all legislations the right of candidates to criticise, debate and discuss political, economic and social principles.

434 SUPREME COUllT REPORTS [1973] Supp. s.c.R.

Hess case raised a question of jurisdiction of the Court to grant bail. Under section !025A of the Criminal1 Code a person was detained in custody. Section 1025A providro that an accused might be det:1ined in custody without bail pending an appeal to the Attorney General.

The Saumur case related to a municipal bye-law requiring permission for disribution of books and tracts in the city streets. The Sa11mur case relid on the observations of Duff, C.J. in Re Albert Legislation

(1938) 2 D.L.R. 81==1938 S.C.R. 100 that the right of free public discssion on public affairs is the breath of life for parliamentaly i11stitut10ns.

In Chabot case public schools in the Province of Quebec were operated by School Commissioners ePected by tax payers of whom the religious majority were Catholics. A dissident tax payer raised the question as to whether dissidents might establish their own schools or they might send them to a school of a neighbouring municipality and thereupon, become exempt from paying tax. The majority held that certain regulations passed by the Catholic Committee were intra vires because they must be construed as confined to Catholic children.

The Canadian decision show first that certain Judges relying on the Preamble to the B.N.A. Act that the Canadian Constitution is to be similar in principle to that of the United Kingdom raised the vires of some of the legislations affecting freedom of speech. Secondly, the Canadian Constitution was given by the British Parliament and if the Judges who used such dicta referred to that part of the Preamble they were emphasising that the rights of the Canadian people were similar to those in England. Thirdly, it has to be remembered that the Canadian Constitution has been developed through usage and conventionl.

None of these decisions relates to amendment of the Constitution.

None of these decisions indicates th; it there is any inherent limitation on the amendment of the Constitution. The Preamble to the B.N.A. Act shows that the Canadian Constitution enjoined observance of fundamental principles in British constitutional practice. The growth of the Canadian Constitution was through such usage and convention. Our Constitution is of a sovereign independent republican country. Our Constitution does not draw sustenance from any other Constitution. Our Constitution does not breathe through conventions and principles of foreign countries.

There are no explicit guaranteed liberties in the British North America Act. In Canada the constitutional issue in civil liberties legislation is simply whether the particular supersession or enlargement , is competent to the Dominion or the Province as the case may be. Apart

IUSAVANANDA II, KERALA (Ray, J.)

43.S

, from the phrase "civil rights in the Province" in section 92(13) there • i• no language In sections 91 and 92 which even remotely expresses civil liberties vahies.

The Canadian Bill of Rights assented to in 1960 in section 2 states that every law oc Canada shall unless it is expressly declared by an Act of Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights be so construed and applied as not to abrogate, or infringe or authorise abrogation, abridgement or infringement of any of the rights of freedom recogn'.ised and declared. The view of Laskin in Canadian Constitutional Law (3rd Edition) (1%9) is that in terms of legislative power the political liberties represent independent constitutional values which are exclusively in federal keeping. Since the enactment of the Canadian Bill of Rights the question has hardly any substantive effect because the Canadian Parliamena can make a declaration in terms of section 2 of the Bill of Rights that a law abrogating a freedom in the Bill of Rights is operative.

Mr. Palkhivala relied on llhe Australian decisions in 'Taylor v.

Attorney General of Queensland 23 C.L.R. 457 and Victoria v. Commonwealth 45 Australian Law Journal 251 in support of the proposition that thrre is inherent and implied limitation on the power of amendment.

In Taylor case the Parliamentary Bills Referendum Actof 1908 was challenged. The Parliament Bills Referendum Act provided that when a Bill passed by the Legislative Assembly in .two successive sessions has in the same two sessions been rejected by the Legislative Council:, it may be submitted by referendum to the electors, and, if affirmed by them, shall be presented to the Governor for His Majesty's assent, a!Jd upon receiving such assent the Bill shall become an Act of Parliament in the same manner as if passed by both Houses of Parliament, and notwithstanding any law to the contrary; The Australian States Constitution Act, 1907 provided that it shall not be necessary to reserve, for the signification of His Majesty's pleasure thereon, any Bill passed by the legislatures of any of the States if the Governor has previously received instructions from His Majesty to assent and does assent according~ to the Bill.

In 1915 the Legislative Assembly of Queensland passed a Bill to amend the Constitution oc Queensland by abolishing the Legislative Council. The Bill was passed by the Legislative Assembly. The Le~ lative Council rejo:tcd the Bill. The Legisliative Assembly again

passed the Bill The Legislative Council again rejected the Bill. The Governor in accordance with the Parliamentary Bills Referendum Act

436 SUPREMl! COURT REPORTS [1973] Supp. s.c.R.

1908 issued regulations proviiding for the taking of the Referendum polls. It was argued that the Constitution ought to have been first amended.

The questions for the opinion of the Court were : (1) Is the Constitution Act, Amendment Act of 1908. a valid and effective Act of Parliament? (2) Is the Parliamentary Bills Referendum Act of 1908 a valid and effective Act of Parliament ? (3) Is there power to abolish the Legislative Council of Queensland by an Aot passed in accordance with the provisions of the Parliamentary Bills Referendum Act of 1908 ? ( 4) Was the Referendum valid ?

The Colonial Laws Validity Act 1865 'in section 5 conferred full power on every representative legislature to make l; iws respecting the constitution, powers and procedures of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Counci~ or colonial laws for the time being in force in the said colony. The Parliamentary Bills Referendum Act was Leid to be an Act respecting the powers of the liegislature. Section 5 of the Colonial Laws Validity Acn provided the authority for the legislation.

Mr. Palkhivala extracted three propositions from the Taylor case.

First, probably the power to make laws respecting the Constitution, power and procedure of such legislature docs not extend to authorise the elimination of the represelltativc character of the legislature within the meaning of the Act p. 468 per Barton, J. Second, probably the representative character of the legislature is a basic condition of the power relied on, and is preserved by the word "such" m the collocation of words in the Constitution "of such legislature" p. 474 per Issacs, J. Third, when power is given to a Colonial. legislature to alter the Constitution of the legislature that must be read subject to the fundamental conception than consistently with the very nature of the Constitution as an Empire, the Crown 'is not included in the ambit of such power p. 474 per Issacs, J.

The decision m Taylor case was to the effect that the Acts did not alter the representative. characr of the legislature as defined in section 1 of the Colonial Laws Valiidity Act, 1865, nor did they affect the position of the Crown. The first two propositions on which Mr.

Palkbiivala relied, namely, the observations of Barton and Issacs, JJ. p. 468 and p. 474 were both prefaced by the word "probably" which amply shows that the observations are obiter. The question whether the representative character of the legislature could be changed or whether the Crown could be eliminated did not call for decision. The other learned Judges Gavan Duffy and Rich, JJ. said "It may perhaps

Kl!SAVANANDA V. Kl!RALA (Ray, J.) 437

be that the legislature must always remain a representallive legislature

as defineJ by the statute, but it is unnecessary in the present case to <letermine whether that '1s so or not".

Issacs, J. held in that case that the word "legislature" did not include rhe Crown because section 7 of the Colonial Laws Validity Act used the expresSlion "legislature" followed by the words "or by

persons or bodies of persons for the time being acting as such legislature" to show that the legislature was exclusive of the Crown. The assent of the Queen or the Governor was thus regarded as an additional factor. Therefore, Issacs, J. said that when a power is given to the Colon; cl legislature to alter the Con•titullion that must be read subject to the fundamental conception, that the Crown is not included in the ambit of such power. Those observations are made in the context ot the provisions of the Colonial Laws Validity Act where a "colony" is defined to include all of Her Majesty's possessions abroad".

The observations therefore mean that when power to alter the Constitution was conferred upon a colony which is a part of Her Majesty's possessions abroad it is reasonable to assume that such power did not include power to eliminate the Queen as a part of a colonial legislature.

The representative character of the legislature does not involve oany theory of implied limitation on the power of amendment. Such

legislature as was emphasised by Issacs, J. shows that the !imitation On the power of amendment flowed from express language of section 5 of the Colonial Laws Validity Act and was not dependent upon .any implication.

In the State of Victoria case th~ valid'ity of the Pay-Roll Tax Act, 1941 was impugned on the ground that it was beyond the legislative competence of the Commonwealth. The Pay.-Roll Tax Assessment Act 1941-69 made the Crown liable to pay tax on the wages payable to named categories of employees of the State of Victoria. The Cemmon- wealth Parliament, in the exercise of its power under section 5l(ii) of the Constitution to make laws with respect to taxation, but so as not to discriminate between States or parts of State was held competent to include the Crown in right of a State in the operation of a law imposing tax or providing for the assessment of a tax. The inclusion of the Crown in right of a State in the definition of "employed" in section 3(1) of the Pay-Roll Tax Assessment Act 1941-1969 thus making the Crown in right of a State liable to pay the tax in respect of wages paid to employees including employees of depart- ments engaged in strictly governmental functions was also held to be a valid exercise of the power of the Commonwealth under section 51

o( the Constitution. Section 114 of the Constitution enacts ban on the

438 SUPREME COURT REPOltTS (1973) Supp. S.C.R,

imposition by the Commonwealth of a tax on property of a State.

This ban wos not offended. A law which in substances takes a Srate or its powers or functions of government as its subject matter is invalid' because it cannot be supported upon any grant of legislative power, but there is no implied limitallion on Commonwealth legislative power under the Constitution arising from the federal nature of the Constitufion .. There was no necessary implication restraining the Commonwealth from making a law according to the view of three learned' Judges. Four other learned Judges held that there is an implied limitation as lack of Commonwealth legislatlive power but the Act did not offend such limitation ..

The limitation which was suggested to be accepted was that a Commonwealth fuw was bad if it discriminated against States in the sense that it imposed some special burden or disability upon them se> that it might be described as a law aimed at their rdtridtion or control.

In the Australian case Barwick, C.J. stated that the basic principles of construction of the Australian Constitution were definitely enunciated in the Amalgamated Society of Engineers v. Adelaide Steam.<hif" .Co. Ltd. (1920) 28 C.L.R. 129 which unequivocally rejected the doctrine that there was an implied prohibition in the Constitution against the exercise in relation to a State of a legislative power of the Commonwealth in accord\tnce with the ordinary rules of Constitution.

Mr. Palkhivala relied on some Irish cases in support of theory of implied and inherent limiitafions.

In Rayan case 1935 Irish Report 170 the validity of amendment of Article 50 of the Irish Constitution which came into existence in 1922 fell for cons.ideration. Article 50 provided that within 8 years from the commencement of the Constitution amendments to the Constitution were to be made by ordinary legislation. After the expiry of 8 years amendments were to be made by roferendum. The other provision in Article 50 was that amendment "shall be subject to the provisions of Article 47" of the Cons!iitution. Article 47 made pr<>"

visions for the suspension in certain events of any Bill for a period of 90 days and for the submission of any bill so suspended to referendum if demand should be made. By an Amendment Act in 1928 reference to the provisions of Article 47 was repealed. In 1929 before the expiryof 8 years there was an amendment of the Constitufion whereby the period of 8 years was changed to 16 years. Both the amendments were upheld. Amendment were challenged on two grounds : First, that many Articles of the Constlitution are so fundamental as to beincapable of aheration. Second, Article 50 does not autlioris.e any change in these fundamental Articles.

KESAVANANDA V, KERALA (Ray, J.) 439

The decision of the Judicial Committee in Moore & Ors. v.

Attorney General jor the Irish Free State & Ors. 1935 A.C. 484 throws a flood of hight on the question of amendment of the amending power in a written Constitution. The Treaty and the Constituent Act scheduled to the Irish Free Constitution Act, 1922 being parts of an Imperial Act formed parts of the statute law of the Unin:ed Kingdom.

The first clause of the Treaty provided that Ireland shall have the same constitutional stl.tus in the community of nations known as the British Empire as the Dominion of Canada, Commonwealth of Australia, the Domin.ion of New Zealand, and the Union of South Africa with a Parliament having force to make laws for the peace, order and good government of Ireland and an Executive responsible to that Parliament and shal~ be styled and known as the Irish Free State.

The second clauso of the Treaty provided that the law practice and constitutional usage governing the relationship of the Crown or the representative of the Crown and of the Imperial Parliament to the Dominion of Canada shall govern their relationship to the Irish Free State. Of the Articles of the Constitution, Article 12 created a legislature known as the Oireachtas and the sole and .exclusive power of making laws for th~ peace, order and good government of the Irbh

Free State was vested in the Oireachtas.

Article 50 provided that amendment$ of the Constitution within the terms of the Scheduled Treaty might be made by the Oireachtas.

Article 66 provided that the Supreme Court of the Irish Free State would have appellate jurisdiction from all decisions of the High Court and the decision of the Supremo Court would be final and conclusive.

The proviso to that Article stated th:111: not!liing in the Constitution shall impair the right of any person to petition His Majesty for special leave to appeal from the Supreme Court to His Majesty in Council.

The proviso to Article 66 was inserted to give effect to Article 2 of the Treaty and hence under Article 50 of the Constitution it was argued that the proviso to Article 66 could not be amended in the way it was sought to amend it by abolishing tlhe right of appeal.

Article 50 contained another limitation that amendments within the terms of the Treaty might be made. Clause 2 of the Treaty provided that relations with the Imperial Parliament should be the same as the Canadian. By Amendment Act No. 6 of 1933 the words "within the terms of the Treaty" were deleted from Article 50. Thereafter Amendment Act No. 22 of 1933 was passed abrogating right of appeal to the Privy Council.

The Judicial Committee in Moore case noticed that "Mr. Wilfrid Greene for the petitioners righdy conceded that Amendment Act No. 16 of 1929 which substituted for the 8 years specified in Article 50

as the period during which amendment might be made without a

440 SUPIIBl\iE COURT IIBPORTS [1973} Supp. S.C.R.

referendum a period of• 16 years was regular and that the validity of the subsequent amendments could not be attacked on the ground that they had not been submitted to the people by referendum. ·

 It was argued by Mr. Greene in that case that the Constituent Assembly having accomplished its work went out of existence leaving no successor and no body in authority capable of amending the Constituent Act. The argument was in effect that the Constitution was a

semi rigid Constitution that is one capable of being amended in detail in the different Articles according to their terms, but not susceptible of any alteration so far as concerns the Constituent Act, unless perhaps by the calling together of a new constitution assembly by the people of Irel; i.nd. The decision of the Supreme Court of Ireland in Ryan .case was referred to by the Judical Committee. The Judicial Committee held that the Oireachtas had power to repeal or amend the Constitution Act and in repealing or amending of parts of an imperial Statute, namely, the Irish Free State Constitution Act, 1922 what the Oireach- . tas did must be deemed to have been done in the way in which alone it could legally be done, that is by virtue of the powers given by the statute. The abolition of appeals to Privy Council was a valid amendment.

The decision in Liyanage v. Queen (1%7) 1 A.C. 259 was also relied

-011 by Mr. Palkhivala for the theory of implied and inherent limitations. The Criminal Law Amendment Act passed by the Parliament of Ceylon in 1%2 contained substantial modifications of the Criminal 1'rocedure Code. There was ex post facto legislation of detention for

60 days of any person suspected of having committed an offence against the State by widening the clas:i of offences for which trial without jury by three judges nominated by the Minister of Justice would be ordered. An arrest without warrant for waging war against the Queen became permissible and new minimum penalties for that offence were prescribed and for conspiring to wage war against the

Queen and overawe the government by criminal force, and by widening the scope of that offence. The Act also provided for the admission in evidence of certain confessions and statements to the police inadmissible under the Evidence Code. The Act was expressed to be retrospective to cover an abortive coup d'etat on 27 January, 1%2 in which Liyanage and others took part, and was to cease to be operative after the conclusion of all legal proceedings connected with or incidental to any offence against the State committed on or about the date of the commencement of the Act, whichever was later. The second Crirninal Law Amendment Act of 1%2 (No. 31 of 1962) substituted the Chief Justice for the Minister of Justice as the person to nominate the three Judges but left unaffected other provisions for the former Act.

KESAVANANDA V. KERA.LA (Ray, J.) 441

The Supreme Court of Ceylon convicted the appellants and sentenced them to 10 years rigorous imprisonment the minimum prescribed by the Criminal: Law Act 1 of 1962.

The Privy Council held the legislation to be ultra vires on two grounds. The Acts could not be challenged on the ground that they were contrary to fundamental principles of Justice. The Colonial Laws Validity Act 1865 which provided that colonial laws should be void to the extent of repugnancy to an Act of the United Kingdom, and should not be void on the ground of repugnancy to the law of England did not leave m exIStence a fetter or repugnancy to some vague and unspecified law of natural justice. The Ceylon Independence Act 1947 conferred on the Ceylon Parliament full legislative powers of a sovereigu independeru: State. The Acts were declared to be bad because thev involved a usurpation and infringement by the legislature of judicial powers inconsistent with the written Constitution of Ceylon.

The silence of the Con•titution as to the vesting of judicial power , was inconsistent with any intention that it should pass to or be shared ' by the executive or the legislature. The ratio of the decision is that the legislature could not usurp judicial power. There is an observation at page 289 of the report that section 29( 1) of the Ceylon Constitution confers power on Parliament to pass legislation which does not enable a law to usurp the judicial power of the judicature. The Judicial Committee answered the question which was posed as to what the position would be if Parliament sought to procure such a result by first amending the Constitution by a twc;.thirds major; ty hy statin, g that such a situation dicl not arise there and if any Act \vag passed without recourst to section 29( 4) of the Ceylon Constitution it would be 11/tra vius.

The Judicial Commit1tee found that urnler section 29( 4) elf the Cevlon Constitution there coul<I be an amen<lment only by complying with the proviso, which would be the manner and form and would not be a limitation on the width of the power. The Ceylon case is not an authority for the proposition of itnplied anc1 inherent limitation on the amending power.

In Liyanage case the Privy Council rejected the contention that powers of the Ceylon Legislation should be cut tlown by reference to the vague an<l uncertain expression "fundamental principles of Jlritish Law". In deci, ling whether the Constitution of Ceylon provided for a separation between the legislature and the judiciary the Pri\'y Council did not refer to consequences at all, but referred to the fact that the provisions relating to the legislature and the judicature were found in two separate parts of the Constitution. The provisions for appointment of the subordinate judiciary by a Commission consisting exclusively of Judges with a prohibition against any legislator being a member thereof and the further provision that any attempt to influence the decision

442 SUPaEME COURT REPORTS (1973] Supp. s.c.R.

was a criminal offence were held by the Judicial Committee to show that the judiciary was intended to be kept separate from the legislature and the executive. This conclusion was based on a pure construction of the provisions of the Act. The reference to consequences was in a different context. The Privy Council recognised that the impugned law dealt with a grave exceptional situation and were prepared to .assume that the legisfature believed that it had power to enact it.

Again in Kariappar case 1968 A.C. 717 the Judicial Committee considered a Ceylon Act which was inconsistent with the Ceylon Constitution. The Act imposed chuc disabilities for 7 years on person to whom the Act applied and provided for the vacation of the seat as a Member of Parliament. The words amend or repeal in Section 29( 4) of the Ceylon Constitution were read by the Judicial Committee to cover an amendment or repeal by inconsistent act. The plain words amend or repeal did not adntlt ambiguity.

To introduce into our Constitution the doctrine of implied and :inherent Limitations on the meaning of the word "amendment" by

upholkling the power to amend the essential features but not the core on the theory that only people can change by referendum is to rewrite the Constitution. The decisions in Ranasinghe case 1965 A.C. 172 and Kariappar case 1%8 A.C. 717 are authorities for two propositions. First, that in the exercise of the po"1er of amendment a controlled Constitution can be converted into an uncontrolled one. Second, the word "amendment" means alteration. In lbralebbe case 1964 A.C. 900 the Judicial Committee said that if the Ceylon legislature abrogated the appeal to the Privy Council it would be an amendment of its judicial structure.

The decision in Mangal Singh v. Union of India (1967) 2 S.C.R. 109 has been relied on by Mr. Palkhivala in support of the proposition that the power of amendment is subjc; ct to implied limitation. Article 4 of the Constitution which was interpreted in Mangal Singh case has to be read with Articles 2 and 3. Article 4 contains a limited power of amendment, lhnited to amend Schedules 1 and 4 as may be necessary to give effect to a law mentioned in Articles 2 and 3 and of making supplemental, inaidental and consequential provisions. Shah, J. in Mangal Singh case said that power with which Parliament is invested by Articles 2 and 3 is a power to a'clmit, establish or form new States or to admit, establish or admit new States which conform to the democratic pattern envisaged by the Con!!litution 6nd is not a power to override the constitutional scheme. It is manifest that when a new State is created in accordance with Articles 2 and 3 the amendment under Article 4 will be followed up as necessary to give effect to the same. Such an amendment does not override the constitutional scheme.

. KESAVANANDA V. KERALA '(Ray, J.)

It is an amending power of a limited nature and is supplemental; incidental or consequential to the admission, establishment or formation of a State as contemplated by the Constitution. This decision does not say that there are implied limitations to the amending power.

The petitioner challenges the legality and the validity of 1

the Constitution (25th) Amendment Act. ·

The Constitution (25th) Amendment Act has first amended Article 31(2), second added Article 31(2B) and third introduced Article 31C. Article 31(2) is amended in two respects. First, it substituted the word "amount" for the word "compensation" for property acquired or requisitioned. Second, it 'is provided .that the acquisition or requisition law shall not be. called in question on the ground that whole or any part of the amount is to be given otherwise than in cash. Article 31(2B) has been inserted to the effect that nothing in sub-clause (£) of clause (1) of Article 19 'shall effect any such law.as is referred to in clause (2). '

Article 31C t~; es 'that. notwithstanding anything .. contained in Article 13 no law giving effect to the policy of the State towards secu- ring the 'principles specified in clause (b) or clause (c) of Arfide 39 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 or Article 19 or Article 31 and no law containing a declaration that it is for giving effect to such policy shall be called ri.n question in any court on the grounp that it does not'give effect to such policy. It is provided that where such law is 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.

The basic controversy is really regarding the right to property and I the acquisition of property by the State. The Constitution of India was intended to achieve po1itical liberty on the one hand and economic and social liberty on the other for all citizens of India. The Directive Principles.in the Constitution are also fundamental iin the governance of the country and it shall be. the duty of the State to , apply these principles iri making laws. That is Article 37. It can be achieved by making changes in the economic. and social structure of the society.

The resolutions of the Congress in 1929, 1931, 1945 and the objective resolution of 22. January, 1947 and the resolution of All-India Congress Working Committee in 1947 are not only a remembrance of .things past. In 1929 the Congress resolution was that "it was essential to make revolutionary changes in the economic and social structure of the wciety and to remove the gross inequalities. It was also resolved that political freedom must include the economic freedom of the

444 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.

starving millions. In such economic and social programme the State is to own or control the key industries and scrVlices, mineral resources railways, waterways, shipping and other means of. public transporr: In 1945 the Working Committee said that the concentration of wealth and power in the hands of individuals and groups was to be prevented.

Social control of the mineral resources and of the prinaipal methods of production and distribution in land, industry and in other departments of national activity would be necessary to develop the country into cooperative commonwealth. In the case of industnies which in their nature must be run on a large scale and on centralised basis, it was felt that they should belong to the community and they should be so organised that the workers become not only co-sharers in the profits but also increasingly associated with the management and administration of the industry. Land and all other means of production as well as distribution and exchange must belong to and be regulated by the community in its own interest. The framers of the Colllltitution wanted a social structure which would avoid the acquisitive economy of private capitalism and the regimentation of a totalitarian State.

In this background the Constitution was created with the object of effecting social revolution. The core of the commitment to the social revolution lies in Part III and Part IV of the Constitution. They are described to be "conscience of the Con9titution". The object of Part III was to "liberate the power of man equally for distribution to the common good". The State would have to bear the responsibility for the welfare of citizens. The Directive Principles are a declaration of economic inl(\ependence so that our country men would have economic as well as political control of the country.

The centre ol the fundamental rights is said by Mr. Palkhivala to be Articles 14, 19 and 31. It is right to property. But the Directive Principles are also fundamental. They can be effective if they arc to prevail' over fundamental rights of a few in order io subscrve the common good and not to allow economic system to result to the common detriment. It is the duty of the State to promote common good.

If the motives for co-operating with others consist in the mere desire to promote their private good they would be treating their fellbwmcn as means only and not also an end. The notion of common good was needed '.o explain away the difference between the prinCiples of reasonable self love and benevolence. The distribution of material resources is to subserve die common good. The ownership and control of the material resources is to subserve common good. The economic system is to work in such a manner that there is no concentration of wealth to the common detriment; Again, the economic system is to work in such a manner that the means of production are not used to the common detriment.

11:.ESAVANANDA V. llMU (Rily, J.) 445

The declaration of human rights on which Mr. Palkhivala relied for the unamendability of fundamental rights is rightly said by the Attorney Goneral to be no impediment to the power of amendment nor to support the petitioner's contention regarding the inviolability of the right to property. For the purpose of promoting the general welfare in a democrati~ State the Directive Principles were said by the Attorney General to be fundamental in achieving rights of men and economic and social rights for human dignity. Every citizen assertt enjoyment for fundamental rights under the Qmstitution. It becomes the corresponding duty of every citizen to give effect to fundamental rights of at! i:itiuns, dignity of all citizens, by allowing the State to achieve the Directive Principles. The duty of the State is not limited to the protection of individual interest but atends to acts for the achievement of the general welfare in all cases where it can safely act and the only limitations on the governmental action& arc dictated by the experience of the needs ri time. A fundamental right may be regarded as fundamental by one generation. It maJl be considered to be inconvenient limitition upon legislative power by another generation. Popular sovereignty means that the interest which prevails must be the interest of the mass of men. If rights arc built upon property those who have no property will have no rights. That it why the State

has ro balance interest of the individual with the interest of the society. Industrial democracy is the necessary complement to polticial democracy. The State has to serve its members by organising an avenue of consumption. This can be done by socialisation of those clements in the common welfare which are integral to the well being of the community.

The petitioner's cha1lenge to the amendment on Article 31(2) is as follows. The right to property is one of the essential features of the Constitutian. It is the hand maid to various other fundamental rights. The right to freedom of the Press under Article 19(l}(a) is meaningless if the publisher could be deprived of his printing plant and the building in which it is housed without compensation. The fundamental right under Article 19(1) ( c) to form trade unions will be denuded of its true content if the property of a trade union could be acquired by the State without compensation. The right to practise any profession or carry on any occupation, trade or business under Article 19(1) (g) wil~ be tl1e right to do forced labour for the State if the net savings from the fruits of a citizen's personal exertion are liable to be acquired by the State without compensation. The freedom of religion in Article 26 will lose a great deal of its efficacy if the institutions maintained by a community for its religious and charitable purposes could be acquired without compensation. The implication of the proviso to Article 31 (2) is tliat the State may fix such an amount for acquisition of the property as may abridge or abrogate any of the

29-36 S.C. IRdia/73

446 SUPlll!ME COUllT lll!POKTS [1973] Supp. s.c.1t.

o0ther fundamental rights. Exercise of fundamental rights would be .affected by the deprivation of property without compensation in the legal oense and the only exception to this power of the Slate is the a.se of educational institution dealt with in the proviso. Article 31(2) as a result of the Constitution (25th) Amendment Act will empower ' the State to fix an amount on a basis which need not be disclosed even . to the members of the legislature and which may have no relation to

the property sought to be acquired. The amount is not to satisfy any

of , the principles of compensation. It need not be paid in cash and it will yet not be considered to be a ground of challenge to the validity i;>f law. Article 31(2) has nothing to do with estate, zamindaries, land teforms or agrarian reforms which are specifically dealt with by Arti- .clc 31A.

The right to acquire, hold and dispose of property under Article 19(1) (f) is subject under Article 19(5) to reasonable restrictions in the interests of the general public. If Article 19(5) permits such reasonable restrictions it is said by the petitioner that the only object of making Article 19(l)(f) inapµlicable by Article 31(2B) is to enable acquisition and requisition laws to contain restrictions or provisions wh are unreasonable and not in the public interest. Reliance was placed by Mr. Palkhivala on the Bank Nationalisation case (1970) 3 S.C.R. 530 and the observations at p. 577 that if Article 19(1J(f) appl!o.l to acquisition or requisition, law which permitted a property to be taken without the owner being heard where the rules of natural justice would require the owner to be heard, would be void as offending Article 19( 1) ( f). Extracting cliat observation it is said that the amount fixed without giving him a hearing or amending the Land

Acqui.sition Act to provide that any man's .land or house can be acquired without notice to the owner to show cause or to prove what amount should be fairly paid to him for the property acquired will damage the essence or core of fundamental right to property.

After the substitution of the neutral expression "amount" for "compensation" in Article 31(2) by the Constitution (25th) Amendment Act the Article still binds the legislature to provide for the giving to the owner a sum of money either in cash or otherwise. The legislature may either. lay down principles for the determination of the amount or may itself fix the amount. .Before the amendment the interpretation of Article 31 (2) was that the law was bound to provide for the payment of compensation in the sense !)f equivalent in value of the property acquired. This was the interpretation given in the

Bank Nationalisation case even after the Corutituti?n 24th Amendment Act, which said that the adequacy of compensation could not be challenged. The Constitution 25th Amendment Act states that the law .no longer need provide for the giving of equivalent in value of the

Kl!SAVANANDA V, KERALA (Ray, J.) 447

acquired property. The quantum of the amount if directly fixed by the law and the principles for its quantification are matters for legislative judgment. Specification of principles means laying down general guiding rules applicable to all persons or transactions covered thereby. In fixing the amount the legislature will act on rhe general nature of the legislative power. The principle may be specified. The principle which may be acted upon by the legislature in fixing the amount may include considcraitions of social justice as against the equivalent in val!uc of the property acquired .. Considerations of social justice will include the relevant Dircclive Principles particularly in Article 39(b) and (c). These principles arc to subserve the common good and to prevent common detriment. The question of adequacy has been excluded from Article 31 (2) by the Constitution Fourth Amendment Act. It cannot be said that the legislature would be under the necessity of providing a standard to measure an adequacy with reference to fixing the amount. The Constltution does not allow judicial review of a law on the ground of adequacy of the amount and the manner as to how such amow1t is to be given ot; herwise than in cash.

If the word "compensation" as it stood prior to the amendment of Article 31 (2) must mean equivalent value in cash it is said by the

Solicitor General that the concentration of wealth will remain unchanged and justice social, economic, and political amplified in Articles 39, 41, 42, 43, 45, 46 and 47 will be thwarted. The fulfilment of the Directive Principles is in a sense more fundamental than the mere right to property. Re-adjustment In the social order may not be practicable in a smooth manner unless the Directive Principles are effectively implemented. The emergence of a new social order is a challenge to present day civilisation. If naions wanted independence and supremacy in the latter half of the 19th century and the first half of the 20th century individual dignity, individual freedom, individual status in a well organised and well planned society are opening the frontiers since the mid-century. In this background the 25th Amendment protects the law in one respect, namely, that amowlt payable to me owner is no longer to be measured by me standard of equivalellit

in value of me acquired property. The quantum cannot be a matter for judicial review. Ever since the Fourth Amendment the adequacy of compensation is excluded by the Constitution. The reason is that the Constitution declares in clear terms that adequacy is not justiciable and therefore, it cannot be made justiciable in an indirect manner by holding that the same subject matter which is expressly barred is contained implicitly in some other provision and is, therefore, open to examination,

Just as principles which were irrelevant to compensation were invalid prior to the Constitution 25th Amendment it was said that if

448 SUPREME COURT REPORTS [ 1973] Supp1 S.C.R.

any principles are adopted which are irrelevant to the concept of amount as a legal concept or as having a norm the law would be invalid because the amount would be purely at the wil• or at the discretion of the State. Therefore, it was said that when the law fixes the amount it might indicate the principles on which the amount had been arrived at or the Court might enquire into on which the amount had been fixed. Any contrary view according to the petitioner would mean that under Article 31 (2) state would have authority to specify principles which could be arbitrary or specify the amount which could be arbitrary.

It was also said th.at as a result of the proviso to Article 31 (2) after the 25th Amendment the law providing for compulsory acquisi tion of property of an educational institution established by a minoritr referred to in Article 31 (1) the State was to ensure th.at the amount fixed or determined was such as would not restrict or abrogate the right guaranteed under that clause. The amount would have to be higher than the amount which woukl be sufficient not to damage the essence of that right. But under Article 31 (2) after the 25th Amendment where the proviso did not apply it was said that the core or essence of the fundamental rights would be damaged or destroyed.

The word "amount" in Article 31 (2) after the 25th Amendment is to be read in the entire collocation of words. No law sh.all be called in question in any Court on die ground that the amount so fixed or determined is inadequate or the who~ or part of it or any part of such amount is given in cash. In Article 31 (2) the use of the word "amount" in conjunction with payment in cash shows that a sum of

money is being spoken of. Amount is a sum me:rriing a quantity or amount of money, or, in other words, amount means a sum of money.

Article 31 (2) prior to as well after the 25th Amendment indicates two alternatives to the legislatures. either to specify the principles for determination of the amount or to fix the amount or "compensation" prior to the amendment.· In fixing the amount or compensation the legislature is not required to set out in the law the principles on which compensation had been fixed in the unamended clause or the amount is fixed in the amended clause.

Article 19(l)(f) provides that all citizens shai have the right to hold, acquire or dispose of property whereas ArticJe 31 (2) deals with law by which the property is acquired. Such law acquiring property dir<etly extinguishes the right to h.old or dispose of property acquired.

Article 19(1)(f) is excluded from Article 31(2) in order to make Article 31 (2) self contained. The riht to hold property cannot coexist with the right of the State to acquire property. That is why Article 31(2) is to be read with Articll:: 31A, 31B and 31C, all the Articles being under the headin& "Right to Propotf'.

KESAVANANDA II. KUALA (Ray, J.) 449

It has been held by this Court in F. N. Rana case ( 1964) 5 S.C.R. 294 that Land Acquisition Act docs not give the right of quasi-judicial procedure or the requirements of natural justice as section 5A of that Act! has been held to be administrative. It has also been held by this Court that a Requisition Act which did not give a right of representation before an order for requisition was made did not violate Article 19(1) (f). (Sec S. N. Nandi v. State of West Bengal A.LR. 1971 SC 961).

The other part of the 25th Amendment which is challenged by the petitioner is Article 31C. Article 31C is said by Mr. Palkhivala to destroy several essential features of the Constitution for these reasons.

First, there is a distinction bcween cases where the fundamental rights arc amended and laws which would have been void before the 25th Amendment arc permitted to be validly passed and cases where the fundamental rights remain unamended but the laws which arc void as offending those rights arc validated by a legal fiction that they shall not be deemed to be void. The law is in the first case constitutional in reality whereas in the second case the law is unconstitutional in reality but is deemed by a fiction of law not to be . void with the result that laws which violate the constitution are validated and there is a repudiation of the Constitution. If Article 31C is valid it would be permissible to Parliament to amend the Constitution so as to declare all laws to be valid which arc passed by Parliament or State legislatures in excess of legislative competence or which violate basic human rights enshrined in Part III or the freedom of inter-State Trade in Article 30J. Article 31C gives a blank charter to Parliament and the State legislatures to defy the Constitution or damage or destroy the supremacy of the Constitution. Secondly, Article 31C subordinates fundamental rights to Directive Principles. The right to enforce fundamental rights is guaranteed under Article 32. The Directive Principles arc not enforceable by reason of Art\clc 37. Y ct it is said that while giving effect to Directive Principles fundamentan rights are abrogated.

Thirdly, whereas an amendment of a single fundamental right would require a majority of at least two-thirds of the members of Parliament present and voting, a law witliin Article 31C which overrides and violates several fundamental rights can be passed by a simple majority.

Fourthly, every fundamental right is an essential feature of the Constitution and Article 31C purports to take away a large number of those fundamental rights. '.Fifthly, the Court is precluded from considering whether law under Article 31C is such that it can possibly secure Directive Principles in question. Sixthly, no State legislature can amend the fundamental rights or any other pact of the Constitution but Article 31C empowers the State lcgislaure to pass laws which virtualliy involve repeal of the fundamental ilghts. Power of amending the Constitution is delegated to State legislatures.

450 SUPREME COURT REPORTS [ 1973 J Supp. s.c.R.

Finally, it is said that the fundamental rights undr Article 14, 19 and 31 which are sought to be supers<Xled by Article 31C are necessary to make meaningful specific rights of the minorities which are guaranteed by Articles 25 to 30. The proviso to Article 31(2) shows that in the case of acquisition of property of an educational institution established by a minority an amount fixed should be such as not to restrict or abrogate the right of the m.inorities under Article 31. It is, therefore, said that the implication is that if property is acquired in cases other than those of minorities an amount can be fixed which restricts or abrogates any of the fundamental rights. Again, It is said that if a law violates the right of the minority under Articles 25 to 30 such a law would be .no law. Therefore, deprivation of property under such law would violate Article 31(1). But the 25th Amendment by Article 31C abrogates Article 31(1) and minorities can he deprived of their properties held privately or upon public, charitable or religiou' trusts by law which violates Articles 25 to 30.

The pre-eminent feature of Article 31C is that it protects only law. Therefore, any question of violation of Article 31(1) does not arise. Law referred to in Article 31C must be made either by Parliament or by the State legislature, according to the legislative procedure for enacting a law. There are several Articles in the Constitution where the expression "law" with reference to the authority to make law has been used. These are Articles 17, 19(2) to (6), 21, 22, 23(1), 26, 31, 33, 34 and 35. These Articles indicate that the expression "law" :here means law made by tile legislature in accordance with its ordinary legislative procedure. The expression "law" does not include within itself ordinance, order, bye-law; rule, regulation, notification, custotp or usage having the force of law nor an amendment of the Constitution in accordance with the procedure prescribed in Article

368. In Article 13 the term "law" has been used in a wide sense. For this a definition was given in Article 13(3) to include certain other categories. The definition in Articl'e 13(3) is expressly limited for Article 13. Law in Article 31 C mus\ have the same meaning as it ha' in other Articles generally, namely,· a statute passed by the legislature.

It is true that such law may need details to be filled up by other agencies but the essential elements of Article 31 C must be supplied directly by tht enactment. A question arose with reference to ArticLe 254 as to whether a clause of the Sugar Control Order 1955 made under the Essential Commodities Act had the effect of repealing the corresponding Uttar Pradesh State Law. This Court held that the power of repeal was vested in Parliament and Parliament alone .could exercise it by enacting an appropriate provision in that regard. Parliament could not delegate the power of repeal to any executive authority.

(See Ch. Tika Ramji & Ors. Etc. v. The State of Uttar Pradesh & Ors.

1956 S.C.R. 393).

KESAVANANDA ti. KERALA (Ray, J.) 451

Article 31C is inextricably bound up with Article 39(b) and (c) because the purpose and the phraseology In both the Articles are

esentially identilical. The legislative efforts to implement Directive Principles in Article 39(b) and ( c) were set in motion in some States to achieve reforms in land law. Articles 31A and 31B were introduced by the Constitution First Amendment Act 1951. The main reason for introducing Articles 31A and 31B was to exclude the operation of Part III as a wholi: from those provisions. The true relationship bot ween Directive PrinCiples in Part IV and the fundamental rights in Part III became clear. It was realised that though the liberty of individual was valuable it should not operate as an insurmountable barrier against the achievement of Directive Principles. In Sajjan Singh case ( 1965) 1 S.C.R. 933 it was said that "the rights of society are made paramount and they are placed above those of the individual", In the Biluu- Land Reforms case 1952 S.C.R. 889 it was said that "a fresh outlook which placed the general 'intera>t of the community abo\'e the interest of the individuals, pervades over Constitution".

Law contemplated in Article 31C will operate on the ownership and control of the material resources of the community to be distri butcd as best to subservc the common good. The operation of the economic system should not result in concentration of wealth. Means of production should not be used to the common d'etriment. The owl)ership and control of the material resources of the community cn be achieved by nationalisation and planned economy. The operation of the economic system will mean imposition of contron on the pr<>- duction, supply and distributions of products of key industries and essential commodities. There can be laws within Schedule 7 List III Entries No. 42, 43; List I Entry No. 52 to 54 and List II Entries No. 23, 24, 26 and 27.

The provisions in Article 3!C that no law contairiing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy was quest.toned by the petitioner to exclude judicial review and, there fore, to be illegal. Article 3!C was in the second place said to enable the State legislatures to make discriminatory laws destructive of the

tegrity of India. Thirdly, Article 31C was said ro delegate the amending power to State legislatures or Parliament in its ordinary legislative capacity.

The declaration mentioned in Article 31C is for giving effect to the policy of the State towards securing the principles in Article 39(b) or (c). Such a declaration in a law shall not be called in question on the ground that it does not give effect to such policy. The laws which receive protection under Articll: 31C are laws for securing the Directive Principles of Articles 39(b) and (c). The nexus or connection between.

452 SUPUMll COUllT DPOITS [1973] Supp. s.c.a.

the law and the objectives set out in Article 39(b) and ( c) is a condition precedent for the applicability of .Article 31C. On behalf of the

Union and the State it was not contended that whether there was such nexus or not was not justiciable. The real reason for making the declaration free from question in a Court of law . on the gtOtilJ.d that it docs not give effect to such policy is to leave legislative pol'icy and wisdom to the legislature. The legislative measure. might not according to some views give effect to Directive Principles. Therefore, legislatures are left in charge of formulating thcir policy and giving effect to it through legislation. It is the assessment and judgment of such measures which is sought to be excll.i.ded from judicial review by the declaration.

In order to decide whether a statute is within Article 31C the court may examine the nature and the character of legislation and the matter dealt with as to whether there is any nus of the law to the principles mentioned in Article 39(b) and (c). If it appears that there no nexus between the legislation and the objectives and principks mentioned in Article 39(b) and ( c) the legislation will not be within the protective umbrella. The Court can tear the veil to decide the real nature of the statute if the facts and circumstance1 warrant such a course.

The reason for excepting Articles 14, 19 and 31 from Article 31C is the same as in Article 31A. The Solicitor General rightly said that the fear of discrimination is allayed by three safeguards. The first and the foremost safeguard is the good sense of the legislature dnd the Innate good sense of the co:nmunity. The second safeguard is the President's assent. The third safeguard is that in appropriate cases i~ can be found as to whether there is any nexus between law and Directive Principles sought to be achieved. There is no better safeguard than the character of the citizen, the character of the legislature, the faith of the people in the representatives and the responsibility of the representatives to the nation. No sense of irrcsponsibitity can be

ascribed or attributed !IO the representatives of the people. The citclution of Al'tlicle 14 is to evolve new principles of equality in the light. of Directive Principles. The exclusion of Article 19 is on the footing that laws which arc to g'ivc effect to Directive Principles will coristitutc

reasonable restrictions on the individual'$ liberty. The exclusion' of Article 31 (2) is to introduce the consideration of social justice in the matter of acqwsition. Directive Principles are not limited to agrarian reforms. Directive Principles arc necessary £or the uplift and growth of industry in the counuy.

Article 31(4) and 31(6) speak of cerrain class of laws not.being called in question on the ground of contravention of Article 31(2).

Article 31A relates to law of the class mentioned therein not to be

JWAVANANDA I/, DL\LA (Rlry, J,)

4S3

Toid on the ground that it is inconsistent with or takes away or abridges any of the fundamental rights conferred by Articles 14, 19 and 31.

Article 15(4) states that nothing in Article 15 or in Article 29(2) shall _prevent the State from making any special provision for the adv-.mcement of any socially and cducatio1ially backward classes ot citizens or for the Scheduled Castes and the Scheduled Tribes. Article 31 (5) (b) (ii) states that nothing in Arrick 31 (2) shall affect the provisions of any

law which the State may make for the promotion of public health.

Article 33 speak! of law with regard to members of the Armed Forces charged with the maintcllaJlce of public order, so as to ensure the J?lopcr discharge of their duties and the maintenance of discipline among them and for that purpose the operation of some fundamental right in Part III is modified.

The Solicitor General rightly said that similarly Article 31C creates a legislative field with reference to the object of legislation. It is 5imilar t(l laws contemplated in Article 15(4), Article 31(5)(b)(ii) and Article

33. Each of these Articles carves out an exception to some Article or

Articles conferring fundamental rights. The field carved out by the various Articles arc of diiierent dimensions. The entire process of exception of the legislative field from the operation of some of the Articles relating to fundamental rights is the mandate of the Constitution. It is

ll•rong to say that the Constitution delegates power of amendment to Parliament or the States. As a resuht of the 25th Amendment the existing legislative field is freed from the fetters of some provisions of Part III of our Constitution on the legislative power.

Article 31C substantially operates in the same manner in the industrial sphere as Article 3!A operates in the agrarian sphere. The problems ; ve similar In nature though of different magnitude. The constitutional method adopted to solve the problem is similar. The Solicitor General is correct in summing up Article 3!C as an application of the principles underlying Articles 31 ( 4) and 31 ( 6) and Article 31A to the sphere of industry.

A class of legislation can be identifiod and the legislative field can be carved out from the operation of fundamental rightS or some of those can.be excluded by a provision of the Constitution. Articles 31(4) and 31 ( 6) identify the laws with reference to the period during which they were made. Article 31(4) relates to a bill pending at the commencement of the Constitution in the legislature of a State to have been passed by such legislature and to have received the assont of the Presi- <lent to be not called in question on the ground that it contravenes Article 31(2). Article 31(6) relates to law of the State enacted not more tlhan 18 months from the commencement of the Constitution to be submittod to the President for his certification and upon certification by the President not to be called in question on the ground of contra-

454 SUPRE?.(E COURT REPOllTS. [1973] Supp. S.C.ll,

vention of Article 31(2). Articles 31(2) and 31A identify the legislative field with reference to the subject matter of law. Articles 15(4) and 33 and Article 31 (5) (b) (ii) identify laws with reference to the objective of the legisliature. The excepdons to some part or some Articles of Part III of the Constitution is created by the Constirution and any bw which is made pursuanv to such power conferred by the Constitution does not amend the operation or application of these Articles in Part III of the Coiwitution. The crux of the matter is that modification or exception regarding the application of some of the Articles in ParU III is achieved by the mandate of the Constitution and not by the law which is to be made by Parliament or State undor Article 31C. Therefore, there is no delegation of amending powers. There is no amendment of any constitutional provision by such law.

The Constitution First Amendment Act 1951 introduced Articles 31A and 31B and Schedule 9 which are to be read together. Article 31A excluded a challenge under the whole of Part IIJ for the laws; of the kind mentioned in that Article. Article 31B restrospectivcly validated laws mentioned in Schedule 9 from challenge under Part III and also on the ground that they violated section 299 of the Government of India Act, 1935. It may be stated here that Parliament which passed the Constitution Fmt Amendment Act 1951 was the Constituent Assembly functioning as a legislature, till clections were held and a Parliament as provided for under the Constitution could be formed. Articles 31A and 31B carried out the intent'ion of the framers of the Constitution as stated in Articles 31(4) and31(6) that land legislation or agrarian reform was to be enforced and fundamental rights were not to be allowed tlJ stand in the way of implementing the Directive Principles of State Policy contained in Article 39. The fundamental right conferred under Article 31 (2) was subordinated to Article 39(b) and (c) in order to protect laws referred to in Article 31(4) and 31(6). When that object failed and the law was struck down under Article 14, Parliament gave effect to the policy underlying Articles 31(4) and 31(6) by excluding a challenge under every Article in Part III. In the Bihar Land Reforms ease this Court •aid that the purpose behind the Bihar Land Reform Act was to bring about a reform of the land distribution system in Bihar for the general benefit of the community and the legislature was the best judge of what was good for the community and it was not possible for this Court to say that there was no public purpose behind the acquisition contemplated in the statute.

This Court in State of West Bengal v. Eda Baneriee 1954 S.C.R. 558 held that the word "compensation" means just equivalent or full indemnity for the property expropriated. In Dwarkadas Srinivas v.

Sho/11pur Spg & Wvg. Co. Ltd. 1954 S.C.R. 674 this Court struck down

' •

• r '

KESAVANANDA ti. KE1lALA (Ray, J.)

the Jaw for taking over the managemem of Sholapur Mills on the ground that it amounted to acquisition and since no compensation was provided for, the Jaw was .held to bc void. The Constitution Fourth Amendment Act 1955 came to remedy the 'implementation of essential welfare legislation. One of the measures in the Fourth Amendment Act was the amendment of Article 31 by making adequacy of compensation non-justiciable and the other .was to amend Article 31A.

The formula which had been used in Articles 31(4) and 31(6) to exclude the contravention of Article 31 (2) was adopted with regard to adequacy of compensation. As a result of the amendment of Article 31A new categories were added to the Article and new Acts were added to the Ninth. Schedule. The 17th Amendment Act made changes in Article 31A(l) and the proviso and amended Scliedule 9 by inserting new ,\cts therein. ·

The successive amendments of the Constitution merely carried out the principle embodied in Article 31 clauses (4) and (6) tliat legislation deigned to secure the public good and to . implement the Directives under Article 39(b) and (c) should have priority over individual: rights and that therefore fundamental rights were to lie subordtnate- !o Directive or State Policy.

Article 31 (2) as it onginally stood spoke of compensation for acquisition or requisition of property. The meaning given to compen sation by the Court was full market value. There was no scope for giving effect to the word "compensation". Thore was no flexibility of s0cial interest in Article .31(2). Every concept of social interest became irrelevantt by the scope of Article 13(2). It is this mischief which was sought to be remedied by the 25th Amendment. If Directive Principks are to inter-play with Part III legislation will have to give expression to such law. Parts III and IV of the Constitution touch each other and modify. They are not parallel to each other. Different legislation will bring in different social principles. These will not be permissible without social content opera6ng in a flexible manner. That is why in the 25th Amendment Article 31 (2) is amended to eliminate the concept of market value for property which is acquired or requisitioned.

If compensation means an amount determined on principles of social justice there will be general armony between Part Ill and Part IV. Secondly, if compensation means market price then the concept of property right in Part III is an absolute right to own and possess property or. to receive full price, while the concept of property right in Part IV is concf1tioned by social interest and social }ustice. There would be an inherent conflict in working out the Directive Principles of-Part IV.with the guarantee in Part Ill. That is why clauses (4) and

\6) of Artie!~ JJ illUstrate the vital principle that to make effective a

456 ~UPllME couaT UP011TS [1973] Supp. s.cJt.

legislative effort to bring about changes in accordance with Directive

Principle~ particularly those containro in Article 39(b) and ( c) Article 31 (2) may have to be abridged. The social interest and justice may vary from time to time and territory to territory and individual rights may .have to be limited.

Just as the amount can be fixed on principles of social justice the principles for determining the amount can be specified on the same consideration of social justice. Amount is fixed or the principles arc specified by the norm of social justice in accordance with Directive Principles.

In amending Article 31(2) under the 25th Amendment by substituting the word "amount" for "compensadon" the amount fixed is made non-justiciable and the jurisdiction of the Court is cxdudcd because no reasons for fixing such amount would or need appear in the legislation. If any person aggrieved by the amount fixed challenges the Court can neither go into the question of adequacy nor as to how the amount is fixed. If adequacy cannot be questioned any attempt to find out as to why the particular amount is fixed or how that amount has been fixed by law will be examining the adequacy which is forbidden as the constitutional mandate. If one alkges that the amount is illusory one will meet the insurmountable constitutional prohibition that the adequacy or the alleged arbitrariness of the amount fixed is not within the area of challenge in courts.

The amount fixed is not justiciable. The adequacy cannot! be qucs- \ tioned. The correctness of the amount cannot be cha1lengcd. The principles specified are not justiciable.

If on the other hand, the legislature does not fix the amount but

pecifics the principles for determining the amount, the contention that principles for .determining the amount must not be irrelevant loses all force because the result determining the amount by applying the specified principles cannot be challenged on the ground of inadequacy.

If principles are specified for determin'ing the amount and as a result of the application of the principles the result is less thaa the market value it will result in the same question of challenging adequacy.

The reltvancy of the principles cannot be impugned. Nor can the reasonableness of the principles be impeached. i

l Article 14 has the flexibility of classification. Article 19 has the ! flexibility of reasonable restrictions. Social justice will determine the

/ nature of the individual right and also the restriction on 111ch right,

KESAVANANDA V. llAALA (Ray, J.) 457

Social justlce will require modification or restriction of rights under Part III. The scheme of the Constitution generally discloses that the principles of social justice are placed above individual rights and whenever or wherever it is considered necessary individual rights have been subordinated or cut down to give effect to the principles of social

justice. Social justice means various concepts which are evolved in the Direct'ive Principles of the State ..

The 25th Amendment ha• amended Article 31 (2) and also introduced Article 31(2B) in. order to achieve r.Vo objects. The first is to eliminate the concept of market value in the amount fixed for acquisition or requisition of the propeny. The second is ro exclude in clause (2B) of Article 31 the applicability of Article 19(1) (f).

Articles 31A and 31B applied to acquisition a.i.d requiswon of property. The purpose of Article 31C is to confer by constitutional mandate power on Parliament and State to make laws foe giving effect to Directive Principles. The significance of the total exclusion of Part III from Articles 31A and 31B is that it brings about in unmistakable manner the true relationship between the provisions of Parr IV an<1 Part III of the Constitution.

With reference to land legislation subordination of fundamental right• of individual to tho common good was dear in clause!l ( 4) and ( 6) of Arllicle 31. It was made clearer by the Constitution First Amendment Act whkh introduced Articles 31A, 31B and Schedule 9.

Arti<le• 31A, 31B, Schedule 9 and Article 31C merely removed the restrictions which Part III of the Constitution imposes on legislative power. Article 31A after the Fourth Amendment removed the restrictions on legislative powe.r impo'1Cd by Articles 14, 19 and 31. In enacting clauses (b), (c) and (d) in Article 31A Parliament was giving effect to social control which though less urgent than land reform became in course of time no less v_ital. Article 31B by the First Amendment retrospectively validated the laws specified in Schedule

9 by retrospectively removing all invalidity from the law because of . the transgression of rights in Part III. Again, the seven new Acts added in the Ninth Schedule by the Fourth Amendment Act had nothing to do with agrarian reform, but dealt with subjects ci great national importance. The Constitution Fourth Amendment Act was intended to remove the barriers of Articles 14, 19 and 31 (2) in respect of land legislation considered essential for public good.

State legislatures cannot remove the fetter. They have no power to amend the Constitution. Parliament cannot remove the fetter by

ordinary law. By amendment of the Constitution Parliament can re-

.45g SUPREME COURT REpOJlTS (1973] Supp. s.c.11 .

. mo"e the fetter by either deleting one or more fundamental right or rights or by excluding certain laws or certain kinds of laws from the fetter.

The pattern of Articles 31A, 31B, the Ninth Schedule and Article 31C i; best understood by the observations of Patanjali Sastri, C.J. in Shankari Prasad case ond of Wanchoo, J. in Golak Nath case. Patanjali Sastri, C.J. said in Shankari Prasad case "Articles 31A and 31B really seek to save a certain class of laws and certain specified laws already passed from the combined operation of Article 13 read wiith other relevant Artlicles of Part III. The new Articles being thus essentially amendments of the Constitution have the power of enacting them. It was said that Parliament could not validate the law which it has no power to enact. The proposition holds good whether 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 law, which contravenes the Constitution, constitutionally valid is a matter of constitutional amendment and as such it falls within the exclusive power of Parliament". Wanchoo, J. said of Article 31B "The laws had already been passed by the State legislature and it was their constitutional infirmity, if any, which was being cured by the device adopted in Article 31B read with the Ninth Schedule .... .. .. .. . .. .. .. .. .. . Parliament alone could do it under Article 368 and there was no need for any ratificat:lon under the proviso for amendment of Part III is not entrenched in the proviso".

The conclusiveness of declaration introduced by the 25th Amendment in a law under Article 31C is to be appreciated in the entire context of Article 31C. In removing restrictions of Part lII in respect of a law under Article 31 C there is no delegation of power to any legislature. There is only removal of restriction on leg1$lative power imposed by Articles 14, 19 and 31. Article 31C does not confer any power to amend the Constitution. The exclusion of Article 31 is a necessary corollary to protecting the impugned law from challenge under Articles 14, 19 and 31 because Arlticle 13(2) would but for its exclusion in Article 31C render such laws void. The declaration clause is comparable to section 6(3) of the Land Acquisition Act'1894 which contains a conclusive evidence clause that declaration shall be conclusive evidence that the land is needed for a public purpose and for a com- pany as the case may be. A conclusive declaration would not be permissible so as to defeat a fundamental right. In Article 31(5) it is provided that nothing in clause (2) shall effect (a) the provisions of any existing law other than a law to which the prov:isions of clause (6) applv and since the Land Acquisition Act 1894 is an existing law the condnsive declaration clause prevails and is not justiciable. See Babu Barkya Thakur v. The State of Bombay & Others. (1961)· 1 S.C.R. 128.

KES.WAN .. NIM :v. KERALA (Ray, J:) 459

The same view was reiterated bv this Court in Smt. Somavanti & Ori.

v. 'The State of P'uniab & Ors. -(1963) 2 S.C.R. 774 that a declaration under the Land Requisition Act was not only conclusive about the need but was also conclusive for the need was for a public purpos(.

Conclusive proof is defined in the Indian Evidence Act. It is, therefore, seen that the legislative power carries with it the power to provide for conclusive proof so as to oust the jurisdiction of a Court.

The declaration is for the purpose of excluding the process ofevaluation of legislation on a consideration of the virtues and defects with a view to seeing if the -laws has led to the result Intended. If a question arises as to whether a piece of legislation with such declaration has a nexus with the Directive Principles In Article 39(b) and ( c) the Court can go into the question for the purpose of process of identification of the legislative measure on a consideration of •the scope and object and pith and substance of the legislation. Therefore, the 25th Amndment

is valid.

A contention was advanced on beha1f of, the petitioner that Article 31B applies to agrarian reforms or in the alternative f>-rticle 31B is linked to Article 31A and is to be read as applying to laws in resptct of five ubject matters mentioned in Article 31A. The 13 Acts mentioned in the Ninth Schedule as enacted by the First Amendment Act, 1951 dealt with eotatcs and agrarian reforms. There is nothing in Article 31B to indicate that it is linked with the same subject matter as Article 31A. In the Bihar Land Reforms case Patanjali Sastri, C.J. said at pp. 914-915 of the report (1952 S.C.R. 889) that the opening words of Article 31B are only intended to make clear that Article 31A should not_ be restricted in 'its application by reason of anything contained in Article 31B and are not in any way calculated to restrict the applkation of the latter Article or of the enactments referred to therein to acquisition of estates.

In Vishweshwar Rao v. State of Madhya Pradesh 1952 S.C.R. 1020 it was urged that Article 31B was merely illustrative otf Article 31A and as the latter -was limited in is applicaion to estates as defined therein Article 31B was als0 similarly limited. That contention was rejected and it was said that Article 31B specifically validates certain Acts mentioned in the Schedule despite the provisions of Article 31 A and is .not illustrative of Article 31A but stands independrnt of it.

Again, in Jeeiibhoy v. Assistant Collector (1965) 1 S.C.R. 616 it was contendeJ that Articles 31A and 31B should be read together and if so read Article 31B would only illustrate the cases that would otherwise fall under. Article 31B, and, therefore, the same construction a~

put upon Article . 31B should apply to Article 31A. This Court did

460 SUPIU!ME COURT IU!POllTS [ 1973] Supp. s.c.11.

not accept the argument. It was said that the words "without prejudice to the generality of the provisions cont.tined in Article 31A" indicate that the Acts and Regulations specified in the Ninth Schedule would have the same immunity even if did not attract Article 31A of the Constitution. If every Act in the Ninth Schedule would be covered by Article 31A, Article 31B would be redundant. Some of the Acts mentioned in the Ninth Schedule, namoly, items 14 to 20 and many other Acts added to the Ninth Schedule, do not appear to relate to estates as defined in Article 31A(2) of the Constitution. It

was, therefore, held in fee; ibhoy case that Article 31B was a constitutional device to place the specific statute beyond any attack oo the ground that they infringe Part III of the Con.stirution.

The words "without prejudice to the generality of the: provisions contained in Article 31A" occurring in Article 31B indicate that Article 31B stands independent of Article 31A. Article 31B and the Schedule are placed beyond any attack on the ground that they illfringe Part III of the Con•titution. Article 31B need not relate to any particular type of legislation. Article 3IB gives a mandate and complete protection from the challenge of fundamental rights to the

Scheduled Ac~ and the Regulations. Article 31A protects laws in re.- pect of live subject matters from the chall; engc cl. Arficks 14, 19 and 31, but not retrospectively. Article 31B protects Schcdukd Acts and the Regulations and none of the Scheduled Acts arc deemed to be void or even to-have become void on the ground cl. contravention of any fundamental right.

The validity of the Constitution 29th Amendment Act lies withia a narrow compass. Article 31B has been held by this Court to be a

valid amendment. Article 31B has also been held by this Court to be an independent provisiol\. Article 31B has no connection with Article 31A. The Bihar Lan_d Reforms case and feejibhoy casi: arc. wdl scttleil authorities for that proposition. It, therefore, follows that Mr. Palkhivala 's contention cannot be accepted that before the Acts can be included in the Ninth Schedule requirements of Article 31A are -to be complied with. '

For the foregoing reasons these arc the conclusioll5.

First, the power to amend the Constitution is located in Article

368. Second, neither; the Constitution nor an amendment of the Cons

titution can be or is law within the meaning of Article 13. Law ia Article 13 means laws enacted by the legislature subject to the provision of the Constirution. Law in Articf.e 13(2) does not mean the Constitution. The Constirution is the supreme law. Third, an amendment of the Constution is an exercise of the constituent power. The

KESAVANANDA V. KEllALA (Ra;', J.) 461

ma1onty view in Golak Nath case is with respect wrong. Fourth, there are no express limitations to the power of amendment. Fifth, there are no implied and inherent limitations on the power of amendment. Neither the Preamble nor Article 13(2) is at all a limitation on the power of amendment. Sixth, the power to amend is wide and unlimited. The power to amend means the power to add, alter or repeal any provision of the Constitution. There can be or is no distinction between essential and in-essenital features of the Constiitution to raise any impediment to amendment . of alleged essential features.

Parliament in exercise of constituent power can amend any provision of this Constitution. Under Article 368 the power to amend can also be increased. The 24th Amendment is valid. The contention of Mr.

Palkhivala that unlimited power of amendment would confer power to abrogate the Constitution is rightly answered by the Attorney General and Mr. Seervai that amendment does not mean mere abrogation or wholesale repeal of the Constitullion. The Attorney General and Mr. Seervai emphasised that an amendment would leave an organic mechanism providing the Constitution organisation and system for the State. If the Constitution ca.nnot have a vital growth it needs must wither. That is why it was stressed on behalf of the respondents that orderly and peaceful changes in a constitutional manner would absorb all amendments to all provisions of the Constitution which in the end would be "an amendment of this Constitution".

The 25th Amendment is valid. The adequacy of amount fixed or the principles specified cannot be the subject matter of judicial review.

The amendment of Article 31(2B) Is valid. Artic!ie 31(2) is self contained and Articles 31(2) and 19(l)(f) are mutually exclusive. Amendment of fundamental right prior to the amendment was and is now after the 24th Amendment valid. Article 31C does not ddegate or confer any power on the State legislature to amend the Constitution. Article 31 C merely removes the restrictions of Part III from any legislation giving effect to Directive Principles under Article 39(b) and ( c). The power of Parliament and of State legislatures to legislate on the class of legislation covered by Article 31C is rendered immune from Articles 14, 19 and 31.

The inclusion of the Kerala Act 35 of 1969 and the Kerala Act 25 of 1971 by the 29th Amendment in the Ninth Schedule is valid.

Article 31B is independent of Article 31A.

In the result the contentions of Mr. Palkhivala fail. Each party will pay and bear its own costs. The petitlions will be placed before the Constitution Bench for disposal in accordance with law.

30-36-S. C. India/73

462 SUPREME COURT REPORTS (1973] Supp. S.C.R.

}AGANMOHAN REDoY, J.-The detailed contentions addressed before us for 66 days have been set out in the judgment of My Lord the Chief Ju,.tice just pronounced, and I would only refer to such of those as are necessary for dealing with the relevant issues. Though I agree with some of the conclusions arrived at by him, but since the approach in arriving at a conclusion is as important as the conclusion itself, and particularly in matters involving vital constitutional issues having a farrcaching impact on fundamental freedoms of the people of this country and on the social objectives which the State is enjoined to achieve under the Directive Principles of State Policy, I consider it my duty to express my views in my own way for arriving at those conclusions.

In this case the validity of the Con.otitution (Twenty-fourth) and (Twenty-fifth) Amendment Acts of 1971 and the Constitution (Twenty-ninth) Amendment Act of 1972 has been chalU:nged as being outside the scope of the power of amendment conferred on Parliament by Art. 368 of the Constitution and consequently void.

The validity of the Twenty-fourth Amendment would depend upon the interpretation of two crucial articles, Art. 13 and Art. 368, and two words, one in each article, namely, 'law' in the former, and 'amendment' in the latter. For the purposes of ascertaining the true intent and scope of these articles in /. C. Golakn11th and others v. Stau of Punjab,(') the basic question which the Court first considered was, where was power to amend the Constitution of India to be found?

Subba Rao, C.J., with whom Shah and Sikri, JJ., as they then were, and Shel at and Vaidialingam, JJ ., concurred, (hereinafter referred to as the leading majority judgment), held that the power was contained in Arts. 245, 246 and 248 read with Entry 97 of List I of Schedule VII, and not in Article 368 which only provided for the procedure to amend the Constitution. Hidayatullah, J., as he then was, in his concurring judgment held that the procedure of amendment, if it can be called a power at all, is a legislative power, but it is sui generi1 and outside the three Lists of the Constitution, and 'that Art. 368 outlines a process which, if followed strictly, results in the amendment of the Constitution. He was, therefore, of the view that 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.

Wanchoo, J. as he then was, for himself and two other Judges, Bachawat and Ramaswami, JJ., found the power in Art. 368 itself and not in Arts. 245, 246 and 248 read with Entry 97 of LiSt I.

It therefore, contended by the learned Advocate-General of Maharashtra, firstly, that the finding in the leading majority judgment

(') {1967) 2 s.c.R. 702.

KESAVANANDA v. KERALA (fi:zganmohan Reddy, J.) 463

that the fundamental rights cannot be amended is based on the decision that the amending power is to be found in the residuary Art. 248 read with Entry '17 of List I of Schedule VII. This finding is deprived of its foundation, since six Judges held that the amending power is not to be found in the residuary Article arul Entry '17 of List I. Secondly, the

conclusion that the fundamental rights cannot be amended was reached . by the leading majority judgment on the basis that Article 13(2) was attracted by the opening words of Art. 245 arul, therefore, a law amending the Constitution under entry '17 of List I was a law referred to in Art. 245, and as it was in conflict with Art 13(2) the law was void.

It is again contended that this conclusion loses its validity once its basis is destroyed by five Judges holding that the amending power is not to be found in entry '17 of List I, but in Art. 368. In view of the conclusion of Hidayatullah, J., that the power of amendment as well as procedure therefor was contained in Art 368 itself, he submits that there is no ratio binding on this Court unless it be that the power of amendment is not in the residuary article but in Art. 368. This argument is of little validity, because the ratio of the decision, where a question is directly raised before the Court for decision, is that which it decides, and in that case wherever the power may have been found, whether in Art. 368 or in the residuary entry '17 of List I of Sch. VII, the controversy was whether an amendment made under Art. 368 is a 'law' within the meaning of Art. 13(2), and if it is so, a State cannot make a law taking away or abridging fundamental rights conferred by Part Ill of the Constitution. That question being answered in the

affirmative by the majority, the ratio of Golaknath's decision is that an amendment under Art. 368 is a 'law' within the meaning of Art. 13(2).

What the leading majority judgment in that case did not decide, however, is whether Art. 368 itself could be amended under the proviso of that article conferring a power to amend the whole Constitution. At p. 805, Subba Rao, C.J., observed, "In the vw we have taken on the scope of Art. 368 vis-a-vis the fundamental rights, it is also unnecessary to expre"' our opinion on the question whether the amendment of the fundamental rights is covered by the proviso to Art. 368." While five Judges who were in minority held that each and every article of the Constitution could be amended in exercise of the power under, and by following the procedure in, Art. 368, Hidayatullah, J., held that by <1mending. Art. 368, Parliament could not do indirectly what it could not do directly, namely, amend Art. 13(2) or override the provisions thereunder, because as he said, "The whole Constitution is open to amendment. Only two dozen articles are outside the reach of Art. 368.

That too becaU6C the Constitution has made them fundamental." ' (Sec p. 878). There is, therefore, warrant for the submission that Golaknath's case is not determinatirve of the question now raised before this Court as to whether the power to amend Art. 368 could be exercised to

464 SUPREME COURT REPORTS [1973] Supp. s.c.a.

amend the fundamental rights in Part IIL At any rate, five of the six Judges who expres, sed an opinion on this aspect support the proposition that this can be done.

It was a:lso submitted that no question in fact arose for decision in Golaknath's case that in future Parliament could not amend the fundamental rights, because what that case was concerned with was the past exercise of the power to amend the fundamental rights, and, therefore, the ob9Crvations in the majority judgments of Subba Rao, C.J., and Hidayatullah, J., as he then was, about the future exercise of , that power are clearly obiter.· It may be pointed out that the majority judgment as well as the minority judgment concurred . in dismissing the petition, the former on the ground that the First, Fourth and Seventeenth Amendments were not affected either on the basis of the doctrine of proopective overruling or on the basis of acquiescence or on the ground that they were made by virtue of a valid exercise of the amending power under Art. 368. On this basis -it is submitted that no ratio can be found in that case for the majority declaring that Parliament in future cannot amend fundamental rights . which is binding on this Court nor can it amend the amending article to take away or abridge fundamental rights.

Whether the First, Fourth and Seventeenth Amendments have been rightly held to be valiid or not, the ratio of the decision as was observed ear lier is that under Art. 368 as it was before' its amendment, Parliament could not amend the Constitution to take away or abridge any of the fundamental rights conferred by Part III of the Constitution, and that question will only assume importance if this Court comes to the conclusion, following Hidayatulfithi J:s, decision, that Parliament cannot amend Art. 368 under proviso (e) thereof to take away or abridge any of tlie fundamental rights or. to amend Art. 13(2) making it subject to an amendment under Art. 368. If such a power exists, the question whether an amendment"in Art. 368 is a 'law' within the meaning of Art. 13(2) may not prima facie be of significance.

There are, however, two aspects to this problem, firstly, wMthtr 'law' in Art. 13(2) inch!des an amendment of the Constitution unddr

Art. 368; and secondly, if this Court holds that 'law' in Art. 13(2) docs not include an amendment under Art. 368, then the question would be, has the Constitution (Twenty-fourth) Amendment purported to exercise a power in effecting that amendment which was not .granted• under that Article 1 In other words, arc there any limitation& ID the amending power under Art. 368 ? If, as was hel'd by Hidayatullllh,. J that the power of amendment conferred on Parliament under Art. 368 is not a constituent power, and any amendment made thereunder is a legislative power, which is 'law' within the meaning d Art. 13(2); then Parliament cannot do indirectly what it cannot do directly.

Kl!SAVANANDA v. XERALA (f'lignmohan Reddy, J.) 465

The first question which wov :J arise for decision is what d<les 'law' in Art. 13(2) signify, and is there any internal evidence which would indicate that that word has been used to include an amendment under Art. 368, and if it docs, whether it is subject to any limitations, and if so, what ? It is contended that the word 'law' in Art. 13(2) not only includes ordinary legislative law, but also constitutional law.

It may not, in my view, be necessary to examine the submission, that an amendment under Art. 368 is not made in exercise of the constituent power but has been made by :i constient body, if on examination of the provisions of Part III, there is intrinsic evidence therein which points to the irresistible conclusion that Art. 13(2) was meant only to place an embargo on a law made by a Legislature so-called in contradistinction to an amendment of the Con.mtution under Art 368 which no doubt is also a law in its generic sense, as indeed was the view taken in Sankari PrasaJ Singh Deo. v. Union of India and State of Bihar(1), Saiian Singh v. State of Raiasthan(') and Golaknath's case by some of the learned Judges. The framers of the Constitution have defined "law" in .!Ulxlausc (a) of clause (3) of Art. 13 and that this definition would on the first impression appear to apply to only clause (2) of that Article. But it would also, having regard to the words "unless the context otherwise requires", apply to clause (1) thereof. While the expression "laws in force" has been defined in sulxlaWIC (b) of clause

(3) for the purposes of clause (1) as including laws passed or made by Legislatures or other competent authorities before the commencement of the Constitution, an Ordinance, a bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law saved by Art. 372 would, by virtue of sub-clause (a) of clause (3), equally apply to clause (1) of Art. 13.

Again, though sulxlausc (a) of clause (3) contains an inclusive definition of the word 'law' and docs not specifically refer to a law made by Parliament or the Legislatures of States, lt cannot be, nor has it been denied, that laws made by thetn arc laws witrun the meaning of Art. 13 (2). What is contended, however, is that it also includes an amendment of the Constitution or constitutional laws. No elaborate reasoning is necessary \n support of the proposition that the word "law" in Art. 13

(2) includes a law made by Parliament or a Legislature of the State.

When an Ordinance made either by the President under Art. 123 or by a Governor under Art. 213, in exercise of his legislative power which under the respective sulxlause (2) has the same force and effect as an act of Parliament or the Legislature of a State assented to by the President or the Governor, as the case may be, is included in Art. 13(3) (a), a law passed by Parliament or a Legislature of a State under Art. 245 which specifically empowers Parliament for making laws for the whole or any part of India or any part of a State and the Legislature of a State

( 1) [1952] S.C.R. 89.


466 SUPREME COU!lT ~PORTS ( 1973 j Supp. S.C.R.

for the whole or any part of a State, would be equally included within the definition of "law". Article 246 to 255 deal with the distribution of legislative powers between Parliament and the State Legislatures to make laws under the respective Lists in the Seventh Schedule, and fur. ther provides under Art. 248(1) and (2) that Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List including the power of imposing tax not mentioned in either of those Lists.

Whereas Art. 13(3)(a) has sepcifically included within the definition of 'law', custom or usage having in the territory of India the force of law, and even though it has not specifically mentioned an amendment made under Art. 368 or a law made by Parliament or a Legislature it would certainly include a law made by the latter organs by reason of the legislative provisions of the Constitution referred to above. Having regard to the importance of the amending power, whether it is consider ed as a constituent power or as a constituted power, the omis1ion to include it specifically would, lt is contended, indicate that it was not in the contemplation of the framers of the Constitution to extend the em. bargo in Art. 13(2) to an amendment under Art. 368. To my mind what is difficult to envisage is that while the framers included minor legislative acts of the State within the definition of 'law' in Article 13(3), they did not think of including an amendment of the Constitution therein, even though attempts were made towards that end till the final stages of its passage through the Constituent Assembly. It is contended that the answer to this could be that the framers did not include specifically a law made by the Leg:islature in that definition, and as such all laws whether legislative or amendments of the Constitution would come within its purview. This argument loses its significance in view of the fact that the enumeration of laws like rule, bye-law, regulation and notification which have their source and existence in the legislative law clearly indicate the inclusion of a law made by Parliament or a Legislature of a State. It is not that the framers did not consider meticulously any objections to or defects in the definitions as I will show when dealing with the various stages of the consideration of the draft article.

It may be necessary first to examine whether in the context of the inclusive definition of 'law', and not forgetting that an amendment under Art. 368 could also be termed 'law', the prohibition that the State cannot take away or abridge the rights conferred under any of the provisions of Part III is confined to those categories of law to which I have specifically referred, namely, to the Jaw made by Parliament or a Legislature of the State and to those indicated in Art. 13(3) (a). The law referred to i!n Art. 14, clauses (3) and (5) of Art. 16, Art .. 17, clauses (2) to (6) of Art. 19, Art. 20, Art 21, clauses (4) and (7) of Art. 22, clause (1) of Art. 23, dause (2) of Art. 25, Art. 31, clause (3) of Art. 32; Arts. 33, 34 and clawe (a) of Art. 35, is, in my view, a law

K£SAVANANDA v. KERALA (faganmohan Reddy, J.) 467

which the Parliament or a Legislature of the State or both, as the case may be, is required to make for giving force to the rights or is permitted to make to restrict the rights conferred by Part III. In other words, the permissible limits arc indicated therein. Further under Art. 15 the words 'special provision' and in clau, ge ( 4) of Art. 16 the making qi any provision by the State, and clause (2) of Art. 23 imposing of a compulsory service by the State for public purposes, or preventing the State from doing or permitting it to take certain actions under Art. 28, clause (2) of Art. 29 and clause (2) of Art. 30 can either be by an ordinary legislative law or by an order or notitl\cation issued by the Government which may or may not be under any law but may be in the exerci.lc of a purely executive power of the Government of India or the Government of a State having the force of law.

Even where reasonable restrictions are permitted as in clauses (2) to ( 6) of Art. 19 or where restrictions or abrogation of the totality of fundamental rights contained in Part III have been permitted in respect of members of the armed forces or the forces charged with the maintenance of public order under Art. 33, or where it is sought to indemnify persons in the service of the Union or a State or any other person, it is the Parliament that has been empowered to make a law in that reregard. Article 35, it may be noticed, begins with a non obstante clause, "Notwithstanding anything in this Constitutwn -

(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws ...... ". This non obstante clause ha. the effect of conferring the power of legislation in respect of matters mentioned therein to Parliament exclusively which it would not have otherwise had, because some of the powers were exercisable by rhe State Legislatures. Hidyatullah, J., however, thought that the opening words in Art. 35 were more than the non obstante clause and excluded Art. 368 - a conclusion based on comparison of that Article With Art. 105-A of the Australian Constitution in respect of which New South Wales v. The Commonwealth(1 ) had held that it was an exception to section 128 (See Golaknath's case at p. 902). Wynes, however, did not agree with this view of the High Court of Australia: -See Legislative, Executive and Judicial powers in Australia, pp. 695-698. With this view, Hidayatullah, J., did not agree.

In my view it w unsafe to rely on' cases which arise under other Constitutions. Apart from this, Art. 35 is not in pari materia with Art. 105-A of the Australian Constitution which deals with the binding nature of the financial agreement made thereunder. The analogy is, therefore, inapplicable, nor is there anything in the subject-matter of Art. 35 tQ safeguard it from being amended under Art. 368. On the other hand, this article empowers Parliament to give effect to fundamental rights and gives no indication to delimit the power of amendment tinder Art. 368.

(1) 36 C.L.R. 155.

468 SUPREME COURT llEPOl!.TS (1973] Supp. S.C.P..

It is true that the Constitution itself has provided the limitations that can be imposed on the fundamental rights guaranteed in Part III, but those limitations can only be effected by ordinary law as opposed to constitutional law and nor imposing those limitations an amendment of the Constitution is not needed. Once a right is • conferred on the citizen, to what extent the right can be restricted, or where a State is

prohibid from acting in any particular manner to what extent it is permitted, is to be regulated only by an ordinary law. If so, the bar against exceeding the permissible limits must prima fade be against the

State making such a law. In the circumstances, could it be said that the framers of the Constitution contemplated the inhibition in Art. 13

(2) to operate on any thing other than ordinary law ? To limit the extent and ambit of the power under Art. 368 in which there is no reference to a law, by including within the ambit of the definition of 'law' in Art. 13 (3) (a) for purposes of Article 13(2), an :amendment effected under Art. 368, is to restrict the power of amendment by a strained construction or to impute to the framers of the Constitution a lack of respect to the amending power by making the bar of Art. 13(2) applicable to it by mere implication, when in respect d minor instruments they were careful enough to include them in the definition of 'law'.

While thi6 is so, a consideration of the conspectus of various rights in Part III when read with Art. 13(2) would, in my view, prohibit the

taking away or abridging of those rights by a law made by the Legislature namely the Parliament, Legislature of a St:ate, or by executive action. This conclusion of mine will be substantiated if Art. 13(2) is Tead along with each of the Articles in Part III, in so far as any of them contain the word 'law' which indeed it can be so read. The object of incorporating Art. 13(2) was to avoid its repetition in each of the Artides conferring fundamental rights. Only one instance of this may be

given in support of my conclusion. Clauses (2) to ( 6) of Article l 9 which are limitations on the freedoms in Article 19(1)(a) to (g) respectively are couched in similar terms, and if I were to take one of these clauses for illustrating the point, it would amply demonstrate that the framers used the word 'law' in both Article 13(2) and clauses (2) to ( 6) of Article 19 only in the sense of an ordinary law. Sub-clause (a) of clause (1) of Article 19 and clause (2) of that Article, if so read with Article 13(2) of the Constitution as it stood on January 26, 1950, may be redrafted as under :

"19(1). All citizens shall have the right-

( a) to freedom of speech and expression ;

KESAVANANDA v. KERALA (Jaganmohan Reddy,, J.) 469

(2) The State shall not make any law which takes away or abridges the rights conferred by this article and any law made in contravention of this clause shall, to the extent of the contravention, be void:

Provided that nothing in sub-clause (a) of clause (1) 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 libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, tends to overthrow, the State".

Clause (2) in the above draft incorporates the entire clause (2) of Article 79 except that instead of Part III the word 'article' has been used, and clause (2) of Article 19 has been incorporated as a proviso.

In the alternative, if cl:mses (2) to ( 6) of Article 19 are read as a proviso to Article 13(2), they would appear as follows :

"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 :

Previded nothing in sub-clause (a) of clause ( 1) of Article 19 shall affect the operation of any existing 1aw 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 the decency or morality or which undermines the security of, tends to overthrow, the State".

In each of the clauses (3) to (6) of Article 19 the expre.s.sion 'any existing law in so far as it imposes or prevents the State from making any law imposing' has been uniformly used, and if these clauses are read as provisos iust in the same way as clause (2) of Article 19 has been read in either of the manner indicated above, the word 'law' in all these clauses as well as in clause (2) of Article 13 would be the same and must have the same meaning. Similarly, Article 16(3) and (5) and Article 22(3) may also be so read. In reading the above articles or any other article in Part III with Article 13(2) it appears to me that the words .'Jaw', 'in accordance with law', or 'authority of law' clearly indicate that 'law' in Article 13(2) that which may be made by the ordinary legislative organs. I shall also show, when I examine the various stages through which the corresponding draft article which became Article 13(2), passed through the Drafting Committee and the Constituent Assembly, that the proviso to Article 8 would lead to a similar <onclusion.

4 70 SUPREME COURT REPORTS [ 1973] Supp. s.c.tt ...

Though the word 'State' has a wider meaning and may include Parliament or Parliament and the State Legislature acting together when to effect an amendment under Article 368, iin the context oc the restrictions or limitations that may be imposed by law on certal.tt specified grounds mentioned in any of the provisions of Part III, particularly those referred to above, could only be a law made by the. Legislature otherwise than by amendment of the Constitution. or to impose any restriction or limitation within the permissible limits on the fundamental rights under any of the provisions of Part III, an amendment of the Constitution is not necessary and hence could not have been so intended. It is also submitted that the definition of the ward 'State' in Article 12 read with Article 13(2) would prohibi~ the agencies of the State jointly and separately from effecting an amendment, the same being a law, from abridging 9f taking away any of the rights conferred by Part III or in amending Article 13{2) iiuelf. In this. con nection Hidayatullah, J., in Golaknath's case at p. 865 - read the definition of the word 'State' in Article 12 as connoting, "the sum total of all the agencies which are also indi.vidually mentioned in Article.12", and hence, "by the definition all the parts severally are also included 'in the prohibition". In other words, he has taken the definition to mean and connote that all the agencies acting together, namely, the Parliament and the Legislatures, and if the two Houses of Parliament under Arti-- cle 368 (1) or the two Houses of Parliament and the Legislatures acting together under the proviso, can effect an amendment that amendment would be a law made by the State within the meaning of Article 13(2).

At p. 866 this is what he said: "If the State wields more power than the functionaries there must be a difference between the State and its agencies soch as Government, Parliament, the Legislatures of the States and the local and other authorities. Obviously, the State m= 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 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 abridgetnent of the Fundamental rights, it ignores the injunction agains~ 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 tme of ordinary laws and laws seek'ing to amend the Constitution" ..

He drew support from Article 325 of th~ Constitution of Nicargua in which specifically it was stated that, "That agencies of the Government,. jointly or separately, are forbidden to suspend the Constitution or torestrict the rights granted by it:, "except in the ca<es 'provided therein".

In our Constitution he observed, "the agencies of the State are controlled .jointly and separately and the prohib&ion is againsi' the whole forc:e of

the State acting either in its executive or legislative capacity". With t •

KESAVANANDA ti. KEllALA (laganmohan Reddy, J.) 471

:great respect this argwnent is based on an assumption which is not warranted by the definntion of the word 'State' in Article 12. Nor is it in my view permissible to draw support from a provision of another Constitution wlu.ch is differently worded. The assumption that 'State' would mean all the agencies of the Government jointly or separately when the agencies of the State have been separately enumerated, is not justified. The proliibition in Article 13(2) would be against each of them acting separately. There is no question of Parliament or the State Legislatures or Parliament or either local authorities or other authorities acting together or any one of these acting in combination. Nor under the Constitution can such combination of authorities acting together make a law. The State as Hidayatullah, J., envisages, because of the inclusive definition, means "more than any of them or all of them put together" which in my view is a State in the political sense and not in a legal sense. Under Article 51 of the Directive Principles, it is en joined that the State shall endeavour to promote international peace and security; or maintain just and honourable relations between nations, etc., which in the context, can only mean Government or Parliament of India. Item 10 of List I of the Seventh Schedule read with Article 246 vescs the power of legislation in respect of "foreign affairs, all matters which bring the Union into relation with the foreign countries" in those agencies. The words 'unless the context otherwise requires', in my view, refer to those agencies acting separately. If drawing an inference from other Constitutions is permissible in interpreting a definition, and I have said that it is not, a reference to Article 9 in the Burmese Consti

tution would show tha~ the definition, of the State is not an inclusive definition, but it defines the State as meaning the sevecil organs referred therein. I do not, therefore, think that reasoning would indicate that Article 13(2) puts an embargo on an amendment made under Article 368, nor does it warrant the making of a distinction between the State .and the Government in .order to hold that these organs cannot acting together make an amendment affecting rights in Part III.

Another reason for arriving at this conclusion is that if amendment to the Constitution is a 'law', the Constitution as such would also be a law. But the framers of th~ Constitution distinguished the 'Constitu

tion' from 'law' or 'laws', by making evident their intention by using the word 'law' in contradistinction to the 'Constitution' indicating thereby t:hat the word 'law' wherever referred to, means only an ordinary legislative law, while the 'Constitution' as something distinct frou:; i it.

In Article 60 the President, and in Article 159 the Governor, IS reqmred to take oath when assuming office, to preserve, protect and defend the Constitution and the law. Under Artide 61 the President can only be impeached for the violation of the Constitution. While specifying the extent oi: the executive poWer in sub-clauses (a) and (b) of clause (1) of Article 73 it is provided by the proviso that the power referred to in

472 .

SUPREME COURT REPOl\TS (1973] Supp. s.c.R.

sub-clause (a) shall not, save as expmsly provided in this Constitution -or in any Jaw made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also P<JWer to make laws. Here the words 'law' and 'laws' are definitely referable to the law made by Parliament and the Legislature of the State. The oath that a Minister of the Union is to take under Article 75 ( 1) is set out in Sche dule III; that he will do right to all manner of people in accordance with the Constitution and the law. Judges of the Supreme Court and the High Court are required to uphold the C iJnstitution and the laws : see Articles J24(6) an<I 219 each read with Schedule III. It is provided in Article 76(2) that the Attorney-General is required to discharge the function conferred on him by or under this Constitution or any other law for the time being in force. Again in Article 148(5) dealing with the conditions of service of persons serving in the Indian Audit and Accounts Department, etc., they are made subject to the provisions of this

Constitution and of any law made by Parliament. Even though the framers referred to the Constitution as by law established in some of the provisions, they have, when dealing distinctly with the Constitution and the law or laws, specified them as referable to the legislative law. 'The Constitution, however, was not so described except where it is intended to be emphasised that it had the force of law as envisaged by the words 'as by law established'.

If this view is correct, and I venture to suggest that it is, a question would arise as to whether Article 13(2) is really redundant, and should the Court so construe It as to impute to the framers an intention to incorporate something which has no purpose. The Court, it is well established, should not ordinarily construe any provision as redundant and, therefore, must give effect to every provision of a Statute or law.

In support of this line of reasoning it is contended that in so far as Article 13(1) is concerned, 'a law in force' has been defined in Article 13(3)(b), but by virtue of Article 372(1) and Explanation I therein the same result would be achieved and any pre-Constitution Constitutional law which acquires the force of law by virtue of that Article is "'subject to the other provisions" of the Constitution and consequently to the provisions in Part III. Similarly any law made after the Constitution came into force would be void to the extent of its repugnancy with any of the provisions of the Constitution including those in Part III because of the doctrine of ultra vires. If so, it is argued, there was no purpose in enacting Article 13(2). On the other hand, the pctitione1., learned advocate submits that Article 13(2) has a purpose, in that among the laws in force there would be saved some laws of a constitutional nature which were in force in the erstwhile princely States or even under the Government of India Act, 1935 where the Governor.

General had made orders of that nature. As it was pointed out to the Constituent Assembly by Sardar Vallabhbhai Patel on the 29th April,

KESAVANANDA "· KERALA Uaganmohan Reddy, J.) 473

1947 that such may be the position, Article 13(1), it is said, has been incorporated in Part III, and for the same reason in order to protect fundamental rights which were basic human freedoms from being taken away or abridged even by an amendment of the Constitution, that Article has been incorporated. A reference to the latter would show that what Sardar , Vallabhbhai Patel said was that they had not

uflicient time to examine in detail the effect of clause (2) of the draft article on the mass of existing legislation and that clause was, therefore, subject to examination of its effect on the existing laws whicli will be done before the Constitution is finally drafted and the clause finally adopted. There is nothing in the proceedings or debat~ to indicate that certain constitutional laws were intended to be saved or that that law was to include an amendment of the Constitution, nor is the contention that Article 13( I) was specially designed to save pre-existing constitutional laws notwithstanding that the Government of India Act and the Indian Independence Act were repealed by Article 395. If there be in force any Constitutional laws other than those repealed these are by Article 372(1) given the same force as any of the ordinary legislative faw subject to the other provisions of the Constitution and such laws continue to be in force only until altered, repealed or amended by a competent legislature or other competent authority. There is no inditation whatever that these laws were accorded a status similar to any of the provisions of the Constitution, nor could they co.exist with them in the sense that they can only be dealt wi.th by ah amendment under Article 368. Kania, C.J. in A. K. Gopalan's case had no doubt pointed out that, the inclusion of Article 13(1) & (2) appear to be. "a matter of abundant caution", and that, "Even in their absence if any of the fundamental rights was "infringed by any legislative enactment, the Court has always the power to declare the enactment to the extent it transgresses the limits, invalid". Hidayatullah, J., as he then was, in Saiian Singh's case at p. %1commenting on the above passage of Kania, C.J., pointed out that, The observation is not clear in its meaning. There was undoubtedly a great purpose which this article achieves. It is probable that far from belittling the importance of Art. 13 the learned Chief Justice meant rather to emphasise the importance and the commanding

tion of Fundamental Rights in that even without Art. 13 they would have the same effect on other Jaws. To hold that Art. 13 framed merely by way of abundant caution, and serves no additional or intrinsic function f its own, might, by analogy persuade us to say the same of Arti. - de 32(1) because this Court would do its duty under Art. 32(2) even in the absence of the guarantee. No one can deny that Art. 13(2) ha. a purpose and that purpose, as Hidayatullah, J., pointed out, was meant rather to emphasise the importance and the commanding position of Fundamental Rights, beeause having regard to the history of the agitation for a Bill of Rights being inscribed in a Constitution, to which I have adverted earlier, and the great hope that was inspired in the people

4 7 4 SUPREME COURT REPDRTS ( 1973 j Supp. S.C.R.

of this country that there ar1! some fundamental basic rights which are guaranteed to them and which cannot be subject to the vagaries of the legislatures, the State was enjoined not to take away or abridge those rights. Rights in Part III were intended to be made .; eJf-contained with the right of redress guaranteed to them by Art. 32 - unlike in the United States where the judiciary had to invoke and evolve the doctrine of judicial review crver the years. Mere general declarations of rights were without enforceability. As experience showed such general rights were found ineffective to check the growing power of the modern State, -0ur framers examined judicial review of fundamental rights in various Constitutions and provided in our Constitution an effective remedy .against encroachment of these rights. Article 32(2) provided for a direct approach to the Supreme Court in cases where fundamental rights are infringed, which withou~ that provision would only come before it by way of an appeal under Art. 133 or by special leave under Art. 136. from a decision of the High Court rendered under Art. 226. It is this purpose that Art. 13(2) read with Art. 12 emphasises.

The framers of our Constitution conscious of the pitfalls and difficulties that were confronted by the varying exercise of jurucial review in America wanted to ensure that the doctrine of void and relatively void- .a typically American concept - should find no place in our Constitution. If as stated in Golaknath' s case by the leading majority judgment and by Hidayatullab, J ., that fundamental rights were not to be subject to an amending process, it is inconceivable that our framers who gave such meticulous care in inscribing those rights in the Constitution, as is evident from the proceedings in the Constituent Assembly, should not have specifically entrenched them against 1'.hat process. I am aware of the contrary argument that if they wanted that he amending process in Art. 368 should not be fettered by Art. 13(2) they would have expressly provided for it either in Art. 368 or in Art. 13(2) as indeed attempts were made to that effect by moving suitable amendments which, later, at the concluding i; itagcs of the final Draft Constitution, as we shall presently see, were either withdrawn, not pressed or negatived.

But this is neither here nor there, as indeed if the framers took the view that the embargo in Art. 13(2) is only against legislative law, they may have felt that there w; as no need for any words of limitation which will make i.t inapplicable to Art. 368.

Before I refer to the proceedings of the Gonstiuent Assembly, I must firliit consider the question whether the Constituent Assembly Debates can be looked into by the Court for construing tho5e provisions.

The Advocate-General of Maharashtra says until the decision of this Court in H. H. Maharaiadhiraia Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. v. Union of India(' )-commonly known as Privy Purses case -debates and proceedings were held not to be admissible. Nonetheless

( 1 ) (1971) 3 S.C.R. 9.

KESAVANANDA v. KERALA (Jaganmohan Reddy, J.) 475

counsel on either side made copious reference to them. In dealing with the interpretation of ordinary legislation, the widely held view is that while it is not permissible to refer to the debates as an aid to construction, the various stages through which the draft passed, the amendments proposed to it either to add. or or delete any part of it, the purpose for which the attempt was made and the reason for its rejection may throw light on the intention of the framers or draftsmen. The speeches in the legislatures are .said to afford no guide because members who speak in favour or. against a particular provision or amendment only indicate their understanding of the provision which would not be admissible as an aid for construing the "provision. The members speak and express views which differ from one another, and there is no way of ascertaining what views are held by those who do not speak. It is, thl:refore, difficult to get a resultant of the views in a debate exci:pt for the ultimate result that a particular provision or its amendment has been adopted or

rejected, and in any case none of these can be looked into as an aid to construction except that the legislative history of the provision can be referred to for finding ouc the mischief sought to be remedied or the purpose for which it is enacted, if they are relevant. But in Travancore

Cochin & Ors v. Bombay Company('), the Golaknath's case, the Privy Purses case and Union of India v. H. S. Dhi1lon(2) there are dicta it is drafted by people who wanted it to be a national instrument to against referring to the speeches in the Constituent Assembly and in the last mentioned case they were referred to as supporting the conclusion already arrived at. In Golaknath' s case as well as Privy Purses case the speeches were referred to though it was said not for interpreting a provision but for either examining the transcendental character of Fundamental rights or for the circumstances which necessitated the giving of guarantees to the rulers. For whatever purpose speeches in the Constituent Assembly were looked at though it was always claimed that these are nor admissible except when the meaning was ambiguous or where the meaning was clear for further support of the cooclusion arrived at. In either case they were looked into. Speaking for myself, why should we not look into them boldly for ascertaining what was the intention of our framers and haw they translated that intention? What is the rationale for treating them as forbidden or forbidding material.

The Court in a constitutional matter, where the intent of the framers of the Constitution as embodied in the written document is to be ascertained, should look into the proceedings, the relevant data including any speech which may throw light on ascertaining it. It can reject them as unhelpful, if they throw no light or throw only dim light in which noticing can be discerned. Unlike a statute, a Constitution is a working instrument of Government, it is drafted by people who

(') (1952) s.c.R.. 113.

(') (1972) 3 S.C.R. 33.

476 SUPREME COURT REPORTS (1973] Supp. S.C.R.

wanted it to be a national instrument to subserve successive generatioo.s. The Assembly constituted Committees of able men of high calibre, learning and wide experience, and it had an able adviser, Shri B. N. Rau l'O assist it. A memorandum was prepared by Shri B. N. Rau which was circulated to the public of every shade of opinion, to professonal bodies, to legislators, to public bodies and a host of others and was given the widest publicity. When criticism, comments and suggestions were received, a draft was prepared in the light of these which was submitted to the Constituent Assembly, and introduced with a speech by the sponsor Dr. Ambedkar. The Assembly thereupon constituted three Committees: (1) Union Powers Committee;

(2) Provincial Powers Committee ; and (3) Committee on the Fundamental llights and Minorities Committee. The deliberations and the recommendations of these Committees, the proceedings of the Drafting Committee, and the speech of Dr. Ambedkar introducing the draft so prepared along with the report of these Committees are all valuable material. The objectives of the Assembly, the manner on which they met any criticism, the resultant decisions taken thereon, amendments proposed, speeches in favour or against them and their ultimate adoption or rejection wi:ll be helpful in throwing light on the particular matter in issue. In proceeding11 of a legislature on an ordinary draft bill, as I said earlier, there may be a partisan and heated debate, which often times may not throw any light on the issues which come before the Court but the proceedings in a Constituent Assembly have no such partisan nuances and thrir only concern is to give the nation a working instrument with its basic structure and human values sufficiently balanced and stable enough to allow an interplay of far'Ces which will subserve the needs of future generations. The highest Court created under it and charged with the duty of understanding and expounding it, should not, if it has to catch the objectives of the framers, deny itself the benefit of the guidance derivable from the records of the proceedings and the deliberations of the Assembly. Be that as it may, all I intend to do for the present is to examine the stages through which the draft passed and whether and that attempts were made to introduce words or expressions or delete any that were already there and for what purpose. If these proceedings arc examined from this point of view, do they throw any light on or support the view taken by me ?

The various stages of the Constituent Assembly proceedings, while cowidering the draft Articles 8 and 304 corresponding to Arts. 13 and 368 respectively, would show that attempts were made to introduce amendments to both these articles to cly that the embargo in Art. 13

(2) does not apply to an amendment made under Art. 368. First, Shri K. Santhanam, one of the members of the Constient Assembly moved an amendment on April 29, 1947 to clause (2) of the draft sulr mitted to the Constituent Assembly along with the Inrerim Report on Fundamental Rights. This amendment was that for the words "nor

KRSAVANANDA ti. KERALA (f<tianmohan Reddy, J.) 477

hall the Union or any unit make any law taking away or abridging any such right'', the following be substituted :

"Nor shall any such right be taken away or abridged except by an amendment oE the Constitution." The sponsor explained "that if the clause stmds as it is even by an amendment of the. Constitution we shall not be able to change any oE these rights. i£ found unsatisfactory. In some Constitutions they have provided that some Parts oE the Constitution may be changed by future constitutional amendments and other Parts may not be changed. In order to avoid any such doubts, I have moved this amendment and I hope it will be accepted." This amendment was accepted by Sardar Vallabhbhai Patel and adopted by the Constituent Assembly. Oause

(2), after it was so amended, was as follows :

"All existing laws, notifications, regulations, customs or u:; ages in force within the terrirories of the Union inconsistent with the rights guaranteed under this Part of the Constitution shall stand abrogated to the extent oE such incoency. Nor shall any such right be taken away or abridged except by an amendment of the Constitution."

Even as the clause stood originally in the draft, it was only the 'Union' er any 'anit' that was prohibited from making a law taking away or abridging any such right. At that stage there was nothing to show that a provision for amendment of the Constitution was either drafted or was before the Constituent Assembly for consideration. But otherwise also, it was not a case of the 'Union' or 'Union' and 'the unit' being prevented from makiiig a law. In order to justify the submission that all the organs of the State including the 'Uni01i' or the 'Union' and the 'Unit' were prevented from effecting an amendment of the Constitution, the only indication is that the law which was prohibited from taking away or abridging fundamental rights was the law of the 'Union' or any 'Unit'.

The amendment of Shri Santhanam was inc; orporated by the draftsmen in the Supplementary Report on Fundamental Rights which was presented to the Constituent Assembly on August 25, 1947, but subsequently this amendment of Shri K. Santhanam incorporated in the draft Article was deleted by the Drafting Committee. After the Draft CoGstitution was .submitted to the President of the Constituent Assembly on February 21, 1948, and was given wi<le circulation, there appears t'D have been llOIIle criticism with respect to what had then become draft Art. 8(2), which was in the following tCl1DB :

"The Stitc shall not make any law which takes awa} or abridges the rights oonferred by this Part and any law made in contravention c/i: this clause shall, to the extent cf the. contravention, be void : 31-36 S.C. India/73

478 SUPREME COURT REPORTS (1973] Supp. s.c.I.

Provided that nothing in this clause shall prevent the State from making any law for the removal of any inequality, disparity, disadvantage or discrimination arising out of any ex0011g law."

The note relating to the addition of the proviso is stated thus :

"The proviso has been added in order to enable the State to make laws removing any existing discrimination. Such laws will necessarily be discriminatory in a sense, because they will operate only against those who hitherto enjoyed an undue advantage. It is obvious that laws of this character should not be prohibited." ·

The Constitutional Adviser's note to the Drafting Committee showed that a critic had pointed out that "clause (2) of article 8 may be held as a bar to the amendment of the provisions of the Constitution relating to the fundamental rights by a law passed under draft artik:le 304, and it should, therefore, be made clear that there is no restriction on the power of Parliament to amend such provisions under article 304." The comment of the Constitutional Adviser to this objection was that "clause (2) of article 8 diies not "override the provaons of article 304 of the Constitution. The expression "law" used in the said clause is intendea to mean "ordinary legislation". However, to remove any possible doubt, the following amendment may be made in article 8 : . .

'In the proviso to clause (2) of article 8, after the words "nothing in this clause all" the words "affect the provisions of article 301 of this Constitution. or" be inserted'. "

The Drafting Committee does not appear to have accepted this suggestion, because the proViso remained as previously drafted, until it was deleted as a result of Amendment No. 252 which was standing in the n= of Mehboob Ali Beg. On November 25, 1948, Pandit I .akshml Kanta Maitra in moving this Amendment said - 'The purpose of this amendment is self-evident, and as I have been s1!rictly enjoined net to make any .speech I simply move this amendment." This amendment was adopted on November 29, 1948, and the proviso was delet:cd. (Sec C.A.D. Vol. VII, pp. 611 & 645).

How meticulously this article was considered, can be seen from the proceedings on the objection of Naziruddin Ahmed that the words "custom or usage" in the definition of 'law' in Art. 8(3)(a) (corresponding to Art. 13(3)(a) would apply to Art. 8(2), but the &'ate does not make a 'usage or custom'. Dr. Ambcdkar point:cd out that that will apply to Art. 8(1} which deals with 'laws in force', but Naziruddin Ahmed insisted that it does not, and that he was no w.iser after the explanation given by Dr. Ambcdkar that the definition of law is distributive. Dr. Ambcdkar then said that the amendment of Naziruddin .Ahmed creates some difficulty which it is necessary to clear up and ulti

KESAVANANDA v. KEllALA ("jaganr.1ohan Reddy, J.) 479

mately to avoid any difficulty he moved an amendment to clause (3) of article 8 to read "unless the context otherwise requires" which governed clauses (a) and (b). This wu adopted. (Sec C.AD. Vol. VII, p. 644).

It was after this that the proviso was deleted.

It would appear from the proviso before it was deleted, if read with clause (2) of draft Art. 8, as also the note showing the pu~ for which it was incorporated, that the law referred to therein was a legislative law. It could not by any stretch of the language be construed as including an amendment under draft Art. 304, because the proviso was making the restriction in clause (2) of Art. 8 inapplicable to the State from making any law for the removal of any inequality, disparity, di.ladvantage or discr'..mination arising out of any existing law. If the 'State' and the 'lw' have to be given a particular meaning in the proviso the same meaning has to be given to them in clause (2) and since the proviso clearly envisages a legislative law it furnishes clic key to the interpretation of the word 'law' in clause (2) of draft Art. 8 that it is also a legislative Jaw that is therein referred.

To Art 304 also amendments were moved-one of them, Amendment No. 151 was in the name of Shri K. Santhanam, but he said he was not moving it. (Sec C.A.D. Vol. IX, p. 1643). Both the Attorney- Gcncral as well as the Advocate-General of Mah:arashtra said that they were not able to find out what these amendments were. But even ;:tssuming that this Amendment was designed to make the embargo under Art. 13(2) applicable to Art. 368, no inference can be derived therefrom.

On the other hand an.attempt Wa.'I made by Dr. Deshmukh to entrench Fundamental Rights. He moved Amendment No. 212 to insert the following Art. 304-A after 304 :

"304-A. Notwithstanding anything contained in this constitution to the contrary, no amendment which is calculated to infringe or restrict or diminish the scope of any individual right, any rights of a person or persons with respect to property or otherwise shall be permissible under this constitution and any amendment which is or is likely to have such an effect sh;\11 be void and ultra

vires of any Legislature."

This amendment after Dr. Ambedkar' s speech regarding the scope of the amendment under Art. 304 was, by leave, withdrawn. (See

C.A.D. Vol. IX p. 1665).

Earlier when the Drafting Committee was considering the objectives, there was a proposal by Shri K. Santhanam, Mr. Ananthasayanam Ayyangar, Mr. T. T. Krishnamachari and Shrimati G. Durgabai that parts III, IV, IX and XVI be added in the proviso to Art. 304, but it was pointed out by the constittttional AdV'iscr that tha.11 amendment involved a question of policy. The Drafting Committee did not adopt

480 SUPREME COURT REPORTS (1973) Supp. S.C.R.

this amendment.

If this amendment had been accepted, the amendment of the fundamental rights coukl be effected by the procedure prescribed for amendment which would be by two-thirds majority of each of the Houses of Parliament as well as by ratification by resolutions of not less than half the State Legislatures.

Even this attempt does not give any indication that fundamental rights in Part Ill could not be amended under Art. 368 or that 'law' in Art. 13(2) is not the ordinary legislative law, but would include an amendment under Art. 368.

An at'1:empt was made to show that on September 17, 1949, Dr.

Ambedkar while speaking on draft Art. 304 had said that Part III was not amendable.

While adverting to the fact that they had divided the articles into three caragories, he pointed out that the first! category was amendable by a bare majority, and as to the second category he had said: "If future Parliament wishes to amend any particular article which is not mentioned in Part III or article 304, all that was necessary for them is to have two-thirds majority." The third category for the purposes of amendment he explained required twe>-thirds majority plus ratification. It is submitted on behalf of the first respondent that what '"as stated about Part Ill being excepted from the second category was a mistake and that he must be thinking that, alonfi with Art. 304, Part III was also included in the third category. The Advocate-General of Nagaland said Part III was a mi.l, take for third category. Instead of third category, he either said or is reported to have said, Part III.

Whether it is a correct reading of his speech or not, it is not rekvant, for in interpreting a provision the words used, the context in which it was used, the purpose which it intended to subserve in the scheme of the Constitution, will alone have to be considered. For the same reasoning the fact that none of the members who were also members of the Provisional Parliament ever entertained a doubt as to the non-amendability of Part III when the Constitution (First Amendment) Bill was debated and later enacted as an Act is not relevant.

In the view I take on the construction of Art. 13 read with the other provWons of Part Ill, Art. 13(2) does not place an embargo on Art. 368 for amending any of the right in Part III, and it is, therefore, not necessary to go into the question whether the leading majority judgment is right-in finding the power of amendment in the residuary entry 97 of List I of Schedule VII, nor is it called for, having regard to the majority decision that the power of amendment is to be found in Art. 368 itself. Whether the power is implied, what is the width and whether Parliament can enlarge that power may have to be considered, but that Art. 368 contains the power and the procedure of amendment can admit of little doubt, as was held by the majority in Galaknath's case by five judges and Hidayatullah, J., it may, als.o be noticed that the leading majority judgment did not express any v1~ to whether under tho proviso to Art. 368, by amcndmg that arttdc itself, fundamental nights could be amended. (Sec Subba Rao, C.J., at p. 805).

KESAVANANDA v. KEllALA (faganmohan Reddy, J.) 481

The question then arises, whether the Twenty-Fourth Amendment is valid, and if it is valid, whether Article 368 as amended is subject to . any limitation, and if so, what ? The objects and !reasons of the Twenty-Fourth Amendment Bill set out the purpose for which it was enacted and the mischief it sought to remedy. It is stated in Para 2

thereof thus :

'"The Bill seeks to amend Art. 368 suit.ably for the purpose and makes it clear that Article 368 provides for amendment of the Constitution as well as procedure therefor. The Bill further provides that when a Constitution Amendment Bill passed by both Houses of Parliament is presented to the President for his assent, he should give his assent thereto. The Bill also seeks to amend Article 13 of the Constitution to make it inapplicable to any amendment of the Constitution under Article 368';.

What in fact the amendment effected will become clear, if the relevant provisions of Article 368, both before and after the amendmt was made, arc read in juxtaposition along with a new sub-clause

(4) added to Article 13.

Before the Amendment .,\fter the .\n1endment

Procedure

368. An amendment of this Con Power 368.(1) Notwithstanding for: amend nirution Jnay be initiated only of Parlianything in this Con ment of the Con- .stitution.

by the introduction of a Bill for the purpose in either House of Parliament, and when

he Bill is pused in each House by a majority of the total membership of the HouSe ancl by a majority of not less than two-thirds of the members ofthat HouJepresent 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- ......................................

the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that eff'ett oassoetl by thoSe LeJislatures "before the Bill

ament to amend the Constitution and procedure therefor.

stitution Parliament may in exercio;,; ... of t~ con stituent power ainend

by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid do, vn in this arti<'!C.

(2) .\n Amendn1ent of this Conatitution 1nay be initiated only by the introduction of n Bill for the purpose in either House of Parlia .. ment, and when the Bill is passed in each House by a n1ajority of the total 1nembership of that House and by a majority of not less

than t\vo-thirds Qf the members of that !-louse present' .and voting, it shall be presented to the President who shall give his assent to the

482 SUP11EME COURT 11EPOllTS [1973] Supp. s.c.ll.

making provision for such amendment is presented to the President for auent.

Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill :

Provided that if such amendment sCeks to make any change in- .............................. ~·~ the amendment sbaJ 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 aascnt.

(3) Nothing in article 13 shall apply to any amen•

dment made under this article.

13(4) Nothing in this article shall apply to any amendment of this Constitution made un .. der Article 368.

The above amendment seeks to provide-(i) that the source of power to amend is in Article 368; (ii) that when Parliament seeks to . make a constitutional amendment it does so "in exercise of its constituent power"; (iii) that the power to amend was by way of addition, variation or repeal; (iv) that the bar in Article 13 against abridging or taking away any of the fundamental rights does not apply to any amendment made under Article 368; ( v) that nothing in Article will apply to an amendment of the Constitution under Artick: .368; (vi) that the words "any provision of the Constitution" were added 5o that "any" were to mean "every provision"; and (vii) that it is obligatory on the President to give his assenn to any BHI duly passed under that Article.

In so far as the contention that Article 13(2) is a bar to constitutional amendments is concerned, I have already given my reasons why I consider that argument as not available to the petitioner inasmuch as the inhibition contained therein is only against ordinary legislative actions.

The question, however, is whether Art. 13(2) which bars the taking away or abridging the fundamental rights by Parliament, or Legislatures of the States and other enactments, specified in Article

KESAVANANDA v. KERALA (/aganmohan Reddy, ).) 483

13(3)(a) is or is not an esscntiaU feature. If it is not, it can be amended under Article 368.

Recognising this position the petitioner submits that if the effect of amending Article 368 and Article 13 is l'O permit the removal of the fetter of Article 13 on the ordinary legislative laws which can thereafter be empowered and left free to abrogate or take away fundamental rights, it would be an essential feature.

The question whether there are any implied lim'itations on the power to amend under Article 368 or whether an amendment under that Article can damage or destroy the basic features of the Constitu tion would depend, as I said earlier, on the meaning of the word "amendment" before the Twenty-Fourth Amendment.

If that _word has a limited meaning, which is the case of the petitioner, it is contended that that power of amendment could not be enlarged by the use of the words "amend by way of addicion, variation and repeal".

It may be mentioned that arguments similar to those which were addressed before us were advanced in Golaknath's case, namely, (i} that the expression 'amendment' in Article 368 has a positive and negative content and that in exercise of that power 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; (ii) that if the fundamentals would be amendable to the ordinary process of amendment with a special majority the institution of the President can be abolished, the Parliamentary executive can be abrogated, the concept of federation can be obliterated and in shOlt, the sovereign democratic republic can be converted into a

totatarian system of Government.

The leading majority judgment, though it found that there was considerable force in the argument, said that they were relieved of the necessity l'O express an opinion on this all important question, but so far as the fundamental rights are concerned, the question raised can be answered on a narrow basis.

Subba Rao, C.J., observed at p. 805: "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".

Hidayatullah, J., on the other hand, dealing with implied limitations by reference to Art., V of the United States Constitution, and the decisions rendered thereunder pointed out that although there is no clear pronouncement of the United States Supreme Court a great controversy exists as to whether questions of substance can ever come before the Court and whether there are any implied limitations upon the amendatory power.

After considering the view of text-book writers, particularly that of Orfield, and the position under the English

484 SUPREME COURT REPORTS [ 1973] Supp. s.C.R.

and the French Constitutions (see pp. 870-877), he observed at p. 878 : "It is urged that such approach makes society static and robs the State d its sovereignty. It is submitted that in leaves revolution as the only alternative if change is necessary.

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 for the State is itself a revolution because as things are that method of amendment is illegal".

Wanchoo, J., reject.ed the doctrine of implied limitations though he was doubtful if the Constitution can be abrogar.ed or another new Constitution can be substituted. (sec p. 838). At p. 836 he said, "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 Art. 368 .... We fail to see why if there was any intention to make any part of the Constitution unamendable, the Constituent Assembly failed to include it expressly in Article 368 ............ on the clear words of Article 368 which provides for a111cndment of the Constitution which means any provision thereof, we cannot infer any implied limitations on the power of amendment of any provision of the Constitution, be it basic or otherwise." It was further observed at p. 831: "that the Prcsidti.t can reflL!iC to give his assent when a Bill for amendment of the Constitution is presented to him, the result being that the Bill altogethei; falls, for there is no specific provision for anything further to be done about the Bill in Article 368 as there is in Article llil".

Bachawat, J., noticed the argument on the basic features but did not express any opinion because he said "it is sufficient to say that the fundamental rights are within the reach of the amending power".

Ramaswami, J., on the other hand rejected the thesis of impued limitations, because Article 368 does no~ expressly say so.

He said at p. 933: "If the Constitution-makers considered that there were certain basic features of the Constitution which were permanent .it is most unlikely that they should not have expressly said in Article 368 that these basic features were not amendable".

During the course of the lengthy arguments on behalf of the petitioners and the respondents, we have been taken on a global survey of the Constitutions of the various countries.

In support of the rival contentions, there were cited before us innumerable :lecisions of the Supreme Court and the State Courts of the United States of America, and of the Courts in Canada, Ireland, ; Australia and of the Pri1y Council.

A large number of treatise on constitutional law, views of

KESAVANANDA v. KUALA Cfaganmohan Reddy, J.) 485

academic lawyers, the applicability of natural law or higher law principles, extracts from Laski's Grammar of Politics, history of the .demand for fundamental rights, and the speeches in the Constituent Assembly and the Provisional :Parliament during the deliberations on the Constitution (First Amendment) Bill, were also refr.rred tp. The .able arguments addressed to us during these Ion~ hearings, with great industry and erudition and the alacrity with which the doubts exprcs scd by each of us have been sought to be cleared by the learned Advo- .cates for the petitioner, the learned Attorney-General, the learneq Solid tor-General and by the learned Advocates-General of the States and the learned Advocates who intervened in those proceedings, have completely eviscerated the contents of the vital and far reaching 'issues involved in this case, though sometimes some aspects tended to hover over the terra

ferma and sometimea skirted rond it, particularly when the views of academic writers who had the utmost freedom to express on hypothetical problems unrelated to concrete issues falling for a decision in any case, were pressed on us. The a priori postulates of some of the scholars . arc not often easy of meeting the practical needs and limitations of the tcna_s:ious aspects of the case precedents which makes our law srvi Cable.

There. have again been arguments for taking consequences in.to consideration. which really highlighted what would be the dir-. consequences if the result of the decision being one way or the other 'but this court ought not to be concerned with these aspects, if other- . wise our decision is in accordance with the view of ehe law it tak:es.

We should free ourselves of any coflsiderations which tend to create pressures on the mind.

In our view, it is not the gloom that should influence us, as Milton said, "we cannot leave the real world for a utopia but instead ordain wisely", and, if I may add, according to the well-accepted rules of construction and on a true interpretation of the ronstitutional provisions.

Leny arguments on the rules of construction were addressed, by referring particularly to a large number of American cases tci show what our approach should be in determining constitutional matters, having regard to the paramount need to give effect tp the will of the people which the Legislatures and the Governments represent and for -exerci!ling judicial restraint.

I must confess that some of these argu ments show that the tendency has been to depend more on the views of Judges from other lands, however eminent, when we have 'in this, the Highest Court of the land during the last over two decades, forged an approach of our own and set out the rules applicable to the interpretation of our Constitution. There is no constitutional matter which is not in some way or the other involved with. political, social or -economic questions, and if the Constitution-makers have vested in this

-COurt a power of Judicial review, and while so vesting, have given it

a prominent place describing it as the bean and soul of the Constitu-

486 SUPREME COURT REPORTS [1973] Supp. s.c.R.

• I - / I ti on, we will not. be deterred from di5charging that dutf, mere! y because the validity or otherwise of the legislation will affect the political or social policy underLying at.

The basic approach of this Court . has been, and must always be, that the Legislature has the exclusive power to deterinine the policy and to translate it into law, the constitutionality of which is to be presumed, unless there are trong and cogent reasons for holding that it-conflicts with the constitutional mandate. In this regard both the Legislature, the executive, as well as the judiciary are bound by the paramount instrument,· and, therefore, no coun and no Judge will exercise the judicial power de hors that instrument, nor will it function as a supreme legislature above the Constiitutioll. The bona fold of all the three of them has been the basic assumption, and though all of them may . be liable to error, it can be corrected in the. manner and by the methOd prescribed under the Constitution and subject to such limitations as may be inherent in the inStrument . . .

This Court is not concerned with any political philosophy, nor has it its own philosophy, nor are Judges entitled to write into their judg- . ments the prejudices or prevalrent moral attitudes of the times, except to 'judge the legislation in the light of the felt needs of. the society for which it was enacted and in accordance with the Constitution.

No dotiht, political or social' policy may dominate the legal system.

It ;. 'only when as I said, the . Legislatures in giving effect to them translate it into law, and the Courts; when such a measure is challenged, are invited to examine those policies to ascertain its validity, it then become>

:i kgal topic which may tend to dominate 'sometimes to its detriment.

• • r • .

The citizen whose rights am affected. no doubt, invokes the aid of the judicial power to vindicate them, but in discharging its duty, the Courts , have nothing to do with the wisdom or the policy of the Legislature. \Vhen the Courts declare a law, they do .not mortgage the future with intent to bind the interest of . the unborn generations to come.

There is no everlasting effect in tho5e judgments, nor do .they havF force t\11 eternity as it were. The concept, on the other hand. i> that the law declared in the past was in accord with .the seittled judgment of the society, the social and economic conditions then existing, and that if those judgments are not likely to subserve the subsequent . gene:ratjons or the requirements and needs of the society as it may be

then conditioned, they will have to be changed by the process known to law,' either by legisllative action or judicial re-review where that is possible.

The COuns, therefore, have a duty, and ihave indeed the power, to re-examine and re:state th~ law within the limits' of its interpretative function in the fufuess of. the experience during which it was in force so that it conforms with the socia<conomic changes and

the jurisprudential outlook of that generation. The words of the law

KESAVANANDA v. KEllALA (Jaganmohan Reddy, J.) 487

may be like coats of Biblical Joseph, of diverse colours and in the

conxt in which they are used they will have to be 'interpreted and wherever possible they are made to subserve the felt-needs of the society.

This purpose can hardly be achieved without an amount of resilience and play in the interpretative process.

On the desirability of drawing heavily or relying on the provisions of the Congtitutions of other countries or on the decisions rendered therein, a word of caution will be nea:ssary.

It cannot be denied that the provisions of the Constitutions of other countries are designed for the political, social and economic outtlook of the people of those countries for whom they have been framed. The seed of the Constitution is sown in a particular soil and it 1s the nature and the quality of the soil and the climatic conditions prevalent there which will ensure its growth and determine the benefits which it confers on its people. We cannot plant the same seed in a different climate and in a cli:fferent soil and expect the same growth and the same benefit therefrom.

Law varies according to the requirements of time and place. Justice thus becomes a relative concept varying from society to society according to the social milieu and economic conditions prevailing tiherein. The difficulty, ro my mind, which foreign cases or even cases decided within the Commonwealth where the Common Law forms the basis of the legal structure of that unit, just as it .is to a large extent the basis in this country, is that they are more often than not concerned with ex

pounding and interpreting provisions of law which are not in pari materia with those we are called UJllOn to consider. The problems \vhich confront those Courts in the background of the State of the society, the social and economic set-up, the requirements of a people with a totally different ethics, philosophy, temperament and outlook differentiate them from the problems and outlook which confront the courts in this country. It is not a case of shutting out light where that could profitably enlighten and benefit us. The concern is rather to safeguard ag; Mnst the possibiliity of being blinded by it.

At the very inception of a constitutional democracy with a Federa~ structure innovated under the Government of India Act, 1935, a note of caution was struck bv the Chief Justice of India against following even cases decided on the constitutions of the Commonwealth units, which observations apply with equal force, if not greater, to cases decided under the American

Constitution. Gwyer, C.J., in In Re : The Central Provinces and Berar Act No. XIV of 1938,(1) which was the very first case under the 1935 Act, observed at p. 38: "But there are few subjects on which the decisions of other Courts require to be treated with greater caution than of federal and provincial powers, for in the last analysis the decision must depend upon the words of the Constitution which the

( 1) (1939) F.C.R. 18.

488 SUPREME COURT REPORTS [1973] Supp. s.c.R.

Court is interpreting; and since no two Constitutions arc in identical terms, it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another." This observation was approved and adopted by Gajendrap, dkar, C.J., (speaking for 7 Judges) in Spedal Refemzce 1 of 1964.( ).

The American decisions which have been copiously cited .before us, were rendered in the context of 'the history of the struggle against colonialism of the A=rican people, the sovereignty of several States which came together to form a Confederation, the strains and pressures which induced them to frame a Constitution for a Federal Government and the underlying concepts of law and judicial approach over a period of nearly 200 years, cannot be used. to pcrsllade this Court to apply their approach in determining the cases aris'ing under our Constitution. For one thing, the decisions of the Supreme Court of the United States though were for the benefit of the people and yet for decades those inconvenient decisions were accepted as 1aw by the Government until . the approach of the Court changed. The restraint of the people, the

Government and the Court, and tho patience with which the inconveniences, if any, have been borne, have all contributed to the growth of the law and during this long period the Constitution of the United

States has been only amended 24 times. The amending power under the American Constitution is a difficult process in that it is vitally linked with its ratification by tnc people through their rcprcsentauivcs in the State Lcislaturcs .or in .t?e ovention~, These dccsios,. thc.rcfore, arc of little practical uuhty m illltcrpretmg our Consllttut1on which

has devised altogether different methods of amendments. No doubt, .the rules of construction which our Courts apply have been drawn from the English decisions and the decisions of tho Privy Coundil, the latter of which declared the law for the country until its jurisdiction was abol, ishcd; and even today the decisions of the Courts .in England, the Com-.

weaLth countries, and the United States of America on matters which are pari materia are considered as persuasive.

For the proposition that for ascertaining the meaning of the word 'amendment', the object of and the necessity for amendment in a written Constitution must be considered, namely,- ( a) it i& necessary for changing the Constitution in an orderly manner, as otherwise the Constitution can be wrecked by extra

Constitutional method or by a revolution;

(b) as the very object [s to make cges in the fundamental or organic law, namely, to . change the fundamental or basic principles of the Constitution, the power of amendment cannot be said to be confined to only changing non-essential features.

( 1 ) (1965) I S.C.R. 413 at 487.

• KESAVANAIGA v. KllRALA {faganmohan 'R.etltly' J.) 489-

The'Attomcy-General has cited from the writings of several author~ of whom I may refer to a few passages from the following :

Woodrow Wilson in his book on 'Constitutional Government' in the United St!ates, said :

"A constitutional goverlllncnt, being an instrumentality for the maintenance of liberty, is an instrumentality for the maintenance of a right adjustment, and must have a machinery of constant adaptation" (page 4-6).

"It is, therefore, peculiarly true of constitutional government that its atmosphere is opinion, the air from which it takes its breath and vigor. Tho underlying underst'andings of a constitutional system are modified from age to age by chang".s of life and circumstances. and COITCsponding alterations of opinion. It does not remain fixed in any unchanging furm, but grows with the growth and is altered

with the change of the nation's needs and purposes" (page 22).

Rer Sherman Hoar in his book on "Constitutional Convention,_ Their Natlfre, P.wvers and Limitations", speaking of the American Omstitutfon 11s the one based upon popular sovereignty, says :

''Tho Federal Constitution was ordained and established by the peopk of the Ul!iitcd States" (U •. S. Constitution, Preamble) and

guarantees to each" the several li:ates "a republican form of govo-mncnt" (U. S. Constitution, Art. IV). This means, in oth"-

words, a rqircscntative form.

It iis founded upon the theory that the people are fit to rule, but that it would be cumbersome for them to govern thomselvcs directly. Accordingly, for the facili&- tion of business, but for no other purposes the people choose from their own number representatives to represent their point of view and to put inflo eftect the collective wiilr (page 11).

Quoting from Jameson's "Works of Paniel Webster", ill is again stated'. at p.12 :

"These principles were recognised by our forefathers in framing the various Bills of Rights, which decliare in substance that, as all . power resides originally in the people, and is derived from them; the several magistrates and officers of government arc their substitutes and agents and arc at all times accounitablc to them.

The various agents of the people possess only such power as is expressly or impliedly delegated to them oy the constitution or laws under which they hold office; and do not plOssess even this, if it happen to 'be betond the poW'er of sllch Constitution or laws to' grant".

490 SIJPREME COtntT REpORTS [1973] Supp. s.c.a.

A question that naturally arises is, arc the above postulates basic to our Constitution ?

After referring to these pas.sages, the learned Attorney-General submitted that the people of India have, as expressed in the Preamble, given .the power to amend the Constitution to the bodies mentioned in Article 368.

These bodies represent the people, and the method to amend .any part of the Constitution as provided for in Article 368 must alone

be followed.

In his submission any other method, for example, Constituent Assembly or Referendum would be extra-constitutional or revolutionary.

Article 368 restricts only the procedure or the manner Or form required for amendment, but not the kind or character of the .amendment that may be made.

There are no implied limitations on the amending power under Articlie 368.

It is the people who have inscr'ibed Article 368 in the Constitution. In the numerous American .cases cited before us, there is a const'ant reference to the people taking part in the amending process through the Conventions or ratification by the Legislatures which the judiciary has been treating as ratification .by the people.

In that context the word 'amendment' has been construed widely because when the sovereign will of the people is expressed in amending the Constitution, It Is as if it were they who wer• expressing the original soveroign will represented in tho convention which drafted the Constitution. There has been even a divergence of .opinion among the writers in the U. S. as to whether the entrenched provisions for the representation of the States in the Senate whlch could not be amended without the consent of the State affected can be amended even where all the States except the State concerned have ratified the taking away or abridging that right.

With this or the several aspects of the American Constitution we are not called upon to .expound nor have we any concern wirli it except with the claim of the petitioner tha~ the fundamental rights have been reserved by the people to themselves and the counter-clalm by the learned Attomey- General that it is the people who have inscribed Article 368 by investing that Article with the totality of the sovereignty of the people which when exercised in the form and manner l,'rescribcd in that Article would .amend any provision of the Constitution without any limitations as to the nature or kind of the amendment.

The people, the learned Attorney-General submitted, have been eliminated from the amending process because being illiterate and untutored they would not be abk to take part in that process with proper understanding or intell'igence.

This to my mind, appears somewhat incongruous. When they can be trusted to vote in much more complicated issues set out in election manifestos involving economic and political objecllives and social benefits which accrue by following them, surely they could be trusted with -deciding on direct issues like amcsding the Constitubion.

But the wldc scheme of the Constitution shows it is insulated against the direct

KESAVANANDA v. KERALA (Jaganmohan Reddy, J.) 491

impact from the people's vote, as can be seen, fir~, by the electoral system wider which it may often happen that a minority of voters can elect an overwhelming majority in Parliament and the Legislature; of the States, while the majority vote is represented by a minority of representatives, as is evident from the affidavit filed in respect of the recent elecllions by the Union of India on March 12 .• 1973, and secondly, where a President is elected by proportional representation of the members of the Legislatures. This situation could not have been unknown to the framers can be gathered from the speech of Dr.

Ambedkar who said: ''Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soi~ which is essentially widemocratic". (C. A. D., Vol. VII, p. 38). In any case this aspect need not concern this Court as it deals wiith what has already been done, but since so much has been said about the people and the amending power in Article 368 as representing the sovereign will of the people, I have ventured to refer to this topic.

There is no doubt some warrant in support of , the proposition that people have reserved to themselves the fwidamental rights, as observed by Patanjali Sastri, J., in A. K. Gopalan v. State Madras(1 ), to which a reference has been made earlier, and, therefore, it is •ubmitted

that these rights cannot be taken away or abridged even by an amendment of the Constitution. Neither of these submissions accord with the facts of history though the Preamble which was adopted as a part of the Constitution on October 17, 1949 says so. (See .with respect to the adoption of the Preamble as a part of the Constitution, C. A. D ..

Vol. X, p. 456). To digress somewhat, it appears that the observations in In Re : Berubari Union & Exchange of Enclaves('), that the Preamble was not part of the Constitution does nou seem to have taken note of the fact that the Constlituent Assembly had debated it and adopted the resolution. "That the Preamble stand part of the Constitution".

It appears to me that a comparison with Art. V of the U. S. Constitution providing for an amendment of that Constitution, with Article 368 of our Constitution, would show that there is no resemblance between the amending procedure provided in either of them.

Such a comparison would, in my view, be misleading, if we were to apply the concepts and dicta of the eminent Judges of the Supreme Court of

the U. S. in mterpreting our Constitution. If we were to o. cept the contention of the learned Attorney-General that the sovereignty is vested m Article 368, then one is led to the conclusion on an examination of the history of the Constitution-making that the people of India had never really taken part iin :the drafting of the Constitution or its adoption, nor have they been given any part in its amendment at any

( 1) (1950) S.C.R. 88 at 100. t') (1960) 3 S.C.R. 250,

492 SUPREME COURT REPORTS (1973) Supp. S.C.ll.

stage except indirectly through representatives elected periodically for conducting the business of the Government of the Union and the States. It cannot be denied that the members of the Constituent Assembly were not elected on adult franchise, nor were the people of the enlli.re territory of India represented therein even on the very limited franchise provided for under the Cabinet Mission Plan of May 16, 1946 which was restricted by the property, the educational and other qualification to approximately 15% of the country's population comprising of about 40 million electors. The people of the erstwhile princely States were not elected to tl1e assembly though the representatives of those States may have been nominated by the rulers. A day before the transfer of power on August 15, 1947, the Indian States were only subject to the paramountey of tlle British Crown.

On August 15, 1947, all of them, except Hyderabad, Junagadh and Jammu & Kashmir, had voluntarily acceded to the Dominion of India.

The objectives Resolution which claims power from the people to draft the Constitution was introduced in the Constituent Assembly on December 13, 1946, when the Constituent Assembly met for the first time and at a time when the Muslim League bycotted the session (Sec C. A. D., Vol. I, p. 59). The 4th clause of that Resolution provided that all power and authority of the Sovereign Independent India, its OOIIlstituent parts and organs of government are derived from the people.

The Resolution also said that in proclaiming India as an Independent Sovereign Republic and in drawing up for her future governance a Constitution there shall be gii.arantee and secured to all the people of India, justice, social, economic and political; equality of status, of opportunity and before the law; freedom of thought, expression, belief, faith, worship, VQCation, association and action, subject to law and public morality; and wherein adequate safeguards shall be provided for minoritlies, backward and tribal areas, and depressed and other backward classes.

This Resolution was adopted on January 22, 1947 with utmost solemnity by all members standing. (See C. A. D., Vol. II. p. 324).

While the claim was so made and at t:he time when the Resolution was ad, opted, the legal sovereignty over India remained vested in the British Crown and British Parliament, and when that power was transferred, it was transferred to the Constituent Assembly by the Indian Independence, Act, 1947, ss. 6 and 8 of which conferred on .-the Constituent Assembly the power to enact a Constitution, as well as the foll powers to make laws which were not to be void or inoperative on the ground that they are repugnant to the laws of England, or to the provisions of the Indian Independence Act or any existing or future Act of Parliament of the United Kingdom, or to any order. rule or re211lation made under any such Act, and the powers of the

' KESAVANA.NDA w KEMLA (f'llganmohan Reddy, J.) 493

Legislature of the Dominion of India shalJ include the power to repeal or am111d any such Act, order, rule or regulation' in so far as it is part of the law of the Dominion (See sub..;.

(2) of s. 6).

These powers of the Legislature of the Dominion, under sub..s. ( 1) of s. 8, for the purposes of making a' Constitution. were conferred on the Constituent Assembly and reference in the Act to rhe Legislature of the Dominion was to be construed accordingly.

It was onlv in November 1949 after the work of the framing of the Constiturio~ was completed that the ruling Princes accepted it on behalf nf themselves and the people over w horn they ruled.

The Constitution was not ratified hy the people but it came into force, by \•irtue of Article 394, on January 26. 1950.

Article 395 repealed the Indian Independence Act, 1947 and the Government of India Act, 1935.

Reference may also be made to the fact that during the debates in the Constituent Assembly ir was pointed eut by many speakers th:>! that Assembly did not represent the people as such. because it wa" not elected on the basis of adult franchise, that some of them even

moved resolutions suggesting that the Constitution should be ratified by the people.

Both the dairJ1)and the demand were rejected. Dr.

Ambcdkar explained that, "th~ Constituent Assembly in making a Constitution has no partisan motive. Beyond securing a good and workable Constitution it has no axe to grind,. In considering the articles of the constitution it has no eye on getting through a parti cular measure. The future Parliament if it met as a Constituent Assembly, its members will be acting as partisans see!Cing to carry amendments to the Constitution to facilitate to the passing of party measures which they have failed to get through Parliament by reason of some Article of the Constitution which the Constituent Assembly has none. That ls the differc; h<; e between the Constituent Assembly and the future Parliament. '!fhat explains why the Constituent Assembly though elected on limited franchise, can be trusted to pass the Constitution by simpl~ majority and why the Parliament though elected on adult suffrage . cannot be trusted with the same power to amend it". (C. A. D., Vpi. VII, pp. 43-44).

At the final stages of the debate on the amending article, Dr.

Ambedkar replying to the objection that the Constituent Assembly was not a representative assembly as it has not been elected on an adult franchise, that a large mi!Sf of the people arc not represented, and consequently in framing t~~I Constitution the Assembly has no right to say that this Constitution should have the finality which.

!2-36 S.C.India/73

494 SUPIU!ME COUllT IU!POllTS [ 1973) Supp. s.c.11.

Article 304 proposes to give it, said - "Sit, it may be true that this Assembly is not a representative assembly in the sense that Members of this Assembly have not been elected on the basis of adult suffrage.

I am prepared to accept that argument, but the further inference which is being drawn that if the Assembly had been elected on the basis of adu1t suffrage, it was then bound to possess greater wisdom and greater political knowledge is an inference which I utterly repudiate", (C. A. D., Vol. IX, p. 1663).

The fact that the preamble professed in unambiguous terms that i.t is tbe people of India who have adopted, enacted and "given to themselves this Constitution"; that the Constitution is being acted upon wnquestioned for the last over twenty-three years and every power and

authority is purported to be exercised under the Constitution; and ihat the vast majority of the people have, acting under the Constitution, elected their representatives to Parliament and the State Legislatures in five general elections, makes the propOISition indisputable that the source and the binding force of the Constitution is the sovereign wilr of the people of India.

On this assumption no state need have unlimited power and indeed in Federal Polities no such doctrine is sustainable.

One has only to take the examples of U. S. A., Australia or Canada, and oU'r own where the Central and the State Legislatures arc supreme within the respective fields allotted to them.

Any conflict between these is determined by the Supreme Court, whose duty is to declare the law.

Those brought up in the unitary State find it difficult to recognise such of those limitations as are found in Federal Constitutions. Constitutions have been variously described as rigid or flexible, controlled Of uncontrolled, but without going into tllese concepts it is clear that' if the State is considered as a society, "to

which certain indefinite but not unlimited powers arc attributed then there is no difficulty in holding that the exercise of State power can be limited" (A. L Goodhart, "English Law and the Moral Law",

p~ 54). Even in a unitary State like the United Kingdom where itt. is

believed that the Queen in Parliament is supreme, Professor A. L.

Goodhart in the book referred to above points out that this is as misleading as the statement that the Queen's consent is necessary. After referring to Dicey, Coke and Blackstone, that parliamentary government is a type of absolute despotism, he says, "Such a concluon must be in conflict not only with our sense of what is fitting, but also with our recognition of what happens in fact. The answer , is, I believe, that the people . as a whole, and Parliament itself, recognise that under the unwritten Constitutian there are certain established principles which limit the scope of Parliament. It is true.

KESAVANANDA v. KERALA (!1aganmoflan Reddy, J.) 495

that the Courts cannot enforce these principles as they can under the Federal system in the United States, but this does not mean that these principles are any the le, s, s binding and effective. For that matter some of them receive greater protection today In England than they do in the United States. These basic principles are, I believe, four in number". (A. L. Goodhart, p. 55).

Then he narrates what these four principles are : First, that no man is above the law, the second, that those. who govern Great Britain do so in a representative capacity and are .subjeGt to change but "an immortal government tends to be an immoral government"; the third, freedom of speech or thought and assembly are essential part of any Constitution which provides that people govern themselves because without them self-government becomes impossible; and the fourth, which is a basic part of the English Constitution is the independence of the judiciary and it is inconceivable that Parliament should regard itself as free to abolish the principle which has been accepted as a cornerstone of freedom ever since the Act of Settlement in 1701. Professor Goodhart then concludes :

"It is therefore, I believe, true to say that it is as wrong in theory as it is in fact to suggest that the British Constitution is a form of enlightened despotism.

Those who exercise power in the name of the State are bound by the law, and there are certain definite principles which limit the exercise of the power."

Before considering the detailed contentions it is necessary to see what was intended to he achieved by the Twenty-fourt!h Amendment.

I have already set out the changes made in Art. 368. These are-

(a) In the marginal note, instead of the expression "Procedure

for amendment of the Constitucion". it was substituted by

"Power of Parliament to amend the Constitution and Procedure therefor''. This was to meet any possible doubt that the marginal note only indicated a procedure and not the power of amendment, though the majority in Golaknath'.c case had held that Art. 368 contains both power and procedure;

(b) By tl1e additio.n of clause (1), three changes were effected namely, (i) a non obstante clause "Notwithstanding anythin~ in this Constitution'', (ii) "Parliament may in exercise of its constituent power"; and (iii) "amend by way of addition, variation or repeol any provision of the Constitution in accordance with the procedure laid down in this article".

It has already been seen !ihat both in Sankari Prasad' s and Saiian Singh's cases, the two Houses of Parliament have been construed as Parliament and not a different body. In Golaknath's case also all the

496 SUPBEME COURT REPORTS (1973] Supp. s.c.R.

' Judges held that it is only Parliament which makes the amendment.

The question whether the power in Art. 368 is a constituent power or a legislative power has of course been debated.

The law in in generic terms includes a constituent law, namely, the Constitution

itself made by a Constituent Assembly-as indicated by the words "The Constitution as by law established", or an amenciment made in accordance with the provision contained in the Constitution, as well as an ordinary legislative law made by the legislative organs created by the organic instrument.

The quality and the nature of the law has been differently described; but broadly speaking the Constitution or the amendments thereof are termed as law which is made in exercise of its constituent power, though the reach of each may differ. Il it is true, as is contended, that both these in the plenitude of power are co-extensive, on any view of the matter, no difficulty is encountered in describing the amending power as the constituent power.

Even otherwise without resort to any great subtlety or distinction between the exercise of power by a constituent body and a constlituted body inasmuch as both are concerned in the making of the Constitution or in amending it, they can be considered as a constituent power. The amending power is a facet of the conslJituent power, but not the whole of it. The power under Art. 368 after the amendment is still descrih ed as amending power.

The Twenty-fourth Amendment makes this explicit because it did not want a doubt to linger that because the same body, namely, Parliament makes both the ordinary law in terms of. the grant in Arts. 245 to 248 and an amendment in terms of Art. 368, it should not be considered that both these are legislative laws within the meaning of Art. 13(2) which was whav the majority in Golaknath's case had held.

In the view I have taken that Article 13(2) was confined only to the ordinary legislative laws and not one made under Art. 368, the addition of clause ( 1) to Art. 368 in so far as it declares that when Parliament exercises the power under th•t provision it exercises its constituent power and makes explicit what was implicit. In my view, the amendment, therefore, makes no change in the position which prevailed before the amendment.

It has also been seen that the amendment added clause (3) to Art. 368 that "Nothing in Article 13 shall apply to any amendment made under this article", and has added clause (4) to Art. 13 that "Nothing

in this article shall apply to any amendment of this Constitution made under Article 368". These additio~ having regard to the view I have taken that Article 13(2) does not impose any express limitation on Article 3(>8, unless of course, there is a limitation in Article 368 itself on the width of the power which the word 'amendment' ia the context of that article and the other provisions of the Constitution might indicate, again make explicit what was implicit therein.

KESAVANANDA v. KHRALA <J'aganmohan Rtddy, J.) 491 ,

The outstanding question then is, what is the meaning of the word 'amcndment'-whether it has wide or a restricted meaning, whether the word 'amendment' includes repeal or revision, and whe ther having regard to the other provisions of the Constitution or the context of the word 'amendment' in Article 368 itself it has a restricted meaning, and consequently does not confer a power to damage or destroy the essential features of the Constitution.

The existence or non-existence of any implied limitations on the amending power in a written Constitution which does not contain any express limitations on that power has been hotly debated before us for days. I have cariler set out some of these contentions. If the word 'amendment' has the restricted meaning, has that power been enlarged by the use of the words "amend by way of addition, variation or repeal" or do they mean the same as amendment? If they arc wider than amendment, could Parliament in exercise of its amending power in Article 368 enllargc that power? This aspect has been seriously contested and cannot on a superficial view be brushed aside as not worthy of merit. 'fhrre can be two ways of looking at it. One approach can be, and it would be the simplest solution to the problem that confronts

us, to assume. that the amending power is omni-sover.eign and there after the task will be easy because so much has been written by academic writers that it will not be difficult to find expression of views which support that conclusion. Long years ago, Oliver W cndall Holmes had written, "you can give any conclusion a logical form" and one can only say how true it is. This course, however, should be eschewed, firstly, because of the a prio1-i assumption and the speculation inherent in drawing upon such writings, and secondly, because the interpretation placed by these learned writers on Constitutions which arc different will, if drawn upon, in effect allow them to interpret our Constitution. which though derivative it may be, has to be interpreted on the strength of its provisions and the ethos it postulate... It is, therefore, necessary to ascertain from the background of our national aspirations, the objectives adopted by the Constituent Assembly as translated into a working organic instrument which established a sovereign democratic Republic with a Parliamentary system of Gov. ernment whereunder individual rights of citizens, the duties towards the community which the State was enjoined to discharge; the diffusion of legislative power between Parliament and State Legislatures and the provision for its amendment, etc., arr provided for. All these aspects were sought to be well balanced as in a ship built for fair weather as well as for foul. This then will be the proper approach.

The learned Attorney-General contends that the word 'amendment has a clear, precise, definite and unambiguous legal meaning and has been so used in all the Written Constitutions of other countries also ever sin(e written Constitutions have been innovated.

The word

4 9!S SUPREME COURT REPORTS (1973 j Supp. S.C.R.

"amendment" according to him has received a well accepted construction which gives it the widest amplitude unrestricted by any limitations thereon.

While making this submission, however, he has pointed out that though our Constitution has used different expressions at several places, it does not follow that they do not necessarily mean the same thing. The Advo. cate for the petit10ner on the other hand says that this word has no precise and definite or primary and fundamental meaning and hence the cases on construction cited by the respondents that the Court is not concerned with the policy of the Legislature arc not applicable. On the contrary, he points out, that since the word is ambiguous, the width of the power has to be ascertained by courts from the general scheme and context of the Constitution in which it appears and other relevant indications and principles. He relies on the observations of Lord Wright in fames v. Commonwealth of Australia,(') cited on behalf of the first respondent that, "A Good draftsman would realise that the mere generality of the word must compel limitation in its interpretation. 'Free' in itself is vague and indeterminate. It mmt be its colour from the context".

The learned Attorney-General further submits, relying again on the decisions of the American Courts that revision and amendment

h:ne been held as synonymous terms and that if you give the power to amend the amending power, the amending power will become very wi<le. It is also his contention, relying on Strong on "Modern Political

Constitutions" that the amending provisions re-create the Constituent Assembly, provide some elements to be 'unaltered, and since our Constitution-makrrs who were aware of this position in the United States have used the same words, they must be intended to use that word as giving the widest power, and since there are no express limitations, no restriction on that power can be read Into it by implication. A reference to the provision relating to amendment either in the United States or in the States' Constitutions where people have a vital part in the amending process in my view inapt and inapplicable to the interpretation of our Constitution where the people have been designedly excluded. I say this, because we have been referred to the attempts made in the Constituent Assembly to involve people of this country in the amendment of the Constirution, but such attempts did not succeed. Brajeshwar Prasad had actually proposed an amendment to make the amending provision similar to the one in Australia Constitution and had said, "What is possible in Australia is possible here. If the people in Australia are competent and advanced to adopt this method of amendment, certainly we, who are as competent as the Australians, if not more; are entitled to adopt the same. I do not want

( 1) [1936] A.C. 578 at p. 627 (P.C.).

KESAVANANDA v. !Cl!llALA (}aganmohan Reddy, J.) 499

to as,<; OCiatc the State Legislatures in the process of amending the Consnution." He also said that, "If you want to abolish landlordism, you cannot afford to look for the consent of the landlords, and similarly, if you want to abolish capitalism, you cannot afford to look for the consent of the capitalists". (C.A.D., Vol. IX, p. 1646). This amendment, however, was negatived. (C.A.D., Vol. IX, p. 1665 J.

A reference was also made in this connection to draft Article 305 as indicating that the word 'amendment' would mean repeal cir whinling down. Even assuming that that Article had been incorporated in the Constitution.-what docs the word 'amendment' in that context imply?

First, draft Article 305 starts with the non-obstante clause, "Notwithstanding anything contained in Article 304" (present Article 368), and, second! y, the provisions relating to the reservation of seats for the , minorities "shall not be amended during a period of ten years from the commencement of this Constitution and shall cease to have effect

on the expiration of that period unless continued in operation by an amendment of the Cons6tution''. This clause instead of throwing any light on the width of the power of amendment shows that it is completely restricted in that nothing can be done to affect that provision for ten years which limitation with the nrin-obstante clause excludes , Article 304 altogether during that period. If after that period it is to be extended that Article can be amended but this does not mean that it can be repealed, for it is only concerned with either extension of the period or change in the terms or conditions under which the reservation would continue to apply.

It was contended that the word 'amendment' in Article 368 must be , ll>nstrued as meaning change for the better, improvement, etc. In

GolaJr..nath'; case a similar contention was rejected by some of the learned Judges. Subba Rao, C. J., (speaking for 5 Judges) did not expre51; any view though he said that the argument that Parliament cannot destroy the structure of the Constitution but it can modify the provision• thereof within the framework of the original instrument for its better effectuation, has considerable force, but they were relieved of the necessity to express their opinion as the question raised can be an1wered

on a narrower basis. He observed that : "This question may arise for tonsideration only if Parliament seeks to destroy the structure of the Constitution embodied .in the provisions other than in Part Ill of the Constitution. We do not, therefore, propose to express our opinion in that regard" (pp. 804-805).

Hidayatullah, J., at p. 862 said :

"! do not take the 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".

500 SUPREME _COURT REPORTS [1973] Supp.• s.c.R.

W'anchoo, {, (speaking for himsel£ and two other Judges), observed at. p.834:. - -. .

- .. -- ,: -_ ' _,. ,_

''To say that 'amendent' in law only mns a chaiige 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 detaits 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 exist- . __ ing provisions, or alteration of existing provisions and their substitution by others or deletion of certain proisions altogether"'.

After noting that the _word "amend" in the VI Schedule, paragraph 21, where it was preceded by words "by w:iy of addition; variance or repeal" and more or less similar expressions in other Arlicles of the Constitution, he observed, "it is very diflieult to say why this was done.

But the fact that-no such words appear in Article 368 does not in our mind make any difference, for the meaning of the word 'amendment' m a law is clearly as indicated above by us and the presence or absence

of explanatory words of the nature indiC:ated above do not in our opinion, make any difference". Bachawai J., at pp. 915-916, says:

- • 1 • ' ' • ' • • '

"Article 368 indicates that the term 'amend' means 'change'. 'The proviso is 'expressed to apply to amendments which seek to make any 'change' in cert:Un articles. The m:Un part of Article 368 thus gives the power to amend or to make changes in the Constitution. _ A change is not necessarily an improvement. Normally the change is made with the object of making an improveent, but the experiment may fail to achbe 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 Padiament) formdlly 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 authorised by Article 368". -

Ramaswami, J., has not specifically dealt with the meaning of the "'ord 'amendment'. ·~:.,~;-:"1!·

KES .. VANANDA 11. llERALA (/viganmohan Reddy, J.) 501

It is obvious from these observations that the attempt to restrict the meaning of the word 'amendment' to 'improvement' has been rejected by live of the learned Judges 'm Golaknath's case.

The learned Attorney-General, however, in the written summary of his arguments, said "The majority of the learned Judges in Golaknath' s case rejected the arguments that the expression amendment of of a Consutution has a narrow meaning. Thus the petitioner seeks to have the majority judgment overruled on thls point". (Page 30, Para 9). This statement does not seem to be accurate, unless he has linked the rejection of the argument regarding the existence of implied limitations as recognising that the word amendment has a wide meaning. That implied !; imitations and the width of the meaning of word amendment were two different concepts admits of no doubt, because the former flows from the implications of the provisions of the Chnstitution whether general or specific, while the latter deals with scope and the cambit of the word amendment itself. If the power is wide, even implied limitations can also be abrogated, but it has nothing to do with the aistence of the implied limitations. On. the other hand, Hidayatullah, J. though he dealt with the narrowness or otherwise of the meaning of the word 'amendment' did not deal with the existence or non-existrnce of implied limitations under our Constitution. Bachawat, J., :1t pp. 915 and 916 also did not think it necessary to pronounce <>n implied limitations and like Wanchoo, J., has separately considered

these two concepts (sec pages 833-834, 835-836). These instances illustrate what I have said above. Even on this basis there would not be a majority of Judges who have held that there are no implied limit:>-

tions.

The learned Advocate-General for Maharashtra submits that when a person proposes an amendment and he is asked whecher it is intended to be an 'improvement, the answer will always be 'Yes'; because he .cannot very well say that it was not intended to be an improvement; that the meaning of the word 'amendment' in several Dictionaries which relate the word 'amendment' with 'improvement' is euphemistic.

This is the reason why the word 'amendment' according to him is used in the earlier sense in common parlance, in public speeches, textbooks or articles by learned writers, which is far from saying that an amendment must be only a change for effecting an improvement.

Bachawat, J ., earlier at p. 915 in Golaknath' s case referred to the .decWon Lit1ermo1e v. E. C. Waite,(') in support of the submission that an amendment must be an improvement of the Constitution. The following abscrvations in Livermore's case were cited by him:

"On the other hand, the significance of the term 'amendment' implies such an addition or change within the lines of the original

( 1) (102) Cal. 113-25 LR.A. 312.

502 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.

instrument as wilil effect an improvement, or better carry out the purpose for which it was framed".

With respect to this passage, Bachawat, J., observed :

"Now an attack on the eighteenth amendment of the U.S. Gonstitiution based on this passage was brushed aside by the U.S. Supreme Court in the decision in the National Prohibition case (Rhode Island v. Palmer, 253 US 350; 64 L. ed. 947, 960, 978). The decision totally negatived the contention that an amendment must be confinecl in its scope to an alteration or impro'l'.ement of that which is already contained in the Constitution and cannot change its basic mucture, include new grants of power to the Federal Government nor relinquish in the Sate those which already have been granted to it". (See Cooley on Constitutional Law, Chapter III, Art. V, pp. 46 & 47).

I find from the reference to the National Prohibition case and the p; ges of that report given \iy Bachawat, J., namely, 64 L. ed. 947, 960 and 978, that no observations to that effect have been made at page 9i8 by Mr. Justice Van Devanter. In that case the Supreme Court was considering an appeal from a District Colin which had rejected the contention that 18th Amendment was not valid on the ground that, "The definition of the word 'amendment' include additions as well as corrections of matters already treated and there is nothing in its immediate context (Article V) which suggests that it was used in a restricted sense". The decree of the Court below was affirmed in the National Prohibition case. (Rhode Island v. Palmerl.(1) At p. 960 the briefs filed by the Attorney-General of Rhode Island and others did. however, refer to the passage cited by Bachawat, JJ., in Iivermore v. Waite. But none of the Judges in the National Prohitiotr case either referred to the passage in Iivermore's case nor did they deal with the scope of the power of amendment and, therefore, it cannot either be said that the submission was brushed aside, nor can it be said that the National Prohibition case totally negatived that contention.

It may be the opinion of Cooley in his Book on "Constitutional Law'" that the p"5sagc in Livermore's case cited by Bachawat, J., did not support the !>roposition therein stated. Rut all arguments in that case against the amendment could not be taken to be negatived, if they were not necessary for the decision. What arguments were brushed aside, no one can say with any amount of definiteness. If the judgment of the Supreme Court in National Prohibition case is read with the judgment of

the Disrrict Court whose decree was affirmed, it may be takn to have laid down that the word amendment would include addition of a

(') 64 L. ed. 946:

.....

llSAVANANDA v. KERALA (}aganmohan Reddy, J.) 503

provmon to the Constitution and beyond this nothing more can be inferred from this judgment.

The argument of the learned Advocate-General is that the words "amendment of this Constitution" in sub-para (2) of para 7 and sub-para

(2) of para (21) of the respective Scheduh:s refers to the words used in sub-para (1) of sub-para 7 and 21 of the Schedules, and, therefore, the words "amendment of this Constitution" must be read to mean that it is an amendment by way of addition, variation or repeal. It was noticed that in Golaknath's case while Wanchoo, J., could not fathom the reason why the expression 'by way of addition, variation or repeal' was used in Schedule V para 7 and Schedule VI, Para 21, he none the less thought the presence or absence of the explanatory words made no difference to the meaning of the word 'amendment'. In other words, according to the learned Advocate-General, the word 'amendment' in Article 368 is synonymous with the expression 'amend by way of addition, variatiion or repeal' so that the Twenty-Fourth Amendment according to this view, and probably to conform with it, used the clarificatory words and means even after this amendment the same meaning as the word 'amendment' had before Article 368 was amended.

What an amendment can do has also been stated, by Wanchoo J., namely, that the existing Constitution can be changed and this change can take the form either of addition to the existing provisions or alteration of the existing provisions and their substitution by others or deletion of certain provisions altogether. Thougli all this can be done, he said, 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 it by an entirely new one (p. 834).

It is also not disputed by the learned Attorney-General, the learned Solicitor-General and the learned Advocate-General for Maharashtra that an amendment of the Constitution docs not extend to abrogation of the Constitution, and on the contention of the learned Advocate-General, altrogation means repeal, both words being synonymous, and that thr.

Constitution cannot be substituted by a new Constitution.

In further explaining his submission the learned Attorney-General said that the amending power in Article 368 as it stood before the Twenty-fourth Amendment and as it -stauds now has always been, and continues to be, a ronstituent power, that is to say, the power to deconstitute or re-constitute the Constitution or any part of it. Such power extends to the addition to or variation of any part of the Constitution. But the amending power docs not mean that the Constitution at any point of time would be so amended by way of addition, . variation or repeal as to leave a vacuum in the governance of the country. According to him that is the whole ob'ect and necessity of

504 SUPREME COURT REPORTS' [ 1973] Supp. S.c.:R.

the amending power in a Constituttion so that the Constitution continues, and a constituent power, unless it is expressly !imited in the

Constiut!o~ itself, can by its very nature have no limits, because if any such limit 1s assumed although not expressed in the Constitution, the whole object and purpose of the amending power will be nullified.

If amendment docs not mean abrogation or repeal as submitted in the note of the Advocate-General, dated February 23, 1973 in which lie said, "that repeal and abrogation mean the same thing since "repeal" has 'abrogation' as one of its meaning and 'abrogation' has 'repeal' as one of its meanings", a , question arises, where , is the line to be drawn ? .

The learned Attorney-General said that Article 368, clause (e) of the proviso by giving a power to amend the amending power, has

conferred a wider power of amendment but that does not imply that the power of amendment had a liimited meaning in the unamended article; that the word 'amendment' has only one meaning and it is a wide power and in Article. 368 there is a recreation of the Constituent Assembly. If this submission is correct, how can it not extend to abrogation of the Constitution or substituting it by another?

To this question the answer of the Attorncy-Gcrteral was that clause ( e) of the proviso was added by way of abundant caution to meet a similar criticism which was dircctocl against Article V of the U. S. Consiitution. According to Advocate-Genera! for Maharashtra, clause ( c) of the proviso was inserted to qiccc the assumption of Chief Justice in the Irjsh case of The State (Ryan & Ors.) v. Lennon & Ors., (1) that if amending provision could have been amended, then no limitation can be read. Hon'b!e the Chid Justice has dealt with this aspect in full jand I do not, therefore, propose to refer to it. cx<:pt to say that the analogy )s inapplicable to the interpretation of Article 368.

Apart from the power of amendment not extending tO tllc abrogation of the Constitution, i.t will appear on the submission of respondents, the pnion of. India .an<;! the. State of Kerala, that the office of the President cannot be abolished without the conc:urfence of at least half the States even though Articles 52 and 53 arc not

included in the proviso to Article 368. The very fact that Article 54 . and Artiitle 55 are included in the proviso, it would, according to the learned Solicitor; Gencral imply that the offict of the President c:lllOOt be abolished without the concurrence of the States. Wanchoo, J, in Golaknath's case dealt with a similar contention at p. 844. Though he thought that the supposition was imposs.ible, and I entirely agree

( 1) (19.~5) Irish Reports 170.

KESAVAN.<NDA v. KERALA (Jaganmohan Reddy, J.) 505

with him that it is not likely, yetin such a case, "it would be right to hold that Article 52 could not be altered by Parliament to abolish the office of President. .. .it will require ratification". Nor do I think having regard to the basic structure of the Constitution is it possible to abolish the office of the President by resort to Article 368 and as assent is necessary, no President true to his oath to protect and defend the Constitution, will efface himself. It would, therefore, appear from this specific instance that an implied limitation is

rrad into Article 368 by reason f the proviso entrenching Article 54.

The learned Advocate-General says even Article 53 which vests the executive power of the Union in the President by sub-clause (2), vests the Supreme Command of the Defence Forces of the Union in the President, wonld also necessitate an amendment similar to Article 52 by ratification by the states. Yet another instance is, that an

implied power to amend is fonnd in Article 368. When the form and manner is complied with, the Constitution stands amended, from which provision as well as the fact that Article 368 is in a separate Part entitled 'amendment of the Constitution', the above conclusion

'!fas reached. The petitioner's counsel naturally asks that if The Queen v. Burah, (1) is read as an authority as contended on behalf of Kerala State against the existence of powers which are not conferred by aflirmative words and against the existence of limitations,. this proposition clearly negatives the respondents' other subrdssion that the source of the amending power must be impliedly found in

Article 368 although such a power is not to be found aflirmativdr conferred.

Though. there are naturaly some limitations to be found in every organic instrument, as there are bound to be limitations in any institution or any other set up brought into existence by human agencies,. and though my Lord the Chief Justice has gone into this aspect fully, it is in my view not necessary to consider in this case the question of the existence or non-existenc-e of implied or inherent limitations, because if the amending power is wide and plenary, thoselimitations can be overriden as indeed the non-obnante clause in the amended clause (1) of Article 368 was intended to subserve that end. What has to be considered is whether the word 'amendment"

is wide enough 'to confer a plenitude of power including the power to repeal or abrogate.

The learned Advocate-General has further wbmitted that there is intrinsic evidence in the Constitution itself that the word 'amendment' in Article 368 means 'amend by way of addition, variation or repeal', hecause if that were not so, sub-para (2) of para 7 of Schedule V would not have taken out the law made under sub.para ( 1 ~

( 1) (1877-18) J.C. 179.

506 SUPllEME COUJlT Jtl!pORTS [ 1973] Supp. s.c.a.

mpowering Parliament to "amend by way of addition, variation or

repeal" any of the provisions of the Schedule from the operation of Article 368. The same meaning should also be given to para 21 of Schedule VI. The learned Attorney-General has referred to several articlt:s in which the word 'amendment' has bun used, as also to several others in which that word or its variation has been

used in continuation with other words.

But these expressions do not show that the word 'amendment' is narrow or limited. In every case where an amendment has been made in the Constitution, he says, something has been added, something substituted, something repealed and re-enacted and certain parts omitted. The Constitution (First Amendment) Act is g.iven as an instance of this, nor according to him does anything turn on the fact that S. 291 of the Government of India Act, 1935, was amended just about a few weeks before Art. 368 was finalised, and in which the word 'amendment' was substituted for the words 'amend hy way of addition, variation or repeal'.

According to him what this Court must cons.ider is that since Art. 368 arranges to recreate the Constituent Assembly and exercise the same power as the Constituent Assembly, it should be read in a wide sense.

If the power of amendment is limitless and Parliament can do all that the petitioners contend it can do under Art. 368, the respondents say it should not be assumed that power will be abused, but on the other hand the presumption is that it will be exercised wisely and reasonably, and the only assurance against any abuse is the restraint exercised by the people on the legislative organs. But the recognition of the truism that power corrupts and absolute power corrupts absolutely has been the wisdom that made practical men of experience in not only drawing up a written Constitution limiting powers of the legislative organs but in securing to all citizens certain basic rights against the State. If the faith in the rulers is so great and the faith in the people to curb excessive exercise of power or abuse of it is so potent, then ant needs no elaborate Constitution, because all that is required is to make Parliament omni-potent and omni-sovereign. But this the framers did not do and hence the _, uestion will. be whether by an amendment under Art. 368, can Par liament effect a metamorphosis of power by making itself the supreme sovereign. I do not suppose that the framers were unaware of the examples which must be fresh in their minds that once power is wrested which does not legitimately belong to a limitt:d legislature, the efforts to dislodge it must only be by a painful process of struggle, bloodshed and attrition-what in common parlance wotild be a revolution. No one suggests this will be done, but no one should be complacent, that this will not be possible, for if there is power

\II it can achieve even a destructive end. It is against abuse of power that a constitutional structure oi. power relationship with checks and

KESAVANANDA II. KERALA (}aganmohan Reddy, J.) 507

balances is dc:vised and safeguards prov"1ed fur whether expressly or by necessary implication. And the question is whether there arc any such in our Constitution, and if so, whether they can be damaged or destroyed by an amending power ?

The petitioner's counsel, learned Advocate-General and the learned Attorney-General have furnished us with the extracts from various Dictionaries, and the learned Attorney-General has further referred us to a

large number of Constitutions in which the word 'amendment' or words used for nmending the Constitution have been employed, to show that there is no difference or distinction between these words and the word 'amendment'. In all these Constitutions, subject to whieh I said of. the inappropriateness of comparing other world Constitutions made for different people with their differing social, political and economic outlook, the words used are either 'amendment' or a combination of that word with others or a totally different word. In some of the Constitutions given in the compilations made available to us where the word 'amendment' alone is used, the exercise of the power of amendment was inextricably linked with the ratification by the people in whom the sovereignty rests, either by referendum or by convention or by the Legislatures. The Constitutions of other countries which have been referred to specifically by the learned Attorney-General are of Liberia, Trinidad & Tobago, Somalia, Jordan, Kuwait, Lebanon, Vicu1am Democratic Republic, Belgium, Costa Rica, Cuba and Nicaragua. I have examined the relevant provisions of these Constitutions regarding the amcndatory process.

These Constitutions have used different words than the words used ia our Constitution. When the word 'amendment' or 'amend' is llSCd, it has been invariably used with the words 'alter', or 'repeal', or 'revise', or 'variation, addition or repeal', or 'mcxlificatrion', or 'suspension', or 'addition', or 'deleting', or 'partially amend', or 'general amendment', or 'specific, partial or complete', or 'wholly or partially amend', or by a combinction of one or more of these expressions. In one of the O>nstiutions, namely, Trinidad & Tabago, the word 'alteration' was defined to include 'amendment, modification or modification or that provision, the suspension or repeal of that provision and the making of a differen~ provision in )ieu of the provision'.

In some of the other Constitutions not referred to by the learned Attorney-General where the amending process is not referable to the voters by referendum or to be ratified in a convention with the word 'amc!ld', the words 'alter', 'add', 'supplement', 'repeal' or similar words have been used to indicate the plenitude of power of amendment . Section 29( 4) of the Ceylon Constitutional Order, 1946, which was the subject-matter of decisions in Liyanage v. The Queen(')

(1) (1967) 1 A.C. 2'9.

508 SuPREME COURT REPORTS (1973] Supp. s.c.R.

and The Bribery Commissioner v. Rana Singh(') cases, and had been debated in this Court by counsel on either side, provides that in the exercise of its powers under the section "Parliament may amend or repeal any of the provisions of this Order, or of any other Order".

But this sub-section entrenches by mb-s. (2) certain matters from being amended because as the Privy Council observed that "They represented a sokmn "balance of rights between the citizens of Ceylon".

In the Constitution of Finland the words used are adoption,. 11mendment, or abrogation of a fundamenml law. The Irish Constitution, 1937, provided by Art. 46( 1) that any provision of the Constitution may be amended, whether by way of variation, add#ion, or repeal in the manner provided by. the Article, and . the Constitution ci Malaya has defined the word in clause ( 6) of Art. 159 that 'amendment' includes addition and repeal. Even the Constitution of the Islamic Republic of Pakistan has used the words amended or repealed.

The Constitution of the Union of South Africa has used the words

repeal or alter and the Constitution of the United States of Brazil has an entrenched provision in clause (6) of Art. 217 that the Bilis tending to abolish the Federation and the Republic shall not be admitted to consideration.

These references not only do not show that the word 'amendment' has been used by itself to denote the plenitude of power but on the other hand show that these prescribe a procedure in which the people have been associated or a Constituent Assembly has to be called or fresh dectkms are required to be held to consider the amendments.

In some of these Constitutions there was also difference made between total and partial amendments and where the word 'alteration' has been med, it has been defined as to what is included therein. No assistance can, therefore, be derived from the Constitutions either referred to by the Attorney-Gc!¥'ral or by the ones to which I have referred, and if at all, they only show that the word 'amendment' has not, u ' contended, unambiguous, precise or wide connotation.

fo is said that the words "amend by way of addition, variation or repeal" by reference to clause (2) of Para 7 and Para 21 of the Fifth and Sixth Schedule respectively, mean the same as amendment, and consequently Article 368 empowers the repeal of any provision of the Constitution. If the word "repeal" means abrogation, then an amendment under Article 368 can even abrogate any pr, ovision of the Constitution, short of abrogating the entire Constitution and substituting a new one. In my view, the phrase "by way of" call it a padding, call it explanatory, is idiomatic and difficult to render into exact pharscology. An illiom is an accepted phrase, construction or expression contrary to the usual pattern of the language or having

(') (1964) 2 W.L.R. 1301.

KESAVANANDA I/, KERALA (faganmohan Reddy, J.) 509

a meaning different from the literal. As the Words & Phrases-Permanem Edition, Vol. 5, p. Ill!, would show that "by way of" may be taken to mean "a!ii for the purpose of', "in character of', "as being"

and was so intended to be construed in an Act providing that certain companies should pay an annual tax for the use of the State, "by way of" a licence for their corporate franchise. The illustration given should show that in fact t!he payment of a licence fee is not a tax, but it is so considered to be by way of tax. In my view, therefore, th.e substitution of the word "amendment" by the expression "amend

by way of addition, variation or repeal" makes no difference as it bears the same meaning as rhe word "amendment".

In it. ordinary meaning the word "amend" as given in Shorter Oxford Dictionary is to make alterations. In some of the Dictionaries it is given as meaning "to alter, modify, rephrase, or add to or subtract from". Judicial and Statutory Definitions of Words and Phrases, Second Series, Vol. I-the word "amend" has been treted

as synonyliliO'US with correct, reform and rectify. It is also stated that "amendment" of a otarute implies its survival and not destruction. The word "amend" in legal phraseology, does not generally mean the same thing as "repeal", because there is a distinction between a "repeal" but it does not follow that "amendments of statute may not often be accomplished by repeals of some of its parts" and though "amendment may not directly amount to repeal, it may have such a consequential effect!'. Crawford in his book on "The Con. struction of_ Statutes" 1940, pp. 170-171 which is quite often referred to and used in this Court, states that "a law is amended when it is in whole or in pan permitted to renµin and something is added to, or taken from it, or it is in some way changed or altered in order to make it more complete, or perfect or effective. It should be noticed, however, that an amendment is not the same as a repeal, although it may operate as a repeal . to a certain degree. A repeal is the abrogation or destruction of a law by a legislative act. Hence we may see that 'it is the effect of the Legislative act which determines its character". The first part of this definition may be com pared with the meaning indieated by Wanchoo, J. in Golaknath's case at p. 833 to which a reference has already been made.

Both the learned Advocate for the petitioner and the learned Attorney-General have referred to the decisions of the State Courts of the United States for the meaning of the word 'amend' in support of their respective contentions, but these decisions which are rendered in th~ context of the Constitutions of the respective States in America where ratification by the people is a condition for amending the Constitution do not carry the matter any further. Even in these cases the word 'Amendment' has been used in the contradistinction with the

33-36 S. C. Jndia/73

510 SUPREME COURT REPOP.TS [1973] Supp. s.c.a.

 word 'revision'. Words and Phrases, Permanent Edition, Vol. 37 says, "The term 'repeal' is synonymous with abolish, rescind and annul. An amendment has been distinguished from alteration or change. It is said that an amendment keeps alive wh:ile a 'repeal' destroys." See State ex rel. Strutx v. Baker(1). It. is, therefore, appa rent from the meaning of the word 'amendment' that i~ does not

include 'repeal' or 'abrogation' nor is it the same as revision. I would now refer to certain provisions of the Constitution where the words "amend" or "repeal" have been used to indicate that the ambit of the power of amendment does not extend tp repeal. A repeal of a provision of a law is different from the repeal of the law itself. The Constitution itself has made a distinction between the amendment of the law and repeal of the law. This becomes clear if we refer to Article 372(2) in which power has been given to the President by order to make such adaptations and modifications of any law whether by way of repeal or amendment, as may be necessary or .expedient, to bring it in conformity with the provisions of the Constitution.

See also Article 372(2) (b ). Clause (2) of Article 252 provides that any Act passed by Parliament in respect of two or more States may be amended, or repealed by an act of Parliament. In this clause the word 'repeal' is used in conttadistinction to 'amendment' as clearly implying that amendment does not include repeal of the Act itself. Even in Article 372(1), this distinction is brought out where a law in force immediately before the commencement of the Constitution was to continue in force until "altered or repealed or amended" by a competent authority. Similarly in Article 35(b) also any law in force immediately before the commencement of the Constitution in the territory with respect to any of the matters specified therein and to any adaptations and modifications that may be made therein under Article 372 continue in force uncil "altered or repealed or amended" by Parliament. See provo to clause (2) of Article 254 and clause (5) of Article 350. It may also be noticed that before the repeal of Article 243, clause (2) thereof provided that the President may mako regulations for the peace and good government. of territories in Part D of the First Schedule and any regulation so made may repeal or, amend any law made by Parliament or any existing law. It will, therefore, be observed that even where power has been given to a competent legislature or any other competent authority over a law in force to continue by virtue of the above referred' provisions, the framers have used the wiord 'repeal' of a law in contradistinction to the word 'amend' of a law. It may be contended with some force that where the framers intended to give full and plenary powers to competent legislatures to deal with laws in force, they were me.ticulous enough to we two distinct words. If the word 'amend'

( 1) 299 N.W. 574, 578, N.D. 153.

KESAVANANDA "· KERALA (Jaganmohan Rddy, J.) 511

or 'amendment' in its generic eonnotation meant 'repeal' then this word would not have been used in contt; adistinction with the word amendment or amend in some articles, and only the word

'amend' or 'amendment' in others. In so far as the laws in force are concerned, it would appear that the intention was not to add to them, though the word 'alter' could imply also a variation. Nonetheless it is apparent that the word 'amendment' as used in Article 368 does not connote a plenitude of power. This is also clear from sub-section (2) of s. 6 of the Indian Independence Act, 1947 which, as alreai:ly seen, even in the context of the power to be possessed by the Constituent Assembly, uses the word 'repeal' or 'amend' to indicate the plentitude o( the power of abrogation and repeal. Sections 32, 37, 74, 82 and 107(2) of the Government of India Acti also use the word 'amendment' in the sense of change and not repeal of the law. On the other hand, sections 106(2) of Government of India Act and Article 372(1) use the word 'repeal'. In the former, power is given to repeal a law, and in the latter it was provided that notwithstanding the repeal of enactments referred to in Article 395 to which included the Indian Independenct Act, etc., all the laws in force and also be replaced in the sense that they could be abrogated. Further in clauses (3) and (4) of Arrick 109, the Council of State is empowered to make amendments in money bill which the House of the People may or may not accep~ and if it does not, it will be passed without any such amendment. The Council of States, cannot reject the bill altogether but can only make a change therein.

The argument that if wide construction is given to the word 'amendment' all fundamental rights can be taken away by the requisite majority, whereas much less significant matters require the concurrence of not less than one-half of the States under tlhe proviso is based on the misconception that unlike in the United States where there is a dual citizenship-one as a citizen of United States and the other as a citizen of the particular State in the Union, we have only one citizenship and that is as a citizen of India and it is Parliament and Parliament alone which can legislate in respect of that right. No State has the legislative power to affect that right, and, therefore, have not been given a power of ratification where the funchimcntal rights are sought to be amended under Art. 368. This aspect is not, however, determinative of the extent of the power of amendment under Art. 368. The word 'amendment' read with the other provisions indicates that it is used in the sense of empowering a change in contradistinction to destruction which a repeal or abrogation would imply. Article 368 empowers only a change in the Constitution .as is evident from the proviso which requires that where the provisions specified in clauses (a) to ( e) have to be amended they hav~ to be ratified by the resolution of not less than one-half of the Legislatures

512 SUPREME COUllT REPOllTS [1973] Supp. s.c.R.

of the States. This proviso furnishes a key to the meaning of the word 'amendment', that they can be changed without destroying them just in the same way as the entire Constitution cannot be abrogated and a new Constitution substituted therefor. In this view, I agree with My Lord the Chief Justice, for the reasons given by him, that the amplitude of the power of amendment in Art. 368 cannot be enlarged by amending the amending power under proviso ( e) to Art. 368.

What follows from this conclusion is the next question to be considered. It is submitted that an amendment should not alter the basic structure of the Constitution or be repugnant to the objectives set out in the Preamble and cannot. be exercised to make the Constitution unidentifiable by altering its basic concept governing the democratic way of life accepted by the people of this councry. If the entire Constitution cannot be abro, gated, can all the provisions of the Chnstitution leaving the Preamble, or one article, or a few articles of the original Constitution be repealed and in their place other provisions replaced, whereby the entire structure of the Constitution, the power relationship inter se three Departments, the federal character of the State and the rights of the citizens vis-a-vis the State, are abrogated and new institutions, power relationships and the fundamental features substituted therefor? In my view, such an attempt would equally amount to abrogation of the Constitution, because any such exercise of the power will merely leave the husk and will amount to the substitution of an entirely new Constitution, which it is not denied, cannot be done under Art. 368.

The Preamble to the Constitution which our founding fathers have, after the Constitution was framed, finally settled to conform to the ideals and aspirations of the people embodied in that instrument, have in ringing tone declared the purposes and objectives which the Constitution was intended to subserve. How far the Preamble can be resorted to for interpreting the Constitution has been the subject of debate. It was conttcnded that it is not a part of the Constitution, and as we have been shown, that this concept had found approval of this Court in In Re: Berubari Union & Exchange of Enclat1es, but the Court did not appear lb have noticed that it was adopted by the Constituent Assembly :is part of the Constitution. The observations of Gajendragadkar, C. J., must be understood in the context of his assumption that the Preamble is not a part of the Constitution. After referring to Story that the Preamble is "a key to open the mind of the makers" and a passage from Willoughby that it has never been regarded as source of any substantive power, etc., the learned Chief Justice concluded thus : (p. 282)

''What is true about the powers is equally true about the prohibitions and limitations. Besides, it is not easy to accept the assump-

KESAVANAJ'IDA !I. KERALA (]aganmohan Reddy, J.) 513

tion that the first parn of the preambk postulates a very scribus

limitation on one of the very important attributes of sovereigntv itself. As we will point out later, it is universally recognised that one of the. attributes of sovereignty is the power to cede parts of national territory, if necessary. At the highest fo may perhaps be arguable that if the terms used in any of the articles in the Constitution arc ambiguous or arc capable of two meanings, in inter prcting them some assistance may be sought in the obiectives enshrined in the preamble. Therefore, Mr. Chatterjee is oot right in contending that the preamble imports any limitation on the exercise of what is generally regarded as a noccssary and essential attribute of sovereignty".

It may be pointed out that the passage from Story and Willoughby cited there.in have not been fully extracted. For a proper appreciation

of the views of these authors it is necessary to examine the relevant passages in, full. Story says, "It is an admitted maxim ... that the preamble of a statute is a key to open the mind of the makers as to t.he ml.lchicfs, which' arc to be remedied, and the objects, which are to be accomplished by the provisions of the statute ........ the will and intention of the legislature is to be regarded and followed. It is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part for if they are clear and unambiguous, there

seems little room for 'interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the preamble. There does not seem any reason why, in a fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as stad in the preamble ...... The preamble can never be resorted to, to enlarge the powers confided to the general government;, or any of i~ departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution. Its true office is to expound the nature, and extent, and application of the powers actually conferred by the Constitution, and not substantively to create them ...... We have the strongest assurances, that this preamble was not adopted as a m_ere formulary but as a solemn promulgation of a fundamental fact, vital to the character and operations of the government". (Story, Constitution of the United States, Vol. I, pp. 443-446).

It is clear from the above views of Story that:. (a) the preamble is a key to open the mind of the makers as to the mischiefs, which arc to be remedied; (b) that it is properly resorted to, where doubts or ambiguities arise upon the words of the enactling part; ( c) even where the words arc clear and unambiguous, it can be used to prevent an obvious absurdity or to a direct overthrow of the intention expressed

514 suPREME. couar UPOllTS [1973] Supp. s.c.a.

in the preamble, and it would be much more so, if they were ambiguous; ( d) there is no reason why, in a fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble; ( e) the preamble can never be resorted to, to enlarge the powers expressly given, nor to substantively create any power or to imply a power which is otherwise withdrawn fr:>m the Constitution; (f) its true function is to expound the nature, extent, and application of the powers actually conferred by the Constitution.

The passage extracted from Willoughby no .doubt shQws that the Preamble may not be resorted to as a source of Federal Authority but in dealing with its value and use the learned author has stated thus :

"Special signilicance has at various times been attached to several of the expressions employed in the Preamble to the O:mstitution.

These expressions are :

The use of the phrase "We, the People of the United States'', as indicating the legislative source of the Constitution.

The denomination of the instrument as a "Constitution".

The description of the federation entered into as "a more perfect Union."

The enumeration of "the common deferu:e" and "general welfare" among the objects which the new Government is established to promote" (Willoughby, Vol. I, p, 62).

These American authors, therefore, reaognise the Use of the Preamble to ascertain the essential concepts underlying the Constitution.

The English cases show that the. preambl~ can be resorted to as a means to discover the legislative iIJtent of which one may be cited.

In the Attorney-General v. Prince Earnest Augustus. of Hanover,(1)

the House of Lords considered the question whether and to what extent Preamble of a statute can be relied upon to construe the enacting part of the statute. Viscount Simond (with whom Lord Tucker agreed), observed at p .. 461 : ''For words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive to be my right and duty to examine every word of a statute in its context, and I U,!j: 'context' in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in

(') (1957) A.C. 436.

KESAVANANDA 11. KERALA (Jt1ganmohan Reddy, J.)

SIS

Pari materia, and mischief which I can, by those and other legitimate means, discern the statute was intended to remedy". Referring to the observations in Powell v. Kempton Park Racecourse Co. Ltd.,(1) that 'the preamble cannot be made use of tn control the enactments themselves where they are ciprcsscd in clear and unambiguous terms', Viscount Simond said at p. 463: "it is ofren difficult to say that any terms are clear and unambiguous until they have been studied in their context. That is not to say that the warning is to be disregarded against creating or imagining an ambiguity in order to bring in the aid of the preamble. It only means that the elementary rule must be observed that no one should profe5s to understand any part of a statute or of any other dacument before he had read llhe whole of it.

Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous . . . I would suggest thau it is better stated by saying that the context of the preamble is B:lt to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it. And I do not propose to define that expression except negatively by saying . . . that it is not to be found merely in the fact that the enacting words go further than the preamble has indicated. Still less can the preamble affect the meaning of the en acting words when its own meaning is in doubt."

On this aspect Locd Normand said at pp. 467-468: "when there is a preamble it is generally in its recitals that the mischief to be remedied and the SCOP.e of the Act arc described. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provision. The preamble is not, however, of the same weight as an aid to construction of a section of the Act as arc other relevant en acting words to be found elsewhere in the Act or even in related Acts . . . . It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail ... it is the court's business in any case of some difficulty, after informing itself of . . . the legal .and factual context including the preamble, tX> consider in the light of this knowledge whether the enacting words admit of both the rival constructions put forward . . . If they admit of anly one construction.· that construction will receive effect even if it is inconsistent with the preamble, but if the enacting words are capable of either of the constructions offered by the parties, the construction which lits the preamble may be preferred." Lord Somervell said at p. 47.4, that, "The word 'unambiguous' musfi mean unambiguous in their. co~ text''. Lord Thring, one of the great draftsmen of England m h!s book on "Practical Legislation", Chapter IV, pp. 92-93, made this pertinent observation as to preambles. He said, "a preamble may also

( 1 ) (1899) A.C. 143.

516 SUPIU!ME COURT IU!PORTS [1973] Supp. s.c.R.

~ used to limit the scope of certain expressions in the Act, and sometunes a preamble is inserted for political reasons when the obiect of an Act is,, popula~, and. adts of being stated in a telling sentence or

entences. In Sa11an Smgh s case at p. 968, Mudholkar, J., while takmg note of the contention that it has been said that the preamble is not a part of the Constitution observed: "But, I think, that if upon a comparison of the preamble with the bllOOd features of the Constitution it would appear that the preamble is an epitome of those features or, to put it differently, if these features are an amplification or concrctisation of the concepts set out in the preamble it may have to be considered whether the preamble is not a part of the Constitution. While considering this question it would be of relevance to bear in mind that the preamble is not of the common run such as is to be found in an Act of a legislature. It has the stamp of deep deliberation and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it?·" With great respect, I agree with the view expressed by him.

These observations of the House of Lords, of the learned writers and of the Judges referred to above clearly point to the fact that the preamble will furnish a guide to the construction of the statute where the words arc ambiguous, or even where the words are un ambiguous to aid a construction which will not lead to an absurdity.

Where the preamble conveys a clear and definite meaning, it would prevail over the enacting words which arc rcla!lively obscure or indefinite or if the words arc capable of more than one construction.

he construction. which lits the preamble may be preferred.

In In Re: Berubari Union & Exchange of Enclaves case the Court failed to refer to and consider the view of Snory that the preamble can be resorted to, to expound the nature, the extent and the application of the powers or that the preamble can be resort:.ed to, to prevent obvious absurdity or to a direct overthrow of the intention expressed therein. It may also be observed that the Court in that case did cate gorically say that the first part of the preamble is not a serious limitation. If the Court had taken a definite view that the preamble was not a source of limitation, the observation that, "it is not easy to accept the assumption that the first part of the preamble postulates a very serious limitation on one of the very important attributes of sovereignty" (emphasis supplied) was not necessary, because it implies that certain parts of the Preamble can be established to be a so_urce of <erious limitation if such exists. In any case though the advISory opinion is entitled to the greatest respect, it is not binding when. any concrete issue arise for determination, particularly when the width of the power of amendment had not fallen for consideration in that case, nor was it in fact considered at all.

KESAVANANDA ti. KEllALA (faganmohan Reddy, J.) 517

I will now consider the question which has been streneously comended, namely, that there are no essential features, that every :feature in the Constitution is essential, and if this were not so, the .amending power under the Constitution will apply only to non-essential features which it would be difficult to envisage was uhe only purpose of the framers in inscribing Article 368 and that, therefore, there is no warrant for such a concept to be read into the Constitllltion.

The argument at first flush is attractive, but if we were to ask ourcSelves the question whether the Constitution has any structure or is structureless or is a "jelly fish" to use an epithet of the learned Advocate for the petitioner, the answer would resolve our doubt. If th< ConstitutiGn is considered as a mechanism, or call it an organism m a piece of constitutional engineering, whichever it is, it must have a structure, or a composition or a base or foundation. What it is can only be ascertained, if we examine the provisions which the Hhn'ble Chief Justice has done in great detail after which he has instanced the features which constitute the basic structure. I do not intend to -cover the same field once again. There is nothing vague or unascertainablc in the preambleand if what is stated therein is subject to this critidsm it would be equally true of what is stated in Article 39

(b) and ( c) as these arc also objectives fundamental in the governance of the country which the State is enjoined to achieve for the

unelicratiGn and happiness of its people. The clements of the basic structure are indicated in the preamble and translated in the various provisions Gf the Constitution. The edifice of our Constitution is built upon and stands on several props, remove any of them, , the Constitution collapses. These are: (!) Sovereign Democratic Republic; (2) Justice, social, economic and political;

(3) Liberty of thought, expression, belief, faith and worship; (4) Equality of sti, atus and of opportunity. Each one of these is important and collectively they assure a way of life to the people of India which the Constitu 'lion guarantees. To wjthdraw any of the above clements the structure will not survive and it will not be the same Constitution, or this Constitutbn nor can it maintain its identity, if something quite different is substituted in its place, which the sova.ign will of the people -alone can do. There can be a Democratic Republic in the sense that people may be given the right to vote for one party or only one candidate either affirmatively or negatively, and are not given the choice to choose another oppooed to it or him. Such a republic is non what has been assured to our people and is unthinkable by any one foresworn to uphold, defend, protect, or preserve or work the Constitution. A democratic republic that is envisaged is the one based on a representative system in which people holding opposing view to one another can be candidates and invite the electorate to vote for them.

If this is the system which is the foundation of a democratic republic, it is unthinkable that it can exist without elements (2) to ( 4) above

518 SUPREME COURT REPORTS [1973] Supp. s.c.J..

either rollectively or separately. What is democracy without social, economic and political justice, or what value will it ha•1e, where its citizens have no liberty of thought, belief, faith or worship or where there is no equality of status and of opportunity? What then are the essential features or the basic elements comprising the structure of our Constitution need not be considered in detail as these w:ill fall for consideration in any concrete case where they are said to have been abrogated and made. non-existent. The facn that a complete list of these essential elements constituting the basic structure are not enumerated, is no ground for denying that these exis!I. Are all the elements which make a law void and unconstitutional ever required to be concatenated for the recognition of the validity or invalidity of laws judged on the anvil of the Constitution? A sovereign democratic republic, Parliamentary democracy, the three organs of the State, certainly in my view constitute the basic structure. But do the fundamental rights in Part III and Directive Principles in Part IV constitute the essential element of the basic structure of our Constitution in that the Constitution will be the Constitution without them? In other words, if Parts III and IV or either of them are totally abrogated, can it be said that the structure of the Constitution as an organic instrument establishing sovereign democratic republic as envisaged in the preamble remains the same? In the sense as I understand the sovereign democratic republic, it cannot: withoun either fundamental rights or directive principles, what can such a government be if it does not ensure political, economic, or social justice?

The History of the agitation for political freedom, fundamental rights and self-government is well known.

As I said earlier, ever since the second half of the 19th century the struggle has been going on and when ultimately India in spite of the partition, achieved its cherished dream of independence and territorial unity from north to south, and east to west. which in millinneum it could not achieve. the fundamental objectives formed the corner stone of the nation. As Granville Austin so aptly puts it fa his book "The Indian Constituti1an" at page 50, "The Inclian Constitution is first and foremost a social document. The majority of its provisions are either directly aimed at furthering the goals of the social revolution or attempt to foster this revolution bv establishing the conditions necessary for its achievement. Yet despite the permeation of the entire constitution by the aim of national renascence, the core of the commitment to the social revolution lies in Parts III and IV, in the Fundamental Rights and in the Directive Principle of State Polity. These are the conscience of the Constitution. The Fundamental Rights and Directive Principles had their roots deep in the struggle for independance And they were included in the Constitution in the hop~ and xpecta tion that one day the tree of true liberty would bloom m India. The

' '

XESAVANANDA v. KUALA (faganmohan Reddy, J.) 519

Rights nnd Principles thus connect India's future, present, and past, adding greatly to the sigmficancc cl their inclusion in the Constitution, and giving strength to the pursuit of the social revolution in India."

The demand for fundamental rights had its inspiration in the Magna Charta and the English Bill of Rights, the French Revolution, the American Bill of Rights incorporated in the Constitution of the United States in 1791. For the first time, the Indian National Congress which was formed in 1885, made a demand for them in the Constitution of India Bill. 1895 and these demands were reiterated from time to time. Annie. Besant's Commonwealth of India Bill contained a demand for 7 fundamental rights. The Simon Commission rejected these demands for inclusion d fundamental rights, but Moti Lal Nehru Committee draf11ed a Swaraj Constitution for India incorporating therein the declaration of rights. In respect of these rights, the report said:

"It is obvious that our first care should be tJo have our fundamental rights guaranteed in a manner. which will not permit their withdrawal under any circumstances .... "

The Karachi Resolution of March 1931 on Fundamental Rights on economic and social change added a new dimension to constitutional rights because till then State's negative obligations were alone being emphasised. By that Resolution "the demand now equally emphasised the State's positive obligations to provide its people with the economic and social conditions in which their negative rights would have actual meaning". (Granville Austin, p. 56). The Sapru Committee also incorporated these fundamental rights and for the first time divided them into justiciable and non-justiciable rights. During the Constituent Assembly Debates, Pt. Jawahar Lal Nehru in dealing with the confusiori existing in the minds of the members in respect of the fundamental rights, said: "There is this confusion, this overlapping, and hence I think a great deal of difficulty has _been brought into the picture. A fundamental rights should be looked upon nol

from the point of vie11J of any particular difficulty of the moment, but as something that you want to make permanent in the Constitu tion. The other matter should be lo:iked upon - however important it might be - not from this permanent and fundamental point of view,· but from the more temporary point of view" (emphasis supplied). Dr. Radhakrishnan described the declaration of basic freedoms as a pledge to our own people and a pact with the civilised world". (Constituent Assembly Debates, Vol. II, p. 273). Dr. Ambedkar speaking on the Objectives Resolution, said that "when one reads. that part of the Resolution, it reminds one of the declaration of the Rights of Man which was pronounced by the French Constituent

520 SUPREME COUJl.T REPORTS [ 1973] Supp. s.c.R.

Asbly. I think I am right in suggesting that, after the lapse oi

pracacally 450 years, the Declaration of the Rights of Man and the principles which are embodied in it has become part and pllf'cel of our mental makeup. I say they have become not only the pllf't and pllf'cel of the mental makeup of modern man in every civilised part cf the world, but also in our own country which is so orthodo:r, so archaic in its thought and its social structure, hllf'dly anyone can be

found to deny its validity. To repeat it now as the Resolution does, is to say the least, pure pedantry. These principles have become the silent immaculate premise of our outlook. It is. therefore unnecessary to proclaim as forming a part of our creed. The Resolution s11ffers from certain other lacuna. I find that this part of the Resolution, although it enunciates certain rights, does not speak of remedies. All of us are aware of the fact that rights are nothing unless remedies are provided whereby people can seek to obtain redress when rights are invaded." The reference to the remedy that was absent in the -Objectives Resolution, was made good by l!he inclusion of Article 32, with respect to which he said: "an article without which this Constitution would be a nullity . . . I could not refer to any other .article

xcept this one. It is the very soul of the Constitution and the tier)'

hellf't of it and I am glad that the House has realised its importance_ . . . It is remedy that makes a right real. If there is no remedy there is no right at all ... " (emphasis supplied) - Constituent Assembly Debates, Vol. VII, p. 953- Although he said. while dealing with appropriateness of the English high prerogative writs as affording an

ffective remedy that these could be amended he clid not say that either the judicial review could be abrogated or taken away by an amendment or the Court itself can be abolished. Nor was any question raised by any one in this regard. Dr. Ambedkar's observations cannot be read to suggest that by an amendment of the Constitution, Article 32 could be abrogated, for if it were so, his observations could be in clear conflict with the express language of clause 4 of Article

32. The guarantee in clause 4 of Article 32 could be conceived of onlv against amending power, for no ordinary law can suspend a right given by \he Constitution unless permitted by the Constitution itself.

When clause 4 of Article 32 does not even permit suspension of the right under Article 32 except as otherwise provided in the Constitution, that is, by Article 359, it is highly unthinkable that by an amendment this right could be abrogated. This pivotal feature of the Fundamental Rights demonstrates that this basic structure cannot be damaged or destroyed. When a remedy canm>t be abrogated, it should follow that the fundamental rights cannot be abrogated for the reason that the existence of a remedy would be meaningless without the rights. There is nothing else in the debates which would suggest that any of the members ever entertained any notion of abrogation of any of the fundamental rights. It was in the light of the makeup of the

KESAVANANDA v. KERALA (l'aganmohan Reddy, J.) 521

members and the dedicated way in which they spoke of these rights that these rights were cherished by the people. It could not be imagined that any one would have suggested anything to the contrary.

In respect of the Directive Principles, though every one recognised these as of great importance, Shri B. N. Rau made several attempts to

perrnade the Drafting Committee to make the fundamental rights subordinate to the Directive Principles but he did not succeed. Sir Alladi Krishnaswami Ayyar, an eminent lawyer, had in his note of March 14, 1947, made a distiriction between the Directive Principles and fundamental rights and said that it is impossible to equate those

though it could IliOt be denied that they were important. There can be no doubt that the object of the fundamental rights is to ensure the ideal of political democracy and prevent authoritarian rule, while the object of the Directive Principles of State policy is to establish a welfare State where there is economic and social freedom without which

political democracy has no meaning. What is implicit in the Constitution is that there is a duty on the Courts to interpret the Constitution and the laws to further the Directive Principles which under Article 37, are fundamental in the governance of the country. As My Lord, the Chief Justice has put it, to say that the Directive Principles give a directive IP take away fundamental rights, seems a contradiction in terms. There is no rationale in the argument that the Directive Principles can only be given effect IP, if fundamental rights are abrogated. If that were the dissiderata then every Government that comes into power and which has to give effect to the Directive Principles of State policy in securing the welfare of its citizens, can say

that since it cannot give effect to it so long as fundamental rights subsist, they must be abrogated. I do not think there is any such inherent postulate in the Constitution. Some of these rights, though limited, were subsisting from even the British days under the laws then in force, yet there were others which were repressive like the Bengal Regulation III of 1818, Madras Regulation II of 1819, Bomba~ Regulation XXV of 1827, the Indian Criminal Law Amendment Act XIV of 1908, etc., which were used to suppress the freedom of the

people and detain persons on iiolitical grounds when they were found inconvenient to the rulers. The demand for securing fundamental rights since then became an Article of faith, which, as Dr. Ambedkar said, became part and parcel of the mental makeup and the silent immaculate premise of their outlook. The outlook of the framers of the Constitution coul<I not have provided for such a contingency where they can be abrogated, nor in any view, is it a necessary con- ¢omrnitant of the Jeffersonian theory that no one can bind the suc.

oeeding generations who by the will of the majority of the people of the country, can bind themselves. One of the views in America since then heM and which still persists, was expressed by Justice Hugo Black, one of the eminent Judges of the Supreme Court in these

.522 SUPREME COUllT REPORTS [1973] Supp. s.c.R.

terms: "I cannot consider the Bill of Rights to be an outworn 18th century 'straight-jacket'. Its provisions may be thought .out-dated abstractions by some. And it is true that they are designed to meet ancient evils. But they are the same against all human evils that have emerged from century to century whenever excessive power is sought by the few at the expense of many". In 1895, famous Jurist Maitland, even where Parliament was Supreme, said of Magna Charla that, "this document becomes and rightly becomes .the sacred text, the nearest approach to an irrepeatable 'fundamental statute' that England has ever had''. [Pollock & Maitland, (1898) Volume I, p. 173].

In the frame of mind and with the recognitlon of the dominant 'mental make up and the silent immaculate premise of our outhook' which became the outlook of the people, the framers of our Constitution could not have provided for the freedoms inherent as a part <>f the right of civilised man to be abrogated or destroyed. The interest

of the community and of the society will not be jeopardised and can be adjusted without abrogating, damaging, emasculating or destroying these rights in such a way as to amount to abrogation of the fundamental rights. The Advocate-General of Mysore said that even 'if fundamental rights are totally abrogated, it is not as if the people will be without any rights. ' They will be subject to ordinary rights under the law. I must repudiate this contention, because then the clock will be put back to uhe same position as existed when Britain ruled India and against which rule our leaders fought for establishing freedom, dignity and basic rights. In this view, my conclusion is that Article 13(2) inhibits only a law made by the ordinary legislative "1gency and not an amendment under Article 368; that Parliament could under Article 368 amend Article 13 and also the fundamental rights, and though the power of amendment under Article 368 is wide, it is not wide enough to totally abrogate or what would amount to an abrogation or emasculating or destroying in a way as would amount to abrogation of any of the fundamental rights or other essential demnts o£ the basic structure of the Constitution and destroy its identity. Within these limits, Parliament can amend even article. In this view of the scope of the amending power in Article 368, I looc\d the Twenty-fourth Amendment valid, for it has the same amending power as it existed before the amendment.

The Twenty-fifth Amendment, as the objects and rearnns of the "Bill showed, was enacted mainly to get over the decision in the case of R. C. Cooper v. Union of India('), (hereinafter referred to as the 'Bank Nationalisation' case). The previous decisions of this Court


KESAVANANDA v. KERALA (Jaganmohan Reddy, J.) 523

beginning from the State of West Bengal v. Mrs. Bela Banerjee(1) on account of which the Constitution (Fourth Amendment) Act. 1955, was enacted and the subsequent cases in P. Vajravelu M udaliar v.

Special Deputy Collector, Madras & Anr.,(') Union of India v. The Metal Corporation of India Ltd., and Anr.,(') State of Gujarat v.

Shanti/al Mangaldas & Ors.,(") have been examined by my learned brother Hegde, J., in his judgment just pronounced, in the light of the contentions urged by the respondents, as such I do not . find it necessary to refer to them or set out the ratio of these decisions again.

It will be observed from the amendment in clause (2) of Article 31 enacted by section 2 of the above amendment that: (1) the word 'amend' has been substituted for the word 'compensation'; and (2) that the words "or that the whole or any pm: of such amount is to be given otherwise than in cash" have been added. The effect of the amendment is that the law now need not provide for giving 'compensation' in the sense of equivalent in value or just equivalent of the value of the property acquired and that the whole or part of the amount may be paid otherwise than in cash. The question then arises that if the word 'amount' which has no legal concept, and as the amended clause indicates, means only cash, which would be in the currency of the country, can the lowest amount of the current coin be fixed, and if fixed, will it amount to payment in lieu of the property acquired?

Ever since the Constitutlion (Fourth Amendment) Act, this Court has consistently held that where what is given in lieu of expropriating property of a citizen is illusory, arbitrary, or cannot be regarded as compensation, and bears no reasonable relation to the property acquired, the Court can go into it, and, secondly, where principles are fixed for determining the compensation, it can examine the question whether they are relevant to the subject-matter of the acquisition. That po, ition has not in any way been affected by the amendment by merely substituting the word 'amount' for 'compensation', so that if the amount is illusory or arbitrary, and is such that it shocks the conscience of any reason.able man, and bears no reasonable relation to the value of the property acquired, the Court is not precluded from examining it.

It has been contended that Parliament or the Legislature can either fix an amount withont setting out any principles for determining the amount or set out the principles for determining the amount.

(') (1954) S.C.R. 558.

( 2) (1965) I S.C.R. 614.

( 3) (1967) I S.C.R. 255.

(') (1969) 3 S.C.R. 341.

524 SUPREME COURT REPORTS (1973]. Supp. S.c.11.

In the former case, the respondents contend that it will non be opco to the Court to examine on what principles the amount has been. fixed. If the Legislature merely names. an amount in nhe law for acquisition or requisition, it may be an arbitrary amounr, or it may have some relationship or relevance to the value of the property acquired or requisitioned. The former cannot be, because it is provided that the acquisition is for an amount which may be fixed. If it is fixed, and as the term denotes, it must necessarily be fixed on some principle or criteria. Otherwise, no questjon of fixing . an .amount would arise: it would be merely naming an amount arbitrarily. The learned Advocate-General of Maharashtra was frank enough to admit that if principles are fixed, the amount to be determined thereunder becomes justiciable; but if the amount is fixed without . stating any principles it is not justiciable. and for this reason eve1f the members of the Legislature, either of the opposition or of the ruling party, need not be told on what basis or principles. the amount has bccit fixed, lest if this was disclosed the Court.s would examine them. But how can this be avoided because if principles are fixed, the relevancy can be gone into as has been the consistent view of this iCllurt, and yet it is said that if an amount is fixed without reference to :in' principles and arbitrarily, the Court cannot examine it. Such a view has no rational or logical basis; The Legislatur~; even in cases where it fixes an amount for the acquisition or • requisillion. of a property, must be presumed to have fixed it on some basis, or applkd some criteria or principles to determine the amount so fixed, , and, therefore. where the. law is challenged on the groun\I of arbitrariness, illuiori.-

ness or of having been based on irrelevant principles o~ any .other ground that may be open to challenge by an expropriated owner, the- State will have to meet the challenge, and the Cour~ _will have to g& into these questions. This will be so even , in reswct to' .the m, anner of payment. Once it is satisfied that the challenge on the ground that the amount or the mariner of its payment is neither arbitrary pr illusory br where the principles upon which it was fixed were found ti>' bear reasonable relationship to the value of the property . acquired, the Court cannot go into the question of adequacy of the amount II> fixed on the basis of such principles.

Clause (2B) makes sub.clause (f) of Article 19(1) inapplicable to clause (2) of Article 31. In the Bank Natirmalifati'on case by II

majority of ten to one, this Ooort held after an exhaustive review cL all the cases beginning from A. K. Gopalan's case that .• "If the acqui. sition is for a public purpose, substantive reasonableness of the restriction which includes deprivation, may unless otherwise established, presumed, but enquiry into reasonableness of the procedural provisions will not be excfuded. For instance, if a mbunal is authorised h)" an Act to determine compensation for property compul!oriliv acquire<l,.

KESAVANAJIDA ti. KEBAIA (faganmo/111n Reddy, J.) 525

without hearing the owner of the property, t:he Act would be liable to be struck down under Article 19(1)(f)" (p. 577).

Thus it will appear that where the acquisition is for a public pur. pose, wht is sought to be excluded by clause (2B) is the re:is:onabl~ ness of the procedural provisions by making Article 19( 1) (f) mapph- . cable. Notwithstanding this amendment, it is apparent that the expropriated owner still continues to have the fundamental rights that his property will not be acquired save by the auth .. rity of law and for a public purpose. These propositions have been admitted by the learned Solicitor-General. The question whether an acquisition is for a public purpose is justiciable. Only the adequacy of the amount is not. If so, how can the expropriated owner establish that the acquisition is nor for public purpose unless there are some procedural requirements. to be complied with under the law? A notice will have to be served; he will have to be given an opportunity to contest the acquisition. Clause

(2B) provides that "nothing in su\>.clause (f) of clause (1) of Article 19 shall affect any such law as is referred to in clause (2)". Docs this mean that the fundamental right to reasonable restriction of procedural nature under Article 19(1)(£) which was available against anv

law of acquisition or requisition of property as held in the Bank Nationalisation case, is abrogated or destroyed? The answer to thi•

question would depend upon what is the meaning to be given to the word "affect". Two constructions arc possible: one is that Article 19

(1) (f) will not be available at all to an expropriated owner under a law of acquisition made under Article 31 (2) or to put it in another way, any law made under Article 31(2) for acquisition or requisitioning of any property abrogates Article 19(l)(f). Secondly, clause (2B) was intended to provide that the law of acquisition or requisition will not be void on the ground that it abridges or affect• the right under Article 19(l)(f). In choosing either of these constructions, regard must be had to that construction which would not result in the amendment being held invalid and void. Applying this approach, the second construction is more in consonance with the amendment because what the amendment provides for i• that Article 19(1) (f) shall not affect any such law and this would imply that the bar against the application of Article 19(1) (f) to such a law may vary from a slight or partial

enroachment to total prohibition or inapplicability.

But since an amendment cannot totally abrogate a fundamental right, it can only be read by the adoption of the doctrine of "scverability in application" and, accordingly, clause (2B) must be held to be restricted only to the abridgement of, as distinct from abrogation, destroying or damaging the right under Article 19(1Hf). As I said earlier, the right to a reasonable procedure in respect of a law of acquisition or requisition for the effective exercise of the rights under Article 31(2), for a re•- sonablc notice, a hearing opportunity to produce material and other

4-36 $. C. India/73

326 $UPREME' COURT REPORTS (1973] Supp. S~C.ll.

evidence may .be necessary to establish that a particular acquisition is not for a public purpose and for proving the value of the property and other matten that may be involved in a particular principle adopted in fixing the amount or for showing that what is being paid is illusory, arbitrary, etc.

That apart, there is nothing in clause (2B), to prohibit principles of natural justice which are part of the law of the land wherein tht rule of law reigns supreme, from being applicable when the liberty of the individual or his property is affected by a law. I cannot read a sinister design in that amendment requiring the legislative organs to abrogate the rule of law in this country or deny to its citizens the bene- . fit of the maxim 'audi dteram partem' that no man shall be condemned unheard, a concept of natural justice, "deeply rooted in our ancient history", which as Bylas, J., in Cooper v. The Wadsworth Board of Works('), expressed in the picturesque aphorism, "The laws of God and man both giive the party an opJl!Olftunity IP make his defence, if he has any".

There is one other aspect that has been stressed by the learncJ Advocate for the petitioner, which is more in the nature of the dirr consequences that would ensue if the amendment is uphdd, namely, that the c; tizen's right to property has now been transferred into the State's right to confiscation, that acquisition under the Land Acquisition Act and under other similar. laws can be for the benefit of even Limited Companies in the private sector, and that religious freedoms guaranteed by Arts. 25 to 30 can be virtually stilled by the taking away of the properties held by religious and charitable purposes. If Parliament under the law can do any of the things which are referred, this Court cannot prevent the consequences of a law so made. I have spd t out what can be done. The law made for acquisition under clause (2) of Arti.cle 31 has still to satisfy that it is being taken for a public purpose. The question whether acquisition for a private person or company is for public purpose may be open IP challenge and determined by Courts in an appropriate action. As for the principles applicable in the Bill for the acquisition of Bardoli lands for determining the amount payable for acquisition, as admitted by both the learned Solicitor- General for the Union and the Advocate-General pf Maharashtra will be applicable, then at any rate that will not be a case of confiscatio!'l, because an owner will at any rate get the amount paid by him together with the loss of interest for the years he had it. !fhe plea that religious freedoms will be stifled also is not sustainable, because it has been already held by this Court in Khajamain Wakf Estates etc. v. The Statr:

(') 14 C.B. (N.S.) 180.

KESAVANANDA ti, KEllALA (Jaganmohan Reddy, J.) 527

of Madras('), that Art. 26(c) and (d) of llhe Corutitution provde that religious denominations shall have the right to own and acqwre property and administer them according to law. But that docs not mean that the properties owned by them cannot be acquired by the State. In the view I have taken, and for the reasons set out above, I h'.old sec. 2 of the Twenty-fifth Amendment valid.

Section 3 of the Twenty-fifth Amendment has caused me considerable difficulty because on the one hand the amendment is designed to give effect to Art. 39(b) and ( c) of the Directive Principles of the

State policy in the larger interest of the community, and on the other the basic assumption underlying it is that this cannot be done without taking away or abridging any of the rights conferred by Arts. 14, 19 and 31, and that such a law, where it contains a declaration that it is to give effect to the above policy, shall not be called in question in any Court on the ground that it does not give effect; to such policy. The predominant articulate as well as inarticulate premise is not to hold invalid an amendment made under Art. 368, if it conforms llO the form and manner prescribed therein and is within the ambit of the amending power, but if the inexorable conclusion on a close scrutiny leads to a different conclusion it has to be so held. Article 31C is as follows:-

"Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause ( c) of article 39 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; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect tb such policy ;

Provided that where such law is 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".

The learned advocate for the petitioner submits that Art. 3!C subverts seven essential features of the Constitution : (i) it destroys the supremacy of the Constitution by giving a blank charter to Parliament and all the State Legislatures to defy and ignore the Constitution; (ii) it subordinates the Fundamental Rights to Directive Principles of State Policy. and thus destroys one of the foundations of the Constitution; (iii) the "manner and form" of amendment laid down in Art. 368 is virtually abrogated, inasmuch as while the Fundamental

( 1) (1971) 2 S.C.R. 790.

528 sUPUME co"tmT U:POl.TS [197~] Supp. s.c.L

Rights still remain ostensibly on the Stute Book and .Art. remains unamended, the Fundamental Rights can be effectively silenced by a law passed by a simple majority in the Legislature; (iv) ten Fundamental Rights which are vital fur the survival of democracy, the rule of law, and the integricy and unity of the Republic, are in effect abrogated. Seven of these ten Fundamental Rights are unconnected with property; ( v) Judicial Review and enfloirceability of Fundamental Rights another essential feature of llhe Constitution is desttoyed, in that the Court is prohibited from going into the question -whether the impugned law does or does not give effect to the Directive Principles;

(vi) the State Legislatures which cannot othetwisc amend. fl.rt. 368 are permitted to supersede a whole series of Fundamental Rights with the result that Fundamental Rights may prevail in some States llJld not in others, depending upon the complexion of the State Government; and (vii) the protection to the minorities and their religious, cultural, linguistic and educational rights can be seriously affected on the ground that the law was intended to give effect to the Directive Principles.

On behalf of the respondent-State of Kerala_; the learned Advocate• General of Maharashtta submitted "that Art 31C was introduced because of the reversal of Guiar11t v. Slumtilal in the Bank Nationali,._ tion case which reverted, in substance, to the concept of full compen: 1ation'', and in order to "exclude juqicial review where .the law pro.

vidcd for securing the principles provided in clause (b) or ( c) of Art. 39". There is, according to him, no delegation of power under Art. 31C on the State Legislatures. to alter. OI' amend the Constitiition, but it merely removes the restr4; tions on the legislative power of the State Legislatures and Parliament imposed by the fundamental rightJ contained in Arts. 14, 19 and 31 of the Constitution, which rights have been conferred by Part III and the contravention of which would have rendered any law void. In this subniission what it amounts to is only a removal of the restriction which can only be effected by making Art. 13 inapplicable. Answering the question whether a law containing a declaration as envisaged in Art. 31C the major portion of which has no connection with clause (b) or d. ( c) of Art. 39 would' protect the law, it was submit!ted "that on the principle laid down by the Supreme Court in Akadasi Padhan v. State of Orissa(') the answer must be in the negative", and that the proper construct; ion to be put on the declaration referred to in Art. 31C is that the impugned law must satisfy the condlrion precedent that it is designed to secure the principles specified in cl. (b) or cL (c) of Art. 39, and i£ it docs not give effect to the principles, Akdasi's case would justify the Court in reading the provision relating to declaration as not covering a case,

( 1 ) (1963) Supp. 2 S.C.R. 691.

KESAVANANDA v. KERALA (}ag•nmohan Reddy, J.) 529

where only a few $:Ctlons are in 1urthcra.iice of Art. 39(b) & ( c) while others are unrelated to it. Another way of arriving at the same con clusion, according to Jilin, is that Art. 31C postulates that there must be some nexus, however remote, between the law and the directives of State policy embodied in Arn. 39(b) and ( c )'', and that "if no reasonable person could come to the conclusion that the impugned provisions of an Act protected by Art. 31C and the declaration made under it had any connection with Art. 39(b) and ( c), the Court could hold that the Act showed that the legislature had proceeded on a mistaken view of its power, and that, therefore, the Court was not bound to give effect to the erroneous assumptions of the legislature". The observations of Das Gupta, J., in The Provincial Transport Service v. State Industrial Court('), were cited. Answering the contention that since the principles in Art. 39(b) & (c) are widely expressed and as such there would always be some connection between them and practically any kind of law, the learned Advocate-General of Maharashtra said that the principles in Art. 39(b) & ( c) were designedly widely expressed but ''.that is not an objection to a law implementing those directives" because "public interest is a very wide ooncept and several rights are made subject to public interest," and that should not be the objection for upholding the validity of a law. This answer appears to be vague and uncertain, for what is conceded in the earlier part is withdrawn in the latter.

The submission of the learned Solicitor-General is, firstly, that Art 31C protects only law and not mere execuuve action; secondly, the law referred to therein must be made either by Parliament or State Legislature and does not i111Clude within itl; elf ordinance, order, rule, regulation, notification, custom or usage in accordance with the procedure prescribed in Art. 368; thirdly, the intention of the founding fathers who had enacted clauses ( 4) and (6) of Art. 31 to give effect to the Directive Principles of State policy set out in Art. 39(b) & (c), as the experience shows, could not be given effect to because of the constitutional hurdles which necessitated the Constitution (First Amendment) Act by which Art. 31A and 31B was added under which the operation of Part III as a whole was excluded. According to him, the significance of this tOltal exclusion of Part !II is that it brings out ii; t ?n unmistakable manner the true relationship between the provisons of Part IV and Part III of the Constitution, namely, that the liberty of the individual, valuable as that is, will not operate as unsurmountable barrier in the path of legislative efforts towards the achieve. ment of the goal of a society envisaged in Part IV, and whenever and , to whatever extent such a problem arose the amending process would :


( 2) [1952] S.C.R. 889 at 997.

530 SVPUME COUl.T ~TS [1973] Supp •. s.cJl.

be able to resolve it. He cited the obacrvations of Das, J., in The State of Bihar v. Maharaiadhir•ia Sir Kameshwar Singh & Ors.( 2 ), that, "a fresh outlook which places the general interest of the community above the interest of the individual pervades our Constitution," and of Hidayatullah, J., in his clissenting judgment in Saiian Singh's case that, "the rights of society are made paramount and they are placed above those of the individual". These two obsenvations, if I may say so, are torn out of context, particularly those of Hidayatullah, f., where after stressing the fact that Art. 19 by clauses (2) to ( 6) allows the curtailment of rights in the public interest, which goes to show that

Part III is not. static and visualises chanite and progress, but at the same time it preserves the individual rights, he said after citing the observation above referred, that, "This is as it should be" (p. %2). It is further the case of the Union of India that the only laws which will receive the protection of Art. 31 C must disclose a nexus between the law and the objectives set out in Art. 39(b) & ( c) which is a condition precedent for the applicability of Art. 31C and as such the question is justiciable and the only purpose of the declaration is to remove from the scope of judicial review question of a political nature. As an example the learned Solidtor.General instanced a law dealing with divorce which could not be protected by a declaration nor can a law not attracting Art. 31C be protected y a declaration by merely mixing it with other laws really falling within Art. 31C with those under that Article. In such a case, therefore, the Court will always be competent to examine "the true nature and character of the legislation in the particular instance under discussion-its design and the primary matter dealt with-its object and scope (1882) 7 A.C. at pp. 838-840". It was further averred that .if a legislation enacted ostensibly under one of the powers conferred by the Constitution, is in truth and fact, really

to accomplish an unauthorised purpose, the Court would be entitled to tear the veil and decide according to the real nature of the statute, as in Attorney-General v. Queen Insurance Company('), and that except Articles 14, 19 and 31 the rest of the relevant provisions of the Constitution will apply and the Court is entitled to go into and consider the challenge of infringement of other rightls, and that there arc only three safeguards against the evil of discrimination, namely, (a) the i_ni; ate good sense of the .community and of e legislature and the adm1mstrator; (b) the proviso to Art. 31C requiring the President's assent; (c) the power of judicial review of the Courts to ·!he extent not exclu?ed, and of these, "The first safeguard is the only real safeguard ul11mately and thefr is oo real substitute for the character of the citizens". What is still open to the Court to examine is whether there is any violation of the provisions of Arts. 15, 16, 286 and Part XIII

( 1) [1873] 3 A.C. 1090.

KESAVANAN.DA II, KERALA (Jaganmohan Reddy, J.) !!31

(Am. 301, 303 and 304). The exclusion of Art. 14, without excluding Arts. 15, 16 etc., is only to enable the Legislatures and the Parliament to evolve new principles of equality in the light of the objectives set out in the Directive Principles without discrimination. The exclusion of Art. 19 is on the footing that laws which are to give effect to the directives set out in Part IV must constitute reasonable restrictions on the individual's liberty and the exclusion of Art. 31(2) is to introduce the considerations of social justice in the matter of acquisition.

In so far as the question whether Art. 31C am?unts to. delegatio~ of amending power to State Legislature or to Parliament m its onhnary legislative capaciy is concerned, the learned Solicitor-Geneal submits that a class of legislation or a legislative field may be identified_ or categorised in several ways, for instance, with reference to the penod within which the law is passed [Art 31(4) and Art. 31(6)] or the topic of the legislation [Art. 21(2) and Art. 31A]; or the objective or purpose of the legislation [Art. 15( 4)] for the advancement of . the backward class of citizens; Art. 31(5)(ii) for promotion of health and Art. 33 for proper discipline in the forces etc. Article 31C likewise carves out a legislative field with reference to the object of the legislation and in this respect it is similar to Arts. 15(4), 31(b)(ii) and 33.

Each of these articles creates a legislative field to achieve a social objective and for this purpose modifies the operation of some fundamental rights contained in Part III. Even assuming that Art. 31C involves an clement of delegation of the amending power, he contends there is no violation of Art. 368 and the absence of non-obstante clause or the label cannot make any ditfei'ence, and since Art. 368 empowers its own amendment, it follows that Art. 31 C, if there is a partial substitution of an amending. machinery and procedure, will operate as a partial modification of Art. 368.

It is contended that Art. 31C is similar to the legislative device adopted in Arts. 31A and 31B, which was added .by the Constitution (First Amendment) Act, 1950, the first of which declared that "Notwithstanding anything in the foregoing provisions of this Part (i.e.

Part III), no law providing for the acquisition by the State of any estate or of any rights therein or for 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, any provisions of this Part", namely, Part III. Article 3IB is also in similar terms and gives complete protection to the Acts specified in the Ninth Schedule from any of the provisions of Part III.

In so far as Art. 31A was concerned, it autlrorised a law for the acquisition of an estate as defined in clause (2). Article 31B as introduced by the First Amendment protected from challenge, on the

( 1) (1873) 3 A.C. 1099.

532 SUPREME COURT lllPQRTS (1973]$upp. s.c.a.

ground of infringement of the rights in Part Ill, certain Acts enacted f~ agrarian ·:eforms which, after very careful scrutiny that they per tam to agranan reforms, were added .to the Ninth Schedule. Zamindari abolition and agrarian reform had become an article of faith of free India and in respect of which th~' Bills either were pending at the time when the Constitution was being framed or. they had been enacted into law after the commencement of the Constitution. The debates in the Constituent Assembly on Art. 31 will disclose that after postponing its consideration for nearly a year, in the end a compromise was arrived at between those who were for the acquisition

. law to provide for payment of . full compensation and those who wanted the right in Art. 3l not to extend to the acquisition of land for giving effect to agrarian reforms. This compromise resulted in the

inclusiKin of clauses (4) and (6) giving protection to laws made there under from being questioned in any Court; in the case of the former,

to laws dealing with agrarian reforms in respect of. which Bills were pending in any of the Legislatures of the States at the commencement of the Constitution and had been reserved for the consideration of the President who subsequently assented to them an.d to those laws which were passed not more than eighteen months before the commencement of the Constitution, and if submitted within three months after such commencement 11<> the President for his certification nad been so certified by him by public notification. It was thought that the jurisdiction of the Courts would be barred in respect of the legislation o,£ the chiracter above: mentioned, but the Patna High Court had held Art. 14 was applicable and even when the appeals were pending in this Court, the Constitution (First Amendment) Act, 1950, was passed and Art. 31A and Art. 31B were added by an amendment of the Constitution. At the time only 13 Acts were added to the Ninth Schedule, but when some of the members of the Provisional Parliament wanted to add several other .Acts after the Bill had been scrutinised by the Select Committee, the Prime Minister pleaded with them oot to do so. He said :

"I would beg to them not to press this matter. It is not wit11 any great satisfaction or pleasure that we have produced this long Schedule".

These debates animated as they wer~, make interesting reading ancl one gets the impression that what was being done was what the original framers had intended to do but could. not give effect to the object because of lacunae in the language of the Article. The Prime Minister said :

"If there is one thing to which we as a party have been committed in the past generation or so it is the agrarian reforms and the abolition of the Zamindari system." •

KESAVANANl>A v. KEllALA (/l!lganmohan Reddy, J.) 533

Shri Hussain Imam (Bihar) : "With compensation."

Shri Jawaharlal Nehru : "With adequate proper compensation not too much".

Shri Hussain Imam: "Adequate is quite enough".

Shri Shyama Prasad Mukherjee, representing the opposite view, pointed out the dangers inherent in the amendment, not because he was against the agrarian reforms but because of the precedent tlus would create. He said : "By this amendment to the Constitution you arc saying that whatever lcgislatiol) is passed it is deemed to be the

law. Then why have your fundamental righs? Who ased you .to have these fundamental rights at all? You might have said : Parliament is supreme and Parliament may from time to time pass anv law in any matter it liked and that will be the law binding on the people". In referring to a few excerpts, I merely want to show what was the object of the amendment and what were the fears entcrtain- -cd in respect thereof.

The First Amendment was challenged in Sankari Prasad's case, but this C'..ourt held it valid. The queskon, as we have seen earlier, was whether Art. 13(2) imposed a bar on Art. 368 from amending fundamental rights? It was held that it did not, but no contentlion was urged or agitated before it that even apart frm Art!. 13(2), the amending power did not extend to the abrogation of fundamental rights. In Sajjan Singh's case the principal point which was urged was that the impugned Constitution (Seventeenth Amendment) Act was 1nvalid for the reason that before pre, enting it to the President for his assent the procedure prescribed, by the proviso to Art. 368 had not been followed, though the Act was one which fell within the

cope of the proviso. It was, however, not disputed before the Court that Art. 368 empowered Parliament to amend any provision of t'.ie Constitution including the provisions . in respect of fundarr .• tal rights enshrined in Part Ill. Hidayatullah and Mudholkar. JJ., did, 'however, express doubts as to whether it is competent for Parliament

"to make any amendment at all to Part III of the Constitution (see pp. 961 and 968). Mudholkar, J., further raised tihe question whether the 'f>arliament could "go to the extent it went when it enacted the First Amendment Act and the Ninth Schedule and has now added 44 agrarian laws to it? Or was Parliament incompetent to go beyond enacting Art. 31A in 1950 and now beyond amending the <le!inition of estate"? (p. %9) .Even in Golaknath' s case the question

raised before us was not conclusively decided. In this sllate of law to

ay that since Art. 3IC is similar to Art. 31A and 31B and since the latter were held to be valid in Sankari Prasad' s case fundamental rights could be abrogated by an amendment, would n'ot be justified.

. 534 SUPllEME COURT llEPjlllTS [1973] Supp. s.c.ll,

It may be observed that both in Sajjan Singh's case and Golaknath's case one of the grounds which was taken into consideration was that if the amendment was held invalid, millions of people will be affected and since in the latter case the majority had held that Parliament could not by amendment under Art. 368 affect fundamental r:ights,. the doctrine of prospective overruling or acquiescence was resorted to. But since the crucial question of the extent of the power of amendment has been mooted in this case before the largest Bench. constituted. so far and has been fully argued, this aspect can be reconsidered. In this regard Gajendragadkar, C.J., while considering the question of stare decisis, observed in Sajjan Singh's case at pp. 947-948) :

"It is true that th~ 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 decisiOlll of constitutional points which have a significant impact on the fundamental rights of citizens, we would be prepared t<> review our earlier decisions in the interest of public good. The doctrine of stare decisis may not strictly apply in this context,

and one can dispute the position that the said doctrine should not be permitted to perpetuate erroneous decisions pronounced by this Court to the detriment of general welfare. Even so, the normal principle that judgments pronounced by this Court would be final, cannot be ignored and unless considerations of substantial and compelling cliaractcr make it necessary to do so, we should be slow to doubt the correctness of previous decisions or to depart from them."

I have already pointed out that two of the learned Judges did doubt the power of Parliament to amend fundamental rights and since then this question has not remained unchallenged either on the ground of Art. 13(2) preventing such amendments or on other grounds urged before us. In these circumstances, it is not correct to say that iust because the validity of Art. 31A and 31C was Sustained by this Court, though in Golaknath's case it may have been on the grounds of cxpedi, ncy, Art. 31C must also on that account be sustained. However, an analogy of other Articles like Art. 33, Art. 15(4) and Art. 16( 4) is sought to he put forward in support of the contention that a similar device has been adopted in Art, 31C. I find that in none of rhe articles to which the le.1rned Solicitor-General ha' drawn our attention, is there a total abrogation of any of the rightt as ought to be affected by Art. 31C. Art. 33 for example, resorilcts or abrogates fundamental rights in Part III only in respect of the discipline of Armed Forces or forces charged with the maintenance of puHic order and nothing more. It does not extend to discrimination in recruitment to the service nor to any other rights possessed by the

KESAYANANDA v. KEllALA (Jaganmohan Reddy, J.) 535

atlzcns in the Armed Forces which arc unrelated with the proper discharge of their duties and the maintenance of discipline among these forces. Article 15(4) which was rcfrrrcd to as an example of empowerment based on objective or purpose of lcgWation, has noanalogy with Art. 31C. In the first place, Art. 15 is an exception to the classification which would have been permissible under Art. 14., for instance on the basis of religion, race; caste, sex and place of birth and hence Art. 15 prohibits such a classification in the case of citizens,

and Art. 16 makes a like' provision in the case of public employment with the addition of descent, The restriction is only to a limited extent from out of an area which permits the making of wide variety of classification. Clause (4) of Art. 15 was added by the Constitu tion (First Amendment) Act, 1950, to enable a state to make provision for the advancement of any socially and educationally backward. classes of citizens or for the scheduled castes and the scheduled tribes.

Clause (4) of Art. 16 "likewise enables the State to make provision for the reservation of appointments or posts in favour of any backard class of citizens which, in the opinion of the State, is not adequately reprcssentcd in the services under the State. The effect of thesr all'lcndments is to permit the making of classification for favourable treatment on the ground that the persons so favoured were Scheduled Castes, Scheduled tribes, etc., which would otherwise have been permissible under Art. 14 to the extent of its . reasonable relationship with the objects of the law, had the same not been prohibited by Art. 15(1) and Art. 16(2). These provisions do not in any way abro!(atc the right in Art. 14 and I do not think the analogy between these provisions and Art. 31C is apt.

The Directives under Art. 39(b) & (c) arc wide and indeter minatc. They affect the whole gamut of human activity vis-a-vis the society. The .State is enjoined to ensure that ownership and control of the material resources of the community arc so distributed as best to subserve the common good and that the operation of the economic system docs not result in the concentration of wealth and means of

pruction to t?c common detriment. These objectives are ends wh!ch may be implemented by a party in power through legislative

ct1on ?Y resort to any_ one of. the diverse philosophies, political

1dC?logis and economic theoncs. The implementation of these obect:Ivcs s the mcns. . These theories and ideologies both political, cconom.1c and soc10log1cal may vary and change from generation tO'

enerat1n and from time to time to suit the social conditions existing dunng ay particular period of history. We have in th; world ta~ countries .adopting different political systems, according to the

stoncal deyelopment of economic thought, the philosophy and tdcolpgy which is considered best to subserve the common good of:

:536 SUPlll!Mir COURT lll!p0RTS [1973] Supp. s.c.ll.

-that particular society. There is no standardi11ation, and what is good

for the, !)nc country may not be suitable to another. The accelerating technological advance and the exploitation of these development and .discoveries indicate the economic thought prevalent in that society. 'The various theories are, therefore, related to the delopmcnt and the _practical mew which are adopted for achieving the ends. In .a developing country such as ours, where millions arc far below the stan- .dard of sustenance and have not the means of having the normal necessities of life, there is further a deeper philosophical question of the kind of society and the quality of life which has to be achieved.

It is, therefore, the duty of the State to devise ways and means ot

achieving the ends. A Government which comes to power with a particular political philosophy and cconmµic theory as having been

dorsed by the electorate, has to give effect to llhat policy in the manner which it considers best to subservc the end. Any legislation to give effect to the principles and policy to achieve these ends is the legislative judgment which is not with.in the province of Courts tlJ .examine as to. whether they in fact subserve tese ends as "otherwise ·

there would be a conflict between the Judges' and Parliament as to whether something was good for the country or not, and the whole machinery of justice was not apj:>roprµitc for that consideration" (See Liyanage' s case at p. 267). The Government and Parliament or the Government and Legislature of a State have, within the sphere allotted to each other, the undoubted right to embark on legislative action which they thipk will ensure rhc common good, namely, the happiness of the greatest number and so they have the right to make mistakes and retrace any steps taken earlier to correct soch mistakes when that_ realisation dawns on them in giving effect to the above -objectives. But if the power to commit any mistake through democratic process is taken away as by enabling an authoritarian system, then it will be the negation of parliamentary democracy. The Stace, therefore, has the full freedom to experiment in implementing iu policy for achieving a desired object.: ThQUgh the Courts, as I said, have no function in the evaluation of these policies or in determining -whether they arc good or bad for the community, they havc,, h<>Wcvcr,

in examining legislative action taken by the State. in furthering the ends, to ensure that the means adopted do .not conflict with the provisions of the Constitution within which the State action has to be confined. It is, therefore, necessary to keep in view. the wide fielll of. Governmental activity enjoined in Art. 39(b) & (c). in determining the reach of the means to a~!lleve the ends and the impact of these means on the Fundamental Rights which Art. 31C effects.

The impugned Art. 31C enables Parliament and the State kgis- _ 1atures to make laws unfettered by Arts. 14, 19 and 31 In respect Gf

11:he wide and undefined field of objectives indicated in Art. 39(b) &

KESAVANA.NDA v. Kl!llALA (/'aganm,, han Reddy, J.) 537

(c). All these objectives before the amendment had. IP be achievea by the exercise of the legislative power enumerated m VII Schedule which would ordinarily be exercised within the limitations imposed by the Constitution and th~ fundamental rights. The . amendi_ne?-t removes these limitations, .though the law made must sull be w1thm the legislative power conferred under the VII Schedule,· and enables.

Parliament and d1e State legislatures, subject to one tenth quorum. of its members present and by a simple majority, to enact laws whlch. contravene the fundamental rights conferred under Arlls. 14, 19 and: 31 and which Parliament by complying with the form and manner provided under Art. 368, could alone have effected. Whether one calls this removing restrictions on the legislative organs or of conferring complete sovereignty on them within the wide field inherent in Art. 39(b) & ( c) is in effect one and tile same. It is conti:nded that in conferring this power by Art. 31C on Parliament and the State Legislatures, acting under Articles 245 to 248, Parliament has abdicated its function under Art. 368 and has permitted amendments; being made without complying with ilie form and manner provided. thereunder.

It is not necessary in the view I am taking to consider the question whether Article 31C delegates the power of amendment to the State Legislatures and Parliament or that it does not indicate the subject;.matter of legislation as in Art. 31A but merely purports to enable the legislative organs to choose the subject-matter from a field which, as I said; is a.s wide and indeterminate as the term 'opera~

tion of the economic system' would denote. I would prefer to consider Art. 31C as lifting the bar of the articles specified therein, and in so far as the subject-matter of the legislation is concerned, though the field is wide, any of the modes to give effect to the directives can only be a mode permissible within the legislative power conferred on the respective legislative organ under the VII Schedule to the Constitution.

If Parliament by an amendment of the Constitution under Art. 368, cannot abrogate, damage or destroy the basic structure of the Constitution or any of the essential elements comprising that basic structure, or run counter to defeat the objectives of the ConstitutiPn declared !n the Preamble and if each and every fundamental right is an essentil featue of the Constitutie, the question that may have to be considered is wher the amendment by the addition of Article 3!C as a fundameDl&l,.D_iht in Part III of the Constitution has abrogated, damaged or dcJtroyed any c;>f the fundamental rights.

Article 31~. has 4 elements : (i) it permits tihe legislature to

mke a law gtvm!l' effect to Arr:. 39(b) and Art. 39( c) inconsistenl with any of the nghts conferred by Arts. 14, 19 and 31; (ii) it per-

:538 SUPREME COURT RJ!pORTS [1973] .Supp. s.CJl.

mits the legislature to make a law giving effect to Article 39(b) and Art. 39( c) taking a1vay any of the rights conferred by Arts. 14, 19 :and 31; (iii) it permits the legislature to make a law giving effect to Art. 39(b) and (c) abridging any of the rights conferred by Arts. 14, 19 and 31; and (iv) it prohibits calling in question in any Court such -a law if it contains a declaration that it is for giving effect to the policy -0f State towards securing the principles specified in clauses (b) and ( c) of Art. 39 on the ground that it does not give effect to such a policy of the State.

The fist element seems to have been added by way of abundant <:aution, for it takes in the other two elements, namely, taking away and abridging of the rights conferred by Arts. 14, 19 or 31. However, it would be ultra vires the amending power conferred by Article 368. if it comprehends within it the damaging or destruction of these fundamental rights. The second element, namely, taking away of these fundamental rights would be ultra vires the amending power, for taking away of these fundamental rights is synonymous with destroying them. As for the third element, namely, abridging of these rights, the validity will have to be examined and considered separately in respect of each of these fundamental rights, for an abridgement of

the fundamental rights is not the same thing as the damaging of :those rights. An abridgement ceases to be an abridgement when it .tends to effect the basic or essential conten~ of the right and reduces

it to a mere right only in name. In such a case it would amount to the damaging and emasculating the right itself and would be ultra vires the power under Art. 368. But a right may be hedged in to a certain extent but not so as to affect the basic or essential content of it or emasculate it. In so far as Art. 31C authori$, cs or permits abridgement of the rights conferred by Art'. 19, it would be intra vires the amending power under Art. 368 as thereby the damaging or emasctt

lating of these rights is not authorised. It will, therefore, be necessary to examine what exactly Art. 14 and Art. 19 guarantee.

The guarantee of equality contained in Art. 14 has incorporated the principle of "liberty" and "equality" embodied in the Preamble to the Constitution. The prohihition is not only agains~ the legislatures but also aginst the executive and the local authorities. Two concepts are inherent in this guarantee-one of 'equality before law', a negative one similar to that under the English Common Law; and the other 'equal protection of laws', a positive one under the United

States Constitution. The negative aspect is in the prohibition against discrimination and the positiYe co1, tent is the equal protection under the law to all who are situated similarly and are in like circumstances.

(See Subba Rao, J., in State of U. P. v. Deoman Upadhyaya(').

( 1) ( 1961) I S.C.R. 14 at p. 34.

KESAVANANDA "· .KJUlALA (}aganmohan Reddy, J.) 539

The impact of the negative content on the positive aspect has not so far been clearly discerned in the decisions of this Cour~ which has been mostly concerned with the positive aspect. Again, Subha Rao, J •.• in his dissenting judgment in Lachhman Das on behalf of Firm Tilak Ram Ram Bux v. State of Puniab(') while holding that the Patiala

Recovery of State Dues Act did not offend Art. 14 of the Constitution, said at p. 395 :

"It shall also be remembered that a citizen is entitled to a fundamental right of equality before the law and that the doctrie of classification is only a subsidiary rule evolved by Courts to give a practical content to the said. doctrine. Over emphasis on the dr. trine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the article of its glorious content. That process would inevitably and in substituting the doctrine of classification for the doctrine of equality: the fundamental right to equality before the law and equal protection of the laws may be replaced by the doctrine of classification." In Ram. Krishna Dalmia v. Shri fustice S. R. Tendolkar & Ors.('), Das, C. J., summed up the principle enunciated in several cases rcfred to by him, and. consistently adopted and applied in subsequent c; tSCs1 thus:

"It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification mav be founded on different bases, namely, geographical, or acorduig IP objects or <>ccupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act

uder consideration. It is also well established by the decisions of this Court that Art. 14 condemns discrimination not only by a substantive law but also by a law of procedure." '

 . In subsequent cases a further_ principle has been recognised by which Ar;.. 14 was alo not to be v10lated by two laws dealing with the same sub1ect-matter, 1£ the sources of the two laws are different.. (See

( 1) (1963) 2 S.C.R. 353.

{ 1) (1959) S.C.R. 279.

540 SUPREME cou11.T llEP<lRTS [ 1973] Supp. s.c.It.

State of Madhya Pradesh v. G. C. Mandawar(1). I am not for the present concerned whether this latter principle is likely to mislead but would refer only to the various aspects of the classification recognised in this Court so far. It may, however, be pointed out that though the cat.egories of classification arc never closed, and it may be that the objectives of Art. 39(b) & ( c) may form a basis of classification depending on the nature of the law, the purpose for which it was enacted and the impact which it has on the rights of the citizens, the right to equality before the law and equal protection of laws in Art. 1 + cannot be disembowelled by classification.

The lifting of the embargo of Art. 14 on any law made by Parliament or the Legislature of a State under Art 31C, by providing that no law made by these legislative orgam to give effect to the policy of the State towards securing the principles specified in clauses (b) and ( c) of Art. 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges the right conferred therein, would, in my view, abrogate that right altogether. I have held that Parliament cannot under Art. 368 abrogate, damage or destroy any of the fundamental rights though it can abridge to an extent where it does not amount to abrogation, damage or destruction. The question is, whether the words 'inconsistent with or takes away, or', if severed. will achieve the purpose of the amendment? In what way can the abridgement of Art. 14 be effected without robbing the connt of that right? Can a law permitted under Art 31C affect persons similarly situated unequally or would equal protection of laws not be availabk to persons similarly situated or placed in like circumstances? While Art. 39 (b) & ( c) can provide for a classification, that classification must have a rational relation to the objectives sought to be achieved by the statute fa question.

In so far as the abridgement of the right conferred by Art. 14 is concerned, it would be 11/tra vires for the reason that a mere violation of this right amounts to taking away or damaging the right. The protection of the right was denied in Art. 31A because the Courts had held invalid under Art. 14, the provisions of certain land reform legislations relating to compensation for the acquisition etc., of the estates.

The necessity for the exclusion of Art. 14 from being applied to' lawsunder Art. 31C is not apparent or easy to comprehen~. No law under Art. 31C could possibly be challenged under Art, 14 by, the owners G>r the holders of the property, for the reason that to treat all owners or holders of property equally in matters of compensation would be contrary to the very objects enshrined in Art 39(b) & (c). Any rational principles ~£ classification devised .for giving effect to the policies adumberated m Art. 39(b) & ( c) will not be difficult to pan the test of

( 1) [1955] I S.C.R. 599.

KESAVANANDA v. KUALA Uag1111mohan Retfdy, J.) 541 ·

equal protection of the laws under Art 14. The exclusion of Art 14 in Art. 31A was confined to the aspect of acquisition and compensation in respect of land reforms laws, but, however, the laws under Art. 31A were not immune from attack under Art. 14, if the measures of agrarian reforms were tainted with arbitrariness.

Though this question has not been finally decided by this Court in any of the cases under Art. 31A it was raised in Balmadies Plantations Ltd. and Others v.

State of Tamil Nadu(1), where the .appellants contended that it would not be open to the Government under s. 17 of the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1~9, o terminate by notice the right of the lessee as that would be v10lat1ve of the rights under Arts. 14, 19 and 31 of the Constitution. This Court, however, did not find it necessary to deal with this aspect of the matter, because it was admitted that no notice about the termination of the lessee's rights had been issued under s. 17 of the Act to any of the appellants, and that question can only arise after the Act came into force. It was further observed by one of us, Khanna, J., speaking for the Court:

"Even after the Act comes into force, the Government would have to apply its mind to the question as to whether in its opinion it is in public interest to termil!ate the rights of the plantation lessees. Till such time as such a notice is given, the matter is purely of an academic nature. In case the Government decides not to terminate the lease of the plantation lessees, any discussion in the matter would be an exercise in futility. If, on the contrary, action is taken by the Government under Section 17 in respect of any lease of land for purposes of the cultivation of plantation crop, the aggrieved party can approach the court for appropriate relief."

It may be mentioned that in that case s. 3 of the Act, in so far as it related to the transfer of forests in Janman estates to the Government was concerned, was held to be violative of the Constitution. It cannot, therefore, be said that this aspect of the matter is not res integra.

On the other hand, it lends support to the view that the law can be challenged . . The decisions of this Coun in Nagpur Improvement Trust v.

Vithal Rao('), and the other two case.s> following it also do not affect my view that Art 14 is inapplicable to matters dealing with compensation under laws enacted to give effect to policies of Art. 39(b) & (c).

In. the above case it was the State. which was given the power to acqwrc property for the samc; iublic purpose under two different statutes, one of them providing for lc5$C! compensation and the other

( 1) (1972) 2 S.C.l. 133.

Ss-36 S. C. lndia/73

5 4 2 SUPREME COURT REPORTS ( 1973 j Supp. S.CJI. ·

providing for full compensation. My Lord the Chief Justice, delivering the judgment o£ the Constitution Bench of seven Judges, while holding that these provisions contravened Art. 14, observed at p. 506:

"It would not be disputed that different principles of compensation cannot be formulated for lands acquired an the basis that the owner is old or young, healthy or ill, talL or short, or whether the owner has inherited the property or built it with his own efforts, or whet11er the owner is a politician or an advocate. Why is this sort of classification not sustainable? Because the object being io compulsorily acquire for a public purpose, the object is equally achieved whether the land belongs to one type of owner or another type".

There was no question in the above case of either distribution of ownership and control of material resources or the breaking up of concentration of wealth or the means of production which is an object different from that envisaged in Art 31(2). If in two given cases siniilarly circumstanced, the property of one is taken under Art 31C and that of the other under Art. 31(2), then it will amount to discrimination and the Nagpur Improv, ment Trust case will apply. In a case of this nature, the objection is not so much to Art 14 being op. plied, but of adopting methods which run counter to Art 39(b) & (c), because the person who though siniilarly situated as that of the other is certainly favoured for reasons unconnected with Art. 39(b) & ( c ).

It cannot, therefore, be said that Art. 14 has been misapplied or was a hindrance to the furtherance of the directive principles in Art. 39(b) and ·( c), which is professed to be the object d implementation in such a case. If no such abuse-is to be presumed, then there is no warrant for the apprehension that Art. 14 will hinder the achievement of the said Directives.

The sweep of Art. 31C is far wider than Art. 31A, and Art 14 is excluded in respect of matters where the protection was moot needed for the effectuation of a genuine and bona fid' desire of the State contained in the directives of Art. 39(b) & (c). For instance, persons equally situated may be unequally treated by depriving some in lhat class while leaving others to retain their property or in respect of the property allowed to be retained or in distributing the material re~ sources t11ereby acquired unequally, showing favour to some arid discriminating against others. To amplify this aspect more fully, it inay be stated t!13t in order to further the directives, persons may be grouped in relation to the property they own or held, or the economic power they possess or in payment of compensation .at different rates to dilf~ rent classes of persons depending on the extent or the value oE the property they own or possess, or in respect of classes of p, c; tsons tQ \V}lom the material resources of the country arc distributed. . the object of

KESAVANANDA v. K1!1IALA (faganmohan Reddy, J.)

S43

clauses (b) and ( c) of Art. 39 is the breaking up of concentration . of wealth or the distribution of material resources. If full compensation is paid for the property taken in furtherance of the objectives under Art. 39(b) & (c), that very objective sought to be implemented. would fail, as there would in fact be no breaking up of concentration of wealth or distribution of material resources. It is, therefore, clear that the very nature of the objectives is such that Art. 14 is inapplicaJ;>le, firstly, because in respect of compensation there cannot be a question of equality, and, secondly, the exclusion thereof is not necessary J;>ecuse

any law that makes a reasonable classification to further the ob3ectives of Art. 39(b) & ( c) would undoubtedly fulfil the requirement~ of Art. 14. The availability of Art. 14 will not really assist an expropriated owner or holder because the objectives of Art. 39(b) & ( c) would be frustrated if he is paid full compensation. On the other hand, he has no manner of interest in respect of equality in the distribution of the property taken from him, because he would have no further rights in the property taken from him. The only purpose which the exclusion of Art. 14 will serve would be to facilitate arbitrariness, inequality in distribution or to enable the conferment or patronage etc. This right under Art. 14 will only be available to the person or class of persons who would be entitled to receive the benefits of distribution under the law. In fact the avaifability of Art. 14 in respect of laws wider Art. 31C would ensure 'distributive justice', or 'economic justice', which without it would be thwarted. In this v'iew of Art. 31C vis.a-vis Art. 14, any analogy between Art. 31C and Art. 31A which is sought to be drawn is misconceive(!, because under the latter provision the exclusion of Art. 14 was necessary to protect the subject-matter of legislation permissible thereunder in respect of compensation payable to the expropriated owner. 1bere is another reason why there can be no comparison between Art. 31A and Art. 31C, because in Art. 31A the exclusion of Art. 14 was confined only to the acquisition etc. of the property and not to the distribution aspect which is not the subjectrnatter of that Article, whereas, as pofrited out already, the exclusion -0f Art. 14 affects distribution which is the subject-matter of Art. 39 {b) & (c).

It is not necessary to examine in detail the mischief that the abridgement or taking away of Art. 14 will cause, It is not an answer to :ay that this may not be done and abuse should not be presumed.

This may be true, but what I am concerned with is the extent of the power the legislative organs will come to possess. Once the power to do all that which has been referred above is recognised, no abuse caa be presumd. But if th.e power does not extend to destruction, damage or abrogation of the nght, the question of abuse, if any, has no relevance. !t cannot be presumed t Parliament by exercising its :amendmg power under Art. 368, intended to-confer a right on Parlia-

544 SUPREME COUl\T BEPOllTS [ 1973] Supp. s.c.11.

ment and the Legislatures of the States to discriminate persons similarly situated or deprive them of equal protection of laws. The objec

tives sought to be achieved under Art. 39(b) & (c) can be achieved

een if this article is severed.

In respect of the exclusion of Art. 19 by Art. 31C a question was asked by one of us during the course of arguments addressed by the learned Advocate-General for Maharashtra on January 12, 1973, the thirtyfifth day, as to, what is the social content of the restriction on freedoin of speech and freedom of movement which are not already contained in the restrictions to which those rights are subject? The learned Advocate-General said he would consider and make his submissions.

On March, l, 1973, he made his submissions on the understanding that the question was asked in the context of Art. 31C which excludes the operation of whole of Art. 19 and not only Art. 19(1)(f) and Art. 19(1)(g). The learned Adve>- cate-General characterised the question as raising a matter of great importance. In my view, what was implied in the question was the core of the issue before us, as to whether there can be any justification for imposing more restrictions on such valuable rights as freedom of movement and freedom of speech than what the framers of the Consl.itution had already provided for in Art. 19(2) to (6). After referring to the history and objects and reasons for enacting Constitution First, Fourth and Seventeenth Amendments, and after referring to the decisions of this Court, all of which relate to acquisition of property and have nothing to do either with freedom of speech or freedom of movement, he considered and answered the question posed under the follqwing heads as under :- ·

"(i) Generally, with reference to reasonable restrictions to which the fundamental rights conferred by Art. 19(1)(a) to (g) are subject under Art. 19(2) to (6);

(ii) the reasonable restrictions to whi<:h the right to freedom of speech and the right to. move throughout the territory of India should be made subject ui.der Art. 19(2) and (5) respectively.".

Under the first head he submitted the proposition that the social content of the restrictions to which the fundamental rights under Art. 19(1) (a) to (g) are subject is narrower than all relevant social considerations to which the fundamental rights could be made subject. The reasons given were again the historical ones particularly the fact that the Constituent Assembly had rejected the suggestion made by Shri B.

N. Rau that in case of conflict between fundamental rights and the

Directives, the directives should prevail, otherwise necessary social

KESAVANANDA ti. KEllALA (faganmohan Reddy, J.) 545

legislation might be hampered. This meant that the social content of the Directive Principles was wider than the social content of permissible restrictions on fundamental rights. For, if this were not so, no question of giving primacy to Directive Principles in the case of con

llict with fundamental rights could arise as the social content of funda mental rights and t.he Directive Principles would be the same. Since the Constitution gave primacy to fundamental rights over the Dircc

tives, making fundamental rights enforceable in a Court of law and the directives not so enforceable, the social content of the restrictions on fundamental rights wa~ placed in the framework of the enforce mcnt of rights by citizens or any person. This enforcement of individual fundamental rights naturally disregarded the injury to the public good caused by dilatory litigation which can hold up large schemes of necessary social legislation affecting a large number of people. To prevent this social evil, the First and the Fourth Amendments to the Constitution were enacted.

The social content of restrictions which can be imposed un<lr Art. 19(2) to (6) naturally docs not take in the injury to :he pu?hc good by dilatory litigation holding up large schemes of social legisla tion. The fundamental rights conferred by Art. 19(1) (a) to \g) arc not mutually exclusive but they overlap. For example, the nght to move peaceably and. without arms conferred by Art. 19(1) (~) ln~Y be combined with the right to freedom of speech and expression, if those who assemble. peaceably carry placards or delivr speeches through microphones. Again, the right llo carry on. busmes~ under Art. 19(1) (g) would overlap the right to hold, _acqwre nd dispose of property, for ordinarily, business cannot be carr.1ed n w_1thout he sc of property. This consideration must be borne m mmd m cons1dermg the question why Ar~. 31C excluded the challenge to the laws protect cd by Art. 31C under the whole of Art. 19, instead of excluding a challenge only under Art. 19(1)(f) which relates to property; and Art. 19(l)(g) which relates .to business which would ordinarily re quire the use of property.

Undr the scicond head, he submitted that it is well settled that the right to freedom of speech includes the freedom of the Press, and thereafter referred to 'Press in a Dcmocracy'-Chapter X of Modem Democracies by Lord Bryce, and long extracts were given from the above chapter, dealing with the change which had come over the Press and the dictatorship of a syndicated Press. The First Amendment of the U. S. Constitution was also referred. He thereafter submitted that our Constitution guarantees a freedom of speech, and ex prcssion and by judicial construction that freedom has been held to .include freedom .of the Press. But according to him the freedom of

I .

546 SUPREME COURT REPORTS [1973] Supp. s.c.R.

speech as an individual right must be distinguished from the freedom of the Press and since ordinarily people asserting their individual right to the freedom of speech are not carrying on any trade or business and a law of acquisition has no application to individual exercise of the right to the freedom of speech and expression, Art. 31C can equally have no application to such individual right to the freedom of speech and expression. But different considerations apply when the freedom of speech and expression includes the Press, the running of which is clearly a business.

Article 19(1)(a) is so closely connected with Art. 19(1)(g) and

(f) that if the last two sub-Articles are excluded by a law relating to the acquisition of property, it is necessary to exclude Art. 19(1)(a) to prevent an argument that the rights are so inextricably mixed up that to impair the right to carry on the business of running a . Press or owning property necessary for running the Press is to impair the right to freedom of speech. Again, the right to freedom of movement thoughout the territory of India has been clubbed together by Art. 19(5) with the right to reside and settle in any part of the territory of India, conferred by Art. 19(1)(c) and the right to acquire, hold and dispose of property conferred by Art 19(1) (f) for the purpose of imposing reasonable restrictions in the interest of general public or for the protection of the interest of any scheduled Tribe.

After referring to the observations of Patanjali Sastri and Mukherjea, JI., in Gopal'an's case, the learned Advocate-General submitted that those observations show that if a law of land acquisition was to be protected from challenge under Art. 19(1)(f), it was necessary to protect it from challenge under Art. 19(1)(d) and (e) to foreclose any argument that the rights under Art. 19(1)(d), (e) and (£) are so closely connected that to take away the right under Art. 19 (!)(f) is to drain the rights under Art. 19(1) (d) and (e) of their practical content. For these reasons, Parliament in enacting the First, Fourth and Seventeenth Amendments rightly excluded the challenge under the whole of Art. 19 to the laws protected by those amendments and not merely a challenge under Art. 19(1) (f) and (g). In the result, it was submitted that Art 31C only contemplates the process of giving primacy to the Directive Principles of State policy over fundamental rights, first recognised in Art. 31(4) and (6) and then extended by Arts. 31A and 31B and Schedule IX as first enacted and as subsequently amplified by the Fourth and the Seventeenth Amendments all of which have been held to be valid. Directive Principles are also fundamental and the amending power is designed to enable future Parliament and State Legislatures to provide for the changes in priorities which takle place after the Constitution was framed and the amending power is mended to enacting Article 31C.

KESAVANANDA "· ltl!RALA (}aganmohan Reddy, J.) 547

I have set out in detail what according to the learned Advocatc- Gcneral is the basis and the raison d'etre for excludi:ng Art. 19 by Art, 31C. This able analysis surfaces the hidden implications of Art. 31C in excluding Art. 19.

On those submissions the entire fundamental rights guaranteed to the citizens are in effect abrogated. Article 14 is taken away; Art. 19(1) (a) to (g) is excluded on the ground that each of them have their impact on one or the other of the rights in Part Ill and since these rights are not mutually exclusive and any property and trade or business affecte<l by legislation under Art. 31C which necessarily must deal with property, if the directives in Art. 39(b) and (c) are to be given effect, will in turn, according to the learned Advocate- Gcneral, come into conflict not only with Art. 19(1)(f) & (g), but with the other sub-clauses (a) to ( e) of clause ( 1) of that article.

As far as I can see, no law, so far enacted under Art. 31A and' challenged before this Court has attempted to affect any of the rights in Art.19(1)(a) to (e), except Art. 19(1)(f) & (g) and, therefore, this question did not fall for consideration of this Court. But that apart, I cannot understand by what logic the freedom to assemble peaceably and without arms, or for a citizen to move freely throughout India or t'O reside and settle in any part of the territory of India, has anything to do with the right to acquire and dispose of property or to practice any profession or to carry on any occupation, trade or business. Arc .persons whose trade and business is taken away, or are deprived of their property not entitled to the guaranteed rights to move freely throughout India or settle in any part of India or to practise any profession or occupation? What else can they do after they are deprived of their property but to find ways and means of seeking other employment or occupation and in that endeavour to move throughout India or. sctl\le in any part of India? If they arc prohibited from exercising these basic rights, they will be reduced to mere serfs for having owned property which the State in furtherance of its policy expropriates.

If the law made under the directives has nothing to do with property, how does the duty to prevent the operation of the economic system from resulting in concentration of wealth and means of production, has any relevance or nexus with the movement of the citizens through out India or to settle in any part of India? Are those to whom property is: distributed in furtherance of the directive principles, ought not to be secured against infringement of those rights in property so distri• . buted by laws made under Art. 31C? It would seem that those for whose

l>enefit legislation deprives others in whom wealth is concentrated them-

.elves may not be protected by Art. 19 and Art. 14, if Art. 31C can rake away or destroy those rights. Without such a protection they will not have a stake in the survival of democracy, nor can they be assured that economic jwdcc would be meted out to diem. Nor am I ahlc

548 sUPlll!ME 'COUP.T 111P01Ts [1973] Supp. s.c.R.

to understand why where an industry or undertaking is taken over, ii it necessary IX> take away the right of. the workers in that industry or undertaking to form associations or unions. The industry taken away from the owners has nothing to do with 11he workers working therein, and merely because they work there they will also be deprived of their rights. I have mentioned a few aspects of the unrelated rights. which are abridged by Art 3!C. No doubt, the recognition of the freedom of Press in the guarantee of freedom of speech and expression under Art. 19(1)(a) was highlighted by the learned Advocate-General of Maharashtra. Does this mean that if a monopoly of the Press is prohibited or where it is sought to be broken up under Art. 39(b) and ( c) and the Printing Presses and undertakings of such a Press arc acquired under a law, should the citizens be deprived of their right to start another Press, and exercise their f, edom of speech and expression? If these rights are taken away, what will happen to the freedom of speech and expression of the citizens in the country, which is a concomitant of Parliamentary dclllocracy? In the State of Bombay and another v.

F. N. Balsara('), it was held under lite unamended clause (2) of Art. 19 that section 23(a) and Section 24(1)(a) which prohibited "commending" or advertising intoxicants to public were in conRict with the right guaranteed in Art. 19(1) (a) as none of the conditions in clause (2) of that Article applied. But the first Amendment has added 'incitement to an offence' as a reasonable restriction which the State can provide by law. In any case, the absence of such a law making power is no ground to abrogate the entire right of free speech and expres.sion of the citizens.

Art. 15 merely confines the right to those who are not women socially and educationally backward classes of citizens, scheduled ca~ or scheduled tribes all of whom were afforded protective discrimination. Art. 16 is again similarly conditioned. 17, 18, 23 and i4 are prohibitions which the State is enjoined to give affect to. Articles 25 to 28 which guarantee religious freedom, can be affected by Art. 31C in furtherance of directive principles because these denOlllir nations own properties, schools, institutions, etc., all of which wauld be meaningless w'ithout the right to hold property. Likewise, Arts; '19 and 30 would become hollow when Arts. 19 and 14 arc totally abrogated. The only rights left are those in Arts. 20, 21 and 22, of which Art. 22 has abridged by, reason ci clauses ( 4) to (7) by !>roviding for pr_eventive detention, which no doubt, is in the larger interest ci the security, tranquillity and i; afety of the citizens and the States. I have pointed ou~ the implications of the contentions on behail of the rcapoodcnts to show that if these are accepted, dlls country under a Constitution and a Preamble proclaiming the securing ci fundamental

( 1) (1951) S.C.R. 682.

.....

;:~ '

KESAVANANDA "· KERALA Uaganmohan Reddy, J.) 549

risfits ID its citizens, will be without them. The individual rights which ensure political rights of the citiizcns in a democracy may have to be subordinated to some extent to the Directlive Principles for achieving social objectives but they are not to be enslaved and driven out -of existence. Such could not have been contemplated as being within the scope of the amending power.

Although Art. 31A protected the laws coming within its purview from the rights conferred by Art. 19, such a protection could only be against the rights conferred by clauses (f) and (g) of Art. 19(1), as its subjected-matter was expressly stated to be the acquisition of or cxtinguishment or modification of rights in any esitatc as defined in clause (2) thereof, and the taking over or amalgamation or termination etc., of rights of management and certain leasehold interests. Article 31C protects laws giving effect to the policies in Art. 39(b) & (c). For achieving these twin objects the rights of the persons that have to be abridged could only be those rights in Art. 19 which relate to property and trade, business, profession or occupation.

Though the expression 'economic sysl'em' is used in Art. 39(c), that article has not the object of changing the economic system generally, but is confined to only preventing concentration. of wealth and means of production to the common dctritnent. What this clause cnvisagCI

is that the State should secure the operation of 'the economic system in such a way as not to result in the concentration of wealth and means of production to the common detriment. Where there is already concentration of wealth and means of production which is to the common detriment, the law under Art. 39(c) would be only to break up or regulate as may be necessary the concenrration of wealth and means .of production. All other rights arc outside the purview of Art. 31C

ans in this respect Art. 31A and Art. 31 C can be said to be similar in scope and no different. In my view, therefore, the learned Solicitor- Gcneral has rightly submitted that the law under Art. 31C will only operate on "material resources", "concentration of wealth", and "means of production", and if this is so, the rights in Art. 19(1)(a) to (e) would have no relevance and are inapplicable.

With rest to the exclusion of Art. 31 by Art. 31C, claute (1) ai Art. 31 is not in fact affected by Art. 31C, because under the latter any rights affected must be by law only. Even if Art. 31C was enacted for making laws in the furtherance of the directive principles in Art. 39(b) and (c) affecting property, those laws have to conform. to Art. 31(1) for they would be raws depriving persons of their property. Article 31C also contemplates the making of a law to give effect to the Directives in Art. 39(b) and (c). In so far as Art. 31(2)

550 SUPREME COURT REPORTS [1973] Supp. s.c.R.

is concerned, s. 2 of the Twenty-fifth Amendment has already abridged the right contained in Art. 31(2) and a further abridgement of this right authorised by Art. 31C may amount in a given case to the destruct:iDn or abrogation of that right and it may then have to be considered in each case whether a particular law provides for such an amount for the acquisition or requisitioning of the property in question as would constitute an abrogation or the emasculation of the right under Art. 31(2) as it stood before the Constitution (Twenty-fifth) Amendment.

On the fourth element, I agree with the reasoning and conclusion of my learned brother Khanna, J., whose judgment I have had the advantage of perusing, in so far as it relates only to the severance of the part relating to the declaration, and with great respect I alw adopt the reasoning on that aspect alone as an additional reason for supporting my conclusions on the first three elements also.

If the first part of Art. 31C is read in this manner, then it may be held to be intra vires the amending power only if those portions of the Article which make it ultra vires the amending power are severed from the rest of it. The portion.s that may have to be severed are the words, "is inconsistent witl1 or takes away, or" and the words "Art!cle 14" and the part dealing with the declaration by reason of which judic'al review is excluded. The severability of these portions is permissible in view of the decision of the Privy Council in Punjab Province v. Dardat Singh & Ors.,(') and the principles laid down by this Court in B.M.D.

C!zamarbdugwalla v. The Union of India(').

The doctrine that the general words in o statute ought to be construed with reference to the powers of the Legislature which enacts it, and that the general presumption L' that the L:g1sJ., ture does not intend to exceed its jurisdiction, is well established. In in Re. The Hindu Women's Rights to Property Act,(') and in Dau/at Singh's case it has been held that on clie general presumption the Legislature does not

intend to exceed its jurisdiction, and that the Court could sever that part of the provision in excess of the power if what remained could be given effect tio. In the former case, the Act being a remedial Act seeking to remove or to mitigate what the Legislature presumably regarded as a mischief, was given the beneficial interpretation. (See the observations of Gwyer, C. J. at p. 31). In the latter case, the proyisions of s. 13A of the Punjab Alienation of Land Act, 1900, which were ddcd by s. 5 of the Punjab Alienation of Land (Second Amendment) Act

( 1 ) (1946) 73 Indian Appeals 59=(1946) F.C.R. I.

( 2) (1957) S C.R. 930.

( 3) [1941] F.C.R. 12.

R.ESAVANANDA ~. KERALA (Jaganmohan Reddy, J.) 551

No. X of 1933, providing for the avoidence of banami transactions as therein specified which were entered into eit'her before or after the commencement of the Act of 1938, and for recovery of possession by the alienor would have been ultr• flirts the Provincial Legislature as contravening sui>-s. (1) of s. 281 of the Government of India Act, 1935, in that in some cases s. BA would operate as a prohibition on the ground of descent alone, bur it was authorised and protected from invalidity as regards future tr.Ill

sactions by sub. s.2(a) of s. 298 of the Act of 1935 as amended by s. 4 of the India & Burma (Temporary and Miscellaneous Provisions) Act, 1942. As the provisions of s. BA would have been ultra vire1 and void in so far as they purported to operate retrospectively, the Privy Council severed the retrospective clement by the dcletibn of the words "either before or" in the section and the rest of the section was left to operate. validly. Lord Thankerton, delivering the opinion of the Privy Council, observed at pp. 19-20:

"It follows, in the opinion of their Lordships, that the impugned Act, so far as retrospective, was beyond the legislative powers of the Provincial Legislature and, if the retrospective element were not severable from the rest of the provisions, it is established beyond controversy that the whole Act would have to be declared ultra vires and void. But, happily, the retrospective element in the impugned Act is easily severable, and by the the deletion of the words, "either before or" from s. 5 of the impugned Act, the rest of the provisions of the impugned Act, may be left to operate' validly."

In Chamarhaugwallas case, Venkatarama Aiyer, J., after referring t.o the various cases including F. N. Balsara s case accepted the principle that when a statute is in pm void, it will be enforced as regards the rest, if that is severable from what is invalid. It is immaterial for the purpose of this rule whether the invalidity of the statute arises bj reason of its subject-matter being outside the competence of the legisl~re or by reaso? of its provisions contravening constitutional prohib1t10ns. He enunciated seven rules of separability. In F. N. Balsara1

ca~, apart f'.on; i s. 23(a) and (b) and .s-.24(l)(a) relating to commendatJon and incitement from the definition of the word 'liquor' in s. 2(24)(a) the words "all liquids consisting of or containing alcohol" wer~ severed as these would include medicinal preparations. It will be seen that neither the whole subclause (a) was deleted nor the whole of clause (24) was separated. It is only the above words that were severed <llld held to make the remaining part of the definition valid.

SS2 SUPREME COURT REPOllTS [1973] Supp. s.c.a.

In Corpor11tion of Calcutta v. Calcutta Tramways Co. Ltd.(') tht

estion was whether s. 437(l)(b) of the Calcutta Municipal Ai:t, 1151, was invalid under Art. 19 (l)(g) in so far as it made the opiru'on ti. the Corporation. conclusive and non,.challengeable in any court.

The sub-clause (b) of s. 437(1) reads as follows:

"any purpose which is, in the opinion of the Corporation (which opiniop shall be conclusive and shall not be challenged in any court) dangerous to life, health or property, or likely to create a

nuisance;''

This Court held the portion in the parenthesis as violative of Art :19(l)(g). It was contended that the above portion in the sub-clause was inextricably mixed up with the rest and hence cannot be separated.

The Court held that the third proposition in the Chamarbaugwalllis ase, namely, that even when the provisions whicli are valid are distinct and separate from those which are iinvalid, if they all form part fl. a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the fai!lure of the whole, was inapplicable. Wanchoo, J., expressed the view that the parenthetical clause consisting of the words "which opinion shall be conclusive and shall not be challenged in any court" is severable from the rest of the clause referred to above.

Jn the case of Kameshwar Prasad v. State of Bihar(') Ruic 4-A of the Bihar Government Serva:'.ls Conduct Rules, 1956, had provided that "No Government servant shall participate in any demonstration ar reSQrt to any form of mike in connection with any matter pertaining to his conditions of service". The Court held the rule violative ti Arc. 19(1)(a) and (h) in so far as it prohibited any form of demonstration, innocent or otherwise, . and as it was not possible to so read it as to separate the legal from the unconstitutional portiOn of the provisioµ, the entire rule relating to participation in any demonatration mllst be declared as ultra vires. The Court, however, did not llrike dpwn the entire Ruic 4-A, but severed only that portion which .lated co demorutration from the rest oi it. and the portion dealing with the sllrikc which was upheld continued to exist after severing the above, portion. However, in State of Madhya Pradesh v. Ranojir110 Shinde & Anr.(8) the doctrine of sevcrability was not applied. In that cue the term 'grant' was defined in 1. 2( 1) of the Madhya Pradesh

Abolition of Cash Grants Act, 1963, in a language which was wide without making a distinction between vario~ types of cash grants. This

( 1) (1964) 5 S.C.R. 25. (') (1962) Supp. 3 S.C.R. 369.

(') (1968) 3 S.C.R. 489.

' '

XESAVANANDA ti. XEllALA/ (}aganmohan Reddy, J.) 5Sl

Court did not find any basis for severing some out of the several granb. included therein and heru:c expressed the view that it is impermissibk to rewrite that clause and confine the definition to such of the c:ui grants which the Legislature might be competent to abolish. The cac is, therefore, distinguishable as the rule is inapplicable to such instaaces.

I have considered the validity of Art. 31C by apply'ing the doctrine of severability although neither side dealt with this aspect in relation to Art. 31C, because both had taken an extreme position, which if accepted, will either result in the total invalidation or in upholding ii. validity in enfoety. If as tlb.e petitioner had contended that by an amendment any of the fundamental rights cannot be damaged or clestrored, the next logical step of the argument on his behalf should have been to establish that the entire Art. 31C is bad on that account, and if not, to what extent it would have been sustained by applying the doctrine of severability particularly when the severability of the declaration part of Art. 31C was very much in the forefront during the arguments. Likewise the respondents knowing what the petitioner's case is, should have examined and submitted to what extent Art. 31C is invalid on the petitioner's argument. When a question was asked. on February 19, 1973 that "if once it is conceded that a Constitution cannot be abrogated, then what one has to find out is to what extent an amendment goes to abrogation" and the ansmr was that "the whok

of the Constitution cannot be amended", and also when a question was raised that on the language of Art. 31C it appear~ to be ineffective, neither side advanced any argument on this aspect. Nor whea the question of severability of the declaration portion was mooted oil several occasions during the arguments was any submffision made by either party as to whether such a severance is, or is not, possible. Io the circumstances, the Court is left to itself to examine and consider what is the correct posi, tion in the midst of these two extremes. In a case of constitutional amendment which has beeri enacted after following the form and manner prescribed in Art. 368, as I said earlier, it should not be held invalid, if it could be upheld even by severing the objectionable part, where the valkd part can st!and on its own. It is not always in public interest to confine the consideration of the validity of a constitutional amendment to the arguments, the parties may choose IP advance, otherwise we will be constrained to interpret a

Cotution only in the light of what is urged before us, not what was understand it to be is the true nature of the impugned amendment Happily, even if I am alone in this view, the portions indicated by me are severable, leaving the unsevered portion operative and effective so as to enable laws made under Art. 31C to further the directiva of State Policy enshrined in Art. 39(b) and ( c). In the view I have

554 SUPREME COURT REPORTS [1973] Sqpp. s.c.R.

 entertained, the words "inconsistant with, or takes away or" and the words "article 14" as also the portion "and no law containing a declaration that it is for giving effect to such policy shall be calkd in question in any court on the ground that it does not give effect to such policy" being severable, be deleted from Art. 31C. In the result, on the construction of Art. 31C after severing the portions indicated above, I hold s. 3 of the Twenty-fifth Amendment valid.

On the validity of the Constitution (Twenty-ninth) Amendment, my Lord the Chief Justice has come to the conclusion that notwith- Jtanding this amendment the Constitution Bench will decide whether the impugned Acts take away fundamental rights or only abridge them and whether they effect reasonable abridgements in publiic interest, and if they take away, they will have to be truck down. My karned brothers Hegde and Mukherjea, JJ., have in effect come to the same conclusion, when they hold that this amendcmnt is valid, but whether the Acts which were brought into the IXth Schedule by that Amendment or any provision in any of them abrogate any ot the basic elements or essential features of the Constitution will have

to be examined when the validity of those Acts is gone into. With respect, I agree in effect with these conclusions which arc consistent Mth the view I have expressed in respect of Arts. 31A and 31B.

I also agree that the contention of the learned Advocate for the petitioner that Art. 31B is intimately connected with Art. 31A is unacceptable and must be rejected for the reasons given in these judgments.

The question whether fundamental rights are abrogated or emasculated by any of the Acts or provisions of these Acts included by the impugned Amendment', will be open for examination when the validity of these Acts is gone into, and subject to this reservation, I hold the Constitution (Twenty-ninth) Amendment valid.

I now state my conclusions whiCh arc as follows: ( 1) On the construction placed on Arts. 12, 13 and other provisions of Part III and Art. 368, Art. 13(2) does not place an embargo on Art. ,368, for amending any of the rights in Part III, and on this view it is unnecessary to decide whether the leading majority judgment in Golaknath's case is right in finding the power of amendment in the residuary entry 97 of List I of Schedule VII, nor is it called for, having regard to the majority decision therein that the power of amendment is to be found in Art. 368 itself.

(2) Twenty-fourth Amendment:

The word 'amendment' in Art. 368 does not include repeal. Parliament could amend Art. 368 and Art. 13 and also all the fundamental right~ and though the power of amendment is wide, it is not

KESAVANANDA v. KERALA (]tiganmohan Reddy, J.) 555

wide enough to totally abrogate or emasculate or damage any of the fundamental rights or the essential clements in the basic structure ot the Constitution or of destroying the identity of the Constitution. Within these limits, Parliament can amend every article of d!.c Constitution.

l'arliameJll cannot under Art. expand its power of amendment so as to confer on itself the power to repeal, abrogate the Constitution or damage, emas, culatC" or destroy any of the fundamental rights or essential clement$ of the basic structure of the Constitution or of destroying the identity of the Constitution, and on the construction placed by me, the Twenty-fourth Amendment is valid, for it has not changea the nature and scope of the amending power as it existed before the Amendment.

Twenty-fifth Amendment:

(i) SECTION 2

(a) Clause (2) to Art. 31 as substituted.-Clause (2) of Art. 31 has the same meaning and purpose as that placed by this Court in the several decisions referred to except that the word 'amount' has been substituted for the word 'compensation', after which the principle of equivalent in value or just equivalent of the value of the property acquired no longer appllies. The word 'amount' which has no legal concept and, as the amended clause indicates, it means only cash which would be in the currency of the country, and has to be fixed on some principle. Once the Court is satisfied that the challenge on the ground that the amount or the manner of its payment is neither arbitrary or illusory or where the principles upon which It is fixed are found to bear reasonable relationship to the value of the property acquired, the Court cannot go into the question of the adequacy of the amount so fixed or determined on the basis of such principles.

(b) Clause (2B) as added.-On the applicability of Art. 19(1)(f) to clause (2) of Art. 31, the word 'affect' makes two constructions possible, firstly, that Art. 19(1)(f) will not be available at all to an expropriated owner, and this, in other words, means that it totally abrogates the right in such cases, and secondly, clause (2B) was intended to provide that the law of acquisition or requisition will not be void on the ground that it abridges or affects the right under Art. 19(l)(f). The second construction which makes the amendment valid is to be preferred, and that clause (ZB) by the adoption of the doctrine of severability in application is restricted to abridgement and not abro gation, destroying or damaging the right of reasonable procedure in respect of a law of acquisition or requisition for the effective exercise of the right under Art. 31 (2); for, a reasonable notice, a hearing opportunity to produce material and other evidence, may be necessary

556 SUPREME COUilT REPORTS [1973] Supp. s.cJl.

to establish that a particular acquisition is nor for public purpose and for providing the value of the property and other matters that may be involved in a particular prinCiple adopted in fixing the amount or for showing that what is being paid is illusory, arbitrary etc. Therefore, in the view taken, and for the reasons set out in this judgment, s. 2 of the Twenty-fifth Amendment is valid.

(ii) SECTION 3 OF THE TWENTY-FIF'rn AMENDMENT

New Art. 31C is only valid if the words "inconsistent with or takes away or", the words "article 14" and the declaration portion "and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it doe~ not give effect to uch policy", are severed, as in my view they are severable. What remains after severing can be operative and effective on the interpretation given by me as to the applicability of Arts. 19 and 31, so as to enabk laws made under Art. 31 C to further the directives enshrined in Art. 39 (b) & ( c). In the result on the construction of Arr. 31C, after severing the portions indicated above, I hold s. 3 ot the Twenty-fifth Amendment valid.

( 4) Twentyninth Amendment:

The contention that Arts. 31A and 31B are inter-connected is unacceptable and is rejected. The Constitut!ion (Twenty-ninth) Amendment is valid, but whether any of the Acts included thereby in Schedule IX abrogate, emasculate, damage or destroy any of the fundamental rights in Part III or the basic element's or essential features ot the Constitution will have to be examined when the validity of those Acts is challenged.

The petitions will now be posted for hearing before the Constitution Bench for disposal in accordance with the above findings. In the circumstances the parties will bear their own costs.

PALEKAR, J. The facts leading to this petition have been stated in judgment delivered by my lord the Chief Justice and it is not therefore necessary to recount the same.

In this petition the constitutional validity of the Kerala Land Reforms (Amendment) Act, 1969 and the Kerala Land Reforms (Amendment) Act, 1971 has been challenged. As the petitioner apprehended that he would not succeed in the challenge in view of the-recently passed Con..iitution Amendment Acts, he has also challenged the validity of theS<> Acts. They arc :

(1) The Constitution 24th Amendment Act, 1971;

(2) The Constittsdon 26th Amendment Act, 1971 and

(3) The Constitution 29th Amendment Act, 1972.

KESAVANA!'DA v~ KEIV.LA (Palekar, J.) 551

The . crucial point involvoo is whether the Constitution is liable to be amended by the Parliament so as to abridge or take away fundamental rights conferred by Part III of the Constitution.

By the 24th Amendment, some changes have been made in Articles 13 and 368 with the object of bringing them in conformity with the views expressed by a majority of Judges of this Coun with regard to the scope and ambit of Articles 13 and 368. In Sankari Prasad Singh v. Union of lndia(1) the Constitutional Bench of five Judge~

of this Coun unanimously held that fundamental rights could be abridged or taken away by an amendment of the Constitution under

Article 368. In the next case of .Saijan Singh v. State of Rajasthan('} a majonty of three Judges expressed the view that Sankari Prasad'.r

.e was correctly decided. Two Judges expressed doubts about that

'View but considered that it was not mcessary to dissent from the decision as the point was not squarely before the court. In the third case namely Golak Nath v. State of Puniab(') the. view taken in. the earlier cases by eight Judges was overruled by a majority ofsix Judges to five .. The majority held that Parliament had no power to amend the Constitution under Article 368 so as to abridge or take away the fundamental. rights, one of them (Hidayatullah, J), who

delivered a separate judgment, expressing the view that this could

not be done even by amending Article 368 with the object of clothing the Parliament with the necessary powers. In tHis state of affairs . the Union Government was obliged lb take a defini~ stand. It

would appear that the Union Government and the Parliament agreed: with the view taken in Sankan Prasad's case by the majority in Sajjan Singh's case and the substantial minority of Judges in Golak Nath's case. They were out of sympathy with the view adopted by the

majority fa Golak Nath's case. Hence the 24th Amendment. That amendment principally sought to clarify what was held to be implicit in Articles 13 and 368 by a majority of Judges of this Court over the years, namely, (!) that nothing in Article 13 applied to an amendment to the Constitution made under Article 368; (2) that Article 368 did not merely lay down the procedure for a constitutional amendment but also contained the power to amend the Constitution; (3) that the Parliament's power under Article 368 was a constituent power as distinct from legislative power; (4) that this power to amend included the power to. amend by way of addition, varia, tion or repeal of any provision of. the Constitution.

( 1) [1952] S.C.R. 89.

( 2) [1965] (1) S.C.R. 933.

( 8) [1967] (2) S.C.R. 70l. 36-36 S. C. India/73

558 SUPREME COURT REPORTS [ 1973] Supp. S.C.R.

After passing the 24th Amendment the other two amendments were pqssed in accordance with the Con.stitution as amended by the 24th Amendment.

ln his argument before us Mr. Palkhivala, appearing on behalf of the petitioner, supported the majority decision in Golak Nath with supplemental arguments. In any event, he further contended, the power of Parliament to amend the Constitution under Article 368 did not extend to the damaging or destroying what he called the essential features and basic principles of the Constitution and since fundamental rights came in that category, any amendment which damaged or destroyed the core of these rights was impermissible.

The argument on behalf of the State of Kerala and the Union of India was that an amendment of the Constitution abridging or taking away fundamental rights was not only permissible after the clarlficatory 24th Amendment but also under the unamended Articles 13 and 368, notwithstanding the refinement in the arguments of Mr. Palkhivala with regard to essential features and basic principles of the constitution.

We are, therefore, obliged to go back to the position before the 24th Amendment and consider whether the majo. rity view in Golak Nath was not correct. A fuller bench of 13 Judges was, therefore, constituted and it will be our task to deal with the crucial question involved. This course cannot be avoided, it is submitted; because if the fundamental rights were unamendable by the Parliament so as to abridge or take them away, Parliament could not increase its power to do so by the device of amending Articles 13 and 368 whether one calls that amendment cliarificatory or otherwise. The

real question is whether the Constitution had granted Parliament the power to amend the Constitution in that respect, because, if it did .not, no amendment of Articles 13 and 368 would invest the Parliament with that power. We have, therefore, to deal with the Constitution as it obtained before the 24th Amendment.

Since fundamental questions with regard to the Constitution have been raised, it will be necessary to make a few prefatory remarks with regard to the Constitution. The Constitution is not an indigenous product. Those who framed it were, as recognised by this Court in The Automobile Transport (R.iziasthan) Ud. v. he State of Raias- Jhan and others,(') thoroughly acquainted with the Constitutions and Constitutional problems of the more important countrie1 in the world,

especially, the English speaking countries. They knew the Unitary and Federal types of Constitutions and the Parliamentary and Presidential systems of Government. They knew what constitutions were

(') [1963] I S.C.R. 491 at p. 539, 540,

KESAVANANDA v. KERALA (Palekar, J.) 559

regarded as "Flexible" constitutions and what constitutions were regarded as "rigid" constitutions. They further knew that in all modem written constitutioll.$ special provision is made for the amendment of the constitution.

Besides, after the Government of India Act, 1935 this country had become better acquainted at first hand, 'both with the Parliamentary syitem of Government and the frame of ; i Federal constitution with distribution of powers between the centre

and in the State. All this knowledge and experience went into the making of our Constitution which is broadly speaking a quasi - Federal constitution which adopted the Parliament1ry System of Government based on adult franchise both at the centre and in the States.

The two words mentioned above 'flexible' and 'riwd' were first -coined by Lord Bryce to describe the English constitution and the American constitution respectively. The words were made popular by Dicey in his Law of the Constitution first published in 1885.

Many generations of lawyers, thereafter, who looked upon Dicey as <me of the greatest expositor~ of the law of the constitution became familar with these words. A 'flexible' constitution is one under which every law of every description (including one relating to the -constitution) can legally be changed with the same ease and in same manner by one and the same body. A 'rigid' constitution is one under which certain laws generally known as constitutional or fundamental laws cannot be changed in the same manner (as ordinary laws). See 'Dicey's Law of the Constitution 10th eclition, 1964 p. 127. It will be noted that the emphasis is on the word 'change' in denoting the distinction between the two types constitutions. Lord Birkanhead in delivering the judgment of the judcial Committee of the Privy Council in McCawley v. The King(') used the words 'uncontrolled' and controlled' for the words 'flexible' and 'rigid' respectively which were current then. He had to examine the type of constitution Queensland possessed, whether it was a 'flexible' constitution or a 'rigid' one in order to decide the point in controversy. He observed at page 703 'The first point which requires consideration depends upon the distinction bet- . ween constitutions the terms of which may be moclified or repealed with no other formality than is necessary in the case of other legislation, and constitutions which can only be altered with some special formality and in some cases by a specially convened assembly.' He had to do that because the distinction between the two types of constitutions was vital to the decision of the controversy before the privy Council. At page 704 he further said 'Many different terms have been employed. in the text-books to distinguish these two contrasted forms of constJtution. Their special qualities may perhaps be exhibited as clearly by

lling the one a 'controlled' and the other an 'uncontrolled' constitu-

( 1) [1920) A.C. 691.

560 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.

tion as by any other nomenclature'. Perhaps . th.is was an apology for not using the words 'rigid' and 'flexible' which were current when he delivered the judgment. In fact, sir John Simon i11 the cgurse of his argument in that case had used the words 'rigid' and 'flexible' and he had specifically referred to 'Dicey's Law of the Constitution' Strong in his text, booki on Modem Political Constitution, Seventh revised edition, 1%8 reprinted in 1970 says at p. 153 "The sole criterion of a rigid constitution is whether the Constituent Assembly which drew up the Constitution left any special directions as. to how it was to be changed. If in the Constitution there are no such directions; or if the direc, tions, explicitly leave the Legislature a free hand, then the constitution is 'flexible'.

The above short disquisition into the nature of constitutions was necessary rn order to show that when our constitution was framed in 1949 the framers of the constitutiOn knew that there were two constrasted types of democratic constitutions in vogue in the worldone the 'flexible' type which rould be amended by the ordinary procedure governing the maki, ng of a law and the. other the 'rigid' type which cannot be so amended but required a special procedure for its amendment. Which one of these did our framers adopt the 'flexible' or the 'rigid' ? On an answer to the above question some important consequences will follow which are relevant to our enquiry.

Our constitution provides for a Legislature at the Centre and in the States. At the centre it is the Parliament consisting of the Lok Sabha and the Rajya Sabha. In the States the Legislature consists of the State Assembly and, in some of them, of an Upper Chamber known as the Legislative Council. . Legislative power is distributed between the centre and the States, Parliament having the power to make laws with regard to subject matters contained in List I of the Seventh Schedule and the State Legi$laliures with regard to thooe in List II. There is also List III enumerating matters in respect of which both the Parliament and the State Legislatures have concurrent powers to make laws. This power to make laws is given to these

bodie,. by Articles 245 to 248 and the law making procedl}CC for the Parliament is contained in Articles 107 to 122 and for the State Legislatures in Articles 196 to 213. The three Lists in the Seventh Schedule no where mention the 'Amendment of the Constitution' as one of the subject matters of legislation for oi.ther the Parliament or the State Legislatures. On the other hand, after dealing with all important matters of permanent interest to the constitution in the first XIX parts covering '367 Articles, the constitution makes special provision for the 'Amendment of the Constitution' in Part XX in one single Article, namely, Article '368. A spCcial procedure is provided for .amendment which is not. the same as the one provided fot making ordi-

KESAVANANDA v. KERALA (Palekar, J.) 561

nary laws under Articles 245 to 248. The principle features of the legislative procedure at the Centre are that the law must be passed by both Houses of Parliament by a majority of the members present and voting in the House, l)lld in case of an impasee between the two Houses of Parliament, by a majority voto at a joint sitting. All that is neces,.1ary is that there should be a co ram which we understand is 10% of the strength of the House and if such a coram is avaiilable the two houses separately or at a joint meeting, as the ca~ may be, may make the law in accordance with its legislative procedure laid down in Art'1cles 107 to 122. The point to be specially noted is that all ordinary laws which the Parliament makes in accordance with Articles 245 to 248 must be made in accordance with this legislative procedure and no other. Under Artices 368 however, a different and special procedure is provided for amending the constitution. A Bill has to be introduced in. either House of Parliament and must be passed by each House separately by a special majority. It should be passed not only by 2/3rd majority of the members present and voting but also by a majority of the total strength of the House. No joint sitting of the two Houses is permissible.

In the case of certain provisions of the Coru; titution which directly or indirectly affect interstate relations, the proposed amendment is required to be ratified by the Legislatures which is not a legislative process of not less than one half of the States before the Bill proposing the amendment is presented to the President for his assent. The procedure is special in the sense that it is clifferent and more exacting or restrictive than the one by which ordinary laws arc made by Parliament. Secondly in certain matters the State Legislatures are involved in the process of makmg the amendment. Such partnership between the Parliament and the State Legislatures in making their own laws by the ordinary procedure is not recognised by the Constitution. It follows from the special provision made in Article 368 for the amendment of the Constitution that our constitution is a 'rigid' or 'controlled' constitution because the Constituent Assembly has "left a special direction as to how the constitution is to be changed." In view of Article 368, when the special procedure is successfully followed, the proposed amendment automatically becomes a part of the constitution or, in other words, it writes itself into the constitution.

The above discussion will show that the two separate procedures one for law making and the other for amending the constitution were not just an accident of drafting. The two procedures have been delibarately prov'1ded to conform with well-know constitutional practices which make such separate provisions to highlight the different procedures one commonly known as the legislative procedure and the other the constituent procedure. 1 he word 'constituent' is so well"known in modern Political constitutions that it is defined in the dictionaries as

\ 562 SUPREME COURT IU!POl.TS (1973) Supp. S.C.ll,

'able to frame or alter a constitution.' And the power to frilme or alter the constitution is known as constituent power.

See The Concise: Oxford Dictionary.

Where then in our constitution lie the legis, lative power and the constituent power? The legislative power is given specifically b} Articles 245 to 248, subject to the constitution, and these Articles are found under the heading 'Distribution of legislative powers'. That alone is enough to show that these artides do not deal with the constituent power. The point is important because the leading majority judgment in Golak Nath's case proceeds on the footing that the power lies in Article 248 read with the residuary entry <Jl in List I of the: Seventh Schedule. That finding was basic to the decision because unless an amendment of the constitubion is equatci! with a law made by Parliament under one or the other of the entries in List I of the Seventh Schedule it wa.s nor easy to iiivoke the bar of Article

13(2). Mr. Palkhivala says that he is indifferent as to whether the power is found in Article 248 or elsewhere. But that does not conclude the question because if we agree with the view that it falls in Article 248 the decision that an amendmqit abridging or taking away fundamental rights, being a law under Article 248, would be barred by Article 13(2) would be unassailable.

In Golak Nath's case Siibha Rao, C. J. who spoke for himselt and his four learned colleagues held that the power to amend the constitution wa5 not found in Article 368 but in Article 248 read with the residuancy entry <n of List I of the Seventh Schedule. The five learned Judges who were in a minority held that the power is in Article 368, Hidayatullah, J, on the other hand, held that Article 368 did not give the power to any particular person or persons and that i£ the named authorities acted according to the Jaw of Article, th.e result of amendment was achieved. And if the procedure could be deemed to be a .. power at all it was a kgislative power, sui generis, to be found outside the three lists in Schedule Seven of the constitution. In other words, six learned Judges did not find the power in the residuary entry <Jl of List I, while five found it there. We have, therefore, to sec whether the view of. Subba Rao, C. J. and his four colleagues who held that .the power lay in Article 248 read with the residuary entry <J7 is correct. In my view, with respect, it is ru>t.

Article 368 is one slngle article in Part XX entitled. 'The amendipent of the Constitution.' It is a special topic dealt with by that Part.

In other articles like Articles 4,169, para 7 of Schedule V and para 31 of Schedule VI a power is granted to the Parliament to amend specific provisions 'by law' i.e., by adopting the ordinary procedure of legislation.

USAVANANDA v. KEllALA (Palekar, J.) 563

though it altered certain provisions of the constitution. The alteration$ are 'a faw' made by .the Parliament and, therefore, liable to be struck down, unless specifically saved, in case of inconsistency with the provisions of the constitution. Secondly in every such case a provision is deliberately added explainio.g that the amendment so made by law is not to be deemed an amendment of the constitution for the purpose of Article 368.. The warning was necessary to emphasise that an amendment of the constitution in accordance with the procedure laid down in Article 368 was of a special quality-a quality different from amendments made 'by law' by the Parliament. The speeial quality flowed from the fact that tlic Parliament and the States which were to partieipate in the process performed not their ordinary legislative function but a special .function known in all Federal or quasi-federal or controlled constitutions as a 'constituent' function. The differ cnce between the ordinary function of making law and the function of amending the constitution loses its sign.ificancc i.ri the case of a sovereign body like the British Parliament or a Parliament like that of Newzealand which has a written constitution of the Unitary type. These bodies can amend a constlitutional law with the same ease with which they can make an ordinary law. The reason is that their constitutions arc 'flexible' constitutions. But in countries which have

a written constitution which is a 'rigid' or 'controlled' constitution the constitution is liable to be amended only by the special procedure, and the body or bodies which are entrusted with the amendment of the constitution are regarded as exercising con•tituent power to distinguish it from the power 'they exercise in making ordinary legislation under the constitution. So far as we arc concerned, our constitution gives specific powers of ordinary legislation to the Parliament and the State legislatures in respect of well demarcated subjects' But when it comes to the amendment of the constitution, a special procedure has been prescribed in Article 368. Since the result of folli:>wing thcspccial procedure under the Article is the amendment of the constitution the process which brings about the result is known as the exercise of constituent power by the bodies associated in the task of amending the constitution. It is, therefore, obvious, that when the Parliament and the State Legislatures function 'in accordance with Article 368: with a view to amend the constitution, they exercise constituent power as distinct from their ordinary legislative power under Articles. 245 to 248. Article 368 is not entirely procedural. Undoubtedly part of it is procedural. But there is a clear mandate that on the procedure being followed the 'proposed amendment shall become part of the constitution, which is the substantive part of Article 368. Therefore,. the peculiar or special power to amend the constitution is to be so11ght' in Article 368 only and not elsewhere.

:564 SUPREME COU!lT REPORTS [1973] Supp. s.c.R.

Then again if the constituent assembly had regarded the power to amend the constitution as no better than ordinary legislative power the framers of the constitution who were well-aware of the necessity to provide for the power to amend the constitution would not have failed to add a specific entry to that effect in one or the other of the 'lists in the Seventh Schedule instead of leaving it to be found in a residuary entry. The very fact that the framers omitted to include it specifically in the list but provided for it in a spedal setting in Part XX of the constitution is eloquent of the fact that the power was not to be. sought in the residuary entry or the residuary Article 248.

In this connection it may be recalled that in the Draft Constitution Article 304 had a separate provision in clause 2. Clause 1 of that article fairly corresponds with our present article 368. In clause 2 power was , iven to the States to propose amendments in certain matters

arid Parliament had to ratify such amendments. There was thus a reverse process of amendment. There was no residuary power in the States and the amendment of the constitution was not a specific imbject of legislative power in draft List II. This goes to show that in the Draft Constitution, in all but two matters, the proposal for amendment was to be made by the Parliament and in two specified matters by the State Legislatures. If the power for the latter two subjects was to be found in clause 2 of Article 304 of. the Draft Constitution it is only reasonable to hold that the power of. Parliament to amend the rest of the constitution was to be found in Article 304 (1) which corresponds to the present Article 368.

Moreover the actual wording of Article 245 which along with Articles 246 to 248 comes under the topic "Distribution of legislative powers" is important. Article 245 provides that Parliament may make laws for the whole or any part of India and the legislature of a State may make laws for the whole or any part of the State. Thus Article 245 confers the power to makt laws on Parliament and the Legislatures ot the State for and within the territory allocated to them.

Having conferred the power, Articles 246 to 248 distribute the subject matters of legislation in respect of which the Parliament and the State Legislatures have power to make the laws referred to in .Article 245. But there 'is an important limitation on this power in the governing words with which Article 245 commences. It is that the power was subject to the provisions of the constitution thereby lifting the constitution above the 'laws'. That would mean that the Parliament and the State Legislatures may, indeed make laws in respect of the areas and subject matters indicated, but the exercise must be "subject to the provisions of the constitution" which means that the power to make laws does not extend to making a law which contravenes or is inconsistent with any provision of the constitution which is the supreme law of the land. A law is inconsistent with the provision of

KESAVANANDA v. KERALA (Palekar, J.) 565

the con.stitution when, being given effect to, it impairs or nullifies the provision of the constitution. Now no simpler way of impairing or nullifying the constitution can be conceived than by amending the text of the provision of the constitution. Therefore, since a law amending the text of a constitutional provision would necessarily entail impairing or nullifying. the constitutional provision it would contravene or be inconsistent with the provision of the constitution and hence would be impermissible and invalid under the governing words "subject to the provisions of the constitution" in Article 245. It follows that a law amending the constitution if made on the assumption that it falls within the residuary powers. of the Parliament under Article 248 , read with entry 97 of List I would always be invalid. Then again a law made under Articles 245 to 248 must, in its making, conform with the ordinary legislative procedure for making it laid down for the Parliament in Part V, Chapter II and for the State Legislature in Part VI, Chapter III of the constitution and, no other. To say that the power to make law lies in Article 245 and the procedure to make it in Article 368 is to ignore not only this compulsion, but also the fundamental constitutional practice followed in our constitution. as in most modern controlled constitutions, prescribing special1 procedure for the amendment of the constitution which is different from the procedure laid down for making ordinary laws. The conclusion, therefore, is that the power of amendment cannot be discovered in Article 248 read with the residuary entry. The argument that article 368 does not speak of the power to amend but only of the procl'!lure to amend in pursuance of the power found elsewhere is clearly untenable. The true position is that the alchemy of tihe special procedure prescribed in Article 368 produces the constituent power which transports the proposed amendment into the constitution and gives it equal status with the other parts of the constitution.

Moreover, if an amendment of the constitution is a law made under Article 248 read with entry 97 List I strange Tesults will follow.

If the view taken in Golak Nath's case is correct, such 'a law being repugnant to article 13(2) will be expressly invalidated so far as Part Ill of the constitution is concerned. And such a law amending any other article of the constitution will also be invalid by reason of the governing words "subject to the provisions of the constitution" by which article 245 commences. In that event no article of the constitution can be amended. On the other hand, if the law amending an article of the constitution is deemed to be not repugnant to the article which is amended,. then every article can be amended including those embodying the fundamental rights without attracting the bar of article 13(2) which can only come in on a repugnancy. On the argument, therefore, that an amendment is a law made under Article 248 the whole of the constitution becomes unamendable, and on the

566 SUPREME COURT REPORTS [1973) Supp. s.c.lt.

argument that such a law never becomes repugnant to the article amended the whole of the constitution becomes amendable, in which case, we are unable to give any determinate value to article 13(2).

Instead of following this complicated way of tracing the power in Article 248 read with the residuary entry 97 of List I it would be correct to find it in article 368 because that is a speciaL article designed for the purposes of the amendment of the constitution which is also the subject heading of Part XX. In my opinion, therefore, the power and the procedure to amend the constitution are in article 368.

The next question which requires to be examined is the nature of this constituent power, specially, in the case of 'controlled' or 'rigid' constitutioM A student of Modern Political Constitutions will find that the methods of modern constitutional amendment are (1) by the ordinary legislature but under certain restrictions; (2) by the people through a referendum; (3) by a majority of all the unions ofa Federal State; (4) by special convention; and (5) by a: combination of two or more of the above methods which are mentioned in order of increasing rigidity as to the method. Where the power of amending the constitution is given to the legislature by the Constituent As.!Cmbly the Legislature working under restrictions assumes a special position. Strong in the book, already referred to, observes at page 152 "The constituent assembly, knowing that it will disperse and leave the actual business of legislation to another body, attempts to bring into the constitution that it promulgates as many guides to future action as possible. If it wishes, as it generally does, to take out of the hands of the ordinary legislature the power to alter the constitution by its own act, and since fr cannot possibly foresee all eventualities, it must arrange for some method of amendment. 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." (emphasis supplied)

Authorities are not wanting who declare that such amending power is sovereign constituent power. Orlield in his book, the Amending of the Federal Constitution (1942) page 155 (1971 Edn.) says that in America the amending body i.s sovereign in law and in fact. Herman Finer in his book The Theory and Practice of Modem Government, fourth edition 1961 reprinted in 1965, pages 156/157 says "Supremacy is shown and maintained chiefly in the amending process ........ Too dilficult a process, in short, ruins the ultimate purpose of the amending cla.use . . . . . . . . The amending clause is so fundamental to a constitution that I am tempted to call it the constitution itself." Geoffery Marshall in his Constitutional Theory ( 1971) p. 36 says "there will in most constitutional systems, be an amending process and some "collection" of persons, possibly complex, in whom sovereign authority to alter

KESAVANANDA v. KERALA (Palekar, J.) 567

any legal rule inheres ...... Constitutions unamendable in all or some respects are non-standard cases and a sovereign entity whether (as in Britain) a simple legislative majority, or a complex specially convened majority can he discovered and labelled "sovereign" in almost all systems." Wade in his Introduction to Dicey's Law of the Constitution,

10th edition says as follows at page 36 "Federal government is a system of government which embodies a division of powers between a central and a number of regional authorities. Each of these "in its own sphere is co-ordinate with the others and independent of them." This involves a division of plenary powers and such a division is a negation of sovereignty. Yet somewhere lies the power to change this division.

Wherever that power rests, there is to he found legal sovereignty." Having regard to this view of the jurists, it was not surprising that in Sankari Prasad's case Patanjali Shastri, J., speaking for the court, described the power to amend under article 368 as "soverign constitutent power" (p. 106). By describing the power as "sovereign" constituent power it is not the intention here to declare, if somebody is allergic to the idea, that legal sovereignty lies in this body or that. It is not necessary to do so for our immediate purpose. The word 'sovereign' is used as a convenient qualitative description of the power to highlight its superiority over other powers conferred under the constitution. For example, legislative power is subject to the constitution but the power to amend is not. Legislative activity can operate only under the constitution but the power of amendment operates ober the constitution. The word 'sovereign', therefore, may, for our purpose, simply stand as a description of a power which is superior to every on~ of the other powers granted to its instrumentalities by the constitution.

The amplitude and effectiveness of the constituent power is not impaired because it is exercised by this or that representative body or by the people in a referendum. One cannot say that the power is les, s when exercised by the ordinary legislature as required by the constitution or more when it is exercised-say by a special convention. This point is relevant because it was contended that our Parliament is a constituted

body-"a creature of the constitution" and cannot exercise the powcI" of amending the constitution tO the same extent that a constituent assembly specially convened for the purpose may do. It was urged that the sovereignty stiU continues with the people and while it is open to the people through a convention or a constituent assembly to make any amendments to the constitution in any manner it liked, there were limitations on the power of an ordinary Parliament-'a constituted body', which precluded it from making the amendments which damaged or destroyed the essential features and elements of the constitution.

We shall deal with the latter argument in its proper place. But for the present we are concerned to see whether the power to amend becomes more or less in content according to the nature of the body which make~

S68 SUPlmME COURT REPORTS [ 1973] Supp. s.c.R.

the amendment. In my view it does not.

Because as C11:plained by Strong in the passage already quoted "In short it (i.r.. the constituent .assembly which framed the constitution) attempts to am .. 1ge for the recreation of a constituent assembly whenever suCh maturs are in future to be considered even though that assembly be nothing more than the ordinary legislature acting under certain restrictions." Only the methods 'Of making amendments are less rigid or more rigid according tt> the

hi.ltorical or. political background of the country for which the constitution is framed. For example Article V of the American constitution divides the procedure for formal amendment into two parts-proposal and ratification. Amendments may be proposed in two ways; (1) by

two-thirds vote of both Houses of Congress ; (2) by national constillltional conventions called by Congress upon application of two-thirds of the State Legislatures. Amendments may be ratified by two methods, (I) by the legislatures of three-fourths of the States; (2) by special conventions in three-fourths of the States. Congress has the sole power to determine which method of ratification is to be used. It may direct that the ratilication may be by the state legislatures or by special conventions.

One thing which stands out w far as Article V is concerned is that referendum as a proce&s of constitutional amendment has been wholly excluded. In fact it was held by the Supreme Court of America in Dodge vs. Woo, lsey(') "the constitution 15 supreme over the people of the United States, aggregately and in their separate sovereignities, bcausc they have excluded themselves from any direct or immediate agency in making amendments to it, and have directed that amendments should be made representatively for them." In other words, the people, having entrusted the power to amend the constitution to the bodies mentioned in Article V, had completely withdrawn themselves from the amending process. Out of the two combinations of the bodies referred to in Article V-one is a combination of the Congress and the State Legislatures and between them, though they are constituted bodies, they can qualitatively amend the constitution to the same extent as if the proposal made by the Congress was to be ratified by convention by' 3/4th number of States. As a matter of fact on the proposal made by the Congress all the amendments of the U.S. Constitution, with the exception of the twenty first which repealed the 18th amendment, have been ratified by State legislatures. Such an ameadment accomplished by the participation of the Congress and the State Legislature~ has not been held by the U.S. Supreme Court as being any less effecti've because the Congress had not obtained the ratification from a convention of the

States. The question arose in United States v. Sprague.(") ThJt ca, e was on the 28th (Prohibition) Amendment, The amendment became

( 1) (1855) 18 How 331 at 348.

( 2 ) 282 U.S. 716.

KESAVANANDA v. KERALA (Pale.tar, J.) 569

pan of the constitution on a propOsal by the Congress and ratification by the State legislatures. Objection was raised to the validity of the amendment on the ground that since the amendment affected the per.

sonal libeny of the subject and under Article X the people had still retained rights which had not been surrendered to the Federal Constiru.

tion, the ratification ought to have been by the representatives of the . people at a special convention and not by the State legislatures. That ' objection was rejected on the ground that the Congress alone had the choice as to whether the State legislatures or the conventions had to ratify the amendment. Conversely, in Hawke v. Smith(') which also related to the 18th amendment it was held that the State of Ohio could not provide for the ratification of the. 18th amendment by popular referendum since such a procedure altered the plain langiiage of Article V which provides for ratification by State legislatures rather than by direct action of the people. It will be seen from thi$ case that the

State legislature for Ohio, instead of deciding on the ratification itself as it was bound to do under Article V, decided to obtain the opinion of the people by a referendum but such a procedure was held to be illegal because it did not find a place in Article V. This establishes that an amendment of the constitutiion must be made strictly in accordance with the method laid down in the constitution and any departure from it even for the purpose of ascertaining the true wishes of the people on the question would be inadmissible. An amendment of the constitution must be made only in accordance with the procedure laid down in the constitution and whatever individuals and bodies may think that it had better be made by a representative constituent assembly or a convention or the like is of really no relevance.

Under Article 368 the Parliament is the Principal body for amending the consutution except in cases referred to in the proviso. Parliament need not be associated with the State legislatures in making an amendment of the constitution in cases excepted from the proviso.

It cafi?ot be lost sight of that Parlianient in a very large way represents the will of the people. Parliament consists of two Houses-the Lok

Sabha and. the Rajya Sabha. The Lok Sabha is elected for five years on the basts of adult franchise. The Rajya Sabha is a permanent body -members of which retire by rotation. The Rajya Sabha consists of members elected by the State legislatures who are themselves elected to those legislatures on the basis of adult franchise. Then again there is a striking difference between the position occupied by the Congress in relation to the President in United States and the position of the Executive in relation to the Parliament and the State legislatures in India. In America the President is directly elected by the people for a term and is the Executive head oE the Federal Government. The

( 1) 253 U.S. 221.

570 SUPREME COURT REPORTS [1973] Supp. s.c.R.

Congress may make laws but the President is not responsible to the Congress. In India, however, in our Parliamentary system of democracy, as in Great Britain, the Executive is entirely responsible to the legislature. The Congress in U.S.A. will not be held responsible by the people for what the President had done in his Executive capacity.

The same is true in respect of State legislatures in America. In India people will hold the Parliament responsible for any executive action taken by the Cabinet. While in the context of a constitutional amendment it is facile to decry the position of Parliament as a constituent body, we cannot ignore the fact that in both Great Britain and New- Zealand-one with an unwritten constitution and the other with a written constitution-governed by Parliamentary democracy, the <:onstitution could be changed by an ordinary majority.

Why the power to amend the consti.tution was given in the main to Parliament is not fulJy clear. But two things arc clear. One is that as in America the people who gave us the constitution completely withdrew themselves from the process of amendment. Secondly, we have the word of Dr. Ambedkar-one of the principal framers of our constitution that the alternative methods of referendum or convention had been considered and definitely rejected.

See Constituent Assembly Debates, Vol. VII page 43. They decided to give the power to Parliament, and Dr. Ambedkar has gone on record as saying that the amendment of the constitution was deliberately made as easy as was reasonably possible by prescribing the method of Article 368. The Constituent Assembly Debates show that the chief controversy was as to the degree of flexibility which should be introduced into the constitution. There may have been several historical reasons for the constituent assembly's preference for Parliament. Our country is a vast continent with a very large population. The level of literacy is low and the people are divided by language, castes and communities not all pulling in the same direction. On account of wide-spread illiteracy, the capacity to understand political issues and to rise above local and parochial interests is limited. A national perspective had yet to be assiduously fostered. It was, therefore, inevitable that a body which reptesented All-India leadership at the centre should be the choice.

Whatever the reasons, the Constituent Assembly entrusted the power of atnendment to the Parliament and whatever others may think about a possible better way, that was not the way which the constituent assen:bly commanded. The people themselves having ithdrawn from the process of amendment and entrusted the task to the Parliament in.stead of to any other representative body, it is obvious that the power of the authorities designated by the constitution for amending the constitution must be co-extensive with the power of a convention or a constituent assembly, had that course been permitted by the co.

stirution.

KESAVANANDA v. KERALA (Palekar, J.) 571

We have already shown that constituent power is qualitatively ruperior to legislative power. Speaking about the legislative competence of the Canadian Parliament, Viscount Sankey L.C. speaking for the Judicial Committee of the Privy Council observed in British Coal Corporation v. The King(') "Indeed, in interpreting a constituent or organic statute such as the Act (British North America Act) that construction most beneficial to the widest po.ssihle amplitude of its powers must be adopted. This principle has been again clearly laid down by the Judicial Committee in Edwards v. Attorney-General for C"1Jada(2 ). 'Their Lordships do not conceive it to be the duty of thls Board - it is certainly not their desire - to cut down the provisrons of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but

Within certain fixed limits, may be mmttes< in her own house, as the Provinces to a great extent, but within certain fixed limits, are mistresses in theirs". If that is the measure of legislative power the amplitude of the power to amend a constitution cannot be less.

The width of the amending power can be determined from still another point of view. The Attorney-General has given to us extracts from nearly seventy one modern constitutions of the world and more than fifty of them show that those constitutions have provided for their amendment. They have used the word 'amend', 'revise', or 'alter', as the case may be, and some of them have a!So used other variations of those words by showing that the constitutional provisions may be changed in accordance with some special procedures laid down. Some have made the whole of the constitution amendable some others have made some provisions unamcndable; and two constitutions - that of Somalia and West Germany have made provisions relating to Human Rights unamendable. In some of the constitutions a few provisions are made partially amendable and other provisions only under special restrictions. But all have given what is commonly known as the 'Amending power' to be exercised in circumstances of more or less rigidity. The methods or processes may be more rigid or less rigidbut the power is the same, namely, the amending power.

The raison d'etre for mali'ing provisions for the amendment of the constitution is the need for orderly change. Indeed no constitution is

safe against violent extra-constitutional upheavals. But the object of making such a rovision in a constitutin is to discourage such upheavals and provide for orderly change m accordance with the constitution. On this all the text-books and authorities are unanimous.

Those. who frame a constitution naturally want it to endure but, however gifted they may be, they may not be able to proj'ect into the future,

( 1) [1935] A.C. 500 at p. 518.

(') [1930] A.C. 124, 136.

572 SUPREME COURT REPORTS (1973] Supp. S.C.R.

when, owing to internal or external pressures or the social, economic and political changes in the country, alterations would be necessary in the constitutional instrument responding all the time to the will of the people in changed condiitions. Only thus an orderly change is ensured. If such a change of constitution is not made possible, there is great danger of the constitution being overtaken by forces which could not be controlled by the instruments of power created under the constitution. Wide-spread popular revolt directed against the extrc~ rigidity of a constitution is triggered not by minor issues but by majol' issues. People revolt not because the scxalled 'unessential' parts of a constitution arc not changed but because the 'essential' parts are not changed. The essential parts arc regarded as a stumbling block i:n their progress to reform. It is, therefore, evident that if for any rea-. son, whether it is the extreme rigidity of a constitutiQil or the dis. inclination of those who are in power to introduce change by amend. ment, the essential parts looked upon with distrust by the people a~ not amended, the constitution has hardly a chance to survive against the will of the people. If the constitution is to endure it must neccs. sarily respond to the will of the people by inwrporating changes sought by the people. The survival of the American constitution i$ generally attributed not so much to the amending articl~ V of the constitution but to its vagueness which was cxyloited by the great judges of the Supreme Court of America who by their rulings adapt• ed the constitution to the changing conditions. Legislative enactments, custom and usage also played a part. If the constitution were to me1ely depend upon constitutional amendments there are many who believe that the constitution would not have survived. The reason was the extreme rigidity of the process of amendment. But framers of modern constitutions as of India learning from experience of other countries have endeavoured to make their constitution as precise and as detailed as possible so that one need not depend upon judicial interpretation to make it survive. Correspondingly they have made it more flexible so that it is amenable to amendment whenever a change in the constitution is necessary.

A good deal of unnecessary dust was raised over the question whether the amendment of the constitution would extend to the repeal of the constitution. That is an interesting subjec, t for speculation by

purists and theoretical jurists, but politicians who frame a constitution for the practical purposes of government do not generally concern themselves with such speculations. The pre-eminent object in fram; ng a constitution is orderly government. Knowing that no constitution, however, good it may seem to be when it was framed, would be able to bear the strain of unforeseen. developments, the framers wisely provide for the alteration of the constitution in the interest of orderly change. Between these tWo co-ordinates, namely, the need for orderly

KESAVANANDA. v. KERALA (Palekar, J.) 573

government and the demands for orderly change, both in accordance with the constitution, the makers of the constitution provide for its amendment to the widest possible limit. If any provision requires amendment by way of addition, alteration or repeal, the change would be entirely permissible. If one were to ask the makers of the constitution the rhetor, ical question whether they contemplated the repeal of the constitution, the answer would be, in all probability, in the negative. They did not toil on the constitution for years in order that it may be repealed by the agencies to whom the amendment of the constitution is entrusted. They wished it to be permanent, if not eternal, knowing that as time moved, it may continue in utility incorporating all required change.. made in an orderly manner. Declaring their faith in the constitution they will express their confidence that the constitution which they had framed with tho knowledge of their own people and their history would be able to weather all storms when it is exposed to orderly changes by the process of amendment. To them the whole.-sale repeal would be unthinkable; but not nece$sary changes in response to the demands of time and circumstance which, in the opinion of the then amending authorities, the current constitutional instrument would be able to absorb. This is sufficient for. the courts. to go on as it was suflicient for the framers of the constitution. Quibbling on the meaning of the word 'amendment' as to whether it also. involved repeal of the whole constitution is an irrelevant and unprofitable exercise. Luckily for us besides the word 'amendment' in Article 368 we have also the uncompliicated word 'change' in that article and thus the intention of the framers of the constitution is sufficientiy knoWil. Then again the expression 'amendment of the constitution' is not a coinage of the framers of our constitution. That is an expression well-known in modern constitutions and it is .s:ommonly accepted as. standing for the alteration, variation or change in its provisions.

Whichever way one looks at the amending power in a constitution there can be hardly any doubt that the exercise of that power must correspond with the amplitude of the power unless there are express or necessarily implied limitations on the exercise of that power. We shall deal with the question of express and implied limitations a little later.

But having regard to the generality of the principle already discussed the meaning of the word 'amendment of the constitution' cannot be less than 'amendment by way of addition, variation or repeal of any provision of the constitution' which is the clarification of that expression accepted by the Constitutional 24th Amendment. .

We $hall now see if there arc express or implied limitations in Article 368 itself. Article 368 is found in Part XX of the Constitution which deals with <;>nly one subject, namely, the Amendment of the Constitution. 'the article provides that when the special procedure directed by it is successfully followed the constitution ttands amended S7-36 S. C. IDdia/7~

574 SUPREME. COURT REPORTS [1973] Supp. S.C.R.

in terms of the propQSal for amendment made in the Bill. Whatever provision of the constitution may be sought to be amended, the amendment is an Amendment of the 'Constitution. The range is the whole of this constitution which means all the provisions of the constitution. No part of the constitution is expressly excepted from amendment. Part XX and Article 368 stand in supreme isolation, after the permanent provisions of the constitution are exhausted in the previous XIX parts. The power to amend is not made expressly subject to any other provision of the constitution. There are no governing words like "subject to the constitution" or this or that part of the constitution. If the framers of the constitution had thought it neces- <ary to exclude any part or provisi0n of the constitution froni amendment, they ould have done so in this par.t only as was done in the American constitution. Article V of that constitution, which was undoubtedly consulted before drafting Article 368, made two specific exceptions. The language structure of Article V has a close resemblance to the language structure of our Article 368. Therefore, if any pan of the constitution was intended to be excluded from the operation of the power to amend it would have normally found a place in or below article 368. As a matter of fact, in the draft constitution below Article 304, which corresp0nds to the present Article 368, there was article 305 which excluded =tain provisions fiom amendment, but later on article 305 itself was deleted. Even article 368 itself was not safe from amendment because the proviso to article 368 show$ that the provisions of the article . could be changed. Then again we find that when the people through the constituent assembly granted the power to amend, they made no reservations in favour of the people. The people completely withdrew from the process of amendment. In other words, the grant of power was without reservation.

Another thing which is to be rioted is that when the Constituent Assembly directed that amendments of the constitution must be made by a prescribed method, they necessarily excluded every other method of amending the constitution. As long as the article stood in its present form the Parliament could not possibly introduce its own procedure to amend the constitution by calling a constituent assembly, a convention or the like. Altogether, it will be seen that the grant of power under article 368 is plenary, unqualified and without any limitations, except as to the special .procedure to be followed.

The character of an amendment which can be made in a constitution does not depend on the flexibility or rigidity of a constitution.

Once the rigidity of the restrictive procedure is overcome, the constitution can be amended to -the same degree as a flexible constitution.

So far as a flexible constitution like that of Great Britain is concerned, we know there are no limits to what the Parlient can do by way of amendment. It can, as pointed out by Dicey, repeal the Act of Union ·

KESAVANANDA v. XERALA (Palekar, J.) 575

of Scotland by appropriate provisions even in a Dentist's Act. (Law of the Constitution page 145). We know that by the statute of Westminster the British Parliament removed most of the Imperial fettrs from the self governing colonies and by the Independence of India Act, 1947 surrendered its Indian Empire. Recently the British Parliament invited inroads on its sovereignty by joining the Commdn Market. Similarly, as we have seen in McCawley's case, referred to earlier, the legislature of queensland, whose constitution was a flexible constitution, was held competent to amend its constitutional provisions with regard to the tenure. of office of the Judges of the Supreme

Court by a subsequent Act passed in 1916 on the subject of Industrial Arbitration. To the objection that so important a provision of th¢ constitution was not permissible to be amended indirectly by a law which dealt with Industrial arbitration, Lord Birkenhead made the reply at page 713. "Still les.s is the Board prepared to assent to the argument, at one time pressed upon it, that distinctions may be drawn between di1ferent matters dealt with by the Act, so that it becomes legitimate to say of one section: "This section is fundamental or organic; it can only be altered in such and such a manner"; and of another: "Tb¥ section is not of such a kind; it may consequently be altered with as little ceremony as any other statutory provision." Their Lords.hips therefore fully concur in the reasonableness of the observations made by Isaacs and Rich JJ that, in the absence of any indication to the contrary, no such character can be attributed to one Bcction of the Act which is not conceded to all; and that if ss. 15 and 16 (relating to the tenure of office of the Judges) arc to be construed as the respondents desic, the same cha.-actcr must be conceded to s. 56, which provides that in proceedings for printing any extract frcim a paper it may be shown that such extract was bona fide made". This only emphasizes that all provisions in a constitution must be conceded the same character and it is not possible to say that one is more important and the other less important. When a legislature has the necessary power to amend, it can amend an important constitutional provision as unceremoniously as it can amend an unimportant provision of the constitution. Dicey observes in his Law of the Constitution, 10th edition p. 127 : "The "flexibility" of our constitution in the right of the Crown and the two Houses to modify or repeal any law whatever; they can alter the succession to the Crown or repeal the Acts of Union in the same manner in which they can pass an Act enabling a cdmpany to make a new railway from Oxford to London."

As already pointed out what distinguishes a 'rigid' constitution from a 'flexible' constitution is that it requries a special procedure for its amendment. It cannot be legally changed with the same case and in the same manner as ordinary laws. But if the rigid procedure is successfully followed, the power to amend operates equally

576 SUPREME COURT REpORTS [1973]' Supp. s.c.R.

on all provisions of the constitution without distincition. Indeed, rigid constitutions may safeguard certain provisions from amendment even by the special procedure. But where no such provision is protected the power of amendment is as wide as that of a Parliament with a exible constitution. Rigidity of procedure in the matter of amendment is the only point of primary distinction between a 'rigid' and 'flexible' constitution and when this rigidity is overcome by following the special procedure, the power of amendment is not inhibited by the fact that a constitutional provisions is either important or unimportant. The amending power operates on all provisions as dicctively as it does in a flexible constitution. If the nature of the provision is so important that the constitution itself provides against its amendment the amending power will have to inspect the provision.

But if it is not so protected, every provision, important or otherwise, can be amended by the special procedure provided.

In that respect the fact that the constitution is a 'rigid' constitution docs not place any additional restraint.

We have already referred to the principle underlying the Amending provision in a written constitution. In some constitutions the special procedure is very 'rigid' as in the American constitution.. In others, especially in more modem constitutions, having regard· to the disadvantages of providing too rigid and restrictive procedures; amend• ing procedures have been made more and more flexible. Our constitution which learnt from the experience of other similar con•titutions made the amending procedure as flexible a8 was reasonably PQ!!Siblc. There are several articles in the constitution which permit the Parliament to make laws which arc of a constitutional character. There are some other articles which permit amendments to certain other specified prC>- visions of the constitution by the ordinary legi$;1ative procedtire; For the rest there is article 368 which provides a much more flexible procedure than does the American constitution. The following passages from the book 'Political Science and Compru:ative Constirutioi; ial Law, Vol. I' writ.. ten by the great jurist John W. Burgess will show both the rationale for including an amendment clause in a constitution and the need of making the amending procedure as lcu rigid as possible. At page 137 he says "A complete constitution may be said to consist of three fundamental parts. The first is the organisation of the state for the accomplishment of future changes in the constitution. This is usually called the amending clause, and the power which it describes and regulates is called the amending power. This is the most important part of a constirution. Upon its existence and truthfulness, i.e. its correspondence with real and natural conditions, depends the question as to whether' the state shall develop with peaceable continuity or shall suffer alterations of stagnation, retrogrC$&on and revolution. A constitution, which may be imPerfcct and enoncous ill i4 other parts. can be easily , supplemcntcd and corrected, if only the state be truthfully organised in the constitution; but if this be not accomplished, error will accumulate until

nothing short of revolution can save the life of the state''. Than at pages 150/151 commenting on the disadvantages of the amending procedure of the American constitution he remarks "When I reflect that, while our naJ:Ural. conditions and relations have been requiring a gradual strengthening and extc..'ISion of the powers of the Central Government, not a single 1tep has been taken in this direction through the process of ameruhnent prescribed in that article, except as the. result of civil war, I am bound to conclude that the organization of the sovereign power within the constitution has failed to accomplish the purpose for which it 'Was con:structed ...... But I do say this that when a state must have recourse to war to 110lve the internal questions of its own politics, this is indisputable evidence that the law of its organization within the constitution is imperfect; and when a state cannot so modify and amend its constitution from time to time as to express it.lei£ truthfully therein, but must writhe under the bonds of its constitution until it perishes or breaks them asunder, this is again inrusputable evidence that the law of its organization within the constitution is imperfect and false. To my mind the error lies in the arti.ficially exci:ssive majorities required in the production of constitutional changes." These passages

express the deep anguish .of the jurist and his disappointment with the current process of amendment prescribed in the U.S. constitution. He gives the amending provision supreme importance in the constitution and wants it to be very much less rigid than what it is, so that the constitution can correspond w:ith the truth of contemporary, social and political changes. The whole object of providing for amendment is to make the constitution as responsive to contemporary conditions as possible because, if it is not the danger of popular revolt, civil war or even revolution in a rapidly changing world may soon.overtake the people.

That bting the political philosophy behind the amending provision it is obvious that the provision must serve the same purpose as in a Parliamentary democracy with a flexible constitution. The latter can adjust itself more readily with changing conditions and thus discourage violent revolts. If the object of a constitution is the same, namely, orderly government and orderly change in accordance with the law, it must be conceded that all constitutions whether flexible or rigid must have the power to amend the constitution to the same degree; and if ftexible constitutions have the power to make necessary changes .in their most cerihed constitutional principles, this power cannot be denied to a const1tut1on merely because it is a rigid constitution. The amending power in such a constitution may therefore, reach all provisions whether important or unimportant, essential or unessential.

The above proposition is supported by several decisions of the Supreme Court of America and the Supreme Courts of the American

578 SUPREME COURT REPORTS (1973] Supp. S.C.R.

States, the constitutions of which are all 'rigid'. In Edwards v. Lesueur(') it was held that if a State Constitution provides that General Assembly may at any time propose such amendments to that instrument as. a majority of the members elected to each house deem expedient the substance and extent of amendment are left entirely to the discretion of the General Assembly. In Livermore v. Waite(') only one of the judges, Judge Harrison, held the view that the word 'amendment' in the State Constitution implied such an addition or change within the lines of the original instrument as will effect an improvement or better carrying out of the purpose for which it was framed. But that view is not shared by others. In the State Constitution of California the word 'amendment' was used in addition to the word 'revision' and that may have influenced the judge to give the word 'amendment' a special meaning. The actual decision was dissented from in Edwards v. Lesueur referred to above, decided about 10 years later, and the opinion of Judge Harrison with regard to the meaning of the word 'amendment' was dissented from in Ex-parte Dillon.(') This case went to the Supreme Court of America in Dillon v. Gloss(') and the decision was affirmed.

The challenge was to the Prohibition Amendment (18th) and the court observed at p. 996 "An examination of Article V discloses that it is intended to invest Congress with a wide range of power in proposing amendments. Passing a provision long since expired (that provision expired in 1808) it subjects this power to only two restrictions : one that the proposal shall have the approval of two thirds of both Houses, and the other excluding any amendment which will deprive any state, without its consent, of its equal suffrage in the Senate. A further mode of proposal-as yet never invoked-is provided, which is, that on application of the two thirds of the states Congress shall call a convention for the purpose. When proposed in either mode, amendments, to be effective, must be ratified by the legislatures, or by conventions, in three fourths of the states, "as the one or the other mode of ratification mav be proposed by the Cortgress." Thus the people of the United States, by whom the Constitution was ordained and established, have made it a condition to amending that instrument that the amendment be submitted to representative assemblies in the several states and be ratific:d in three fourths of them. The plain meaning of this is ( l) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ratification by these assemblies in three fourths of the states shall be taken as a decisive expression of the people's will and be binding on all". The above passage is important from two points of

( 1) South Western Reporter Vol. 33, 1130.

{ 2 ) 102 Cal. 118. (') 262 Federal Reporter 563 decided in 1920. (') 65 Law edn: 994.

KESAVANANDA II. KERALA (Pa!ekar, J.) 579

view. One is that Article V subjects the amending power to no restrictions except the two expressly referred to in the article itself, and the second point which is relevant for our purpose w that the people's ratification may be obtained in one of two ways, namely, by the State legislatures or by State conventions. It was for the Congress to choose between these two ways of ratification. But whichever method was chosen, the ratification whether by the State legislatures or by special conventions, was the ratification on behalf of the people because they were representative assemblies who could give a decisive expression of the people's will. As a malter of fact although several amendments have been made to the constitution under Article V there has been only one,. namely, the 21st Amendment which had been referred to state conventions. All other amendments were proposed by the Congress and ratified by the State legislatures-the ratification being regarded as by people's representatives who could decisively express the people's will.

If the State legislatures in America which have no responsibility for the executive government of the State are deemed to reflect the will of the people there is greater reason to hold that our Parliament and State legislatures are no less representative of the will of the people when they participate in the procr& of amendment of the constitution.

But reverting to the consideration of the character of "an amendment of the constitution", we find from decided American cases that there are no limits except those expressly laid down by the constitution.

In Ex-parte Mrs. D.C. Kerby(') decided by the Oregon Supreme Court in 1922 which concerned an amendment restoring the death penalty which had been abolished by a previous amendment to the Bill of Rights of the State Constitution, the following observations in State v.

Cox( 2 } were quoted with approval. "The constitution, in prescribing the mode of amending that instrument, does not limit the power conferred to any particular portion of it, and except other provisions by declaring them not to be amendable. The general assembly, in amending the constitution, does not act in the exercise of its ordinary legislative authority of its general powers; but it esses and acts in the character and capacity of a convention, and is, quoad hoc, a convention expressing the supreme will of the sovereign people and is unlimited in its powers save by the constitution of the United States. Therefore, every change in the fundamental law, demanded by the public will for the public good, may be made, subject to the limitation above named."

In Downs v. City of Birmingham(') the Supreme Court of Alabama held that an amendment to state constitution may extend to a change in form of the state's government, which may be in any res-

(1) 103 Or. 612.

( 2) 8 Ark. 436.

( 3 ) 198 Southern Reporter, 231.

580 SUPRl!Mll COURT REPORTS [1973] Supp. s.c.11.

pect except that the government must continue to be a republican form of government as required by the U.S. fderal constitution, which was inviolable, and that rights acquired under tbe constitution arc subject to constitutional provisions permitting amendw~ lts to the constitution, and no right can be acquired under the State cO!iAitution which cannot be abridged by an amendment of the constitutiOn and such a rule extends to contract and property rights. ·

In Schneiderman v. United States of America(') which was a dcnaturalization case on the ground of non-allegiance to the "principles" of. the American constitution, Murphy J. delivering the opinion of the court said, pp. IBOS-1809 :. 'The constitutional fathers, fresh from a revolution, did not forge a political strait-jacket for the generations to come. Instead they wrote Article V and the Fir~ Amendment, guaran- . teeing freedom of thought, soon followed. Article V contains procedural provisions for coIUtitutional change by amendment without any present limitation whatsoever except that no State may be deprived of equal representation in the Senate without its consent. Cf. National Prohibition Cases (Rhode Island v. Palmer)('). This provision and the many important and far-reaching changes. made in the constitution since 1787 refute the idea that attllthment to any particular provision or provisions is csscm:ial, or that one who advocates radical changes is necessarily not attached to the constitution."

In Ullmann v. Uniud Staus(8) Frankfurter, J. delivering the opinion of the Supreme Court on the privilege against self-incrimination (Vth amendment) which, by the way, is recognized by our constitution as a fundamental right, quoted with approval Chief Judge Macgrudcr who said "if it be thought that the privilege is out-moded in the conditions of this modern age then the thing to do is to take it out of the constitution, not to whittle it down by the subtle encroachments of judicial opinion."

Recently in Whitehill v. Elkins,(') Douglas, J. delivering the opinion of the court, observed at p. 231 "If the Federal Constitution is our guide, a person who might wish to "alter" our form of Government may not be cast into the outer darkllClllS. For the constitution prescribes the method of "alteration" by the amending process in Article V; and while the procedure for amending it is restricted, there is no restraint on the kind of amendment that may be offered."

( 1) 87 Law. ed. 1796.

( 2) 65 Law. ed. 946. (') 100 Law. ed. 51 I. ('' 19 Law. ed. 2d. 228.

i •

XESAVANANDA v. KERALA (Palekar, J.) 581

It is unnecessary to multiply cases to appreciate the width of the amending power in a 'rigid' constitution.. Even the dictionaries bring out the same sense. The word 'amend' may have different nuances of meaning in different contexts, like "amend once conduct'', "amend a letter or a document", "amend a pleading", "amend a law" or "amend a constitution". We are concerned with the last one, namely, what an amendment means in the context of a constitution which contains an amending clause. In the Oxford English Dictionary, Vol. I the word 'amend' is otated to mean ''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 thwan it."

Sutherland in his Statutes and Statutory Construction, third edition, Vol. I, p. 325 has explmed an "amendatory act'', as any change of the scope or effect of an e:xisting statute, whether by addition, omission, or substitution of provisions, which docs not wholly terminate its existence, whether by an act purporting to amend, repeal, revise, or supplement, or by an act independent and original in form.

In Words and Phrases, Permanent edition Vol. 3, p. 447 it is generally stated that the word 'amendment' involves an alteration or change, as by addition, taking away or modification. It i.s further explained that the words 'amend', 'alter', and 'modify' are in general use and their meaning is not uncertain. Each means to change. A broad definition of the word 'amendment' would include any alteration or change.

Further on ( 458) it is explained in the context of a constitution that an 'amendment' of a constitution, repeals or changes some provision in, or adds something to, the instrument amended. Then citing Downs v.

City of Birmingham, already referred to, it is stated that every proposal which effects a change in a constitution or adds to or takes away from it is an 'amendment', and the proposal need not be germane to any other feature of the constitution, nor to the feature which is amended.

Similarly citing State v. Fulron(1) it is explained that the word 'amendment', when used in connection with the constitution, may refer to the addition of a provision on a new and independent subject, complete in itself and wholly disconnected from other provisions, or to some particular article, or section, and is then used to indicate an addition to, the striking out, or some change in that particular section."

In Standard Dictionary of Funk and W agnalls 'amendment' is defined as an act of changing a fundamental law as of a political constitution or any change made in it according to a prescribed mode of procedure; as to alter the law by amendment, an amendment of the constitution.

( 1) 124 N.E. 172.

582 SUPllEME COURT llEPORTS [ 197J] Supp; s.c.R.

In a _Dictionary of the Social Sciaices edited by Jtilius Gould and William L. Kolb compiled under the aupkes of the Unesco p. 23 the word 'amendment' has been explained. "The. term 'amendment', hen ever used, has the cm:e denotaWri of alteration or change. Historically the change or alteration denoted was for the sake of correction or im provement In the realities and contr0versies of politics, however; the nature of correction or improvement becomes uncertain, so that altera tin or change remains the only indisputable meaning as the term is applied. Probably the most fundamental type of formal amendment is . that which is constituted by the .alteration of the formal language of

written constitutions. The importance of the amending procedure in a time of serious social change has been stated. by C. J. Friedrich. 'A well drawn constitution will provide for i.ts pwn amendment in such a way as to forestall as far as is humanly possible revolutionaty upheavals.

That being the case the provisions for amendmc.il! form a 'vital part of most modern constitutions.' (Constitutional Government and Democracy-Bos.ton . 1941 p. 135}." It will be thus seen-that having regard to the object 0£ providing an amendment clause in a modem consti tution, amendment must stand for alteration and change in its provisions.

That this was intended is clear from the wording of Article 368.

The main part ol. the Article speaks only of "an amendment of this constitution." It hows how .a proposal for amendment becomes part cJ. the constitution. The language structure of Article 368 recalls the language structure of Article V of the. American constitution. There also the words used are "amendment of this constitution", and nothing more. No such supplementary words like "by addition, alteration or repeal" arc Used, Y ct we have seen that so far as Article V is concern ed an a.tl!lendment under Article V involves alteration and change, "in the constitution. Article 368 has. a proviso which begins with these words "provided that if such amendment seeks to make any change in -

(a) article 54, article 55, article 73, article 162 or article 241, or (b) Chapter IV of Part V, Chilpe,. V of Part VI, or Chapter I. of. Part XI, or (c) any of the Liars in 'the Seventh Schedule, or (d).the'representa tion of States in Parliament, or ( e) th~ provisions of this article, die amendment shall also rTa~ to be ratified by the legislatures ct.c. etc." The proviso, therefore, ly implies that an anieridment .under irti cle 368 seeks to make a c/umge in the provisions of th~ i:olistitutioo.: If the amendment seeks to make a change hi the piovislons referred to in sub-clause (a) to (e) then only the amendment, whicbmakes .such a change in these provisions requires ratifaatiop by the State legiA!atures.

Otherwise, the amendment making a change in other .provisions does not require ratification. we have already ed thit the. meamng of the word 'change' is uncomplicated and can be easily felt and under

stood. The noun 'change' according to the Shorter OxfOrd 'English Dictionary means "substitution or succeS&iori-'of one .thing in place of

) ' i;

DSAVANANDA ti. uaALA (Pa/elc.11r, J.) 583

:mother; substitution of other conditions; variety." It also means "alteration in the state or quality of anyt; hing;. variation, mutation." There can be no doubt, therefore, that, ha'ting regard to the importance of the amending clause in our cO!lstitution, an amendment contemplates changes in the provisions of the constion which are capable of being effected by adding, altering or rcpcal.ing them, as found necessary, from time to time. As a matter q{_fact it is il!lpossible to concei..-: of even the llimplcst form of amendmentiwithout adding, altering or repealing. If you add some words to a provision of the constiti; tion"you thereby alter the provision. If you substt'tutc a few words, you alter and itJ>Cal. Mr.

Palkhivala admitted that he had no. objc¢on whatsdeVer to an amend.

ment improving the constitution s0 that! it can serve the people better.

He said that it was open to the Parliament to improve the content of the constitution by making necessary changes. All that would necessarily imply amendment by 'way cl addi, tion,. variation or repeal of a provision of the constitution which is just what the 24th amendment

ms to do. As a matter of fact any amendment to the consritution which the representatives of the people want to make is professedly an improvement. No proposer of an amendment of a constitution, whatever his opponents may say to the cOb.tnry, will ever agree that his. proposal is retrOll'cssive. Therefore, improvement o!" nonimprovcment cannot be the true test of an amendment. Alteration and change in the provisions is the only simple meaning, which the people for whom the col\lltitution is made, will understand.

Having seen. the importance of the amending clause in a constitution, the philosophy underl}'ing it and the amplitude of its power, it will be improper to try to cut down the meaning of the word 'amendment' in th~ expression 'mendment of the constitution' by comparing it with the same word used in other provisions of the constitution or other statutes in a different context. . Not that such a comparison will in any way serve the object with which is made, but it will amount to comparing, in effect, two worde operating on a higher plane and the other on a lower. The wdrd endment in the expression "amendment of the constitution" operates on a higher plane and is substantially different in connotation from the same word used on a lower plane iii some other provision of the cooatitution or any other statute in an enrircly different context. To say that the word 'amendment' in 'amendment of the constitution' is used in a low key because padding words like amendment "by way of addition, variation or repeal" are used else where in the constitution would be to ignore the status of tbl word 'amendment' when -used in the context of amending the cotution.

Indeed the express.ion "amendment by way of addition, variation or repeal" would also amount to 'amendment'. But it is more appropriate ly used when some distinct provisions oE a statute arc under consideration and even the extreme limit of. a repeal of such provisi0ns is con-

S84 SUPREME :COURT REPORTS [1973] Supp. s.c.R.

templated. In the case of an amendment of the constitution this extreme limit of the repeal of the constitution is not, as already pointed out, ordinarily contemplated. In the present case the comparison was principally made with "amend by way of addition, variation or repeal in sub-paragraphs (1) of para 7 and 21 in the Fifth and Sixth Schedules respectively. In both these cases, Parliament is authorized from time to time, by law, to make the amendment in any of the provisions of the two schedules. The authority is not oruy to add to the provision or vary the provision but even repeal the provision. Having provided that way in sub-paragraph 1 the framers of the constitution added sub-para (2) in each case, but for which, what was done in accordance with sub-para (1) was likely to be misunderstood as an amendment of the constitution as described in Article 368. Textually the provisions in the Schedules would stand amended. But this amendment is carried out 'by law'. On the other hand, if even a word in any provision of the constitution is changed in accordance with Article 368, it is not described as an amendment of the provision but an Amendment of the Constitution with all its wide connotations.

In Articles 4 and 169 (2) we have just the word 'amendment' for amending certain provisions of the constitution by law, and both of them show in their context, without even the use of the padding words, that such an amendment would be really by way of addition, alteration and repeal. Then again such amendments are expressly taken out of the class of "amendment of the constitution for the purposes of arti- cle 368" but for which they would have amounted textually to an amendment.

Reference was also made to the amendment made by the constituent assembly in section 291 of the Government of India Act, 1935 where similar padding words were used along with the word 'amend'. Here again it will be seen that the amendment was not an amendment of the constitution but an authorization of the Governor General to amend, by Order, certain provisions relating to the Provincial Legislatures which were liable even to be repealed. No implications can be drawn with regard to the power under article 368 by a reference to another statute where a particular phraseology is adopted in its own context. On the other hand this may be contrasted with the wording of section 308 (later repealed) which provided for 'the amendment of the Act and the Orders In Council' on the proposals made by the Federal and State legislatures. The Act referred to is the Government of India Act, 1935. No padding words are used in the section although the context shows that amendment would inevitably involve adding, altering or repealing certain provisions of the Government of India Act or Orders in Council.

The structure of article 368 is now changed by the 24th amendment and the expanded expression "amendment by way of addition. varia-

KESAVANANDA v. KERALA (Palekar, J.) 585

tion or repeal, any provision of this constitution" is adopted. The language structure of the original article 368 was, however, different and there was no reference to "the provisions" of the constitution therein. The article commenced with the words "An amendment of this constitution" without reference to any provisions. Reference to "provisions of the constitution" having been eschewed, to pad the expression "amendment of the constitution" by the words "by way of addition, variation or repeal" would have been inappropriate; because such padding was likely to give the impression that the intention was to amend by addition to and, alteration and repeal of, the constitution, considered as a whole. Neither the alteration nor the repeal of the constitution, as a whole, could have been intended and hence the padding words would not have commended themselves to the Draftsmen. And becausethat was not the intenti.:>n, we have to take the first

step, off legally construing "this constitunion" as "every provision of the constitution" and then import the padding wotds with reference to the pil:)vision. . Such . a construction is perfectly permissible having regard to the general meaning of the word 'amendment'. Since doubts were expressed in the leading majority judgment of five judges in opposition to the view of-the other six judges, who agreed that the word 'amendment' was wide in its application, the 24th amendment had to clarify the positionc

Article V of the American constitution used only the words 'amendment to the constitution' without any padding like "by way of-addition, variation or repeal" and yet no body questions the fact that after 1789, when the constitution was framed, there have been several additions, alterations and repeals. Actually the 18th amendment was repealed by the 21st.

We thus come to the conclusion that so far as the wording of article 368 itself is concerned, there is nothing in it which limits the power of amendment expressly or by necessary implication. Admittedly it is a large power. Whether one likes it or not, it is not the function of the court to invent limitations where there are none. Consequences of wreckleS:S use of the power are political in character with which we are not concerned. Consequences may well be considered in fixing the

sq>pe and ambit of. a power, where the text of the statute creating the power is unclear or ambiguous. Where it is clear and unambiguous,

co~ have to implement the same without regard to consequences good ot bad, just or unjust. In Vacher's(') case Lord Shaw observed at page 126 "Were they (words) ambiguous, other :;.ections or sub-sections might have to be invoked to clear up their meaning; but being unambiguous, such a reference might distort that meaning and 86 prodUce error. And "- course this is ti frmiori the case; if a reference is

(') [19U] A.Q., J87,

586 SUPREME COURT REPORTS [1973] Supp. s.c.R.

suggested, not to something within, but to considerations c:xtraneous to, the Act itself. If, for instance, it be argued that the mind of Parliament

"looking before and after," having in view the past history of a question and the future consequences of its language, •must have meant something different from what is said, then it must be answered that all this essay in psychological dexterity may be interesting, may help to whittle language down or even to vaporize it, but is a most dangerous exercise for any interpreter like a Coun of law, whose duty is loyally to accept and plainly to expound the simple words employed."

We have to see next whether there are express limitations on the amending power elsewhere in the constitution. The only provision to which our attention is drawn in. Anicle 13(2). The anicle, before its amendment by the 24th amendment, was as fo!IO..Vs : ..

i3. (1) All Jaws in force in the territory of India. immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part,· shall, to the extent of . such inconsistency, be void,

(2) The State shall not make any Jaw which takes away or . abridges the rights conferred by this Part and . any law made in contravention of this clause shall, to the extent of the contravention be void.

 (3) In this article, unless the context otherwise requires,-

.. (a) "law" includes any Ordinance, order,· bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law ;

(b) "laws in force" includes laws passed or made by a Legislature or otherwise competent authority in the territory of India 'before the 'commencement of this Constitution and not previously repealed, notwithstanding that any such law or any pan thereof may not be th, en in operation either at all or in particular areas.

It is obvious from Articles 13(1) and (2) that the intention was to make the fundamental rights paramount and invalidate all laws which were inconsistent with the fundamental rights. On the commencement of the Con.sritution of India there could not possibly be a vacuum with regard to laws and, therefore, by article 372 (I) all the laws in force in the territory of India immediately before the commencement of the Constitution were continued in force until altered or repealed or amended by a competent legislature or other competent authority. Such laws which were in force before the commencement of the constitution and were continued under article 372(1) were, in the first instance, declared void . to the extent of their inconsistency with the provisions of Part III containing the fundamental rights. As to future laws provision was made

KESAVANANDA v. KERALA (Palekar, J.) 587

under clause (2) which commanded that the State shall not make a law which takes away or abridges the rights conferred by Part III and further added that any law made in contravention of the clause would be void to the extent of the contravention.

It was contended before us that an amendment of the constitution under Article 368 was ; i, law made by the State and, therefore, to the extent that it contravened clause (2) it would be void. The submission was similar to the one made in Golak Nath's case which was upheld by the majority of six judges. In the leading majority judgment it was held that it was a law which. was made under Article 248 read with the residuary entry 97 of List I of the Seventh Schedule and, therefore, would be void if it took away or abridged any of the fundamental rights. Hidayatullah, J. who agreed with the conclusion did not agree that the power to amend was traceable to the residuary artide referred to above. Nevertheless he held "it was indistinguishable from the other laws of the land for the purpose of article 13(2)." The other five judges who were in the minority agreed substantially with ' ' the view taken in Sankari PraMd's case and by the majority in Sajjan Singh's case that this was not a law within the meaning of article 13(2) because, in their opinion, an amendment of the constitution under Article 368 was an act in exercise of the constituent power and was, therefore, outside the control of article 13(2).

Mr. Palkhivala submitted that he was not interested in disputing where the power to amend actually lay. Even assuming, he contended, the power to amend was to be found in article 368. the worst that could be said against him was that the amendment was a constitutional law and in his submission even such a law would be taken in by article 13(2). In this connection he argued that there were certain laws made in the Indian Stat~ 'or even other laws which could be properly described as constitutional laws which continued in force after the commencement of the constitution and came within the category described . in article 13(1) and, therefore, there was no reason why an amendment of the constitution which was also a constitutional law should not come within the prohibition of article 13(2). The Indian Independence Act, 1947 and the Government of India Act, 1935 which were the two main constitutional statutes in accordance with which the country had been governed had been specifically repealed by article 395. No other statute of similar competence and quality survived our constitution. It may be that certain statutes of the States and other constitutional documents may have continued in force as laws under article 13(1) but it would be wrong to conclude therefrom that an amendment of the constitution. also being a constitutional law, would be deemed to have been included . in the word 'law' in article 13(2). We must be clear as to what 'constitutional !aw' means in a written constitution. Jennings in his The Law and the Constitution (fifth edition), pp. 62-05 points out that there ,

588 SUPREME COURT REPOl!.TS [1973] Supp. s.c.R.

is a fundamental clistinction between constitutional law and the rest of •the law and that the term 'constitutional law' is never used in the sense of including the law of the constitution and the law made under it.

In the context of the question in issue, we are concerned with our contitution which is the supreme fundamental law, on the touch-stone of which the valiclity of all other laws-those in force or to be made by the State-is to be decided and since an amendment of the supreme law takes an equal place, as already pointed out, with the rest of the provisions of the constitution we have to see whether an amendment of such quality and superiority is sought to be invalidated by article 13 (2). Other laws in force at the time of the commencement of the constitution consisting of state treaties or state statutes were not laws of this superior category. In fact artkle 372 ( 1) itself shows that if they were to continue in force they were to do so subject to the other provisions of this constitution and were liable to be altered or repealed or amended by a competent legislature or the other competent authority. All such laws though vaguely described as constitutional were made abso. lute!y subordinate to the constitution. In that respect they were nu better than any other laws which were continued in force after the: commencement of the constitution and to the exllent that they were inconsisent with the fundamental rights, they stood on the same footing as any other laws which continued in foJX.e after the commencement of the constitution. Their status was entirely subordinate to the constitution. On the other hand, the stature of a constitutional amendment, as already seen, is the stature of the constitution itself and, there. fore, it would be wrong to equate the amendment of the constitution with a so-called constitutional law or document which survived after the commencement of' the constitution under article 372(1).

An amendment of the constitution cannot be regarded as a law as understood in the coni; titution. The expressions 'law', 'by law', 'make a law', are found scattered throughout the constitution. Some articles, as shown by Bachawat, J. in Golak Nath's case at pages 904 and 905, are expressly continued until provision is made by law. Some articles of the constitution continue unless provision is made otherwise by law; some continue save .as otherwise provided by law. Some articles are subject to the provisions of aIJY law to be made and some are expmsed

not to derogate from the power of making laws. Articles 4, 169, para 7 of the Fifth Schedule and para 21 of the Sixth Schedule empower the Parliament to amend the provisions of the first, fourth, fifth and sixth schedules by law. A reference to all these articles will show that in all these articles the expression 'law' means a law made by the Parliament in accordance with its ordinary legislative procedure. On the other hand, it is a point worthy of note that article 368 scrupulously avoids the use of the word.'law'. After the proposal for amendment, introduced in Parliament in the form. of a Bill, is passed by the two

ltl!SAVANANDA "· ltEllALA (Palekar, J.) 589

Houses separately with the requisite majority and is assented to by the President with prior ratification by the requisite number of States . m certain cases mentioned in the proviso, the proposed amendment wntes itself into the constitution as a pan of it. It is not passed, as already pointed out, as any other law is passed by the ordinary procedure by competent legislatures. The ratification by the State legislatures by a resolution is not a legislative act. The whole procedure shows that the amendment is made by a process different from the one which is compulsory for any other laws made by the Parliament or the State legislatures, and hei:ice advisedly the term 'law' seems to have been avoided.

In doing this the framers of the constitution might have been influenced by the view held by many jurists in America that Article V of the American Constitution to which Article 368 conforms to some extent in its language structure don't regard an amendment of the constitution as a legislative act. Finer called it, as we have already seen,. the constitution itself. "In proposing a constitutional amendment, the legislature is not exercising its ordinary legislative function.". Corpus Juris Secundum, V-01. 16 pp. 48, 49. "Under Article V of the American constitution the proposal by the Congress for amendment and the ratification by the States are not acts of legislation". Burdick-The Law of the American Constitution, pp. 40-42. "Ratification by the States is not a legislative act"-W eaver Constitutional Law and its Administration, p. 50.

Serondly, we find in several places in our constitution the two words 'constitution' and the 'law' juxtaposed which would have been unnecessary if the word 'law' included the constitution also. For example; in the oath of the President mentioned in Article 60 and of the Governor of a State in Article 159 it would have been sufficient for him to swear that he would "preserve, protect and defend the laws" instead of swearing that he would "preserve, protect and defend the constitution and .the law". Similarly the Attorney General under Article 76 and the Advocate Generals of the States under Article 165 need have merely sworn that he would "discharge the functions conferred on him by law" inslled of t!i:it ''.he would discharge the functions conferred by a.pd ?, nde~ ~JS onst1tutldn' o; any other law for the time being in force . Similar. 1s the e<1se with the oaths prescribed in the I!Ird Schedule for t!Je judges of. the Supreme Court and the High Courts and t!he Comptroller d .. Auditor General. Indeed it is quite possible ; 0 urge at he ccJnstJtllon has been specblly mentioned in order tp empha- !12e its ~· 'But that is the very point. Its importance lies in Its suprelnal:y O'ief all in1s of others laws-a special position which the f; amers of the on.stttutton, thorr<'-!ghl y acquainted with federal and quasi-federal constllUtIOlls of the more important countries in the w.or11, must hae .always known. In any case they knew that the constttution was distinct from other laws. On that footing it would be

38-36 S. C. India/73

590 SUPREME COURT REPORTS (1973J Supp. S.C.L

only reasonably expected that if an Amendment, not being of the nature of an ordinary law, was in11ended to be included in word 'law' in article 13(2), it would have been specifically mentioned in the definition of the word 'law' given in clause 3(1) of Article 13. The definition is an inclusive definition. It does not mention enacted law or statute law in the definition, apparently because no-body needs to be told that an act of a legislature is law. But it includes such things like an Ordinance, Order, bye, law, rule, regulation, notification, custom or usage in order to clarify that altliough the aforesaid are not enactments of a legislature, they were still 'law' falling within the definition. An objection seems to have been anticipated that ordinances, orders, bylaws etc., not being the acts of a legislature, are not laws. That apparently was the reason for their specific inclusion. If, therefore, an amendment of the constitution was intei; ided to be regarded as 'law', not being an ordinary statute of the legislature, it had the greatest claim to be included specifically in the definition. las omission is, therefore, very significant.

The significance lies in the fact that the constitution pr its amendment is neither a law in force within the meaning of artlide 13( 1) con' tinued under article 372 ( 1); nor can 1t be regarded as a law made by the State within the meaning of article 13(2). The bar under article 13(2) is not merely against law but a law made by die State. A fundamental right conferred by Part III could not be taken away or abridged by law made by the "State". To leave no doubt as to what the 'State' means, Pair III,- containing the fundamental rights, opens with the definition of the word "State" in article 12. According to that definition the State includes the Government and the Parliament of India and the Government and the Legisl:uure 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 definition thus includes all goveq1mental organs within the territories of India d these governmental organs are either created under the constlitution or under the laws adopted by the constitution under Article 372. In other words, they arc all organs or agencies opeJ:ating under the constitution owing superior obligation to the constitution. It would be, therefore, wrong to identify 'state' in article 13(2) with anything more than the instruments created or adopted by the constitution and which arc required to work in conformity with the constitution. Nor can the word 'state' be regarded as standing for a Nation or a Conglomeration tt all the governmental Agencies. The Natipn is an amorphous conception. The bar under article 13(2) is against concrete instrumentalities of the

State, instrumentalities which are capable of making a law in accordance with the constitution.

. __ ,)

KESAVANANDA "· KEllALA (Palek..ar, J.) 591

By its very definition as discussed earlier, a body or set of bodies ·"' exercising, as indicated in the constitution, sovereign constituent power whether in a 'flexible' or a 'rigid' constitution is not a governmental organ owing supreme obligation to the constitution. The bod~ or bodies operate not under the consticution but over the constitution.

They do not, therefore, while amending the constitution, function as governmental organs and, therefore, cannot be regarded as the State for the purposes of Part III of the constitution.

We thus reach the conclusion that an amendment of the constitution is not a law made by the State and hence Article 13(2) W10uld not control an amendment of rhe constitution.

The same conclusion is arrived at by a slightly different approach.

Article 13(2) speaks of a law which becomes void to the extent it takes away or abridges a fundamental right as conferred by certain articles or provisions in Part III of the constitution. Th\ls it embodies the doctrine of ultra vires well-known in English law. In other words, it is a law about which one can predicate voidabilicy with reference to \he provisions of the constitution. This is possible only when it is a law made by the organs ol the State. When an amendment is made. we have already shown, it becomes partt of the constitution, taking an equal status with the rest of the provisions of the constitution. Voidability is predicated only with reference to a superior law and not an equal law. There is no superior law with reference to which_ its voidability can be determined. Indeed, if the amendment cannot entirely lit in with some other provisions of the constitution the courts might have to reconcile the provisions, as was done in Sri Venktaramana v.

The State of Mysore(') in which the fundamental right under Article 26(b) was read subject to Article 25(2) (b) of the constitution. The point, however, is that courts have no jurisdiction to avoid one provision of the law with reference to another provision of the same law.

It becomes metely a matter of construction. It follows, therefore, that an amendment of the constitution not being liable to be avoided with refe; enc.e. to a superior law is not a !aw about which you can predicate av01dab1hty and, hence, stands outside the operation of article 13(2).

If the fundamenal rights in Part III were unamendahle, nothing would have been easier than to make a specific provision about it .in Part XX .wh.ich dealt specifically with the subject of the amendment of the const1tut10n. That was the proper place. Article V of the America1 constitution clearly indicated the two subject.s which were unamedJ ..

ab!~. The Draft Constitution shows that, as a matter of fact there was article 305 under the subject "amendment of the constitutio;" ancl tbt

( 1 ) [1958] S.C.R. 895.

592 SUPREME COURT REPORTS f1973] Supp. s.C.R.

article had specifically made some parts of the onstitutin unaen?

able. Later, article 305 was deleted and the mam amendmg arttcle m the Draft Constitution, namely, article. 304 appeared in the garb of article 368 of the constitution with some additional subjects in the proviso.

In adopting the distinction between the 'constitution' and 'the law' the framers of the constitution did not create any new concept of the law being subordinate to the constitution. That was a concept which was well-recognized in Federal Constitutions specially providing for the amendment of the constitution by a special procedure.

No body disputes that law in its widest sense includes constitutional law as it doe~ natural law, customary law or ecclesiastical law.

The point is whether in our constitution 'law' includes an "amendment of the constitution". As already shown our constitution has maintained a meticulous distinction between ordinary law made by the legislature by ordinary legislative procedure and an amendment of the constitution under article 368. This is highlighted even when certain provisions of the constitution are amended by ordinary law. As already shown articles 4, 169 and paras 7 and 22 of die Fifth and Sixth Schedules respectively permit the Parliament llO make 'by law' certain amendments in the constitution, but in every case it is further provided that such an amendment made 'by law' shall not be deemed to be an amendment of the constitution for the purposes of article 368. When such a distinction is maintained between 'law' and 'an amendment of the constitution' the same cannot be impaired by reference to the word 'law' used by the Privy Council in a more comprehensive sense in McCawley's case .and Rana Singhe's(1) case. In the former the constitution was a flexible constitution. In the latter, J:hough it was a controlled constitution. the provisi\ln with regar<; I to the amendment of the constitution namely section 29(4) of the Ceylon (Constitution) Order in Council was. part of sectillll 29 which specifically dealt with the making of laws and. came. under, the subject heading of Legislative power and procedure. In bQth cases the legislature was sovereign and as often happens in legislatures, principally modelled after the British

Parliament, the distinction between constitutional law and ordinary Jaw becomes blurred and the use of the word 'law' to describe a constitutional law. is indeterminate. We .are, however, concerned with our constitlition and cannot. ignore the distinctielll maintained by it in treating ordinary laws as different frm the amendment of the constitution under article 368. The forms of oath in the IIIrd Schedule referring

001 "constiti.ition. as by law established" prove nothing to the contrary because as "by iaw established" merely means constitution "as legally

(') [1965) A.C. 172.

KESAVANANDA v. KERALA (Palekar, J.) 593

established." There is no indication therein of any intended dichotomy between 'law' and 'the constit11tios'.

Referenee was made to the consitutent assembly debates and to the several drafts of the constitution to show how the original provision which culminated in article l3 underwent changes from time to time.

They hardly prove anything. The fact that initially article l3 "".as so worded as not to override the amendment of the fundamental nghts, but later the Drafting Committee drppcd rhat provision da<:s nt prove that the framers of the constitution were of the view that art1cle 13(2) should reach an amendment of the const!itution if it abridged fundamental rights. It had been specifically noted in one of the notes accompanying the first draft that -article 13(2) would not control an amendment of the constitution and, therefore, any clarification by a special provision to the effect that fundamental rights are amendable was not necessary except by way of abundant caution. (See : Shiva Rao "The Framing of India's Constitution, Vol. IV, page 26). That was apparently the reason for deleting that part of article 13 which said that article l3 should not. come in the way of an amendment to the constitution by which fundamental rights were abridged or taken away. Neither the speeches made by the leaders connected with the drafting of the constitution nor their speeches (the. same constituent assembly had continued as the provisional Parliament) when the first amendment was passed incorporating serious inroads into the fundamental rights conferred by articles 15, 19 and 31 show that the fundamental rights were intended or understood to be unamendable-rather the contrary.

The further argument that fundamental rights are inalienable natural rights and, therefore, unamcndablc so as to abridge or take them away does not stand close scrutiny. Articles l3 and 32 show that they are rights which the people have "conferred" upon themselves. A good many of them are not natural rights at all. Abolition of untouchability article 17), bolition of titles (article 18); protection against double. JeOpardr (arucl.e 20(2)); , Proction of children against employ- !Dent ii: factones (article 24); rrecdo_m as to attendance at religious msri:uct1on or religious worship in certain educational institutions (article 28) are not nat11ral rights. Nor are all the fundamental rights conceded to all as human beings. The several freedoms in article 19 arc conferred only. on citizens and not non-citizens. Even the rights

nfcrr.cd arc not m absolute terms. They arc hedged in and restricted ii: the mtcrest of the general public, public order, public morality, security f the State and. the like which shows that social and political consi- ?crat1ons are more 1.port, ant in our organized society. Personal liberty

JS cut down , by prov1S1on for preventive detention which, having regard to the cond1twns prevailingeven in peace time, is permitted. Not a

394 sUPDME COUllT UJGD [1973] Supp. s.c.a.

few mcmben of the constituent assembly resented the limiwions on freedoms on the ground Wt what was conferred was merely a husk.

Prior to the constitution no such inherent inalienability was ascribed by law to these rights, because they could be taken away by law.

The so called natural rights which were discovered by philosophers centuries ago as safeguards against contemporary political and social oppression have in course of time, like the principle of laissez faire in the economic sphere, lost their utility as such in the fast changing world and are recognized in modern political constitutions only to the extent that organized society is able to respect them. That is why the constitution has speciafically said that the rights are conferred by the people on themselves and are thus, a gifa of the constitution. Even in the most advanced and orderly democratic societies in the world in which i>olitical equality is to a large extent achieved, the content of liberty is more and mote recognized to be the produca. of social an4 economic justice without which all freedoms become meaningless. To claim Wt there is equal opportunity in a society which encourages or permits great dispartics in wealth and other means of social and politi ca I advancement is to run in the face of facts of life. Freedoms arc not intended only for the fortunate few. They should become a reality for those whose entire time is now consumed in finding means to keep alive. The core philosophy of the constitution lies in social, economic and political justice-one of the principal objectives of our constitu tion as stated in the Preamble and Article 38, and any move on the part of the society or its government made in the direction of such justice would inevitably impinge upon the "sanctity" attached to private property and the fundamental right to hold it. The Directive Principles of State Policy, which our constitution commands should be funda

mental in the governance of the countty, require the state to direct its policy towards securing to the citizens adequate means of livelihood.

To that end the ownership and control of the material resources of the community may be distributed to serve the common good, and care has to be taken that the operation of the economic system docs not result in 'the concentration of wealth and means of production to the com

mon detriment. See: Article8 37 liO 39. This mandate is as important for the State as to maintain individual freedoms and, therefore, in the final analysis it is always a continuous endeavour of a State, having the

r common good of the people at heart, so to harmonize the Directive Principles and the fundamental rights that, so far as property rights arc concencd, the unlimited freedom to hold it would have to undergo an adjustment to the demands of .the , State policy dictated by the Direc tive Principles. Deprivation of property in one form or other aiid even

expropriation would, in the eyes of many, stand justified in a democratic organization as long as those who arc deprived do not earn it by their own effort or otherwise fail to make adequate return to the society

in which they live~ The attribute of 'sacredness' of property vcs in an egalitarian society. And once this is accepted and depnvauon and expropriation are recognized as inevitable in the interest of a better social organization in which the reality of liberty and freedom can be more widely achieved, the claim made on behalf of property that it is an immutable and inalienable natural right .loses its force. One cannot lift parts of . the constitution above it by ascribing ultra-constitutional virtues to them. The constitution is a legal document and if it says that the whole of it is. amendable, we cannot place the fundamental rights out of bounds of the 'amending power. It is essential to note in the present case that though the plea. was generally made on behalf of all fundamental rights, the fundamental right with which we are concerned, principally, is the right to property. It will be sajlicient to note here that in modern democracies the tendency is n0H6 recognize right to property as an inalienable natural right. We can do no better than quote here a few passages from W. Friedmann's Leafil Theory, fifth edition, 1967.

"The official doctrine of the modern :(loman catholic Church. from Rerum Novarum (1891) onwards, and of most neo-scholastic philosophers, is that the 'right of private property is a dictate of natural law. But St. Thomas Aquinas and Suarez strongly

deny the natural law character of the right of private property and regard it (rightly as I believe) merely as a matter of social utility" p. 357.

"When faced with the solution of concrete legal problems. . we find time and again that natural law formulae may disguise but not solve the conffict between values, which is a problem of constant and painful adjustment between competing interest, purposes and policies. How to resolve this conffict is a matter of ethical or political evaluation which finds expression in current legislative policies and to some extent in the impact of changing ideas on judicial interpret1tions. And, of course, we all have to make up our minds as responsible human beings and citizeru what stand we will take, for example, in the tension between state security and individual. freedom. The danger is that by giving our faith the halo of. natural law we may claim for it an absolute. character from which it is only t<" easy to step to the _condemnation or suppression of any different faith." pp. 357-358.

"The ti.me is past when Western beliefs can be regarded as a measure of all things. Nor will the natural law hypothcois aid much in the solution of the ag<inising problem of the litnits of obedience to positive law. p. 359;

"'the main forces in the development of modern democratic

th.)ught have been the liberal idea of individual rights protecting

596 SUPJU!Ml! COU.T UPORTS [1973] Supp. s.c.R.

the individual and the democratic idea proper, proclaiming equality of rights and popular sovereignty. The gradual extension of the idea of equality from the political to the social anc! economic field has added the problems of social security and economic planning. The implementation and harmonisation of these principles has been and continues to be the main problem of democracy." p. '398;

"But democratic communities have universally, though with varying speed and intensity, accepted the principle of social obligation as limiting individual right." p. 399;

"But modern democracy, by the same. process which has led to the increasing modification of individual rights by social duties towards neighbours and community, has every-where had. to temper freedom of property with social responsibilities attached to property. The limitations on property are of many different kinds. The State's right of taxation, its police power and the power of expropriation-subject to fair compensation-arc examples of public restrictions on freedom of property which are now universally recognised and used. Another kind of interference touches the freedom of use of property, through the growing number of social obligations attached by law to the use of industrial property, or contracts of employment.". p. 405.

"The degree of public control over private property depends largely on the stringency of economic conditions. Increasing prosperity and availability of consumer goods has led to a drastic reduction of economic controls, and a trend away from socialisation in Europe. But in the struggling new democracies such as India, poor in capital and developed resources, and jealous of their a newly-won sovereignty, public planning and control 6ver vital r ... resources are regarlled as essential. The Constitution of the West German Republic of 1949, which reflects a blend of Amcrif can British and post-war German ideas on the economic aspects of democracv. lays down that land, minerals and means of production may be socialised or be subjected to other forms of public control by a statute which also regulates compensation. Such compensation must balance the interests of the community and those of the individual and leave recourse to law open to the person affected. Th; s still permits wide divcrgcncics of political and economic philosophy, but in the recognition of social control over property, including socialisation as a-licgitimatc though not a ncccs- ·

sarv measure, it reflects the modern evolution of democratic ideas.

Between the capitalistic democracy of the United States. and the

Social democracy of India there arc many shades and variations.

But modern democracy looks upon the right of property as one conditioned by so6a1 responsibility by the needs of society, by the

KESAVAN'ANDA v. KERALA (Palekar, J.)

S97

"balancing of interests" which looms so large in modem jurisprudence, and. not as preordained and untouchable private right." p. 406. .

Nor is it correct to describe the fundamental rights, including th( right to property, as rights "reserved" by the people to themselves.

The constitution docs not use the word "reserved". It says that the rights arc "conferred" by the people upon themselves, suggesting thereby that they were a gifl_Jlf the constitution. The constitution had, therefore, a right to take them away. This i~ indirectly recognised in Gola.k Nath's case where the majority has conceded that all the fundamental rights could be taken away by a specially convened constituent assembly.

When rights are reserved by the people the normal mode, as in the several states of America, is a referendum, the underlying principles being that ultimately it i~ the people, who had given the qmstitution and the rights therein, that could decide to take them away. In our oonstitution the people having entruted the power to the Parliament to amend the whole of the constitution have withdrawn theelves from the process of amendment and hence clearly indicated that there was no reservation. What the constitution conferred was made revocable, if necessary, by the amendatory process. In my view, therefore, article 13(2) does not control the amendment of the constitution. On that conclusion, it must follow that the majority decision in Golak Nath's case is not correct.

No reference was made to any other provision in the constitution as expressly imposing a limitation on the Amending Power.

It was next contended that there are implied or inherent limitations on the amendatory power in the very structure of the constitution, the principles it embodies, and in its essential elements and features (described briefly as essential features). They are alleged to be so good and desirable that it could not have been intended that they were tiable to be adversely affected by amendment.

Some of the essential features of the constitution were catalogued as follows :

(1) The supremacy of the constitution;

(2) The sovereignty of India;.

(3) The integrity of the country;

(4) The democratic way of life;

(5) The Republi.can form of Government;

( 6) The guarantee d basic human rights referred to in the Preamble and elaborated as fundamental rights in Part III of the constitution;

(7) A secular State;·

598 SUPREME COURT REPORTS [1973] Supp. s.c.11.

(8) A free and independent judiciary;

(9) The dual structure of the Union and the States;

( 10) The balance between the legislature. the executive and the judiciary;

( 11) A Parliamentary form of Government as distinct from Presidential form of Government;

(12) The amcndability of the constitution as per the basic scheme of article 368.

These, according to Mr. Palkhivala, arc some of the essential features of the constitution and they cannot be substantially altered by the amendatory process. .

A question of very wide import is raised by the submission. So far as the present case is concerned, the 24th amendment docs no more than give effect to Parliament's acceptance ofthe view taken in Sankari Prasd's case, the majority in Saiian Singh's case and the minority in Golak Nath's case with regard to the nature of the amending power in relation to fundamental rights. It is clarilicatory of the original Article 368. What was itnplicit in Article 368 is now made explicit and the essence of Article 368 is retained. Therefore, there can be no objection to the 24th Amendment on the ground that any essential feature of the constitution is affected.

The 25th Amendment introduces some abridgement of the fundamental right to property. Riight to property has been subject to abridgement right from the constitution itself (Sec: Article 31(4) &

( 6)) and the 25th amendment is a further inroad on the right to property. In Golak Nath's case, the first, fourth and the seventeenth amendments were held by the majority as having contravened article 13(2). Nevertheless the amendments were not struck down but permitted to continue as if thev were valid. Since I have come to the conclusion that article 13(2). does not control an amendment of the constitution, it must be held that all previous amendments to the constitution, so far made, could not be challenged on the ground of repugnancy to Article 13(2). It follows that any amendment of the constitution cannot be challenged on that ground, and that would be true not only of the 24th amendment but also the 25th amendment, and the 29th amendment.

The question still survives whether the 25th amendment and the 29th amendment are invalid bccausc,.as contended by Mr. Palkhivala, an essential feature of the aonstitution has been substantially affected. The argument proceeds on the assumption that in the ab!eJl(.c of any express limitation on the power Of amendment, all the

r --

KESAVANANDA "· KEl\ALA (Palekar, J.)

provisions in the constitution arc liable to be amended. He agrees, on this assumption, that even fundamental rights may be somewhat abridged if that is necessary. In this connection, he referred to . the first amendment by which articles 15 and 19 wmJ amended and m both these cases the amendment did abridge the fundamental rights.

Similarly. he conceded that articles 31A and 31B were amendments whereby the rights in landed estates were extinguished or substantially affected, but that was in the interest of agrarian reform, a fact of supreme importance in the Indian poiity which could not have been ignored for long and to which the Ruling party was committed for 'a long time. Thus although there had been amendments which abridged fundamental rights, these amendments in his submission did not go to the length of damaging or destroying the fundamental rights.

According to him they had not reached the 'core' of the rights. In other words, his submission is that there are some very good and desirable things in the constitution. One of them is fundamental rights, and though these fundamental rights could be abridged somewhat, it was not permissible to affect by amendment the core of the fundamental rights, including the core of the right to property. For this argument he relics on the basic scheme qf 'the constitution as first promulgated and contends that y Amendments made thereafter, including the 24th Amendment, would not affect.his argument, because, according to him, every one of them, must be evaluated on the principles and concepts adopted in that basic scheme. His further submission was that if such a core of a fundamental right is damaged or destroyed by an amendment, such an atnendment is illegal and, therefore, liable to be struck down by this Court as the guardian of the constitution. It necessarily follows from the submission that Mr. Palkhivala wanted this Court to decide whether by any particular amendment the core of an essential feature like a fundamental right has been damaged or destroyed-undoubtedly a terrifying responsibility for this Court to undertake. It may appear as very odd that while the framers of the constitution did not think it necessary to expressly exclude even one provision of the constitution from being amended, they still intended that this Court, as the guardian of the constitution, should make parts of it unamendable by implying l'tmitations on the Amending power. Indeed this Court is a guardian of the constitution in the sense that will not permit its contravention by any of its ti.nstrumentalities, but it cannot constitute itself a guardian against change constitutionally effected.

Though the argument had a wide sweep, namely, that the several essential features catalogued by Mr. Palkhivala were. not liable to be damaged or destroyed, in the ultimate result the case really boils down to whether the core of the fundamental right to property has been damaged or destroyed principally by the 25th amendment, and, if so.

'6{)0 SUPREME COURT REPORTS (1973) Supp. S.C.R.

whether there was any :implied or inherent limitation on the amend- :ing power which prohibiteq such an amendment. The several essential features listed by Mr. Palkhivala do not come into the picture 'in the present case. It is not the case that by the recent 25th amendment either the sovereignty of India is affected or the Republican form •of Government has been destroyed. One of the several essential fea- 'tures listed by him is fundamental rights. Amongst fundamental 'rights also most are untouched by the amendment. The 25th amendment deals principally with property rights and Articles 14, 19 and 31 in relation to them.

By that amendment chiefly two things are oought to be accomplished (1) There shall be no right to receive ''compensation', as judicially interpreted, for a State acquisition for a public purpose, but only to receive an 'amount', (2) A law made to achieve the a:ims of equitable distribution of community resources or for the prevention of concentration of wealth and means of produclion shall not be challenged on the ground of repugnancy to Articles 14, 19 and 31. Since it is not the practice of this Court to decide questions which are not 'in immediate controversy it would not be ]>roper to pronounce whether this or that particular so-called essential feature can or cannot be damaged or de; troyed by amendment. But since it is argued on behalf of the State chat there can be no l:imitalions on the amending power except those expressly provided in the constitution and since that will affect our decision as to the 25th amendment, we shall have to deal briefly with the question of im- Jllied and inherent limitallions with special reference to fundamental :rights including property rights.

Whatever one may say about the legitimacy of describing all the Tights conferred in Part III as essential features, one thing is dear. 'So far as the right to property is concerned, the constitution, while assurmg that no-body shall be deprived of property except under the ; authority of law and that there shall be a fair return in case of COl!lpulsory acquisition (Article 31 (1) & (2) ), expressly declared its , determination, in the interest of the common good, to break up con- centration of wealth and means of production in every form and to .arrange for redistribution of ownership and control of the material resources of the community. See: Article 39(b) & (c). If anything in the constitution deserves to be called an essential feature, this determination is one. That is the central issue in the case before us, however dexterouslv it may have been played down in the course of an argument which painted the gloom resulting by the denial of the fundamental rights under Articles 14, 19 and 31 in the implementation of that determination. The constitution had not merely stopped at declaring this determination but actually started its implementation from the commencement of the constitution itself by incorporating clauses (4) & (6) under Article 31, the first two clauses

KESAVANANDA ti. KERALA (Palekar, J.) 601

of which spelt out the fundamental right to property. Apart from what Pandit Jawaharlal Nehru said about the Article in the Constituent :Assembly Debater-and what he said was not at all sympathetic to Mr. Palkhivala's argument before us-the fundamental right to receive compensation under clause (2), as then framed, was completely nullified by clauses (4) & (6) .in at least one instance of concentrati<)n of wealth and material resources viz. Zamindilris and landc ed estates. These clauses were deliberately inserted in the original

Article 31 leaving no manner of doubt that Zamindaris and Estates were sought to be abolished on payment of even illusory compensation. The various States had already. passed laws or were in the process of passing laws 011 the subjet, and specific provision was made in the two clauses. securing such ' laws from challenge on the ground that. they were not acquired by the State for a public purpose 'or that adequate. compensation was not paid. The first case under the Bihar Land Reforms Act, 1950, State of Bihar v. Kameshwar Singh(') shows that the law was highly unjust (from the prevailing point of view of 'justice') and the compensation payable was in some cases purely illusory. (See : Mahajan J. p. 936). And yet by virtue of Articie 31(4) there could be no challenge to that Act and other similar laws on those grounds. By oversight, challenge tJo such laws under Articles 14 and 19 .had not been expressly excluded, and so when the case was pending in this Court, the first Amendment Act was passed inserting Articles 31A and 31B by which, to .'1ke no chances, a challenge based on all fundamental rights in Part UI was wholly excluded. The course taken by the constitution and its first Amendment leaves no doubt that Zamindaris and Estates were intended to be expropriated. from the very beginning and no 'core' with' regard to payment of compensation was sought to be safeguarded. By the ti.ql, e the 4th Amendment '\'\'.as made in 1955, it became apparent that the challenge o any. scheme of redistribui:ion or breaking up of concenrration of 'property was confined generally tp Articles 14, 19 and 31, and.herii:e.Article'31A was' amended; By the amendment all interinediari\i 'incjuding small absent.cc' landlords, were permitted . to be el!minated .ana :challenge to Ari:icle 31A :was exdi.ided only under Ai; ticles 14, J~:3f)~ '3('. I!1 shor, t, 'rights ,,, in' :randed agricultural

proy we extmj!U!Sh.ed V\!'Ithout a thouglitto the necessity of paymg .f; m , compesauon .. In a: real .sen~ 1 <; oncentration o~ wealth in the form . of agricultural lands was brolCcn and commuruty resources

wcr~ .trihte4 .. On the other hand; a ptotecti<lnist economic system, reinforced by controls, followed in the realm of trade and industry with a view to. itcli.icve greater production of goods and services l~ t?, other fotlhs f <:orlcentration <)f wealth. ahd means of producllon in. the. wake of Independence. So comes the 25th Amendment, ..

( 1) [1952] s.c.R. 889'.

602 SUPREME COURT REPORTS [1973) Supp. S.C.R,

the object of which is the same viz. implementation of Article 39(b) & ( c ). It has made clear that owners of property when it is acquired for a public purpose are not entitled to compensation as interpreted by this Court, and any law made with the aforesaid object cannot be challenged on the grounds arising out of Articles 14, 19 and 31. In principle, there is no difference in Article 31A and the new Article 31C inserted by the 25th Amendment. In tryPig to support his arguments on the oore principle of essential features, Mr. Palkhivala tried to play down the role of Article 31(4) & (6) and Article 31A excusing them on the ground that they related to very necessary agrarian reforms to which the majority party in the Constituent Ar sembly 'Was for years before the constitution, committed. But that is not a legal argument. Articles 31(4)(6) and Article 31A clearly show that community interests were regarded as supreme and those Articles were only a step in the implementation ot the Directive Principles in Article 39(b) & (c). (Compare the observations d Das J. in 1952 S.C.R. 889 at pages 996 to 999.) The constitution definitely refused to accept the 'core' principle with regard to properqy rights, if property was required to be expropriated in the common interest in pursuance of the Directive Principles. The mood of the majority party is reflected in the speech of Pandit Govind V allabh Pant, the then Chief Minister of Uttar Pradesh. Speaking in the Constituent Assembly on Article 31 and after justifying the provision of.Article 31(4) & (6) in relation to laws regarding Zamindaris and agrkultural estates (there were 20 lakh Zamindars) according to him, in U.P. alone (he said "I presume that if at any time this legislature chooses OOi nationalise industry, and take control of it, whether it be all .the indusl\ries or any particular class of it, such as the textile industry or mines, it will be open to it to pass a law and to frame the Principles for such purpose, and those principles will be invulnerable in any court. They will not be open tn question, because the only condition for disputing them, as has been pointed out by Shri Alladi, (Krishnaswamy Iyer) one of the most eminent jurists which our country has ever eroduced, is this, that it should be a fraud on the constitution)." (See: Constituent Assembly Debates Vol. IX page 1289). It shows that Article 31( 4) (6) were the first step as applied to land legislation, in the direction of imp lemcnting the Directive l'dnciples of Article 39(b) & (c), and it was only a matter of time when the principles would be applied to other types of concentration of wealth and its distributiio.n. As Mahajan, J observed in State of Bihar

v. Kameshwar Singh at pages 929-30, our constitution raised the obligation to pay compensation for compulsory acquisition of property to the status of a fundamental right At the same time by specifically inserting clauses (4) & (6) in Article 31, it made the sues of publi'.c purpose and compensation prescri?ed in Articl~ 31(2) no.n-i?stiable in some specified laws dealing with concentration and d1stnbuhon of wealth

KESAVANANDA v. KERALA (Palekar, J.) 603

in the form of landed agricultural property. This clearly negatived the idea of protecting concentration of wealth in a few hands as an essential feature of the oonstitution. Hidyatullah, J was saying practically the same thing when he remarked in Golak Nath'• case that it was an error to include propeny rights in Pan III and that diey were the weakest of fundamental rights (p. 887).

I have already di=ed the amplitude of power conferred by the amending clause of the constitution. In countries like America and Australia where express limitations have been imposed in the amending clause itself there is substantial authority for the view that ev(n these expres.'! limitations can be removed by following the procedure laid down in the amending clause. According to them this could be done in two steps the first being to amend the air.ending clall!>e itself. It is not necessary for us to investigate the matter further becatlse Article 368 does not contain any exprC8s limitation. On the other hand, the power is wide enough even to amend the provisions of Article 368. See: proviso

( e) of that article. In other words, article 368 contains unqualified and plenary powers to amend the provisions of the constitution including the Amending clause. Prima facie, therefore, to introduce implied prohibitions to cut down a clear affirmative grant in a constitution would be contrary to the settled rules of construction. (See the dissenting judgment of Isaacs and R'ich JJ in McCawley v. The King-26 C.L.R. 43-68 approved by the Privy Council in 1920 A.C. 691).

When such an Amending clause is amended without affecting the power the amendment will principally involve the Amending procedure. It may make amendment easier or more difficult. The procedure may also differ substantially. Parliament may be eliminated from the process leaving the amendment to the States. The proviso might be dropped, enlarging the role of the Parliament. On the other hand, the Parliament and St1te Assemblies may be divested of the function by providing for a referendum plebiscite or a special convention. Wh, ile, thus the power remains the same, the instrumentalities may differ from time to time in accordance with the procedure prescn'bed. Hidayatullah, J ., with respect, was right in pointing out that the power to amend is not entrusted to this or that body. The power is generatd when the prescribed procedure is followed by the instrumentalities specified in the Article. Since the instrumentalities are liable to be changed by a proper amendment it will be inaccurate to say that the Constituent

(i.ssemly had entrusted the power to any-body. If the authority which.

s requued to follw the proce?ure is t.he Parliament for the time being, it may be onveruent to descnbe Parliament as the authority to whom the power is anted or entrusted, but strictly that would be inaccurate, because there is no grant to any body. Whithever mav be the instrumentality for the time being, the power remains unquaiied.

604 SUPREME COURT REPOllTS [1973] Supp. s.c.R.

If the theory of implied limitations is sound-the assumption made being , that the same have their origin in the rest of the constitutional provisions including the. Preamble and the fund2mental rights - . then these limitations must clog the power by whatever Agency it is

exercised. The rest. ot the constitution does not change 'merely because the procedure prescribed in Article 368.i.s changed. Therefore, the im plied limitations should continue to clog the power. Logically, if Article 368 is so amended as to provide for a convention or a referendum, the latter will be bound to respect the implied limitations-a conclusion which Mr. Palkhivala is not .prepared to accept. . He agrees with the jurists who hold that a convention or a referetidurn will not be bound .by any limitations. .The reason given is that the people directly take plU"t in a referendum or, through thCir elected representatives, in a convention. Even in Golak Nath it was accepted that any part of the constitution including the fundamental .rights could be amended out of existence by a (::onstituent Asembly. ·

The argument' ieems to be that a 1di.stinction must be made between the power exercised by the people and the power exercised by Parliament. In fact' Mr. Palkhivala's whole thesis is that the Parliament is a creature of the constitution anl the limitation is inherent in its being a constituted authority. We have :ilready examined the question and shown that where the people have withdrawn completely from the process of Amendment, the Constituent body to whom the power is entrusted can exercise the power to the same extent as a Constituent Assembly and that' the power does not vary according tci the Agency to whom the power is . entrusted. Therefore, this reason also viz. that Parliament ii a conscituted body and, therefore,· it suffers from inherent limitations does not hold good.

FC?m the conclusion that the power of Amendment remains unqualified by whomscxwer it is exercised, i• follows that there can be no implied.or inherent: limitations on the Amending power, If a special convention admittedly does n(lt. suffer from limitations,. any other constituent body cannot be subject to it. .

Th.eleadip.g, majonty judgnwnt in G"lqk Nath's case had seen some fotce in this. d!).cq~ of implied limita.tiOQ.S (808), btiu\id not find it neceSiSW'y to decide 011 the isstJ~ To remove all doubts on that score the 24th Amendment is now su.\tl!Wy amc; nded. Its first clause says that Parliament may .amend:any 'J>l'OVi.sion of the constituticm norwithstanding anything in it. Thore, in:tht matter of amendment Parliament may not, now; be inhibited by the other express provisions of the constitution, which would mean that it may also .. ignore all implications arising therefrom.

.KESAVANANDA v. KERALA (Palekar, J.) .605

Where power is granted to amend the Amending power, as m our constitution, there is no limit to the extent this may be done. It may be curtailed oJ. 'enlarged' ... This is well illustrated fa Ryan v. Lennox(').

Under the Irish State Constitution Act of 1922, the Parliament (Oire<ichtas) had been given power to amend the constitution under Article 50 of the Act. Under that Article, amendments during the first eight years of the constitution, could be validly made without having recourse to a .referendum unless •specially demanded by the per.rons, and in the manner specified in Article 47, but amendments made after that period had to be approved in every case by a referendum and the people. By a constitutional amendment of 1928 (Amendment No.· 10) the compulsion of Article 47 was got rid of, and by an amendment of 1929 (Amendment No. 16) made within the eight year period already referred to, the period of 8 years was extended to 16 years. The result wa, g that the constitution now authorized the Parliament to amend by

ordinary legislation its constitution for the period of 16 years from the commencement of the constitution without being required to have recourse to a. referendum. In 1931 by a further Amendment (Amendment No. 17) extensive alterations were made by which inter alia, personal liberty was curtailed, denying trial by Jury or by the regular courts. Ryan who was one of the victims of the new law applied to the High Court for a Writ of Habeas Corpus on the ground that the several amendments were invalid, especially No. 16, by which the period of S years had been extended to 16 years. If Amendment No. 16 was invalid, that would have automatically resulted in Amendment No. 17 being invalid, having been made after the first period of 8 years. The High Court (3 JJ) unanimously held that all the Amendments were valid. In appeal to the Supreme Court that decision was confirmed by a majority, Kennedy, Chief Justice, di_.; senting. One of the chief contentions directed against Amendment No. 16 was that the Parliament

could not have 'enlarged' its power from 8 to 16 years to change the constitution without a referendum by ordinary legislation. This contention was rejected by the majority. Kennedy, C.J. took .i different view of the amendment. He held thaf Article 50 did not provide for the amending of the Amendatory power, conceding that otherwise the power could have been so 'enlarged'. Since there is no dispute in our case that by reason cJ. clause ( e) of proviso of Article 368 power is given to amend the amendatory power, it was open to Parliament to 'enlarge' the power by amendment. If it is assumed-and we have shown there is no grouna to make such an assumptionthat there was some implied limitation to be derived from other provisions of the con"

stitution, that limitation, if any, is now removed by the non-obstante clause in clause 1 of the Amended Article 368. ·

( 1) [1935] Irish Reports, 170.

39-36 s. c. India/73

606 SUPREME COUI\T llEPOllTS (1973] Supp, S.c.J..

It is of aome interest to note here that in a case which later went to the Privy Council, Moore v. Attorney General for the Irish State(') and in which a constitutional amendmen.t made by the Irish Parliament .in 1933 (Amendment No. 22) was challenged, Mr. Greene (Later Lord Greene) conceded before the Privy Council that Amendment No. 16 of 1929 was valid and their Lordships observed ( 494) "Mr. Willied Greene for the petitioners rightly conceded that Amendment No. 16 was regular and that the validity of these subsequent amendments could not be attacked on the ground that they had not been submitted to the people by referendum." The question of validity of Amendme.nt No. 16 was so vital to the petitioner's case that it. is impossible to believe that a counsel of the standing of Lord Greene would not have challenged the same and, in the opinion of their Lordships, 'rightly'. According to Keith the judgment of Kennedy, C.J. in Rayan's case was wrong.

See: Letters on Imperial Relations Indian Reform Constitutional and International Law 1916-1935 page 157.

The importance of Rayan's case lies in the fact that though Article 50 of the Irish Free State Constitution did not expressly say that Article 50 itself is liable to be amended, no le~ than five judges of the Irish Courts held it coul.d be amended though tl).e amendment resulted in the 'enlargement' of the power of the Irish Parliament to amend the constitution. How wide the power was further established in Moore's case which held. that Amendment No. 22 was valid, though by this Amendment even the Royal Prerogative regarding appeals to the Privy Council was held to have been abrogated by the combined operation of tl; ie, Statute of Westminster and the Constitutional Amendment, in sp!l:e of Article 50 having been originally limited by the terms of the Scheduled Treaty of 1922. In our case Article 368 authorizes its own amendment and such an amendment can enlarge th.e powers of the Parliament, if such was the need.

Apart from reasons already given, we will consider, on first prin-/ ciples, whether the constituent bod): is bound to respect the so-called 'essential feature' of the fundamental rights especially that of right to property. The fact that some people regard them as good and desirable is no adequate reason. The question really is whether the constituent body considers that they require to be amended to meet the challenge of the times, The philosophy of the amending claµse is that it is a safety-valve for orderly change and if the good and d>sirable feature has lost its appeal to the people the' constituent body would have undoubtedly the right to change it.

Indeed, if there are some parts of the constitution which are made expressly unamendable the constituent body would be incompetent to

(') {1935] A.C. 484.

KESAVANANDA v. KERALA (Palekar, J.) 607

change them, or if there is anything in the provisions of the ons~

tution embodying those essential features which by necy unphcation prohibit their amendment those provisions will also become unamendable. The reason is that in law there is no distinction between an express limitation an.cl a limitation which must be necessarily 'implied. Secondly, it is an accepted rule .of construction that though a provision granting the power does not contain any limitation that may not be conclusive. That limitation may be found in. other parts of the statute.

But we have 11o remember that Article 368 permits the amendment of all the provisions of the constitution expressly.

And if that power is 1lo be cut down by something that is said in some other provision of the constitution the latter must be clear and specific. As far back as 1831 Tindal, C.J. delivering the unanimous opinion of the Judges in the House of Lords in Warburton v. Loveland(') observed at page 500 "No rule of construction can require that, when the words of one part of a statute convey a clear meaning . . . . . . . . it shall be necessary to introduce another part of the statute which speaks with less perspicuity, and of which the words may be capable of such construction as by possibility to diminish the efficacy of the other provisions of the Act." To control the true effect of article 368 "you must have a context even more plain or at least as plain as the words to be controlled". See : Jessel M. R. in Bentley v. Rotherham(2 ). Neither the text nor the context of the articles embodying the fundamental rights shows that they are not exposed to article 368.

Moreover, when we are concerned with a power under a .statute, it is necessary to remember the following observations of Lord Selborne in Reg. v. Burah (3) at pp. 904 & 905 "The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restncted. If what has been done is legislation, within the general scope of the affirmative words which give . rhe power, and if it violates no express condition or restriction by which that power is limited it is not for any Court of Justice to inquire further or to enlarge constructiv_ely those conditions and restrictions." Similarly Earl Loreburn m Attorney-General for the Province of Ontario v. Attomey-

Genral for th_e Dominion of Canada(4 ) observed at page 583 "In the mterpretat10n of. a completely self-governing Constitution founded

( 1) (1831) II Dow le Clark, 480.

(2) (1876-77) 4 Ch. D. 588 (592).

( 8) (1878) 3 App. Cas. 889. (') (1912) App. Cas. 571.

608 SUPREME 'COURT J\EPORTS [1973] Supp. s.c.11..

upon a written organic instrument suh as the ritish, No'.th Americ~

Act, if the text is explicit the text 1s conclusve, e m what it directs and what it forbids.

When the text 1s ambiguous, as for example, when the words establishing too mutually exclusive )urisdictions are wide enough to bring a particular power w1thm either, recourse must be had to the context and scheme of the Act." The only course which is open to courts is to determine the extent of power expressly granted after excluding what is expressly or by necessary implication excluded. That is the view of the Privy Council in Webb v. Outrim(') the effect of which is summarized by Isaacs, J, in The Amalgamated Society of Engineers v. The Adelaide Steamship Company Limited and others(') at p. 150 as follows:

" ...... we should state explicitly that the doctrine of "implied prohibition" against the exercise of a power once ascertained in accordance with ordinary rules of construction, was definitely rejected by the Privy Council in Webb v. Outrirn."

Having regard to the rules of construction relating to power referred to above, we have to see if either the provisions relating to the, fundamental right to property or any related provisions o.f the constitution contain words of prohibition or limitation on the amending power. Right to property is sought to be safeguarded under Article 31, and Article 19 deals with freedoms having relation to property, profession, trade and business. We find nothing in these provisions to suggest that rights to property cannot be abridged by an amendment of the constitution. On the other hand, article 31(1)

sugges~ that onecan be deprived of, property under the authority of law. The right to receive compensation under clause (2) of article 31, as it stood at the time of the commencement of the constitution, had been considerably cut down by several provisions contained in the other clauses of that article. Article 31(4) & (6) not only envisaged breaking up of concentration of landed property in the hands of Zamindars and the like but also expropriatlion without payment of just compensation. That necessarily called for the exclusion of Articles 14, 19 and 31, because no scheme for expropriation or extinguishment of rights in _property would succeed without theirexclusion. 1:hereafter there has been a spate of amendments curtailing property nghts and none of them seems to have been cliallenged on the , ground that there was something in the provisions themselves (apart from e fact .that. they '1;1fect a 'tranceental' fundamental right) suggesung an 1mphed or mherent hm1tat1on on the amending power.

The last sentence from Lord Loreburn's judgment quoted about em- /

'(1) [1907] A.C. 81.

(') 28 C.l.R. 129.

bodies a well-known rule of construction whic~. is usetul whep the text of a statute is ambiguous, Where i)i~ :.te~ ; u i:lear' an9 yrrambiguous there can be .no recourse to. the contexf ?~ rl\e. shme of .tJie Act; nor can the context, or the scheme be u, tihsed to , make ambiguous what is cJiar and unambiguous .. ¥or~er thc'fole does . not permit in .. cases. ofi. ambiguity recourse :to , th~ scheme and cotext which is unhelpful, iri, resolving the ani\1iguitY .. It' does not authvrize investigating the sol\cme and context ~Jlh an effec.t. of delimiting the power referred to in , the: 'ambiguous' '\at; if , the' scheme and the context do not contain ..yi:irds which., expressly or liy necessary impli,- cation havethe effect.

Al llhis is impo~t in. cc; mnection with the construction of .the word. Aniendment'. 10 Article 368., We have

ali-eady shown that the ord 'Amendment' usec:I :in the 'oontet of a constitutioo is dear an4 unainbiguoll,!. Therefore, the scheme and :the context are irrelevant. ... :The scheme and the c.011text on which reliance is placed before .us consist principally of the alleged dominating statuts of the Preanible and the alleged transcedental character of the fundamental rights neither of whicli helps Us in the legal interpretation of the word 'Amendment'. They are being .pressed into $ervice merely to create an ambiguity where there is' µqne.. Actually the context and scheme arc here used to cut dowi+ the ambiti and 'SCOpe of the expression 'amendment of the constitution' by investing them with that effect where neither expressly nor by necessary impli• cation do they contain any prohibition or limitation on the Amend, ing power. Therefore, as a matter of construction no implied limitatins can be inferred from the Preamble or the fundamental rights, bcmg as much part of a -legal document as any other provision of the constitution, are subject to equal consideration in the matter of legal construction. To be releant, e scheme and context must say or ceasonably suggest something with regard to Amending power.

. .M~. Palkhivala sought to draw support for his doctrine of implied littnitations from the preamble. According to him the Preamble sets

~t the objecve~ of the Constitution and, therefore, any tampering

with t?ese ob1ect1ves would destroy the identi~ of the constitution.

And since amndment of the constitution, howsoever made, must 1fesehrve the identity of the Constitution the objectives of the Pream- . e s ould be treated as permanent and unamendable. On that basis

e ~er contended. tht since the fundamental rights are mostly an £!d rationalof .the ob1ectlves of llhe Preamble, it was implied that the

to b amdcnt nghts or, at least, the essence of them was not liable c amagecl or destroyed by an amendment

The submission that the f d 1 h . of the P bl . . un amcnta . ng ts arc an elaboration the p ' rew the is an over-statement and a half truth. According to

ream e e people of India have given unro themselves the

610 SUPJllMI couaT ul'OlTS [1973] Supp. s.c.I.

Constitution to secure to all its citizens (a) 1USTICE, social, economic and political; (b) LIBERTY of thought, expression, belief, faith and worship; (c) EQUALITT of status and of opportunity; and to promote among the citizens ( d) FRATERNITY assuring the dignity of the individual and the unity of the Nation. There is no doubt that the

Constitutlion is intended to be a vehicle by which the goals set out in it arc hoped to be reached. Indeed; being a part of the Constitu- .tion, strictly speaking, it is amendable under Article 368. But we will

issumc that the people of India will not be rash enough to amend the glorious words of the Preamble; and as long as the Preamb!C is there the Governments will have to honour the Preamble and the Constitution will have to oontinue as a vehicle which would lead us to the goals. But to say that the fundamental rights are an elaboration of these goals would be a caricature.

Most of the fundamental rights may traced to the principles of LIBERTY and EQUALITY mentioned in the Preamble. But whereas the concepts of LIBERTY and EQUALITY ate mentioned in absolute terms in the Preamble the fundamental rights including the several freedoms are not couched in absolute terms. They rcflcc~ the concepts of LIBERTY and EQUALITY in a very attenuated form with several restrictions illlposcd in the interest of orderly and peaceable Government.

The pre-eminent place i, n the Preamble is given to JUSTICE-- social, economic and political, and it is obvious that without JUSTICE the other concepts of LIBERTY, EQUALITY and FRATERNITY would be illusory. In a democratic country whose institutions arc informed by JUSTICE;-social, economic and political, the other three concepts of LIBERTY, EQUALITY and FRATERNITY will be automatically fostered. Social and political Justice takes care of Liberty; and Justice, social and economic, takes care of Equality of status and of opportunity. Therefore, even in the Directive Principles the supreme importance of Justice-social, economic and political-is highlighted in Article 38, in which the State is given a mandate to strive to promote the welfare of the people by securing and protecting a social order in which justice-social, economic and political shall inform all the institutions of the National life. Where genuine and honest efforts are made in the implementation of this manda.te the content and ambit of the concepts of Liberty and Equality are "9und to increase and expand. As Wade has pointed out in his introduction to Dicey's Law of the Constitution all page lxnii "Liberty today involves the ordering of social and economic conditions by go"ernmental authority, even in those countries where political, if not economic equality of its citizens, has been attained. Witihout expansion of that authority, which Federal States must find more difficult to achieve than a unitary State like the United Kiligdoni, the~ is inevit- ·

KESAVANANDA II. KEllALA (Pll/tklll'1 J.) till

ably a risk that the constituti.on ay break dowi_i fore a. f?rc~ which is not limited by considerations o£ constitutional mcctlcs.

Again he points out at pages xxiv and xxv that _ the modcr1! House of Commons is a forum in which both parties put forward incessant demands for the remedying of some social or economic ill oi the body politic . . . . . . . . and the changing conditions have all been brought about by the action of Parliament. In doing that, Wade says, it could not be denied that legislation has shifted the emphasis on individual liberty to the provision of services for the public good. In the tcns of our constitution especially the Preamble and Article 38, the shift of emphasis is from individual liberty to Justice-social, economic and political. ·

The absolute concepts of Liberty and Equality are very difficult to achieve as goals in the present day organised society. The fundamental rights have an apparent resemblance to them but are really no more than rules which a civilized government is expected to follow in the governance of the countlry whether they arc described as fundamental rules or not. England developed these rules in its day to day Government under the rule of law and docs not make a song and dance about them. British rulers of India tried to introduce these rules -in the governance of this country, as proof of which we can point out to the vast mass of statutes enacted during the British period which have been continued, practik:ally withol\t change, under our constitution. No body can deny that when Imperial interests were in jeopardy, th_csc rules of good government were applied with an unequal hand; and when the agitation for self rule grew in strength these rules were thrown aside by the rulers by resorting to repressive laws. It was then that people in this country clamoured for these elementary human rights. To them their value in ou:r social and political life assumed such importance that when the constitution was framed we decided that these rules of Civilized _ government must find a place in the constitution, so that even our own Governmen"s at the centre and the States should not overlook them. That is the .genesis of our fundamental rights. The importance of these rights as conferred in the constitution lies not in their being something extraordinary but in the bar that the constitullion imposed against laws which contravened these rights and the effective remedy supplied under article 32. Indeed the framers of the constitllltion took good care not to confer the fundamental rights in absolute terms because that was

i?Iprctical. Knowing human capacity for distorting and misusing all liberties and freedoms, the framers of the constitution put restrictions on them in the interest of the people and the State thus emphasizing that fundan; icntal rights i.e. rules of civilized government arc liable to be altered, 1f necessary, f9r the common good and in the public interest.

612 SUP!ll!Mll coURT UPOllTS. (1973} Supp .. 6.C.R.

And yet; .as we have seen above, even in U.K. individual liberty as it wAs undetstood a generation or:.two ago• is rio longer so. sacrosanct, especially; in relation :t6 owne'rshipof P"opctty;. Severa! statutes irrthe eoonomic and social field have been passed which while undoubtedly impinging. upon the individual liberties •of a f!iw have expanded social and economic justice for the many; If U; K, had stood staunchly by its Victori, an cancept of •laiuez faire and individual liberty, the progress in-social and economic j11stice which it has.achieved during the last half a century would have been difficult. Even so; though very much more advanced than our country, U.K. cannot daim that it has fully achieved social and economic justice for all its citizens. But there is no doubt that the parties which form the Governments there have always this goal in view though tiheir methods may be different. In a country. like ours where we have, on' the one harid, abject povoty on a very large scale and great concentration of wealth. on the other, the advance towards social and eeonori:iic justice is bound to be retardeG!

if the old concept 'Qf incjividual liberty is to dog our footsteps. In the ultimate analysis, liberty or 'freedoms which are So much praised by the wealthier sections of the community are the freedom to amass wealth and own property and means of production, which, as we have already seen, out constitution does not sympathise with. If the normal rule is that all rules of civilized government are subjec~ 'to public interest and the common weal, those ,, rules will hav1no undergo new adjustments in the impleme11tation of the Directive Principles. A blind adheJ'l:ncc to the concept of freedom to own disproportionate wealth will not take us to the imporlant goals of the Preamble, while a just and sympathetic implementation .; if the Directiive Principles has at least the potentiality to take us to those goals, although, on the way, a few may suffer some dimunition of the unequal freedom they now enjoy. 1bat being the philosophy underlying the Preamble the fundamental rights and the Directive Principles taken together, it will be incorrect to elevate the fundamental rights as essentially an elaboration of the objectives of the Preamble. As a matter of fact a law made for implementing the Directive Principles of Article 39(b) and ( c), instead of being contrary to the Preamble, would be in conformity with it because while it may cut down individual liberty of a few, it widens its horizon for _the many.

It follows that if in implementing such a law the rights of an individual under Articles 14, 19 and 31 are infringed in the course of securing the success of the scheme of the law, such an infringement will have to be regarded as a necessary consequence and, therefore, secondary. The Preamble read as a whole, therefore, does not contain the implication that in any genuine implementation pf the Directive Principles, A fundamental right will mt suffer any dimunition. Cori•

ccntration and control of comm\IDity resourc.c; s, wealth. and means of production in the hands of a few individuals are, in the eyes of the

KESAVANANl>A fl • .!WALA (l'alek..a,, J.). 613

<:onstitution, an evil which must be cradica, tec\ .fr pm the, soda! org~· :zation, and hence, any fundamental . right, to i:h~. extent . that 1.t fosters this evil; is liable to be. abridged or takn ~':".ay m. tlic 1hntcrcst Clf the cSOCial structure envisaged , by the constttutlon, 'l'hc .sc. cme of .the

fundamental .rights in }>art III itself shows that rcstril:tions oq them have been placed tlo guard. against their exercise in an evil way.

Nor is there anything in the Preamble to suggest that the power to. a111e!ld. the fundamental , right to property is cut down .. Actually there is no reference to the right to property. On the other hand, while dcdaring the objectiv, es which inspired the framers of the constitution to give unto themselves the constitution which, they .hoped, would be able to achieve them, they took gd care to prov1d.c for the amendment of "this constitution". It was clearly implied that if the operative. parts of the constitution failed to put us on the road to the objectives, the constitution was liable to be appropriately amend ed. Even the Preamble, which, as we know, had been adopted by the constituent assembly as a part of the constitution. (Constituent Assembly Debates Vol. X p. 456) was liable' to be amended. Right to property was, perhaps, dcilbcratcly not enthroned in the Preamble 'because that would have conflicted with the objectives of securing to .all its citizens justice, social, economic and political, and equality of -Opportunity, to achieve which Directive Principles were laid down in Articles 38 to 51. Moreover the Preamble, it is now well settled-can neither increase nor decrease the power granted in plain and clear "Words in the enacting parts of a statu~ See : The Berubari Union .and Exchange of Enclaves(') at pp. 281 and 282. Further, the legislature may well-intend that the enacting part do extend beyond the •apparent ambit of the Preamble. See : Secretary of Stltte v. Maharaiah of Bobbili('). As a matter of fact if the enacting part is clear and 'Unambiguous it does not call for construction. In Spraguc's case the 'Supreme Court of America had been called upon to construe Article y, c mendi!1!1 clause, so ae o cut down the amending power by 1mphcat1ons ansmg ouu of certain other provisions of the constitution itself.

Replying to the argument the court observed, "the United 'State asserts hat. Article V is clear in sta&ment and in meaning con tams no a'!1b1gu1ty and calls for no resort to rules of construction. A mere redmg demonstrates thad this is true." These observations oapply with. greater force to our amending clause namely Article 368, for m Article V of the American constitution there was some room for play of. argment on the basis of alternative methods permitted for the rat1.ficat1on of the proposed amendments. On the basis of the alternative methods provided in Article V-one by the State

( 1)

[ 1960] 3 S.C.R. 250.

( 1) 43 Madras 529 P.C. at 536.

1)14 SUPIU!ME COURT Rl!PORTS [1973] Supp. s.c.11.

legfalature and the other by the State convention-it was argue? that. the State convention was the appropriate method 1IO the exclusion of the State legislature, because the prohibition amendment .<18th amendment) directly affected personal liberty. Where personal liberty was itwolved, it was submitted, the people alone through their con-- vention could ratify an amendment, especially, as under article X the people had reserved to themselves the powers which were not expressly conferred on the federal constitution. This argument was rejected by the Supreme Court on the ground that the language of Article V was. clear and unambiguous and though alternative methods were provided for, the ultimate authority as to which alternative method should be adopted was the Congress and if the Congress chose the method of ratification by the State legislature there was an end of the matter •.

The court observed "In the constitution words and phrases were used in their normal and ordinary as distinct from technical meaning.

When the intention is clear, _there is no room for construction and no excuse for interpolation". By interpolation the court specifically meant an addition in the nature of a proviso to Article V limiting the power of the Congress as to the choice of the body it would make for the purposes of ratification.

Reference was made to certain cases with a view to show that though there were no words suggesting a limitation on a power, implied limitations or prohibitions are noticed by courts. In a recent Australian case of Victoria v. The Commonwealth(') the question arose as to the power of the Commonwealth Parliament under section 51 (ii) of the constitution to make laws with respect to taxation under the Pay-roll Tax Assessment Act, 1941-1%9. It was unanimously held by the court that the Commonwealth Parliament had the power.

During the course of alrguments, the question arose, which has been troubling the Australian courts for years, whether there were implied limitations on commonwealth Legislative power under the constitution in view of the fact that the Preamble to the constitutfon recited that the people had agreed "to unite in one indissoluble federal commonwealth under the Crown." In Amalgamated Engineers case. already referred to, which had been regarded for a long time as the final word on the question, the alleged implied prohibition or limitation had been rejected. The question was held to be a question of construction with regard to the extent of power and if the power was ascertained from the express words, there could be no further limitation thereon by implication. But in the case referred to above, while three Judges accepted that view as still good, the other four were of the contrary opinion. Whichever view is correct that really makes no-

( 1) 45 A.L.I.R. 251.

' .

KESAVANANDA v. KUALA (Palekar, J.) 615

diffrence to tne question before us. We are concerned with the amending power. In the Australian case the Judges were concerned with Jq,; iative power and that had to be ascertained within the four corners of the constitution by which the power had been crca~ nd under which it had to be exercised. There was room for constructton on the basis of the words and structure of the constituljion, especially,. the Preamble which was not . liable to be amended by the Commonwealth. On the other hand, since the power to amend the consti-· tution is a superior power it cannot lie bound by any provision of th.e oonstitution itself, the obvious reason being that even such a provision is amendable under the constitution. In re The Initiative and Referendum Act,(') it was held by the Privy Council that the British North America Act, 1867, section 92, head 1, which empowers a Provincial legislature to amend the amstitution of the Province, "excepting as regards the office of Lieutenant-Governor," excludes the making of a law which abrogates any power which the Crown possesses through the Lieutenant-Governor who directly .represents the Crown. By the Initiative and Referendum Act the legislative assembly of Manitoba-a Province in Canada-<ompelled the Lieutenant- Governor to submit a proposed law to a body of voters totally distinct from the legislature of which he is the constitutional head, and would render him powerless to prevent it from becoming an actual law if approved by those voters. It was held that this directly affected the office of the Lieutenan.t-Governor as part of the legislature and since the amendment to the constitution had the effect of affecting thar office which was expressly excepted from the amending power the

lw. ws void. It is thus seen r.?at there was no question of an implied hm1tat1on .. In the other case cited before us namely Don John Francis Douglas L1nage & others v. The Queen(') no question of amending the co?st1tut10n arose. here hy an ordinary act of the legislature made ID 1962 under section 29(1) of the Ceylon (Constitution and

Indpendence)_ Orders i~ Council, 1946-47 an attempt was made to

part1all~ vest ID te legislature and the executive the judicial powers

of th~ 1udges which vested .ID them under a separate Imperial Charter viz. the Charter of Justice, 1833 the effective operation of which was recognized in the constitution of 1946-47. It was held that the

ct ws , ultra tmes the constitution. Some more cases like Ranasmghe s( case, Tylor v. 41tmey General of Queensland('), ft.!angal Singh v. Union of India( ), were cited to show that constitutwnal laws permit implications to be drawn where necessary. No body

( 1) [1919] A.C. 935,

( 2) [1967] A.C. 259.

( 8) [1965] A.C. 172.


"i16 _SUPRE?4E. COUllT IUU'O&TS [ 19.7.3] Sµpp. s.c.a.

-disputes that proposition. Courts may have to. do so where th( implica tion is necessary to be drawn. In Ranasinghe's case tile Privy Council is supposed to .have expressed the opinion on a construction ot section 29 of the Ceylon (Constitution) Order in Council, 1946 that suboSC.ctions 2 and 3 are. unamendable under the constitution. In the first place, the observation .is obiter, and it is doubtful if their Lordships intended to convey that even under section 29(4), they were unamendable. A plain reading of the latter provision shows they were amend .able by a special majority. Secondly, in an earlier portion of the judgment provisions 29(2) & (3) are described as 'entrenched', the -plain dictionary meaning of which is that they are not to be repeal- .cd except under more than stringent conditions.

See also Wade's lritroduction to Dicey pages xxxvi to xxxvii. Jennings in his Consti- .tution of Ceylon (1949) points out at page 22 that the limitations of .29(2) & (3) can be altered or abridged by the special procedure under section 29(4). Similarly . we are in Constitutional Structure of the Commonwealth 1960 reprinted in 1963 pages 83-84. In any event, that was a pure matter of construction on a reading of sub-sections 1 .to 4. of section 29 together. In Taylor's case the question for consideration was as to the interpretation of the expression 'constitution of , such legislature' in section 5 of the Colonial Laws Validation Act,

1865. At the time in question the legislature consisted of a lower house and an upper house and it was held that the expression 'constitution of such legislature' was wide enough to include the conversion of a bicameral legislature into a unicameral one. Issacs, J. also held 'legislature' in the particular context meant the houses of legislature and did not include the. Crown.

In Mangal Singh's case it was merely held that if by law made under Article 4 of our .constitution a state was formed, that state must have legislative, exe- -cutive and judicial organs which are merely the accoutrements of a .state as understood under the constitution. The connotation of a 'state' included these three organs. That again was a matter of pure construction. None of the cases sheCls any light on the question with which we are concerned viz. whether an unambiguous and plenary _power to amend the provisions of the constitution, which included the Preamble and the fndamental rights, must be .frighnened by the fact that some superior and transcedental character has been ascribed

to them.

On the other hand, in America where implied limitations were sought to be pressed in cases dealing with constitutional amendments, the same were rejected .. In Sprague's case the Supreme Court rejected the contention of implied limitation supposed to arise from some express provisions in the constitution itself. Referring to this case

"" ,_

KESAVANANDA v. KERALA (Palekar, J.) 617

Dodd in Cases in Constitutional Law, 5th edition pages 1375-1387 says-

''This case it is hoped puts an end to the efforts to have the court examine into the sub ect matter of constitutional amendment" In.

The National Prohibition(') cases decided earlier, the Prohibition Amendment (18th) was challenged, as the briefs show, on a host of alleged implied limitations based on the constitution, its scheme and its history. The opinion of the court did not accept any of them, in fact. did not even notice them. American jurists are clearly of the opinion that the Supreme Court had rejected the argument of implied limitat ons. See for example Cooley Constitutional Law, 4th edition,

46-47; Burdick Law of American Conctitution pp. 45 to 48.

The argument that essential features (by which Mr. Palkhivala means "essential features, basic elements or fundamental principles").· of the constitution, though capable of ame;1dment to a limited extent are not liable to be damaged or destroyed is only a variation on the argument previously urged before this Court on the basis of the socalled "spirit of the constitution" which had been rejected as far back as 1952. See: State of Bihar v. Kameshtvar Singh(2). That case arose out of the Bihar Land Reforms Act, 1950 which was pending in the Bihar Legislature at the time of the commencement of the constitution. After it became law it was reserved for tbe consideration of the President who gave assent to it. Thus it became one of the laws referred to in Article 31(4) of the Constitution and in virtue of that provision it could not be called in question on the ground that it contravened the provisions of clause 2 of Article 31. Under that law

Zamindari was abolished and the lands vested in the State. The Zamindars received what was described as illusory compensation. As there was danger of challenge under ,\rticles 14, 19 and 31, the constitution was amended to incorporate Article 31A and Article 3lll to take effect from the date of the commencement of the constitution an<l this Act along with similar other Acts were included in the Ninth Schedule.

In Sankari Prasad's case the amendment was held valirl and when the case came before this Court the arguments became limited in scope. Mr. P. R. Das who appeared for the Zamindars tried to skirt the bar under Article 31(4) by relying on Entry 36 List II and Entry 42 in List III arguing that the law in so far as it did not acquire the Zamindaris for a public purpose or make provision for adequate compensation was incompetent under those entries.

Dr.

Ambedkar who appeared for other Zamindars took a different stand.

In the words of Patanjali Shastri, C.J. "He maintained th1t a constitutional prohibiti_on against compulsory acquisition of prnpertv without public necessity and payment of compensation was deducible from what he called the "spirit of the constitution", which, according to.

(1) 65 Law, cdn. 994.

( 2) [1952] S.C.R. 889.

6J 8 SUPREME COUB.T REPOH'S (1973) Supp. S.c.L

him, was a valid test for judging the constitutionality . of a statute.

Thf Constitution, being avowedly one for establishing liberty, iusti" and equality anti a government of a free people with only limitetl pomers, must be held to contain an implied prohibition against tak..ing private property Without iust compensation and in the absence of a publz'c purpose. (Emphasis is supplied) He relied on certain Amcri can decisions and text-books as supporting the view that a constitu tional prohibition can be derived by implication from the spirit of the Con."litution where no express prohibition has been enacted in that behalf. Artic, les 31-A and 31-B barred only objections based on alleged infringemonts of the fundamenual rights conferred by Part III, but if~ from the other provisions thereof, it could be inferred that there must be a public purpose and payment of compensation before

privat~ property could be compulsorily acquired by the State, there was

nothing in the two articles oresaid to preclude obiection on the ground that the impugned Acts do not satisfy these requirements anti are, thdrefore, unconstitutional." (Emphasis supplied) This argument was re)ected in these words "In the face of the limitations on the State's power of compulsory acquisition thus incorporated in the body of the Constit11tion, from which "estates" alone are excluded, it would, in my .opinior, be contrary to elementary canons of statutory construction to read, by Implication, those very limitations into entry 36 of List II, alone or in con\iunction with entry 42 of List III of the Seventh Schedule, or to deduce them from "the spirit of the Constitution", and that too, in respect of the very properties excluded." The argument was that having regard to the Preamble and the fundamental rights which established liberty, justice and equality and a government of a free people with only limited powers, taking of private property without just compensation and in the absence of a public purpose was unconstirutional, and this conclusion should be drawn by implied prollibition in spite of Arti cle 31(4), 31A & 31B eJIPressly barring challenge on those very grounds. In other words, an express provision of llhe constitution validating a state law was sought to be nullified on the basis of 'essential features and basic principles' underlying the Preamble and the fundamental rights, but the attempt was negatived. I sec no distinction between Dr. Ambedkar' s argument in the above case and the case before us, because the plenary power of amendment under Article 368

is sought to be limited by implications supposed to arise from those same 'essential features and basic principles'.

A legislature functioning under a constitution is entitled to make a law and it is not dispur.ed that such a law can be amended in any way the legislature likes by addition, alteration or even repeal. This power to amend is implicit in the legislative power to make laws. It can never be suggested that when the legislature amends its own statute .either directly or indirectly it is inhibited by any important or essential

'.USAVANANDA v. llJ!; aALA (Palekar, J.) 619

parts of that stature. It can amend the _important, desirable, parts as "Ull.Ceremoniously as it can any other ummportant parts of th~ statut:. 'That being so, one does not see !!he reasonableness of reusmg this latitude to a body which is specifically granted the unqualified power to amend the constitution. While the legislature's power to amend operates on each and every provision. of _tlhe stat':Itc it is diffil~ to sec why the amending clause in a const1tutton specifically authonsmg the amendment of the constitutioff should stand inhibited by any of the .constitution. Essential parts and unessential parts of a constitution should make no difference to the amending power (Compare passage from McCawley's case already quoted at p. 43-4) That a legislature can repeal an act as a whole and the constituent body does not repeal the constitution as a whole is not a point of distinction. A legislature repeals an Act when it has outlived its utilitv. But so far as a constitution is concerned it is an organic instrument continuously growing in utility and the question of its repeal never arises as long as orderely change is possible. A constitution is intended to last. Legislative acts -do not have that ambitiion. It is the nature and character of the constitution as a growing, organic, permanent and sovereign instrument of government which exclude the repeal of the constitution as a whole and not the nature and character of the Amending power.

Since _the 'essential features and basic principles' referred to by Mr.

Palkhivala are those culled from rhe provisions of the constitution it is clear that he wants to divide the constitution into part&-<lne of provisions containing the essential features and the other containing non-essential features. According to him the latter can be amended in any way the Parliament likes, but so far as the former provisions are concerned, though they may be amended, they cannot be a!ljended so as to damage or destroy the core of the essential features. Two difficulties arise. Who is to decide what are essential provisions and nonessential provisions? According to Mr. Palkhivala it is the court which should do it. If that is correct, what stable standard will guide the court in deciding which provision is essential and which is not essenal?

Eery provision, in one sense, is an essential provision, because if a law 1s made by the Parliament or the State legislatures contravening even the most insignificant provision of the constitution that law ~I e voi?. From that point of view the courts acting und; r the const1tunon "'.ill have to . look ~P?n I.ts provisions with an equal eye.

econclly, 1f. an :ssenual i; rv1s10n 1s amended and a new provision is inserted which, m the op1mon of the constituent body, should be presumed to ?e more essential than the one repealed, what is the yardstick the court IS expected to employ? It will only mean that whatever

nece5;1ity_ the constituent body may eel in introducing a change in the constitution, whatever change of pohcy that body may like to introduce

620.

SUPl\1':}IB, COURT R1'PPRTS [1973], Supp •. s.c.R.

in the constitution,' the $ame is liable, to be struck down if the cout is not $atisfied either. about the necessity o.c the policy. Clearly this is not a function of the courts. , The difficulty' assumes greater proportion when an amendment is challenged on the ground that the core of an essential feature is either damaged or ,: destroyed. . What is the standard? \Vho will decide where the core lies and when it is reached? One can understand the argument, that particular provisions in the constitution embodying some essential features are not amendable at alL But the difficulty arises when it is conceded that the provision is. liable to be amended, but not• so as to touch its 'core'. Apart from the difficulty in determining where the 'core of an essential feature' lies,· it does n-0t appear to be sufficiently , realized. what fantastic results may follow in working the constitution. , Suppose, an amendment of a provision is made this. year •. : The. mere fact, that an amendment is made will. not give any body• the, right. to come. to . thi$ Court. to have the amendment nullified on .. the ground, that it affects, the core of an essential.· feature, _It is only when a<Jaw is made under the amended provision and that law affects some individual's right, that he may come to this Court. At that time he . will first, show that the amendment is bad because it affects .the core of an essential feature and if he succeeds there, he will. automatically succeed and the law made by the Legi~ lature in the confidence that it is protected by the amended constitution will .be rendered void. And such a challenge to the amendment may come several years after the amendment which till then is regarded as a part of the constitution: In other words, every amendment, however innocuous it . may seem wheri it is made is liable to be struck down several years after the amendment although all the people have arranged their affairs on the strength of the amended' cons- • titution. . And in dealing with the challenge to a particular amendment and searching for the. core of .the essential feature the court will have to do it either with reference to the original constitution or the constitution as it stood with all its amendments upto date. The former procedure is clearly absurd because the constitution has. already undergone vital. changes by amendments in the meantime. So the challenged .amendment: will have to be assessed on the basis of the constitution with all its a!llendments made prior to the challenged amendment. All such prior amendments will have to be accepted as good because they are not under challenge, and on that basis Judges will have to deal. with the challenged amendment But the other amendments . are . also not' free from challenge in subsequent proceed7 ings, because we have. already seen •.that;· every amendment can be cha!lenged severa.l years after it is made, if a law made under it affects a priv.ate individual: .Sd. there will be 'a continuous state' of flux after

an amendment is made 'and: 'ae ariy given moment when 'the . 'court "\vants to ., dterm.iriE 'fue 1cdre1: of , th~, eientil f eatu; e 'it \ill hve io

'.1::1ii ( 1-! :,;..:,'.:; /i~.'1 ·.ti11'.i '.J:i:r l/_'l .·; -:1. ··:·.L -~- ,,;,.,·. , ·

discard in order to be able to say where the core lies, every othei: amendi'nent because these amendments also being unstable will not help in the determination of the core. In other. words, the court~ will have to go by the original constitution to decide the core .of an essential feature ignoring aloogether all the amendments made m thct meantime all the transformations of rights that have taken place after them, all 'the arrangements people have made on the basis of th~ validity of the amendments and all the laws made under them w1thou1 question. An argnment which leads to such obnoxious results can hardly be entertained. In this very case if the core argument wre to be sustained, several previous amendments whll have to be set aside because they have undoubtedly affected the core of one or the other fundamental right. Prospective overruling will be the order of the day.

The argument of implied limitations in effect invites us to assess the merits and demerits of the several provisions of the constitution as a whole in the light of social, political and economic concepts embodied therein and determine on such an assessment what is the irreducible minimum of the several features of the constitution. Any attempt by amendment, it is contended, to go beyond such irreducible minimum-also called the 'core; of essential features-should be disallowed as invalid. In other words, we are invitled to resort to the sub, tantive due process doctrine of the Supreme Court of America in the interpretation of a Constitutional Amendment. That doctrine was rejected !Ong ago by this Court (Gopalan's case) even in its application to ordinary legislation.

See 1950 S.C.R. 88 (Kania, CJ. llO) (Das, J. 312). The argument does not have anything to do with the meaning of the expression 'Amendment of the Constitution' because it is conceded for the purpose of this argument that 'amendment of this constitution' means amendment of all provisions by way of addition, alteration or repeal' What is contended, is that by the very implications of the structure, general principles and concepts embodied in the constitution, an amendment can go only thus far and no further. In other words, the scope of amendment is circumscribed not by what the constituent body thinks, but by what the Judges ultimately think is its proper limits. And these limits, it is obvious, will vary with individual Judges, and as in due process, the

limis will be those fixe? by a m.ajrity of Judges at one time, changed, if necessary, by a bigger ma1on~ at another. Every time an amendment is mde of so!"e magnide as by the Twenty-fifth Amendment we will have, without anything to go on, to consider how in our opinion, the several provisions of the constitution react on on; another, eir relative importance from our point of view, the limits on such 1D?ponderable concepts as liberty, equality, justice, we think proper to impose, whether we shall give preponderance to directiv~

40-36 S.C. India/73

622 SUPREME COUllT aEPOllTS [1973] Supp. s.c.a.

principles in one case and fundamental rights in another-in short,

determine the 'spirit of the constitution' and decide how far the amendment conforms with that 'spirit'. We are no longer, than construing the words of the constitution which is our legitimate province but determining the spirit of the constitution-a course deprecated by this Court in Gopalan's case at pages 120-121. When concepts of social or economic justice are offered for our examination in their interaction on provisions relating to right to properl)y-matters traditionally left to legislative policy and wisdom, we are bound to flounder "in laby rinths to the character of which we have no sufficient guides."

It is true that Judges do judicially determine whether certain restrictions imposed in a statute are reasonable or not. We also decide questions involving reasonableness of any particular action. But Judges do this because there are objective guides. The constitution and the Legislatures specifically leave such determination to the higher tJOUrts, not because they wiII be always right, but because the subject matter itself defies definition and the legislatures would sooner abide by what the judges say. The same is true about limits of delegated legislation or limits of legislative power when it encroaches on the judicial or any other field. Since the determinanion of all these questions is left to the higher judiciary under the constitution and the law, the judges have to apply themselves to the tasks, however difficult they may be, in order to determine the legality of any particular legislative action. But all this applies to laws made under t:he constitution and have no relevance when we have to deal with a constitutional amendment. The constitution supplies the guides for the assessment of any statute made under it. It does not supply any guides to its own amendment which is entirely a matter of policy.

The 'core' argument and the division into essential :ind nonessential parts are fraught with the greatest miscb'ief and will lead to such insuperable difficulties. that, if permitted, thC)? wilt open a Pandora's box of endless litigation creating uncertainty about the provisions of the constitution which was Intended to be clear and certain. Every single provision emobies a concept, a standard, norm or rule which the framers of the constitution thought was so essential that they included it in the constitution. Every amendment thereof will be liable to be assailed on the ground that an essential feature or basic principle was seriously affected. Our people have a reputation of being litigious lot. We shall be only adding to this.

When an amendment is successfully passed, it becomes part ot the constitution having equal status with the rest of the pl'.ovisions of

the constitution. If such an amendment is liabJe to be struck down

KESAVANANDA "· !WW.A (Palekar, J.) 623

on the ground that it damages or destroys an essential feature, the power so claimed should, a fortiori, operate on the constitution as it stands. It witl be open to the court to weigh every essential feature like a fundamental right and, if that feature is hedged in by limitations, it would be liable to be struck down as damaging an essential feature. Take for example personal liberty, a fundamental right under the constitution. . If the court holds the opinion that the provisibn

with regard to preventive detention in Article 22 damages the core of personal liberty it will be struck down. The same can be said

about the freedom in Article 19. If this Court feels that the provision with regard to, say State monopolies damages the fundamental right of trade of a citizen, it can be struck down. In other words, if :Ill

amendment which has become part of the constitution is liable to be struck down because it damages an essential feature it should follow

that every restriction originally placed on that feature in the constitution would necessarily come under the pruning knife of the courts.

In short, if the doctrine of unamendability of the core of essential feature is accepted, it will mean that we add some such proviso below Article 368 : "Nothing in the above Amendment will be deemed tQ have authorized an Amendment of the constitution, which has tho effect of damaging or destroying the core of the essential features, basic principles and fundamental elements of the constituti!Jn as may be determined by the Courts." This is quite impermissible.

It is not necessary to refer to the numerous authorities cited before us to show that what are described as some of the essential features are not unamendable. It will be sufficient to refer to only a few.

Bryce in his book "The American Commonwealth" New and revised edition, Vol. I says at pages '366-67 with reference to Article V of the ·

American Constitution "But kioking at the constitution simply as a legal document, one finds nothing in it to prevent the adoption of an amendment providing a method for dissolving the existing Federal tie, whereupon such method would be applied so as to form new unions, or permit each State Ila become an absolutely sovereign and independent commonwealth. The power of the people of the United States appears competent to effect this, should ic ever be desired in

a perfectly lel way, just s .th~ British arliament is legally cm

petent to red1V1de Great Bntam mto the sixteen or eighteen independent kin¥dos wh!cli cxit~ with'in the island !n the eighth century." Randall m his revised ed1t1on, 1964 The ConstJtutional Problems under Lincoln, says at page 394 with reference to Artiicle V "Aside from the restriction concerning the "equal suffrage" of the States in the Senate, the Constitution, since 1808, has conf'.ained no amendable part, and it designates no field of legislation that may not be reached by the amending power. An Amendment properly made becomes

624 sup~ "9lla11 RXPOll'l'S [1973] Supp. s.c.R.

"valid, to alf intents. anal pUipOSCS,. as part of .. this constitlition", having as mudi.· .fori:e ar ant other :article. There is. no. valid distinction between "tfte Constitutioru itseif' .and the amendments. The. Constitution at any given time includes all up to the latest amendments, and excludes portions that have not. survived the amending process.

We should think not of "the Constitution and its amendments," but of "the Constitution as amended". This is especially true when we reflect that certain of the amendments supplant or construe portion• df the original document." COOiey in his book, The General Principles of Constitutional Law in the Unlted States of America, fourth edition, says at pages 46-47 "Article V of the Constitution prohibits any amendment by which any State "without its consent shall be deprived of its equal suffral(e in the Senate". Beyond this there appears

to be no limit to the power or amendment. This, at any rate, is the result of the decision in the so-called National Prohibi tion Cases . . . . . ... . . . . . . . . . The amendment was attacked on the gr; ounds that it was legislative in its character, an invasion of natural rights and an encroachment on the fundamental principles of dual sovereignty, but the contention was overruled. 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 struc11Ure, include new grants of power to the Federal Government, nor relinquish to the State those which already have been granted. to it." Quick and Carran writing in the "Annotated Constitution of the Australian Commonwealth" ( 1901) observe as follows at p. 989 with regard to the amending clause of the constitution namely section 128. "It II)ay be concluded that there is no limit to the power to amend the Constitution, but that it can only be brought into action accOlrding to certain modes prescribed. We will consider the modes and conditions of constitutional reforms further; meanwhile it is essential to grasp the significance and comprehensiveness of the power itself. For example, the Constitution could be .amended either in the direction of strengthening or weakening. the Federal Government; strengthening it, by conferring on it new and addi.tional powers; weakening it, by taking away powers. The Constitution could be amended by reforming the structure of the Federal Parliament and modifying the relation of the two Houses; by increasing or diminishing the power of the Senate in reference to Money Bills; by making the Senate subject to dissolution at the same time as the House of Representatives. It is even contended by some daring interpreters that the constitution could be amended by. abolishing the Sena~. It could certainly be amended by remodelling the Executive Department, abolishing what is _known a5 Responsible Government, and introducing a new system, such as that which prevails in Swiezerland, accord-

KESAVANANI>A v. KUALA (Palekar, J.}

ing to which the administration of the public departments is placed in the hands of officers elected by the Federal legislature. :rhe Cons

titution could be amended by altering the tenure of 1ihe JIJ_des, by removing their appointment from the Executive, and authonzmg he

election _of judges by the Parliament or by the people. Th~ Const1tu tion could be amended in its most vital part, the amending power itself, by providing' 'that alterations may be initiated by the people, according to the plan of the Swiss Popular Initiative; that proposed alterations may be formulated by the Executive and submitted to the people; that proposed alterations may, with certain constitutional exceptions, become law on being approved of by a majority of the electors voting, dispensing with the necessity of_ a majority of the

States."

On a consideration, therefore, of the nature of the amending power, the unqualified manner in which it is given in Article 368

of the constitution it is impossible to imply any limitations on the power to amend the fundamental rights. Since there are no limitations express or implied on the amending power, it must be conceded that all the Amendments which are in question here must be deemed to be valid. We cannot question their policy or their wisdom.

Coming to the actual amendments made in the constitution by the twenty-fifth amendment Act, we find in the first place that the original clause (2) of Article 31 is recast to some extent by deleting any reference to 'compensation' in ces of compulsory acquisition and requisition for a public purpose. The fundamental right now is not to receive 'compensation' which this Court construed to mean 'a just equivalent' but to receive an "amount" which the legislature itself may fix or which may be determined in accordance with the principles as may be specified by the law. Then again the "amount" may be given in cash or in such manner as the law may specify.

The princip-11 objection to the amendment is that the clause arms the legislature with power to fix any amount which it considers fit and such fixation may be entirely arbitrary having no nexus whatsoever with the property of which a person is actually deprived. In similar cases, it is submitted, the amount fixed maybe more in one and very much less in another depending entirely on the whim of the legislature.

Conceivably the amount may be illusory having regard to the value

of the propert~. The principles for determining the amount may

qually be arbitrary and unrelated to the deprivation. Therefore, i~ 1s contended, the amendment is pad.

It is difficult to understand how an amendment to the constitution becomes invalid because the

consitution auth.ori?'es the legislatures -tO fill an "amount" or to specify the pnnciples on which the "amount" is to he determined instead ~! fixing the "compensation" or specifying the principle~ for

626 SUPUME COURT ll!P01TS .[1973] Supp •. S.C.R.

determining "compensation". Even compensation ultimately is an

"amount". All that the amendment has done is to negative the inter

pretation put by this Court on the concept of compensation, Clause

(2) recognizes the fundamental right to receive an amounn in case of compulsory acquisition or requisition and all that it wants !Kl clarify is that the fundamental right is not to receive compensation as intel'-

preted by this Court but a right to rece.ive an amount in lieu of• the deprivation which the legislature thinks fit. It is not the case that if a fair amount is fixed for the acquisition or fair principles to determine it are laid down, the amendment would still be invalid. The contention is that it becomes invalid because there is a possibility of the abuse of the power to fix the amount. There is no power which

cannot be abused. All constitutions grant power to legislatures to make .laws on a variety of subjects and the mere possibility of the power being used unwisely, injuriously or even abused is not a valid ground to deny legislative power. See: Bank of-Toronto v. Lambe(').

Jf that is the position with regard to legislative power, there does not appear to be any good reason why the possibility of abuse of it by the legislature should inhibit an amendment of the constitu tion which gives the power. Whether a particular law fixes an amount which is illusory or is otherwise a fraud on power denying the fundamental right to receive an amount specifically conferred by clauFe (2) will depend upon the law when made and is tested on the basis of clause (2). One cannot anticipate any such matters and strike down an amendment which, in all conscience, does not preclude a fair amount being fixed for payment in the circumstances of a particul:ir

acquisition or requisition. The possibility of abuse of a power given by an amendment of the oonstitution is not determinative of the validity of the amendment.

The new clause 2B inserted in Article 31 having the consequence of excluding the application of article 19(l)(f) to a law referred to in clause (2) of article 31 is merely a re-statement of the law laid down by this Court after the constitution came into force. The mutual exclusiveness of article 19(1)(£) and article 31(2) had been recognized by this Court in a series of cases. See: Sitabati Debi & Anr. v. State of West Bengal & Anr.(2). That principle is now embodied in the new amendment.

The only substantial objection to the twenty-fifth amendment is based on the new article 31C inserted in the constitution by secti-On 3 of the twenty-fifth amendment act.

( 1) 1887, Vol. XII-Appeal Cases 575 at pages 586.587.

( 2) [1967] (2) S.C.R. 949.

I _,

KESAVANANDA "· KERALA (Palekar, J.) 627

The new article is as follows : "31C. Notwithstanding anything contained in article 13, no law

giving effect to the pol.icy of the state towards securing the principles specified in clause (b) or clause (c) of article 39 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; and no law containing a declaration that it is for givingeffect to such policy shall be called in question in any court on the ground that it docs not give effect to such policy.

Provided that where such law is 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 d the Presi

dent, has received his assent."

IgBoring the proviso for the moment, one finds that the main clause of the article falls into two parts. The first part provides that a law of a particular description shall not be deemed to be void on the ground that it affects injuriously somebody's fundamental rights under ilrticles 14, 19 and 31. The second part provides that if such a law contains a particular declaration, courts shall not entertain a particular .kind of objection. ·

In the first place, it should be noted that what is saved by article 31 C is a law i.e. a law made by a competent legislature.

Secondly since Article 31C comes under the specific heading 'Right to property' in Part III dealing with fundamental rights it .is evident that the law must involve right to property. That it must of necessity do so is apparent from the description of the law given in the article. The description is that the law gives effect to the policy of the State towards securing the principles specified in clauses (b) & ( c) of Article

39. That article is one of the several articles in Part IV of the Constitution dealing with Directive Principles of State Policy. Article 37 provides that' though the Directive Principles are not enforceable by any court, they are nevertheless fundamental in the governance of the

country and it shall be the duty of the State to apply these principles in making laws. It follows from this that the Governments and Legislatures are enjoined to make laws giving effect to the Directive Principjes: W are !mmediately concerned with the Directive Principles contained m Article 39(b) and ( c) namely, that the State shall direct its policy towards securing (b) that the ownership and control of the material resources of the community are so distributed as best to sub. serve the common good; and ( c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. In short clause (b) contemplates measures to secure what is known as equitable distribution of community resources and clause ( c) contemplates measures for pre-

628 SUPREMI! COURJ ll!IPO!ITS .[1973} Supp. s.c.R.

venting concentration of wealth and ~s , of production in a few pri.vate hands. Read along with artic_lc 38 and other principles in_ this . Part, they justify the conclusions of Granville Austin in his Inaian

Constitution : Cornerstone of a Nation-that our Constitution is informed by social democratic principles .. See: pages 41-52 of the book.

T~ final conclusio°: he came to is expressed in this way :

"By establishing these positive .obligations of the state, the members of the Constituent Assembly made it tlhe responsibility of future Indian governments to find a middle way between individual liberty and the public good, between preserving the property and the privilege of the few and bestowing benefits on the many in order to liberate the powers of all men equally for contributions to the common good." p. 52.

The philosophy which inform1 the constitution looks on concentration <>f wealth and means of production as a social evil because such con- .centration, resulting in the concentration of political and economic _power in the hands of a few private individuals, not only leads to un- equal freedom, on the one hand, but results, on the otiher, in under; mining the same in the case of many. In such conditions it is widely believed that the goals of Equality and Justice, social, economic and political, become unreal, and since the constitution itself directs that laws may be made to inhibit such conditions it is inevitable that these laws aimed at the reduction of unequal freedoms enjoyed by a few will impair to some extent their fundamental rights under Articles 14, 19 and 31. That would be justified even on the 'core' theory of Mr. l'alkhivala because he admits the possibility of an abridgement of a fundamental right in similar cases. Therefore, Article 31C provides, <ven as Article 31A provided many years ago, that such laws shol}ld

not be called in question on the grounds furnished by Articles 14, 19 'and 31. If a law is made with a view to giving effect to the Directive

Principles mentioned in Article 39(b) and 39(c) the law is in conformity with the direct mandate of the constitution and must be deemed to .be constitutional. The effect of the first part of Article 31C is rhe

ame as if, a J?roviso had been inserted below Article 13(2) or each of the several articles 14, 19 and 31 excluding its application ru the parti <ular type of law mentioned in Article 31C., If the law d0es not _genuinely purport to give effect to the specified Hirective Principles it :will not be secure against the challenge und_er Articles 14, 19 and 31.

Indeed since the Directive Principles are couched in general terms they may present some difficulty in judging whether any individual law falls within the ambit of the description given in article 31C but such a <lifliculty i._. no reason for denying, the' 'validity of the amendment.

Courts had no difficulty in deciding whether any particular law did fall .under Article 31A or not.

KESAVANANDA v. KERALA (Pale/(ar, J.) 629

The real difficulty is raised by the second part of Article 31C which provides "No law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy." The contention is that if any law makes a declaration as stated, that is conclusive of the fact that it is covered by Article 39(b) or ( c) and courrs will be debarred from entertaining any objection on the ground that it is not so covered. In other words, it is submitted, the declaration when made in a law whether genuinely falling under Article 39(b) or (c) or not will conclude the issue and the courts will be debarred from questioning the declaration. The result is, according to the submission, that the legislatures may with impunity make a law contravening provisioni of the constitution and by the simple device of a declaration insert the law as an exception to articles 14, 19 a11d 31-i.e. in other words amend the constitution which the legislature cannot do. The constitution, it is pointed out, may be amended only in the way prescribed in article 368 and no other and, therefore, article 31C authorising ari amendment.in a way other than the one laid down in article 368, which still forms part of the constitution with full force, is invalid.

On behalf of the Union, however, it is claimed that the new article 31C does non have the effect attributed to it on behalf of the petitioners. It is, submitted, that Article 31C does not prevent judicial review as to whether the law referred to therein is of the description it maintains it is. If on a consideration of itts true nature and character the court considers that the legislation is not one having a nexus with the principles contained in Article 39(b) or ( c), it will not be saved under article 31 C. The sole purpose of the declaration:, according to the submission is to remove from the scope of judicial review a question of a political nature the reason for it being, as explained in Beauharanif v. lllinois(' ). "The legislative remedy in practice might not mitigate the evil or might itself give rise to new problems which would only manifest once again the paradox of reform.

It is the price to be paid for the .trial and error inherent in legislative efforts to deal with obstinate social issues."

It appears to us that the approach suggested on behalf of the Union is the correct approach to the interpretation of Article 31C.

The State's functional policy is to strive to promote the wel!are of he peopl~ by seuring nd protcting as eectively as it may a

ocial order in . w?1c~ JUS11ce, soc•a.l, ecoomic and political shall, 1riform all the mslttut10ns of the naltonal hfe. (Article 38). . That is the goal of the State policy. As prac; tical steps, the State is commanded

(1) 343 U.S. 250.

630 SU~REME CQURT REPORTS [1973] Supp. s.c.R.

, in the next following articles from articles 39 to 51 to direct its policy towards securing some aims which, being well-known concepts of social dtmocratic theory, are described as 'principles'. See for example the marginal note of article 39. Compendiously these are described as Directive Principles of State Policy under the heading of Pan IV.

We are concerned with Article 39(b) and (c). The State is commanded, in particular, to direct its pqlicy towards securing two aims,

one described in (b) and the other in (c). In directing its policytowards securing the aims, the State will evidently have to make laws.

A description of such a law is given in the first part of Article 31Cas a law giving effect to the policy of the State towards securing the principles (aims) specified in Articles 39(b) or (c). If a law truly answers that description it will be secure against a challenge under Articles 14, 19. and 31; otherwise not. When such a challenge is made, it will be the obvious duty of the court to ascertain on an , o):>jtctive conation of the law whether it falls within the descrip- :'l:fun. What the court will have to consider is whether it is a law

which can reasonably be described as a law giving effect to the policy .fif"the State towards securing the aims of ArticLe 39(b) or (c). That 'h an issue which is distinct from the other issue whether the law does.

aOt give effct; t to the policy of the State towards securing the lliid aims. A law reasonably calculated to serve a particular aim or purpose may not actually serve that , aim or purpose; and it is this latter issue which is excluded from judicial review. In doing so the declaration does no more than what the courts themselves have been always saying viz. that they are not concerned with the wisdom or policy of the legislation. Prohibition laws-for example in U.S.A. and .isewhere. though made in order to give effect to the policy of the State to secure the eradication of the evil of drink did not have that e_ffcct. That inay have been so because the law was inadequate or . cause the law gave rise to prObleins which were unforeseen. But tmi did not impair the genuineness of the law as being reasonably talculated to .achieve a certain result. The two questions are different.

One involves the process of identification of the type of legislation by considering its scope and object, its pith and substance. . The other involves a process of evaluation by considering its merits and defects, the adequacy or otherwise of the steps taken to implement it or their capability of producing the desired result. A law made to give effect to the State's policy of securing eradication of the drink evil can be properly identified, as such, if such identification is necessary to be made by a court in order to see the application of a constitutional' provision .. But it is an entirely different proposition to say that tlie law does not actually give effect to the State's policy of securiJ:ig tlie eradication of drink. That would require an enquiry which courts cannot venture to undertake owing to lack of adequate mean~ of

KESAVANANDA II. KERALA (Palekar, J.) 631

knowledge and sources of information. An enquiry, like that of a Commission, wilr lead to debatable questions as to the adequacy of the provisions of the law, its deficiencies, the sufficiency and efficiency of the executive side of the Government to implement it effectively, the problems that arise in the course of implcment; ition of the law and the like, all of which do not legitimately fall within the ambit of an enquiry by a court. The problems arc problems of legislative policy. It is for the legislature to decide what should go into the law to give effect to its policy towards securing its purpose.

The legislature will have to consider the divergent views in the matter and make its own choice as to how it can effectuate its policy. The courts arc not concerned with that aspect of the matter and even if a law is considered a failure, courts cannot refuse to give effect to the same. The declaration does no more than forbid such an enquiry by the courts which the courts themselves "Mould not have undertaken.

The declaration is only by way of abundant caution.

No other ground is precluded from judicial review under Article 31C. It was rightly conceded on behalf of the Union that the court in deciding whether the law falls within the general description given of it in Article 31C will be competent to examine the true nature and character of the legislation, its design and the primary matter dealt with, its object and scope. See: e.g. Charles Russell v. The Queen(').

If the court comes to the conclusion that the above object of the legislation was merely a pretence and the real object was discrimination or something other than the ob:cct specified in Article (b) and (c), Article 31C would not be attracted and the validity of the Statute would have to be tested independently of Article 31C. Similarly as

oberved in ttorney-General v. Queen Insurance Co.(2) "if the lcgislatmn ostensibly under one of the powers conferred by the constitutWu is in truth and fact really to accomplish an unauthorised purpose the court would be entitled to tear the veil and deci<le according to the real nature of the statute."

In that view of the true nature of Article 3!C it cannot be said that the amendment is invalid.

The twenty-fifth Amendment Act is, therefore, valid .

. By te rn:e!lty-ninth mcndment, the two Kerala Acts challenged in. this pct1~10n were included in the Ninth Schedule. Like other Acts included in that. Schcule they are immune from challenge by reason of the proo:ction given to the Schedule by Article 31B.

(') [1882] (VII) Appeal Cases 829 (838-840).

( 2) [1878] 3 Appeal Cases 1090.

632 SUfllEME oom:r lil'O&TS. [1973] Supp, S.C.R,

was souiht to be argued that uo.ICS$ the Acts rdated oo. agl1\l'iiPl reform, implicit .in the words 'Witho.ut prejudii:c: , to 11be generality of the provisions contained in Article 31A' with which Article 31B

pens, the protection was not available. That agumcnt has be<n. rejected previously.

See for example N. B. Jeejeebhoy v. Assistl(nt . Collector, Thana('). Actually the argument does not amount to a challenge to the validity of the Amendment, but an attenipt .to show that in spite of the Amendment, the two laws would not be saved by Article 31B. The twenty-ninth Amendment is not different from $Cveral similar Amendments made previously by which Statutes were

dded from time to time to the ninth schedule and whose validity has been upheld by this Court. The twent~-runth Amendment is, :therefore, valid. ' -

My conclusions are :

(I) The power and the procedure for the amendment af. the Constitution were contained in the unamended Article 368.

An Amendment of the Constitntion in accordance with. the procedure prescribed in that Article is not a 'law' within the meaning of Article 13. An Amendment of the Constitution abridging or taking away a fundamental right conferred by Part III <i the Constitution is not void as contravening . the provisions of .Article 13(2). The majority decision in Golak Nath v. State of Punjab ;,, with respect, not correct.

(2) There were no implied or inherent limitations on the Amending power under the unamended Article 368 in its operation over the fundamental rights. There can be none after its amendment. ( 3) The twenty fourth, the twenty-fifth and the twenty-ninth Amendment Acts are valid.

The case will now be posted before the regular bench for dispolal in accordance with law.

KHANNA /.-Questions relating to the validity of. the Constitu- 1ion (Twentyfourth Amendment) Act, Con1titutiDn (Twentylifth Amendment) Act and Constitution (Twentyninth AmendmcnO Act, .as well as the c<iuestio1uvhetl}er the Parliameat acting tµlder article 368 of the Constitution can amend the provisions of Part III of the Constitution so as to take away or abridge fundamcntat rights arise for .determination in this petiticn under article 32 of the Constitution. A number of other importiant questions, to which reference would be made hereafter, have also been posed dµring discussion, and they would be dealt with at the appropriate stage. Similar questions arise.

( 1 ) [1965] (!) S.C.R. 636.

l-~

ltESAVA]!qAM>,\ u. KBIALA (KlilHlna, J.) 633.

in a number "" other pttitions, and coonsel ci me parties in those cases have been alldWed to intervene.

The necessary facts may now be set out, while the details which. have no material bearing for the purpose of this deci$ion am be omitted. Kerala Land Reforms Act, 1963 (Act 1 of 1964) as originally enacted was inserted as item No. 39 in the Ninth Schedule to the Constitution. The said Act was subsequently amended by Kerala.

Land Reforms (Amendment) Act, 1969 (Act 35 of 1969).

The petitioner filed the present writ petition on March 21, 1970 challenging the constitutional validity of the Kerala Land Reforms Act,. 1963 (Act l af 1964) as amended.by the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969). The aforesaid Act was also chal-- lenged in a number of petitions before ti.e Kerala High Court. A Full Bench of the Kerala High Court as per its decision in V. N. Narrz..- yanan Nair v. State of Kera/a(') upheld the validity of the said Act,. except in respect of certain proviMons. Th0se provisions were declared to be invalid. The State of Kerala came up in appeal to this.

Court against the judgment of the Kerala High Court in so far as that court had held a number of provisions of the Act to be invalid.

This Court dismissed the appeals of the State as per judgment dated April 26, 1972.(2) Appeals filed by private parties against the- .judgment of the Kerala High Court upholding the validity of the other provisions too were dismissed. Some writ petitions filed in this Court challenging the validity of the above mentioned Act were also disposed of by this . Court in accordance with its decision in the appeals filed by the the State of Kerala and the private parties.

The Kerala High Court as per judgment dated October ZI,. 1970 declared some other provisions of the Kerala Land Reforms Act as amended by Act 35 of 1969 to the invalid and unconstitutional.

After the above judgment of the High Court the Keral.a Land Reforms Act was amended by Ordinance 4 d 1971 which was promulgated on January 30, 1971.- The Kerala Land Reforms (Amendment) Bill, 1971 was thereafter introduced in the Legislative Assembly to replace the ordinance. The Bill was passed by the Legislative Assembly on . April 26, 1971 and received the assent of the President on Jrugust 7, 1971. It was thereafter published as the Kerala Land' RCfcmns Act, 1971 (Act 25 of 1971) in the Gazette Extraordinary on August 11, 1971. By the Constitution (Twentyninth Amendment) Act, 1972 which was assented to by the President on June 9, lm the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969} and Kerala Land Reforms (Amendment) Act, 1971 (Act 25 of

1971) were included in the Ninth Schedule to the Constitution.

( 1) ILR (1970] (II) Kerala 315.

(2) (1972) 2 s.c.c. 36-1.

634 SUPREME COUJl.T llEPORTS [1973] Supp. s.c.R.

The writ petition was amended twice. The first amendment was made with a view to enable the petitioner to impugn the constitutional validity of the Kerala Reforms (Amendment) Act (Act 25 of 1971).

The second amendment of the petition was made with a view to include the prayer to declare the Twentyfourth, Twentyfifth and Twentyninth Amendments to the Constitution as unconstitutional, ultra vires, null and void.

It may be mentioned that the Twcntyfourth Amendment related to the amendment of the Constitution. Section 2 of the Amendment Act added clause ( 4) in article 13 as under :

"( 4) Nothing in this article shall apply to any amendment of this Constitution made under article 368."

Section 3 of the Amendment Act read as under :

"3. Article 368 of the Constitution shall be renumbered as clause (2) thereof, and-

( a) fr the marginal heading to that article, the following marginal heading shall be substituted, namely :-

''Power of Parliament to amend the Constitution and procedure therefor.";

(b) before clause (2) as so re-numbered, the following clause shall be inserted, namely : -

"(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provisions of this Constitution in accordance with the procedure laid down in this article,";

( c) in clause (2) as so re-numbered, for the words "it shall be presented to the President for his assent and upon such assent being given to the Bill," the words "it shall be presented to the President who shall give his assent to the Bill and thereupon" shall be substituted;

(d) after clause (2) as so re-numbered, the following clause shall be inserted, namely :-

" (3) Nothing in article 13 shall apply to any amendment made under this article."

USAVANANDA v. XEMLA (Khanna, J.) 635

We may set out articles 13 and 368 as they existed both before al1d after amendment made by the Twentyfourth Amendment Act :

&fore 1"4 .Amendment

13. (1) All laws inforccinthetcrritoryof India i mmediateJy . before the commencement of this Constitution, so far as they are inconsistent with the provisions of this part, shall t.o the extent of such inconsistency1 be void.

(•) The State shall not make any law which takes away or abridges therigs conferred by this Part andanylawmade in contravention of this clause shall, to the extent of the contravention, be void.

13. (1) All laws in force in the territory of India immediately before the commencement of this Consitution, in far so tU they are inconsiJ.. tent with the provisions of this Part,

shall to the extent of such inconnistency be void.

(2) The State shallnot make anyiJlw

which takes away or abridges. ftie righ" conferroo by.!his Part anti •r law made 10 cootravention or tbk

clause shall, to the extent of the CQntravcntion, be void.

(3) In this article, unl&s the context (3) In this article, unless the context otherwise requires, otherwise requires,

(a) "law" include; any O.-dinance, order

b/elaw, ru\e;, reulatio:i, noification,

custom or usage having in the territory of India the force of law;

{b)' 'laws in force'' includes lawB passed or made by a Legislature or other competent authority in the territory of. India before the commencement of tile Constitution and not previously repealed, ·notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

368. An amendment of this Constitution may be initiated only by the introdution 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 ofthat House and bya majority of not 1css than twothirds of the members of that House present and votina,, it shalJ be presented to the President for his assent and upon such assent being given to the Bill, the Constitution

(a) .claw" includes any Ordinance order, byelaw, rute, regulation, notification, custom or usage having in the territory of India the force, of law;

(b) "laws in force" includes laws

passed or made by a Legislature ... other competent authority in- 111.• territory of India before the cooimencemcnt of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then of operation either at all or in particu. lar areas

(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.

36.8.(1). Notwitstading anything t.n thts qonst(tuton, Parliament may

1n exercise of 1ta constituent po, vcr amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

(•) An ae!'?ment of this Constitution may be lnltrated only by the introd, u ...

c_tion of a Bill (qr the purpose in either House of Pariament, and wh(llg

636 SUPREME COURT REPORTS (1973) Supp. S.C.R.

Before th< Amendmmt

shall stand am.ended 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 16~ or articlc241, or

After the Amtndmtnt

the Bill is passed in each House by a majority of the total mell).bership oi that House and by a majority of not !ess than two-thirds of the members of that House present and voting, it shall be presented ro the President who shatl give his assent to thy Bill and thereupon the Constitution shall Stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in--

(a) Article 54, article 55, article 73,

article 162 or article 241, or

(b) Chapter IV of Part V, Chapter V (b) Chapter IV of Part V, Chapter: V

of Part VI, or Chapter I bf Part XI or 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 rCquire 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 thcBiIJ makingprovision for such amendment is presented to the President for assent.

(c) .any of the Lists in the Seventh Schedu!e, or

{d) the repre3ent:-.tion of State> 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 rerolutions to that effect passed by those Legislatures .before the Bill making pra:vision of or such amendment is presented to the President for assent.

(3) Nothing in article 13 shall apply to any amendment made under this article."

The Constitution (Twentyfifth Amendment) Act, 1971 amended article 31 of the Constitution. The scope of the amendment would be clear from section 2 of the Amendment Act which reads as under :

"2. In article 31 of the Constitution,- ( a) for clause (1), the following clause shall be substittited namely :-

" (2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified

KESAVANANDA v. KERALA (Khanna, J.) 637

in such law; and no such law shall be called in question in any court on the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amount is to be given otherwise than in cash :

Provided that in making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, refer

red to in clause ( 1) of article 30, the State shall ensure that the amoWlt fixed by or determined Wlder such law for the acqufsition of such property is such as would not restrict or abrogate the right guaranteed Wlder that clause";

(b) after clause (ZA), the following clause shall be inserted,

namely :-

"(ZB) Nothing in sub-clause (f) of clause (I) of article 19:

shall affect any such law as is referred to in clause:

(2) ."

The Constitution (Twentyfifth Amendment) Act also added arti' de 31C after article 31B as Wlder :

"31 C. Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause ( c) of article 39, 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; and no law containing a declaration that it is for giving effecE to such policy shall be called in question in any court on the groWld that it does not give effect to such policy.

Provided that where such law is 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."

The Constitution (Twentyninth Amendment) Act, as mentioned earlier, inserted the following as entries No. 65 and 66 respectively in the Ninth Schedule to the Constitution :

(i) The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969); and

(ii) The Kerala Land Reforms (Amecdment) Act, 1971 (Kcrala Act ::5 of 1971). 41-36 S.C. IndiaJ73

638 SUPREME C0URT REPORTS [19731 Supp. s.c.R.

The question as to whether the fundamental rights contained in Part Ill. of the Constitution could be taken away or abridged by amendment was first considered by this Court in the case of Sri Sankari Prasad Singh Deo v. Union of India & Anr.(') In that case the appellant challenged the First Amendment of the Constitution. The First Amendment made changes in articles 15 and 19 of the Constitution. In addition, it provided for insertion of two articles, 31A and 31B, in Part III. Article 31A provided that no law providing for acquisition

by the State of any estate or of any such rights therein or the extinguishment or modification of any such right, shall be deemed to be void on the ground that it was inconsistent with or took away or .abridged' an1 of the rights conferred by any provision in Part III. The word "estate" was also defined for the purpose of article 31A. Article 31B provided for validation of certain Acts. and Regulations which were specified in the Ninth Schedule to the Constitution. The said Schedule was added for the first time in the Constitution. The Ninth Schedule at that time ccmtained 13 Acts,. all relating to estates, passed by various

Legjslatures. 0£ the Provinces or States. It was provided 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 Lcgislatur~ to repeal or amend them, woula continue in force.

The attack on the . validity of the First Amendment was based primarily on three grounds. Firstly, that amendments to the Constitution made under article 368 were liable to be tested under article 13(2); secondly, that in any case as articles 31A and 31B inserted in the Constitution by the First Amendment affected the powers of the High Court under article 226 and of this Court under articles 132 and 136, the Amendment required ratification under the proviso to article 368; and thirdly, that articles 31A and 31B were invalid on the ground that they related to matters covered by the State List. Tills Court rejected all the three contentions. It held that although "la'Y" 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.

In the context of article 1.3, "law" must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to Constitution made in the -exercise of COIIlstituent power. Article 13(2), as such, was held not

to affect amendments made under article 368. This Court further held

:') [1952] S.C.R. 89.

KESAVANANDA ti •. KllRALA (Khanna, J.) 639

that articles 31A and 31.B did not curtail the power of this Court and -of the High Court and as such did not require ratification under the

proviso contained in article 368. Finally,. it was held that articles 31A

and 31B were essentially amendments to the Constitution and the Parliament had the power to make such. amendments. In consequence, the First Amendment to the Consritution was held to be valid.

The second case in which there arose the question of the power <>f the Parliament to amend fundamental rights was Saiian Singh v.

Still.: of Rafezsthan ('). In this case the. Seventeenth Amendment made <>n June 29, 19611 was challenged. By the Seventeenth Amendment changes were made in article 31A of the Constitution and 44 Acts were included in the Ninth Schedule to the Constitution to give them. complete protection trom attack under any provision of Pan III of the Constitution. One of the contentions advanced in Sajjan Singh's <:asc was that, as article 226 was like!}' to be affected by the Seventeenth Amendment, it required ratification under the proviso to article 368 and that the decision in Sankari Prasad's case (supra) which had negatived such a contention required reconsideration. It was also urged that the Seventeenth Amendment was legislation with respect to land and the Parliament had no right to legislate in that respect. It was further argued that as the Seventeenth Amendment. provided that Acts put in the Ninth Schedule would be valid in spite of the decian of the courts, it was unconstitutional. Tills Court by a majority of 3 to 2 upheld the correctness of the decision in Sankari Pra1ad' s case. This Court further held unanimously that the Seventeenth Amendment di\I not require ratification under the proviso to article 368. The Parliament, it was held, in enacting the amendment was not legislatini: with respect to land and that it was open to Parliament to validate legislation which had been declared invalid by courts. By a majority of 3 to 2 the Ciourt held that the power conferred by article 368 included the power to take away fundamental rights guaranteed by Part III and that. the power to amend was a very wide power which could not be controlled by the literal dictionary meaning of the word

"amend". The word "law" in article 13(2), it was held, did not include an amendment of the Constitution made in pursuance of article 368. The minmity, however, doubted the correctness of the view taken in Sankari Prasad' s case to the effect that the word "law" in atticle 13(2) did not include amendment to the Constitution made under artlicle 368.

The correctness of the decision of this Court in Sankari Prasad's case and of the majority in Saijan Singh's case was questioned in the case of I. C. Gol, ak Nath & Ors. v. State of Punjab & Anr.(2) The case


( 2) [1%7] 2 S.C.R. 762.

640 SUPREME COURT REpORTS [ 1973] Supp. s.c.R.

was heard by a special bench consisting of 11 judges. This Court in that case was concerned with the validity of the Punjab Security of Land Tenures Act, 1953 and of the Mysore Land Reforms Act. These two Acts had been included in the Ninth Schedule to the Constitution by the Constitution (Seventeenth Amendment) Act, 1964. It was held by Subba Rao CJ., Shah, Sikri, Shelat and Vaidialingam JJ. Hidayatullah J. concurring) that fundamental rights cannot be abridged or taken away by the amending procedure in ariticle 368 of the Constitution. An amendment of the Constitution, it was observed, is "law" within the meaning of arcicle 13(2) and is, therefore, subject to Part Ill of the Constitution. Subba Rao CJ., who gave the judgment on his own behalf as well as on behalf of Shah, Sikri, Shelat and V aidialingam JJ. gave his conclusions as under :

" ( 1) The power of the Parliament to amend the Constitution is derived from Arts. 245, 246 and 248 of the Constitution and not from Art. 368 thereof which only deals with procedure. Amendment is a legislative process. ·

(:<:} Amendment is 'law' within the meaning of Art. 13 of the Cqnstitution 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, and the Constitution (Seventeenth Amendment) Act, 1%4, abridge the scope of the fundamental rights. But, on the basis of earlier decisions of this C'..ourt, 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 t<> be valid.

(5) We declare that the Parliament will have no power from the

dare of this decision to amend any of the provisions of Part III of the CGnstitution 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 1%2, as amended by Act XIV of 1965, cannot be questioned on the ground that they offend Arts. 13, 14 or 31 of the Constitution."

Hidayatullah J. summed up his conclusions as under :

"(i) that the Fundamental Rights are outside the amendatory prooess if the amendment seeks to abridge or take away any of the rights;

KESAVANANDA v. KERALA (Khanna, J.) 641

{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 Arts. 13(2) and 368;

iii) that the Fmt, 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 abriged or taken away by the exercise of amendtory process in Art. 368, any further inroad into these rights as they exist today will be illegal and unconstitutional unless it com- :plies with Part III in general and Art. 13(2) 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 va1i<l under the Constitution not because they are included in Schedule 9 of the Constitution but because they are protected by Art. 31-A, and the President's assent."

As against the view taken by the majority, Wanchoo, Bachawat, Ramaswami, Bhargava and Mitter, JJ. gave dissenting judgments. According to them, article 368 carried the power to amend all parts of the Constitution including the fundamental rights in Part III of the Constitution. An amendment, acoording to the five learned Judges, was not "la~" for the purpose of article 13(2) and could not be tested under that article. The learned Judges accordingly reaffirmed the correctness of the decision in the cases of Sankari Prasad and Sajjan Singh. Some of the conclusions arrived at by Wanchoo J ., who gave the judgment on his own behalf as well as on behalf of Bhargava and Mitter JJ. may be reproduced as under :

(i) The Constitution provides a separate part headed 'Amendment of the Constitution' and Art. 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 Art. 368.

(ii) There is no express limitation on power of amendment in Art. 368 nd. no limitation can or should be implied therein. If the <'.ons.t1tut10n makers intended certain basic provisions in the

nstitut.Ion, and Pal'! III in particular, to be not amendable there is no reason why it was not so stated in Art. 368.

<iii) The power conferred by the words of Art. 368 being unfettered, inconsistency between that power and the pro".ision in Art.

642 SuPREME cotlllT REPORTS [1973] Supp. s.c.R.

13(Z) must be avoided. T.ht:refore cin klceping with. the unfettered power in Art. 368 the 'W!Ofd "law" in !Att 13(2) must be read as meaning 1aw passed under the ordinary legislative power and not a constitutional amendment.

(iv) Though the period for which Sankari Prasad's case ha stood unchallenged is not long, the effects which have followed on the passing of State laws on the faith of that decision, are S<> 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 shotild be applied.

( v) The doctrine of prnspective overruling cannot be accepted in this country. The doctrine accepted here is that courts declare

l'aw and that a declaraliion made by a court is the law of the land and takes dfcct 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.

The main condu9ions of Bachawat J. were as tmder :

(i) Article 368 not only prescribes the procedure but also gives the power of amendment.

(ii) The power to amend the Consliitution cannot be said to reside in Art. 248 and List I, item <J7 because if amendment could be made by ordinaey lag!slaliive. process Art. 368 would be mea. ningless.

(iii) The contention that a constitutional amendment under Art. 368 is a law within the meaning of Art. 13 must be rejected.

(ivj There is no conflict between Arts. 13(2) and 368. The two articles operate in different fields, the former in the field of law, the latter in that of constitutional amendment.

(v) If the First, Fourth, Sixteenth & Seventeenth Amendment Acts are void they do not legally exist from their inception. They cannot be valid from 1951to1957 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.

We may now set out some of the conclusions of Ramswami J. as under :

(i) In a written Constitution the amendment of the Constitution is a substantive constint act which is made in the exercise of the sovereign power •through a prediesigned !procedure unconnected with ordinary legislation. The amending power in

KESAVANANDA :ti. KERALA (Khanna, J.) 643

Att. 368 is hence sui generis and cannot be compared to the la"· making power of ParI1ament pursuant to A111:. 246 •read with Lists I and III. It folloWI! that the expression 'law' in An. 13(2) cannot be construed as .including an amendment of the Constitution w.hkh is achieved by .Parliament in exercise •of its sovercigl> constituent power, but must mean law made by Parliament in. its legislative capacity under Art. 246 read with List I and List Ill of the 7th Schedule.

(1.i) The language of Art. 34i8 is perfectly general and =Powers Parliament to amend the Constitution without any e:xception whatsoever. The •use of the word '.fundamental' to describe the rights •in Part III :and •the word 'guranteed' iin Art. J2 cannot lift the fundamental rights above the Constitution ltself.

(iii) There is no room for an implication in the construction of Art. 368. If the CQIJstitution makers wanted certain basic features to be 11namendable they would have said so.

(iv) 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 the nation and the need for agrarian and: social reform.

( v) If the fundamental rights are unamendable and if Art. 368 does not include any such power it follows that the amendment of, say Art. 31 by insertions of Arts. 31A and 31B can only be made by a voilent revolution. It is doubtful if the proceedings of a new Constitutent Assembly that may be called will have any legal validity for if the Constitution provides its own method of amendment, any other methcid will be unconstitutional and void.

(vi) It was not necessary to express an opinion on the doctrine of prospective overruling of legislation.

Before dealing with article 368, we may observe that there are twe> types of constitutions, viz., rigid and flexible. It is a frequently held but erroneous impression that this is the same as saying nondocumentary or documentary. Now, while it is true that a non.documentary constitution cannot be other than flexible, it is quite possible for a documentary constitution not to be rigid. What, then, is that makes a constitution flexible or rigid? The whole ground of difference here is whether the process of constitutional law-making is or is not identical with the process of ordinary law-making. The constitution

644 SUPREME COURT REPORTS [1973] Supp. S.C.R.

which can be altered or amended without any special machinery is a flexible constitution. The constitution which requires special procedure for its alteration or amendment is a rigid contitution (see p. 66- 68 of the Modem Political Constitutions by C. F. Strong). Lord Birkenhead L.C. adopted similar test in the Australian (Queensland) case of Mccawley v. The King(') though he used the nomenclature controlled and uncontrolled constitutions in respect of rigid and flexible constitutions. He observed in this connection :

''The difference of view, which has been the subject of careful analysis by writers upon the subject of constitutional law, may be traced mainly to the spirit and genius of the nation in which a particular constitution has i$ birth. Some communities, and notably Great Britain, have not in the framing of constitutions fdt it necessary, or thought it useful, to shackle the complete independence of their successors. 111ey have shrunk from the assumption that a degree of wisdom and foresight has been conceded to their generation which will be, or may be, wanting to their successors, in spite of the fact that cl:iose successors will possess more exprience of the circumstances and necessities amid which their lives are lived. Those constitution framers who have adopted the other view must be supposed to have believed that certainty and stability were in such a matter the supreme desiderata.

Giving effect to this belief, they have created obstacles of varying difficulty in the path of those who would lay rash hands upon the ark of the Constitution."

Let us now deal with article 368 of the Coosti, tution. As amendments in articles 13 and 368 of the Constitution were made in purported exercise d the powers conferred by article 368 in the form it existed before the amendment made by the Twentyfourth Amendment, w• shall deal with the article as it was before that amendment.

It may be mentioned in this context that article 4, article 169, Fifth Schedule Para 7 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 formation of new States or alteration of areas, boundaries, or names of existing States, as well as on abolitiion or creation of legislative councils in States. Fifth Schedule contains provisions as to administration of controlled areas and scheduled tribes while Sixth Schedule contains provisions as to the .administration of tribal -areas.

It is further expressly provided that no such law would be deemed to be an amendment of the Constitution for the purpose of article

368. There are a number of articles which provide that they would

( 1) [1920] A.C. 763.

~.

KESAVANANDA v. KERALA (Khanna, J.) 6-15

continue to apply till such time as a Jaw is made in variance of them. • Some of those articles arc :

10, 53(3), 65(3), 73(2), 97, 98(3), 106, 120(2), 135, 137, 142(1), 146(2), 148(3), 149, 171(2), 186, 187(3), 189(3), 194(3), 195, 210(2), 221(2), 225, 229, 239(1), 241(3), 283(1) and (2), 285 (2), 287, 300(1), 313, 345 and 373.

The other provisions of the Constitution can be amended by recourse to article 368 only.

Article 368 finds its place in Part XX of the Constitution and is the only article in that part. The part is heaqed "Amendment of the Constitution". It is not disputed that article 368 provides for the procedure of amending the Constitution. Question, however, arises as to whether article 368 also contains the power to amend the Constitution.

It may be stated in this connection that all the five Judges who gave the dissenting judgment in the case of Golaknath, namely, Wanchoo, .Bachawat, Ramaswam~ Bhargava and Mitter JJ. expressed the view that article 368 dealt with not only the procedure of amending the Constitution but also contained the power to amend t1le Constitution.

The argumennhat the power to amend the Con<titution was contained in the residuary power of Parliament in article 248 read with item <.J7 of List I was rejected. Hidayatullah J. agreed with the view that amendment to the Constitution is not made under power derived from article 248 read with entry 97 of List I. Accordi11g to him, the power of amendment was sui generis. As against that, the view taken by Subha Rao C. J., Shah, Sikri, Shelat and Vidialingam JJ. was that article 368 nierely prescribed the various steps in the matter of amendment of the Constitution and that power to amend the Constitution was derived from articles 245, 246 and 248 read with item 97 of List I. It was said that the residuary power of Parliament can certainly take in the power to amend the Constitution.

Amendment of the Constitution, according to the provisions of article 368, 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 total membership of that House and by a majority of not less than two-thirds members of the House present and voting. After it has been so passed, the Bill is to be presented to the President for his ascent.

When the President gives his assent to the Bill, the Constitution, according to article 368, shall stand amended in accordance with the terms of the Bill. There is a proviso added to article 368 with respect to amendment of certain articles and other provisions of the Constitution including article 368. Those provisions can be amended only if the Bill passed by the two Houses of Parliament by necessary majority, as mentioned earlier, is ratified by the Legislatures of not less than

646 SUPREJM£ COURT REPORTS [1973} Supp. s.c.R.

one-half of the States by resolutions to .that effect. In such a case, the Bill has to be presented to the President for his assent only after the necessary ratification by the State Legislatures. On the assent being given, the Constitution stands amended in accordance with the terms of the Bill.

The words in article 368 "the Constiuttion shall stand amended in accordance with the terms of. the Bill'', in my opinion, clearly indicate that the said article provides not merely , tne procedure for amending the Constitution but also contains the power to amend article 368.

The act .that a separate Part was provided with the heading "Amendment of the Constitution" shows that the said part was confined not merely to the procedure for making the. amendment but also contained the power to make the amendment. It is no doubt true that article 248 read with item 97 of List I has a wide scope, but in spite of the width of its scope, it carn)JO(, in my opinion, include the power to amend the Constitution. The power to legislate contained .in articles 245, 246 or 248 is subject to the provisions of the Constitution. If the argument were to be accepted that the power to amend the Constitution is con tained in article 248 read wi:th item No. 97 List I, it would be difficult to make amendment of the Constitution because the amendment would in most of the cases be inconsistent with the article proposed to be amended. The only amendments which would be permissible in such an event would be ones like those contemplated by articles 4 and 169 which expressly provide for a law . being made for the purpose in variance of specified provisions of the Constitution. Such law has to be passed by ordinary legislative process. Article 368 would thus become more or less a dead letter.

Article 248 read with entry 97 List I conteniplates legislative process. If the amendment of the Constitution were such a legislative , process, the provi<ion regarding .ratification by the legislatures of not less than one-half of the States in respect of certain amendments of the Constitution would be meaningless because there is no question of ratification of a legislation , made by Parliament in exercise of the power conferred by article 248 read with entry 97 List I. It is noteworthy that ratification is by nieans of. resolutions by State Legisla" tures. The passing of resolution can plainly be not considered to be a legislative process for makting a law. The State Governors also do not come into the picture for the purpose of ratification. The State Legis~ latures in ratifying, it has been said, exercise a constituent function.

Ratifying proces<, according to Orfield, is equivalent tD roill call of the

States. Ratification by a State of constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of the assent of the States to the. proposed amendment ·(see The Amending of the Federal Constitution p. 62-63). '

EESAVANANDA II. Kl!llALA (Khanna, J.) 647

The fact that the marginal note of article 368 contained the words "Procedure for Amendment of the Constitution" would not detract from the above conclusion as the marginal note cannot control the scope of the article jtself. As mentioned earlier, the words in the article that "the Constitution shall stand amended in accordance with the terms of the Bill" indicate that the power to amend the Constitution is also contained in article 368. The existence of such a power which can clearly :be discerned in the scheme and language of article 368 cannot be ruled out or denied by invoking the marginal note of the article.

The various subjects contained in entries in List I, List II and List III of Seventh. Schedule to the Constitution were enumerated and specified at great length. Our Constitution in this respect was . not written on a tabula rasa. On the contrary, the scheme of distribution of legislative lists in the Government of India Act, 1935 was to a great extent adopted in the Constitution. Referring to the' said distribution of lists and the residuary provisions in the Gowernment of India Act, Gwyer C. J. observed in the case In re. The Central

Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, !938(').

"The attempt to avoid a final assignment of residuary powers by an exhaustive enumeration of legislative subjects has made the Indian Constitution Act unique among federal Constitutions in the length and detail of its Legislative Lists."

Our Constitution-makers made list of the legislative entries still more exhaustive and the intention obvi.ously was thatthe subjects mentioned should be covered by one or other of the specific entries, so that as few snUjects as possible and which did not readily strike to the Comti· tution-makers should be covered by the residuary entry 97 in List !.

The Constitution-makers, in my opinion, could not have failed to make an entry in the lists in the Seventh Schedule for amendment of the Constitution if they had wanted the amendment of Constitution to be dealt with as an ordinary legislative measure under articles 245. 246 and 248 of the Constitution. The fact that they provided separate Part in the Constitution for amendment of the Constitution shows that they rtalised the importance of the subject of amendment. of the (', onstitution. It is difficult to holcl that despite their awareness of the importance of constitutional amendment, they left it to be dealt with under and spelt out of entry 97 List I which merely deals with "any .other matter not enumerated in List II or List III including anv tax

not mention¢d in either of those lists."

( 1) [1939) :f.C.R. 38.

648 SUPIU!Ml! COURT UPORTS [ 1973) Supp,, s.c, a.

The residuary entry is essential in a federal consti!IU, tion and the sole object of the residuary entry is to confer on the , fede, t:; tl)cgis\atUl'C ·· or the State Legislatures, as the case my be, the power ~11.makc .ordinary laws under and in accordance with the Constitut, ioi:i in respect d any matter, not enumerated in any other list for lcgiilati911 •. By the

very nature of things, the power to amend the Constitution,., cannot be in the residuary entry in a federal £onstitution. because th.e power to amend . the Constitution would also include the power . to alt~ the distribution of subjects mentioned in different entries. S11ch a .power <:an obviously be not a legislative power.

It was originally intended that the iesiduary power of legislation should be .vested in the States. This is clear from the Objective Resolution which was moved by Pt. Nehnt in the Constiwent Asseni- . bly before the partition of th~ country on December 13, 1946 (ie~ Con

stituent Assembly debates, Vol I, p. 59). After .the partition,. the rcsi- <lu~ power .of legislation was vested in the Centre and was taken out of l:he State List. If the intention to vest residuary powers in States had . been eventually carried out, no argument could possibly hav.e been advanced that the power to amend the Constitution was possessed by the States and not by th~ Union. The fact that subsequently the Constitutent Assembly vested the iesiduary power in the Union Parliam.ent subject to ratification by State Legislatures in c~ cases, would not go to show that the residuary clause included the, power to amend the Constitution.

I am therefore of the view that article 368 prescribes not only the procedure for the amendment of the Constiifution . but also . confers power of amending the Constitution.

Irrespective of the source of power; the words in article 368 that "the Constitution shall stand amended" indicate that the procds of making amendment prescribed in article 368 is a self-executing pro.

'CCSS. The article shows that once the procedure prcscrilicd in that

:?rticle has been complied with, the end product is the amendment Of the Constitution.

Question then arises as to whether there is any power under artidi: 368 of amendment of Part III so as to take away or abridge fundamental rights. In this pcct we find that article 368 con Ill.ins provisions

relating to amendment of the Constitution. No words are to be f0und in article 368 as may indicate that a limitation was intended on the power of making amendment of Part III with a view to take away or abridge fundamental rights. On the contrary, the words used in

article 368 are that if the procedure prescribed by that article is complied with, the Constitution shall stand amended. The words "the Const'1tution shall stand amended" plainly cover the various articles

KESAVANANDA "· KERALA (Khanna, J.) 649

of the Constitution, and I find it difficult in the face of those clear and unambiguous words to exclude from their operation the articles relating to fundamental rights in Part III of the Constitution. It is an elemental rule of construction that while dealing with a constitution every word is to be expounded in its plain, obvious and commonsense unless the context furnishes some ground to control, qualify or enlarge it and there cannot be imposed upon the words any recondite meaning or any extraordinary gloss (see Story on Constitution of the United States, Vol. I, Para 451). It has not yet been erected intO a legal maxim of constitutional construction that words were meant to conceal thoughts. If framers of the Constitution had intended that provisions relating to fundamental rights in Part III be not amended, it is inconceivable that they would not have inserted a provision to that effect in article 368 or elsewhere. I canoot persuade myself to believe that the framers of the Constitution deliberately used words which cloaked their real intention when it would have been so simple a matter to make the intention clear beyond any possibility of doubt.

In the case of The Queen v. Burah(') Lord Selborne observed:

"The established courts of justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms ofthe instrument by which, affirmatively, the legislative powers were created, .and by which, negatively, they are .restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express cqndition or restriction by which that power is limited, ... it is not for any court of justice to inquire further, OI to enlarge constructively those conditions or restrictions.''

Although the above observations were made in the context of the legislative power, they have equal, if not greater, relevance in tM context of the power of amendment of the constitution.:

It also cannot be said that even though the framers of the Constitution intended that Part III of the Constitutibn relating to fundamental rights should not be amended, by inadvertent omission they failed to make an express provision for the purpose. Reference to the . proceedings dated September 17, 1949 of the OQnstituerit Assembly shows that an amendment to that effect was. moved by Dr. P. S. Deshmukh. This amendment which related to insertion of article 304A

( 1) [1878] 3 A.C. 889 at p. 904-5

650 SUPREME COURT REPORTS [ 1973] Supp. s .. c.R •

. after article 304 (which corresponded to present article 368) was m the following words : "'Notwithstanding anything contained in this Constitution to the contrary, no amendment which is calculated to infringe or restrict or diminish the scope of any individual rights, any rights of a person or persons with respect to property or otherwise, shall be permissible under this Constitution and any amendment which is or is likely to have such an effect shall be void and ultra vires of any Legislature."

The above amendment, which was subsequently withdrawn, must have been incorporated in the Constitution if the framers of the Constitution had intended that no amendment of the Constitution should take away or abridge the fundamental rights in Part III of the Constitution.

Before the Constitution was framed, Mr. B. N. Rau, Constitutional Adviser, sent a questionnaire along with a covering letter on March 17, 1947 to the members of the Central and Provincial Legislatures.

Question 'Zl was to the effect as to what provision should be made regarding the amendment of the Constitution. The atrention of the members of the Central and Provincial Legislatures was invited in this context to the provisions for amendment in the British, Canadian, Australian, South African, US, Swiss and Irish Constitutions. Some of those constitutions placed limitations on the power of amendment and contained express provisions in respect of those limitations. For instance, article 5 of the United States contained a proviso "that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect tlhe first and f1>urth clauses in the ninth section of the first article and that no State, without its consent, sthall be deprived of its equal suffrage in the Senate". It is inconceivable that, despite the awareness of the fact that in the constitution< of other countries where restriction was sought to be placed on the power of amendment an express provision . to that effect had been inserted, the framers of our Constitution would omit to insert such a provision in article 368 or in some other article if, in fact, they wanted a limitation to be placed on the power of amendment in respect of articles relating to fundamental right. On the contrary. there is clear indication that the Drafting Committee was conscious of the need of having an express provision regarding limitation on the power of amendment in case such a limitation was desired.

This is clear from article 305 of the Draft Constitution which immediately followed article 304 corresponding to article 368 of the Constitution as finally adopted. Article 305 of, the Draft Constitution, which was subsequently dropped, was in the following terms :

"305. Notwithstanding anything contained in article 304 of this Constitution, the provisions of this Constitution relating to the

KESAVANANDA v. KERALA (Khanna, J.) 651

reservation of seats for the Muslims, the Scheduled Castes, the Scheduled Tribes or the Indian Christians either in Parliament or in the Legislature of any State for the time being specified in Part I of the First Schedule shall not be amended during a period of ten years from the commencement of this Constitution .and shall cease to have effect on the expiration of that period unless continued in operation by an amendment of the Constitution." .

Article 305 of the Draft Constitution reproduced above makes it manifest that the Drafting Committee made express provision for limitation on tha power of. amendment in case such a limitation was desired.

The fact that in the Constitution as ultimately adopted, there was no provision either in article 368 or in any other article containing a limitation on the power of amendment shows that no such limitation was intended.

The speech of Dr. Ambedkar made on September 17, 1949 while dealing with the provision relating to amendment of the Constitution also makes it clear that he divided the various articles of the Constitution into three categories. In one category were placed certain articles which would be open to amendment by Parliament by simple majority.

To that category belonged articles 2 and 3 of the Draft Constitution relating to the creation and reconstitution of the existing States as well as some other articles like those dealing with upper chambers of the State Legislatures. The second category of articles were those which could be amended by tw<>-thirds majority of members present and voting in each Home of Parliament. The third category dealt with articles which not only required tvlio-thitds majority of each House of Parliament but also the ratification of not less than half of the Legislatures of the States. There was nothing in the speech of Dr. Ambedkar that apart from the three categories of articles, there was a fourth category of articles contained in Part III which was not amendable and as such, could not be the subject of amendment.

It may be mentioned that according to the report of the Constituent Assembly debates, the speech of Dr. Ambedkar delivered on September 17, 1949 contains the following sentence :

"If the future Parliament wishes to amend any particular article which is not mentioned in Part III or article 304, all that is neces..

sary for them is to have two-thirds majority." (Vol IX, P. 1661)

The words "Part III" in the above sentence plainly have reference to the third category of articles mentioned in the proviso to draft article 304 (present article 368) which required tw<>-thirds majori~ and ratification by at least half of the State Legislatures. These words do nol refer to Part III of the Constitution, for if that were so the sentence reproduced above would appear incongruous in the context of the

652 SUPBEME COURT lll!POJ.TS [1973] Supp. S.C.L

entire speech and strike a discordant n<>l'e against the rest of the speech.

Indeed, the entire. tenor of the above speech, as also of the other speeches delivered.by Dr. Abedkar k the Constituent Assembly, was that all the a#icles of the COnstitution were subject cto the amendatory process.

Another fact which is worthy of note is that the Constitution (First Amendment) Act, 1951 was passed by the Promiona!Parliamerit which had also acted as the constituent Assembly for the drafting of the Constitution. By the First Amendment, certain fundamenial llights contained in article 19 were abridged and amended. Speeches in suppon of the First Amendment 'Ycrc made by Pt. Nehru .and Dr.

Ambcdkar. It . was taken for granted that the :Parliament had .bY adhering to the procedure prescribed in article 368 the right to amend the Cbnstitution, including Part III relating to fundamental rights; Dr. Shyama Prasad Mukherjee who opposed the First Amendment expressly conceded that Parliament had the power to make the .aforesaid amendment.

If it had ever been the intention of the ffamcrs of the Constitution that the provisions relating to fundamental right&

contained in Part III of the constitution cotM .not be amended, it ia difficult to believe that Pt. Nehru and Dr, Ambedkar who played such an importan~ role in the drafting of the Constitullion \Vould have supported the amendment of the constitution or in any case would have failed to take note of the fact in their speeches that Part III was not intended to be amended 80 a.~ to take. away or abridge fundamental rights. Pt. Nehru in the course of his speech in support of the First Amendment after referring to the need of g .tht COnst:itution adaptable to changing social and ecQllOn:U~· .cooctitions and changing ideas observed :

"It is of. the utm091: importance that people .m9Ukl rean.e tha~ this great Constitution of ours, over which we]aboiJrcd fot:. so long, is not a final and rigid thing, which must either be accepted or broken. A Constitution which is rcsponsive .. to, the•f(9llle's will which is responsive to thci.r ideas, in that, it can be .:vamP here and there, they will respect it all the more. 3tlli tllcy will~ fight against, when we want to change i1;. Othcrwi$e, # you make them feel that it is unchangeable .and cannot .. bi: touched, the only thig to be. done by th05C '!ho wish to dui~ it is to. try to break 1t. That 1s a dangerous thing and a bd thing. Thet~ fore, it is a desirable and a good thing ror people to.realise that .ildf very fine COnstitutiori. that we have .fashioned after years <IE fabolm is good in so far as it goes but as society changes,- ~·· coc4itjG11$ change we amend it in the proper way. It is not like. the,~ tcrable law of the Mcdes and the Persians that .. it dnnQt be changed, although the world around may . clMnge."

KESAVANANDA ti, KllALA (Khanna, J.) 653

The First Amendment is contemporaneous practical exposition of . the power of amendment under article 368. Although .as observed cil, sewhere, the provisions of article 368 iii my view are plain and unambiguous and contain no restrictions so far as amendment of Part III is concerned, even if it may be assumed that the matter is not free from doubt the First Amendment provides clear evidence of how the provisions of article 368 were construed and what they were intended and assumed to convey by those who framed the Constitution and how they acted upon the basis of the said intention and assumption soon after the framing of the Constitution. The contemporaneous prac. tical exposition furnishes considerable aid in resolving the said doubt and construing the provisions of the article. It would be pertinent to reproduce in this context the observations of Chief Justice Puller while speaking for the US Sur, rcmc Court in the case of William McPhersott v, Robert R. Blacker : ()

"The founcrs ol the COnstitutiort employed words. in tliCh: natural sense; and where they arc plain and clear, resoh to collateral aids to interpretation is unnecessary and cannot be indulged in to narrow or enlarge the text; but where ther, e is ambiguity or doubt, or where tw0 views may well be entertained contempora~ neous and subsequent practical construction arc entitled to the greatest weight. Certainly, plaintiffs in error cannot reasonably assert that the clause of the Constitution under consideration soplainly sustains their position as to entitle them to o)>ject that contemporaneous history. and practical construction are J¥)t to be allowed their legitimate force, and, conceding that their argument inspires a doubt sufficient to justify resort to the aids of . interpretation thus afforded, we arc of. opinion that such doubt is thereby resolved against thetp, the contemporaneous practical exposition of the Constitution being too strong and obstinate to be shaken

or ontrolled."

I may also reproduce in: this context the following passage from pages 49-50 of Willoughby's Constitution of the United States, VoL I: "In Lithographic Company v. Sarony(2 ) the court declared~ The construction placed upon the Constitution by the first act of

1790 and the act of 1802 by the men who were contemporary with its formation, many of whom were members of the Convention who framed it, is of itself enllitled to very great weight, and when it is remembered that the rights thus established have not been

disputed during a period of nearly a century, it It. almost canclusive."

( 1) 146 U.S. !. (') lll U.S. 53. 42-36 S.C. India/73

1554 SUPREME COURT REPORTS [ 1973) Supp. s.c.R.

So far as the question is concerned as to whether the speeches made in the Constituent Assembly can be tak.en into consideration,

this Caurt has in three cases; namely, /. C. Golak Nath & Ors. v. State of Puniab & Anr. (supra), H. H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. v. Union of India(') and Union of India

'V. H. S. Dhillon(2 ) taken the view that such speeches can be taken

into account. In Golak Nath's case Subba Rao C.J. who spoke for the majority referred to the speeches of Pt. Jawaharlal Nehru and Dr.

Ambedkar . on page 791. Reference was also made to the speech of Dr.

Ambedkar by Bachawat J. in that case Oll1 page 924. In the case of Madhav Rao, Shah J. who gave the leading majority judgment relied upon the speech of Sardar Patel, who was Minister for Home Affairs, in the Constituent Assembly (see page 83). Reference was also made to the speeches in the Constituent Assembly by Mitter J. on pages 121 and 122. More recently in H.S. Dhillon's case relating to the validity of amendment in Wealth Tax Act, both the majority judgment as well as the minority judgment referred to the speeches made in the 'Constituent Assembly in support of the conclusion arrived at. It can,

therefore, be said that this Court has now accepted the view in its decisions since Golak Nath's case that speeches made in the Constituent Assembly can be referred t'O while dealing with the provision of the Constitution.

The speeches in the Constituent Assembly,· in my opinion, caiJ. be referred to for finding the history of the constitutional pro\'.ision and the background against which the said provision was drafted.

The speeches can also shed light to show as to what was the mischief which was sought to be remedied and what was the object which was sought to be attained in drafting the provision. The speeches cannot, however, form the basis for construing the provisions of the Constitution. The task of interpreting the provision of the Constitution has to be done independently and the reference to the speeches made in the Constit!Uent Assembly does not absolve the court from performing that task. The draftsmen are supposed to have expressed their intentions in the words used by them in the provisions.

Those words are final repositories of the intention and it WllJUld be ultimately from the words of the provision that the intention of the draftsmen would have to be gathered.

The next question which arises for consideration is whether the word "law" in article 13(2) includes amendment of the Constitution.

According to article 13(2), the State shall not make any law which takes away or abridges the rights conferred by this Part and any

(1) [1971) 3 S.C.R. 9.

( 2) [1972) 2 S.C.R. 33.

KESAVANANDA v. KERALA (Khanna, J.) 655

law made in contravention of thls clause shall, to the extent of the contravention, be void. "State" has been defined in article 12 to include, unless the context otherwise requires, the 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 stand taken on behalf of the petitioners that amendment of the Constitution constitutes "law" for the purpose of article 1;3(2). Al; such, no amendment of the Constitution can take away or abridge the fundamental rights conferred by Part III of the Constitution. Reference has also been made to clause (1) of article 13, according to whlch all laws in force in the territory of India immediately before the commencement of this Constitution in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. It is urged that word "law" in article 13(2) should have the same meaning as that word in article 13(1) and if law in article

13(1) includes constitutional law, the same should be its meaning for the purpose of article 13(2). Our attention has also been invited to article 372(1) of the Constitution whlch provides' that notwithstanrung the repeal by this Constitution of the enactment referred to in article 395 but subject to the other provisions of the Constit!ution, all the law in force in the territory of Inrua immediately before the commencement of thls Constitution shalt continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.

According to Explanation I to article 372, the expression "law in force'' shall include a law passed or made by a Legislallure or other competent authority in the territory of India before the commencement of thls Constitution and not previously repealed notwithstanding that lt or parts of it may not be then in operation either at all or in particular areas. The same is the definition of "law in force" in article 13(3).

I find it difficult to accept the contention that an amendment of Constitution made in accordance with article 368 constitutes law for the purpose of article 13(2). The word "law" although referred to in a large number of other articles of .the Constitution finds no mention in article 368. According to that article, the Constitution shall stand amended in accordance with the terms of the Bill after it has been passed in compliance with the provisions of that article. Article 368 thus contains an indication that what follows as a result of the compliance with article 368 is an amendment of the Constitution and not law in the sense of being ordinary legislation. In a generic sense. "law" would include constitutional laws, inclurung amendment of the Constitution, but that docs not sccni to be the connotation of the word "law" as used in article 13(2) of the Constitution. There is a clear distinction between statutory law made in exercise of the legislative power and constitutional law which 'is inadc in exercise of

656 SUPREME COURT REPORTS [1973] Supp. s.c.R.

the constuent power and the distinction should not be lost sight of.

A constitutii:>n is the fundamental and basic law and provides the authority llljldier which ordinary law is made. The Constitution of West Ge11lilll)ly, it may be stated, is called the basic law of the Federal Republic of Germany. A conStitution derives its authority generally from the . pebple acting in their sovereign capacity and speaking through tlieiti representatives in a Constituent Assembly or Convention. It relates to the sttucture of the government, the extent and distribution of its powers and the modes and principles of its operation, preceding drdinary laws oin the point of time and embracing the

settled policy of the nation. A statute on the other hand is law made by the representatives of the people acting in their legislative capacity, subject' to the superior authority, which is thJ;- constitution. Statutes are enactments or rules for the government of civil conduct or. for the administration or for the defence of the government. They relate to law and 9rder, criminal offences, civil disputes, fiscal matters and other subjects on which it may become necessary to have law. Statutes are quite oftep, tentative, occasional, and in the nature of temporary c.xpediCJlts ( ste Constitutional Law and lts Administration by S.P.

W caver, p. 3) Articl.c 13(2) has merencc to ordinary piece of legislation. It would also, in view of the definition given in clause (a) of article 13(3), i\ldude any ordinance, order, bye-law, rule, regulation, notificatlion, custom or usage having 'in the territory of India the force of law. The Constitution has thus made it dear in matters in which thcte could be some doubt as to what would constitute "law''.

If it had been the intention of the framers of the Constitution that the "law" in article 13 would also include constitutional law including laws relating to the amendment of Constitution,· it is not explained as to why they di<\ not expressly so state in clause (a) of article 13(3).

The Constitution itself contains indications of the distinction between the constitution and tht laws framed under the Constitution. Article 60 ptovides for the oath or affirmation to be made and subscribed by the President before entering upon office. The language in which that oath and affirmation have been couched, though not crucial, has some bearing. The form of the oath or affirmation is as under :·

"I A. d swear in the name of God '

.B., 0 solemnly affirm

that I will faithfully execute the office of President (or dicharge the functions of the President) of India and will to the best of my ability preserve, protcet and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India..,.

KESAVANANDA I'. ORAL\ (Khanna, J.) 657

The facts that both the words "the Constitution and the law~ have been used in the above form tends to show that for the purpose of the Constitution the law and the Constitution are not the same.

It may be mentioned that articles 56{l)(b) and 61(1) which deal with impeachment of the President refer only to "violation of the Constitution". T)lere is no reference in those articles to violation of law. Article 69 which prescribes the oath for the Vice-President refers to "allegiance to the Constitution as by law established". The words "as by law established" indicate the legal origin of the Constitution.

Article 143, to which our attention has been invited, gives power to the President to refer to the Supreme Court a question of law or fact of such importance that it is expedient to obtain the opinion of this Court. It is pointed out that question of law in that article would include a question relating to constitutional law. This no doubt is so but this is due to the fact that words "questions of law or fact" constitute a well known phrase in legal terminology and have acquired a particular significance. From. the use of those words in article 143 it cannot pe inferred that the framers of the Constitution did not make a distinction between the Constitution and the law.

Articles 245, 246 and 248 deal with the making of laws. The words "shall not m~ any law" in article 13{2) seem to echo the words used in articles 245, 246 and 248 of the Constitution which deal with the making of laws. The words "make any law" in article 13 as well as the above three articles should carry, in my opinion, the same meaning, namely, law inade in exerciJle of legislative power. In addition to that, the law in arliicle 13 in view of the definition in article 13(3) shall , also include spcc'ial provisions mentioned in clause (3).

It has already been mentioned above that there is no question in the case of a law made by the Parliamnt of its ratification by the resolutions passed by the 'State Legislatures. The fact that in case of some of the amendments made under article 368 such ratification is necessary shows that an amendment of the Constitution is not law as -contemplated by article 13(2) or articles 245, 246 and 248.

Article 395 of the Consiiaution rcpcakd the Indian Independence Act, 1947 and the Government of India, Act, I935, together with all -enactments amending or supplementing the latter Act, but. not inclu- <ling the Abolition .of Privy Council Jurisdiction Act, 1949. The law

in fori:e mentioned ln article 372(1) has reference not to any constitu tional law in the sense of being a law relating to the constitution cl.

either the territory of ers!Whlle British India or the territory comprised in the Indian States. So far as the territory of British India was con

cerncd, the law before January 26, 1950 relating to the constitution was contained in the Government of India Act, 1935 and the Indian In-

658 SUPREME COURT REPORTS (1973] Supp. s.c.R.

dependence Act, 1947. Both these Acts were repealed by article 39S

when the Constitution of India came into force. As regards the territory comprised in Indian States, the law relating to their constitutions in so far as it was inconsistent with the provisions of the Constitution of India also came to an end before January 26, 1950 when the said Constitution came into force. The only constitution which was in force since that date was the Constitution of India and it applied to the whole of India, including the erstwhile Indian States and the British India.

The various notifications which were issued before January 26, 1950 mentioned that with effect from that date "the Constitution of India shortly to be adopted by the Constituent Assembly of India shall be the Constitution for the States as for other parts of India and shall be enforced as such" (see White Paper on Indian States, pages 365 to 371).

It would thus appear that hardly any law containing the constitutions of territory of erstwhile Indian States remained in force after the coming into force of the Constitution of India with all its exhaustive provisions.

If the law in force contemplated by article 372(1) must be such as was continued after January 26, 1950, it would follow that article 372 does not relate to the constitutional law in the -sense of being law relating to the constitution of a territory.

Although the law in force referred to in article 372(1) would not include law relating to the constitutions of the territory of erstwhile British India or the Indian States, it did i.rwlude law relating to subjects dealt with by the constitutions in force in those territories. Such a law which partakes of the nature of either a statutory law or an Order made under the organic provisions of those constitutions, continued in force under article 372(1). A statutory law or Order is obviously of an inferior character and cannot have the same status as that of a constitution. Article 372(1) in the very nature of things deals with laws made under the provisions of constitutions which were in force either in the erstwhile British India or the territory comprised in Indian States. The opening words of article 372(1) "'notwithstanding the repeal by this Constitution of the enactments referred to in article 395" indicate that the laws in force contemplated by article 372 are those laws which were framed under the repealed Indian Independence Act, 1947 and the Government of India Act, 1935 or similar other Jegislative enactment> or orders made under the provisions of constitutions of erstwhile Indiarl States. Such legislative enactments or Orders were inferior in status tc> a Constitution. I am, therefore, of the view that the word "law" in article 372 has reference to law made under a constiiution and not to the provisions of a constitution itself.

Article 372 ( 1) is similar to the provisions of section 292 of the Government of India Act, 1935. As observed by Gwyer C. J. iu the-

KESAVANANDA v. KERALA (Khanna, J.) 659

case of The United Provinces v. Mst. Atiqa Begum and Ors., (1 ) such a provision is usually inserted by draftsmen to negative the possibility of any existing law being held to be no longer in force by reason of the repeal of the law which authorized its enactment. .The question with which we are concerned is whether law in article 13 or article 372 could relate to the provisions of the Constitution or provisions rr.· lating to its amendment. So far as that question is concerned, I am of the opinion that the language of articles 372 and 13 sh<>ws that the word "law" used therein did not relate to such provisions. The Consti

tution of India was plainly not a law in force at the time when the Constitution came into force. An amendment of the Constitution in the very nature of things can be matle only after the Constitution comes into force.

As such, a law providing for amendment of the Constitution cannot constitute law in force for the purpose of article 13(1) or article 372(1).

The language of article 13(2) shows that it was not intended to cover amendments of the Constitution made in accordance with article

368. It is difficult to accede to the contention that even though the framers of the Constitution put no express limitations in article 368 on the power to make amendment, they curtailed that power by implication under article 13(2). In order to find the true scope of article 13(2) in the context of its possible impact on the power of amendment, we should read it not in isolation but along with article 368. The rule of construction, to use the words of Lord Wright M. R. in fames v.

Commonwealth of Australia,(') is to read the actual words used "not in vacuo but as occurring in a single complex instrument in which one part may throw light on another". A combined reading of article 13(2) and article 368, in my view, clearly points to the conclusion that extinguishment or abridgement of fundamental rights contained in Part III of the Constitution is not beyond the amendatory power conferred by article 368. The alleged conflict between article 13(2) and article 368 is apparent and noi real because the two provisions operate in different fields and deal with different objects.

The Constitution itself treats the subject of ordinary legislation. as something distinct and different from that of amendment of the

Constitution. Articles 245 to 248 read with Seventh Schedule deal with ordinary legislation, while amendment of Constitution Js the subject matter of article 368 in a separate Part. Article 368 is independent and self-contained. Article 368 does not contain the words "subject to the

provisions of this Constitution" as are to be found at the beginning of article 245. The absence of those words in article 368 thus shows that an amendment of the Constitution made under that article has a statu~

( 1) [1940] 2 F.C.R. IlO.

( 2) [ 1936] A.C. 578.

660 $UPllEMl! COUllT REPOllTS [1973} Supp. S.C.ll.

higher than that of legislative law and the two arc of w1cqual dignity.

If there is any !imitation on power of amendment, it must be found in article 368 itSclf which is the sole fountain-head of power to amend, and not in othci; provisions dealing . with ordinary legislation. As stated on pages 24-26 in the Amending of Federal Constitution by Orficld, 'limitation on the scope of amendment should be found written in the amending clau!e and the other articles of the Constitution should not be viewed as limitations'. The very fact that the power of amendment is put in a separate Part (Part XX) and has not been put i.n the Part and Chapter (Part XI Chapter I) dealing with legislative powers shows that the twq powers are different in character and operat'e in separate fields. There i, s also a vital difference in the procedure for passing ordinary legislation. and that for bringing about a constitutional amendmenr under article 368. The fact that an. amendment Bill is passed by each House of Parliament and those two Houses also pass ordinary legislation does not obliterate the difference between the constituent power and the legislative power nor docs it warrant the conclusion that constituent power is a species of legislative power.

Our attention has been. invited on behalf of the petitioners to the proceedings of the Constituent Assembly on April 29, 1947. Sardar Patel on that day made a move \.n the Constituent Assembly that clause (2) be accepted. Clause (2) which provided the basis for clauses

(1) and (2) of article 13 as finally adopted was in the following words :

"AH existing laws, notificatkms, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this part of the Constitution shall stand abrogated to the extent of such inconsistency, nor shall the Union

or any unit make any law taking away or abridging any such right."

Mr. I,{. Santhanam then moved an amendment for substituting the concluding words of clause (2) by the following words :

"Nor shall any such right be taken away or abridged except by an amendment of the constitution."

The above amendment was accepted by Sardar Patel. Motion was thereafter adopted accepting the amended clause which was in the fo!IOl\Ving words :

"All existing laws, notificatios, regulations, customs or usages in force within the territories of the Union inconsistent with the rights

guaranteed under that part of the constitution shall stand abro. gated to the 'extent of such inconsistency, nor shall any such right be taken away or abridged except by an amendment of the Constitution."

KESAVANANDA v. KERALA (Khanna, J.) 661

In October 1947 the Constitutional Adviser prepared the Draft Constitution, sulxlause (2) of clause 9 of which was as under :

"(2) Nothing in this Constitution shall be taken to empower the State to make any law which curtails or takes away any of the rights conferred by Chapter II of this Pat except by way of amendment of this Constitution under section 232 and any law made in contravention of this sub-section shall, to the extent of the contravention, be void."

Minutes of the Drafting Committee of October 13, 1947 show that it was decided to revise clause 9. Revised clause 9 was put in the appendix as follows :

"9. (1) All laws in force immediately before the comme!lcement of this Constitution in the territory of India, in so far as they are inconsistent with any of the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make law which takes away or abridges th, e rights conferred by this Part and any law made in contravention of this sub-section shall, to the extent of the contravention. be void.

(3) In this section, the expression 'law' includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law in the territory of India or any part thereof."

On February 21, 1948 Dr. Ambedkar forwarded the Draft Constitution of India to the President of the Constituent Assembly along with a covering letter. Clause 9 in thi, s Draft Constitution was numbered as clause 8. Sub-clause (2) of clause 9 was retained as sub-clause (2) of

clau•e 8. A proviso was also added to that sub-clause, but that is not material for the purpose of the present discussion. The Constitution was thereafter finally adopted and it contained article 13, the provisions of which have been reproduced earlier.

It has been argued on behalf of the petitioners that the members of the Drafting Committee who were eminent lawyers of India, deliberately revised clause 9 of tl1e Draft Constitution prepared by th~ Constitutional Adviser with a view to undo the effect of the amendment moved by Mr. Santhanam which hacl been accepted by the Con. stituent Assembly, because the members of the Drafting Committee wanted that the fundamental rights should not be abridged or taken away by the amendment of the Constitution.

I find it difficult to accept the above argument It is inconceivable that the members of the Drafting Committee would reverse the decision which had been taken by the Constituent Assembly when it accep-

662 SUPREME COURT REPORTS [1973] Supp. s.c.R.

ted the amendment moved by Mr. Santhanam and adopted the motion for the passing of clause containing that amendment. It would appear from the speech of Mr. Santhanam that he. had moved the amendment in order to remove doubt. Although there is nothing in the minutes to show as to why the members of the Drafting Committee did not specifically incorporate Mr. Santhanam's amendment in the revised clause, it seems that they did SO because they took the view that it Wai unnecessary. In his letter dated Febmary 21. 1948 Dr. Ambedkar, Chairman of the Drafting Committee wrote to the President of the Constituent Assembly;

"In preparing the Draft the Drafting Committee was of course expected to follow the decisions taken by the Constituent Assembly or by the various Committees appointed by the Constituent Assembly. This the Drafting Committee has. endeavoured to do as far as possible. There were however some matters in respect of which the Drafting Committee felt it necessary to suggest certain changes.

All such changes have been indicated in the draft by underlining or side-lining the relevant portions. C'.:ire has also been taken by the Drafting Committee to insert a footnote explaining the reason for every such change."

It is, therefore, plain that if it had been decided to make a material change in the draft atticle with a view to depart from the decision of the Constituent Assembly, the change would have been indicated by underlining or sidelining the relevant provision and also by inserting a footnote explaining reasons for the change. In the absence of any underlining, sideliniog or footnote, it can be presumed that members of the Drafting Committee did not intend to make a change. A very material fact which should not be lost sight of in this context is the note which was put in October 1948 under the draft article 8. It was stated in the Note :

"Clause (2) of article 8 does not override the provisions of article

304 of the Constitution. The expression "law" used in the said clause is intended to mean "ordinary legislation". However. to remove any possible doubt, the following amendment may be made in article 8 :

In the proviso to clause (2) of article 8, after the words "nothing in this clause shall" the words "affect the provisions of article 304 of this Constitution or be inserted." (see page 26 Shiva Rao's "The;,.. Framing of India's Constitution" Vol.

IV).

The ab0ve note and other such notes were made by the Constitutional

Adviser and reproduced fully the views of the Drafting Committee and/or of the Special Committee (see page 4 Shiva Rao's "The Framing

KESAVANANDA v. KERALA (Khanna, J.) 663

of India's Constitution" Vol. I). It would thus appear that there is no indication that the members of the Drafting Committee wanted to deviate from the decision of the Constituent Assembly by making the provisions relating to fundamental rights unamendable. On the contrary, the note shows that they accepted tl>e view embodied in the decision of the Constituent Assembly.

Apart from that I am of the view that if the preservation of the fundamental rights was so vital an important a desideratum, it would seem logical that a proviso would have been added in article 368 express! y guaranteeing the continued existence of fundamental rights in an unabridge~ form. This was, however, not done.

The next question which should now engage our attention is about the necessity of amending the Constitution and the reasons which weighed with the framers of the Constitution for making provision for amendment of the Constitution. A Constitution provides the broad outlines of the administration of a country and concerns itself withi the

problems of the Government. This is so whether the Government qriginates in a forcible seizure of power or comes into being as the result

of a legal transfer of power. At the time of the framing of the Consti tution many views including those emanating from conflicting extremes are presented. In most cases the Constitution is the result of a compr<>- niise between conflicting views. Those who frame a Constitution can not be oblivious of the fact that in the working of a Constitution rnany difficulties would have to be enccuntered and that it is beyond the wisdom of one generation to hit upon a permanently workable solution for all problems which may be faced by the State in its onward march towards further progress. Sometimes a judicial interpretation may make a Constitution broad-baS'ed and put life into the dry bones of a Constitution so as to make it a vehicle of a nation's progress. Occasions may also arise where judicial interpretation might rob some provision of a Constitution of a part of its efficacy as was concern plated by the framers of the Constitution. If no provision were made for the amendment of the Constitution, the people would be left with no remedy or means for adapting it to the changing need of times and would per force have recourse to extra-constitutional methods of chan

ging the Constitution. The extra-constitutional. methods may sometimes be bloodless but more often they extract a heavy toll of the lives of the citizen and leave a trail of smouldering bitterness. A State without the means of some change, JS was said by Burke in his Reflections oii

Revolution, is without the means of its conservation. Without such means it might even risk the loss of that part of the constitution which it wished th~ most religiously to preserve. According to Dicey, twelve unchangeable Constitutions of France have each lasted on an average for less than ten years, and have frequently perished by violence. Louis

664 SUPREME COURT REPORTS [1973] Supp. s.c.R.

Phillipe's monarchy was destroyed within seven years of the time when Tocqueville pointed out that no power cxisliCd legally capable of: altering the articles of the Charter. On one notorious instance at least-and other examples of the same phenomenon might be produced from the annals of revolutionary France-the immutability of the Constitution was the ground or excuse for its voilent subversion. To quote the words of Dicey:

"Nor ought the perils in which France was involved by the immutability with which the statement of 1848 'invested the constitution to be looked upon as exceptional; they arose from a defect which is inherent in every rigid constitution. The endeavour to create laws which cannot be changed is an attempt to hamper the exercise of sovereign power; it therefore tends to bring the letter of t.he law into conflict with the will of the really supreme power in the Sta~. The majority of the French electors were under the constitution the true sovereign of France; but the rule which prevented the legal re-election of the President in effect brought the law of the land into conflict with the will of the majority of the electors, and produced, therefore, as a rigid const, itutio11 has a natural tendency to produce, an opposition between the letter of the law and the wishes of the sovereign. If the inflexibility .of French const'itutions has provoked. revolution; the flexibility of English Constitutions has, once at least, saved them from violent overthrow."

The above observations were amplified by Dicey in the following words:

"To a student, who at this distance of time calmly studies the history of the first Reform Bill, it is apparent, that in 1832 the supreme legislative authority of Parliament enabled the nation to carry through a poli1; ical revolution under the guise of a legal reform.

The rigidity in short, of a constitution tends to check gradual innovation; but, just because it impedes change, may, under unfavourable circumstances occasion or provoke revolution."

According to Finer, the amending clause is so fundamental t!O a constitl)- tion that it may be called the constitution itself (see The Theory and Practice of Modern Government, p. 156-157). The amending clause, it has been said, is the most important part of a constitution. Upon its exi&- tence and truthfulness, i.e. its correspondence with real and natural conditions, depends the question as to whether the state shall develop with peaceable continuity or shall suffer alterations of stagnation, retrogression, and revolution. A constitution, which may be imperfect and erroneous in its other parts, can be easily supplemented and corrected, if only the state be truthfully organized in the consti!I)-

' •

KESAVANANDA v. KERALA (Khanna, J.) 665

tion; but if this be not accomplished, error will accumulate until nothing short of revolution can save the life of the state (see Political Science and Comparative Constitutional Law, Vol. I by Burgess, p. 137). Burgess further expressed himself in the following words:

"It is equally true that development is as much a law of state life as existence. Prohibit the former, and the latter i.9 the existence of the body after the spirit has departed. When, in a democratic political society; the well-matured, long and deliberately formed will of the undoub~ majority can be persistently and successfully thwarted, in the amendment of its organic law, by the will of the minority, there is just as much danger to the state from revolution and voilence as there i.9 from .the caprice of the majority, where the sovereignty of die bare majority is acknow- / !edged. The safeguards against too radical change must not be exaggerated to the point of dethroning the real sovereign." (ibid p. 152)

Justfying the amendment of the Constitution to meet the present canditions, relations and requirements, Burgess said we must not, as Mirabeau finely expressed it, lose the grande morale in the petite morale.

According to John Stuart Mill, no constitution can expect to be permanent unless it guarantees progress as well as order.

Human societies grow and develop with the lapse of time, and unless provision is made for such constitutional readjustments as their internal development requires, they must stagnate or retrogress (see Political Science and Government by J. W. Garner p. 536, 537).

Willis in h'.is book on the Constitutional Law of the United States has dealt with the question of amendment of the Constitutfon in th• following words:

"Why should change and growth in constitutional law stop with the present? We have always bad change and growth, We have needed change and growth in the past became there have been changes and growth in our economic and social life. There will probably continue to be changes in our economic and social life and there should be changes in. our constlitutional law in the future to meet such changes just as much as there was need of change in the past. The Fathers in the Constitutional Convention ex. pected changes in the future : otherwise they would i; ot have p~ vided for amendment. They wanted permanency or our Constitution and there was no other way to obtain it. The people of 1789 had no more sovereign authority than do the people of the present."

666 SUPREME COURT REPORTS [1973] Supp. s.c.R.

Pleading for provision for amendment of a Constitution and at the same time uttering a note of caution against a too easy method of amendment, Willis wrote :

"If no provision for amendment were provided, there would be a constant danger of revolution.

If the method of amendment were made too euy, there would be the danger of too hasty action all of the time. In either case there would be a danger of the overthrow of our political institutions. Hence the purpose of providing for amendment of the constitution is to make it possible gradually to change the constitution in an orderly fashion as the changes in social conditions make it necessary to change the fundamental. law to correspond with such social change."

We may also recall in this connection the words of Harold Laski in his tribute to Justice Holmes and the latter's approach to the provision of the US Constitution. Said Laski :

"The American Constitution was not made to compel the twentieth-century American to move in the swaddling clothes of his ancestors' ideas. The American Constitution must be moulded by reason to fit new nee& and new necessities . . . . . . . . . . . . . • The law must 'r'ccognize change and growth ev, en where the lawyer dislikes their implications. He may be skeptical of their implications; he has not the right to substitute his own pattern of Utopia for what they seek to accomplish."

According to Ivor Jennings, flexibility is regarded as a merit and rigidity a defect because it is impossible for the framers of a Constitution to foresee the conditions in which it would apply and the problems which will arise. They have not the gift of prophecy. A constitution has to work not only in the environments it was drafted, but also centuries later (su Some Characteristics of Indian Constitution, p. 14-15). It has consequently been~ observed by Jennings:

"The real difficulty is tha' the problems of life and society ae infinitely variable. A draftsman thinks of the oblems that he can foresee, but he sees through a glass, darkly. He cannot know .i.vhat oblems will arise in ten, twenty, fifty or a hundred 'years. Any restriction on legislative power may do harm, because the effect of that restriction in new conditions cannot be foreseen."

The machinery of amendment, it has been said, should be like a safety valve, so devised as neither to operate the machine with too great facility nor to require, in order to set it in motion, an accumulation of force sufficient to explode it. In arranging it, due consideration should be given on the one hand to the rcquisities of growth and on the other hand to those of conservatism. The letter of the

Kl!SAVANANDA v. KllRALA (Khanna, J.) 667

constitution must neither be idolized as a sacred instrument with that mistaken conservatism which cling to its own worn out garments Ulltil the body is ready to perish from cold, nor yet ought it to be made a plaything of politicians, to be tampered with and degraded to the level of an ordinary tatute (see Political Science and Government by J. W. Garner, p. 538).

The framers of our Constitution were conscious of the desirability of reconciling the urge for change with the need of continuity. They were not oblivious of the phenomenon writ large in human history that change without continuity can be anarchy; change with continuity can mean progress; and continuity without change can mean no progress.

The Constitution-makers have, therefore, kept the balance between the danger of having a non-amendable constitution and a constitution which is too easily amendable. It has accordingly been provided that except for some not very vital amendments which can be brought about by simple majority, other amendments can be secured only if they are passed in each House of Parliament by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of each House present and voting. Provisron is further made that in respect of certain matters which affect the interest of the States the amendment must also be ratified by the legislatures of not less than one half of the States by resolution to that effect. It can, therefore, be said that while a provision has been made for amendment of the Constitution, the procedure for the bringing about of amendment is not so easy as may make it a plaything of politicians to be tampered with and degraded to the level of ordinary . statute. The fact that during the first two decades after the coming into force of the Constitutlion the amending Bills have been passed wihout much difficulty with requisite majority is a sheer accident of history and is due to the fact that one party has happened to be in absolute majority at the Centre and many of the States. Thls circumstance cannot obliterate the fact that in normal circumstances when there are well balanced parties in power and in opposition the method of amending the Constitution is not so easy.

Another circumstance which must not be lost sight of is that 110 generation has monopoly of wisdom nor has any generation a right to place fetters on future generations to mould the machinery of government and the laws according to their requirements. Although guidelines for the organization and functioning of the future government may be laid down and although norms may also be prescribed for the legislative activity, neither the guidelines should be so rigid nor the norms so inflexible and unalterable as should render them to be incapabh! of change, alteration and replacement even though the future generations want to change, alter or replace them. The

668 SUPREME COURT REPORTS (1973] Supp. s.c.R.

guidelines and norms would in such an event be looked upon as fetters and shackles upon the free exercise of the sovereign will of the people in times to come and would be done away with by methods other than constitutional. It would be nothing short of a presumptous and va:in act and a myopic obsession with •1ts own wisdom for one generation to distrust the wisdom and good sense of the future generation and to treat them in a way as if the generations to come would not be sui iuris. The grant of power of amendment is based upon the assumption that as in other human affairs, so in constitutions, there are no absolutes and that the human mind can never reconcile itself to fetters in its quest for a better order of things. Any fetter resulting fi:om the concept of absolute and ultimate inevitably gives birth to the urge to revolt. Santayana once said: "Why is there sometimes a right to revolution? Why is there sometimes a duty to loyalty? Because the whole transcendal philosophy, if made ultimate, is false, and nothing but a selfish perspective hypostasized, because the will is absolute ne:idier in the individual nor in the humanity ... "

(see German Philosophy and Politics (1915) 645-649 quoted by Frankfurter J. in "Mr. Justice Holmes" 931 Ed. page 117). What is true of transcendal philosophy is equally true in the mundane sphere of a constitutional provision. An unamendable constitution, according to Mulford, is the worst tyranny of time, or rather the very tyranny of time. It makes an earthly providence of a convention which was adjourned without day. It places the sceptre over a free people in the hands of dead men, and the only office lefr to the people is to build thrones out of the stones of their sepulchres (see Political Science and Government by J. W. Garner pages 537, 538).

According to Woodrow Wilson, political liberty is the right of those who are governed to adjust government to their own needs and interest. Woodrow Wilson in this context quoted Burke who had said that every generation set.~ before itself some favourite object which it pursues as the very substance of liberty and happiness. The ideals of liberty cannot be fixed from generation to generation; only its conception can be, the large image of what it is. Liberty fixed in unalterable law would be no liberty at all.

Government is a part of life, and, with life, it must change, alike in its objects and in its practices; only this principle must remain unaltered, this principle of liberty, that there must be e freest right and opportunity of adjustment.

Political liberty consists in the best practicable adjustment between the power of the government and the privilege of the individual; and the freedom to alter the adjustment is as important as the adjustment itself for the ease d progress ofaffairs and the contentment of the citizen

(see Constitutional Government in the United States by Woodrow Wilson, p. 4-6).

KESAVANANDA ti. KERALA (Khanna, J.) 669

Each generation, according to Jefferson, should be considered as a distinct nation, with a right by the will of the majority to bind themselves but none to bind the succeeding generations, more than the inhabitant of another country. The earth belongs in usufruct to the living, the dead have neither the power nor the right over it. Jefferson even pleaded for revision or opportunity for revision of constitution every tlln.eteen years. Said the grea~ American statesman :

"The idea that institution's established for the use of the nation cannot be touched or modified, een to make them answer their and, because of rights gratuitiously supposed 'in those employed to manage them in 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 inculca.te 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 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."

The above words wore quoted during the course of the debate in the Constituent Assembly (see Vol. XI Constituent Assembly debates, p. 975)

Thomas Paine gav~ expression to the same view in the following words:

"There never did, there never will, and there never can, ex1st a parliament, or any description of men, or any generatioo of men, in 'any country, possessed of the right or the power of binding and

controlling 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 thcmseles null and voitl. Every age and gelieration must be as free to act £0r itself in all case~ as; the ages and generations which pl'O' ceded it The vaniry :ind. presumption of govern1ng 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 gcneratiohs wlUi:h are to follow." W c may also reproduce the words of Pt. . Nehru in h'is speech to the Constituent Assembly on Novci:nbcr 11, 1948:

"And tcm=hcr this.- that while we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is nd permanence iii Constitutions. Their should be 43-36 s.c. India/73

670 SUPREME COURT REPORTS [1973] Supp. s.c.R.

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."

If it is not permissible under article 368 to so amend the Constituclon as to take away or abridge tho fundamental rights in Part III, as has been argued on behalf of the petitioners, the conclusion would follow that the only way to take away or abridge fundamental rights, even if the overwhelming majority of people, e.g. 90 per cent of them want such an amendment, is by resort to extra-constitutional methods like revolution. Although, in my opinion, the language of art'icle 368 is cbr and, contains no limitation on the power to make amendment so as to take away or abridge fwidamental rights, even if two intorpretations were possible, one according to which the abridgement or extinguishment of fundamental rights is permissible in accordance with the procedure prescribed by article 368 and the other according to which the only way of bring'ing about such a result is an extra-constitutional method like revolution, the cqurt, in. my opinion, should lean in favour of the first interpretation. It hardly needs much argument to show that between peaceful amendment through means provided by the constitution and the extra-constitutional method with all its

danrous potentialities the former method is to be preferred. The contrast between the two methods fa so glaring that there can hardly be any difficulty in making our choice. between the two alternatives.

The aforesaid discussion would af.so reveal that the consequences which: would follow from ihe acceptance of the view tihat there is no power under article 368 to abridge or take away fundamental rights Would lie chaotic because of the rtsort tO" extra-constitutional methods.

As against that the acceptance of 'the opposite view would not result fa such con5equences. Judged even in this light, I find it difficult to accede to the contention advanced on behalf of the petitioner.

I may at this stage deal with the question, adverted to by the learntd counsel for the petitioners as to how hr the consequences have to be taken into account in construing the proviSi.ons of the Constitution. fa this connection, I may observe that it i~ one of the well-settled rules of construction that if the words of a statute are in themselves

prec:~ and unambiguous, no mi>re is necessary than to expound those words in their natural and ordinary sense, the'words themselves in such <:ase best declaring tihe intention of the legislature. It is equally well- ·

settled that w, here alternati:vc constructions ate cqlly open that alternative is to be chosen which will' be eonsi.ltent with the smooth working of the system which the statute purports to l>c regulating; and that alterrilillive is t6 be rejected which wi!i introduce uncerminty, friction, Gr -confusion into the working of the cm ( 1ee Collector of Customs,

JU!SAVAN'ANDA v.

0 KERALA .(Khanna, J.} 671

Baroda v. Digviiay.rinhji Spinning & Weaving Mills Ltd.(')). These priruiiplcs of construction apply with g!l'Catcr force when we are dealing witdr theprov'isions of ar constitwion.

t have kept the above principles in vkw and am of the opinion that as the language of article 368 is plain and unambiguous, it is not possible to read therein a limitation on the power of Parliament to amend the provisions od' Part III of the Constifution so as to abridge or take away fundamental righ~ Apart from that, I am of the view that if two constructions were possible, the construction which I have. acc¢pted' would, as mentioned above, avdid chaotic consequences and would also prevent the introduction of uncertainty, friction or confusion into the working of our Constitution. ·

It is also, in my opinion, not permissible in the face of the plain language of article 368 to ascertain by any process akin to speculation the supposed intention of the Constitution-makers. We must act on tho principle that if the words are plain and free from any ambiguity the Constitution-makers shoukl be taken to have incorporated their intention in those words.

It seems inconceivable that the framers of the Cotistitution in spite of the precedents of the earlier French Constitutions which perished in violence because of their noncamcndability, iriserted in the Constitution a Part dealing with fundamental righti; which even by the unanmious vote of the people could not be abridged or taken away arid' which left with people no choice except extra-consllitutiorutl methods to achieve than object. The mechanics of tlie amendment of the C6nstitu~ tion, including those relating ti> extinguisliment or abri:dgenlent of fundamental rights, m my opinion, are contained in the . C:Onstifution

itself and' it is not necessazy to have recourse to a revolution or' other atra-coristitutional methods to achieve that object.

Confronted with the situation that if .the stand of the petitioners was to be accepted about the iriallility of the Parliament td amend Part

III of the Constitution except .by means of a revolution or other extraconstitutionaf methods, the learned coill15el for the petitioners has argued that such an amendment is possiblo by m:ikirig law for convening

a Constituerit' Asscrribl'f° or for holding a referendum: It is urged that there would be ari Clement of participation of the people in the convm• ing of such a Constituent Assembly or the holding of a referendum and it is through such means that Part III of the Cotistltution can be amenii

ed so as to take away or abriiige fundamental rights; The above argument, in my opinion, is untenable and fallacious; If Parliament by a twe>-thirds majority in each House and by following the procedure laid

{ 1) [1962] I S.C.R. 896 (on p. 899).

672 SUPREME COURT REPORTS [1973] Supp. s.c.R.

down in artide 368 cannot amend Part III of the Constitution so as to take away or abridge fundamental rights, it is not understood as to how the same Parliament can by law create a body which can make the requisite amendment. If it is not within the power of Parliament to take away or abridge fundamental rights even by a vote of two-thirds majority in eax:h House, would it be permissible for the same Parliament to enact legislation under entry 97 List I of Seventh Schedule by simple majority for creating a Constituent Assembly in order to take away or abridge fundamental rights ? Would not such a Cqnstituent Assembly be a creature of statute made by parliament even though such a body has the !Ugh-sounding name of Constituent Assrmbly? The nomenclature of the said Assembly cannot conceal its real nature as being one created undet a statute made by the Parliament. A body created by the Parliament cannot have powers greater than those vested in the

Parliament. It is µOil possible to accept the contention that what the.

Parliament itself could not legally do, it could get done through a body created by it. If something is impermissible, it would continue to be so even though two steps are taken instread of one for bringillg about the result which is not permitted. Apart from the above if we were to. hold that the Parliament was Cllltitlcd under entry <J7 List I to make a law for convening a Constituent Assembly for taking away or abridging fundamental rights, some startling .results arc bound to follow. A. law made under entry 97 List I would need a simple majority in each House of the Parliament for being brought on statute boc;>k, while an. amendment of the Constitution would require a two-thirds majority of the members of. each House. present and voting. It would certainly be anamolous that what Parliament could not do by two-thirds majority, it can bring about hy simple majority. This apart, there are many articles of the Constitution, fur the amendment of which ratification by not less than half of the State Legislatures is required. The provision rogarding ratification in such an event would be set at naught There would be also nothing to prevent Parliament while .making a law for convening a Constituent Assembly to exclude .effective representation or voice of State Legislatures in tho covening of Constituent Assembly.

The argument that provision should be made for referendum is equally facile. Our Constitution-maker$ rejected the method of referendum. In a country where thorc are religious and linguistic minorities, it was not considered a proper method of dccidillg vii.ta! issues. The leaders of the minority communities entertained apprehension regarding this method. It is obvious t!hat when passions aro roused, the opinibn of the minority in a popular referendum is bound to get submerged and lose effectiveness.

It also cannot be said that the method of bringing about a.mcndment through referendum is a more difficui: meihod.

It is

KESAVANANDA v. KERALA (Khanna, J.) 673

true that in Australia over 30 amendments were submitted to referendum, out of which only four were adopted and two of them were of trivial rutture. As against that we find that the method of referendum for amend'mg the Constitution has hardly provided much difficulty in Switzerland. Out of 64 amendments proposed for amending the federal constitution, 49 were adopted in a popular referendum. So far as the method of amendment of the Constitution by two-third majority in either House of the Central Legislature and the ratification by the State Legislatures Is concerned, we .find that during first 140 years since the adoption of the United States Constitution, 3,113 proposals of amendment were made and out of them, only 24 so appealed to the Congress as to secure the approval of the Congress and only 19 made sufficient appeal t6 the State legislatures to secure ratification (see Constitutional Law oif United States by Willis, p. 128). It, therefore, cannot be said that the method of referendum prOl'ides a more effective check on the power of amendment compared to the method of bringing it about by prescribed majority in each house of the Parliament.

Apart from that I am of the view that it is no~ permissible to resort to the method of referendum unless there be a constitutional provision for such a course in the amendment provision. In the case of George S. Hawkes v. Harvey C. Smith as Secretary of State of Ohio (1) the US Supreme Court was referred in the context of ratification by the States of the Eighteenth Amendment to the Constitution of the Ohio State which contained provision for referendum. It was urged that in the case of such a State ratification should be by the method of referendum.

Repelling this cont.ention, the court held :

"Refe:endum proisions of State Constitutions and statutes cannot be applied in the ratification or objection of amendments to the Federal Constitution without violaring the requirement of article 5 of such Constituon, that such ratification shall be by the legislatures of the several states, or by copventions therein, as Congress shall decide."

The same view was rciterated by the US Supreme Court in State of Rhode Island v. A. Mitchell Palmer Secretary of State and other connected cases er known as N¢ional Prohibition Cases(2 ).

Argument has been advanced on lichalf of the petitioner t_hat there is greater width of power for an amendment of the Constitution if the amendment is brought about by a.referendum compared to the power of amendment vested in the two Houses of Parliament or Federal Legislature even though it is required to be passed. by a prescribed majority and has to be ratified by the State Legislatures. _In this res-

(1) 64 Lawyen Ed. 871.

( 2) 253 S.C.R. 350 64 Lawyerr Edition 946.

674 suPaEME collllT BEPOlll'S [1973) Supp. s.c.R.

pect we •finid .tihat different constitutions have devisecd different meth~ of bringing about amendment. The main methocds of .modern .constitutional amendment are: ( 1) by the ordinary leature, but under certain restrictions; .

.(2) by the , people thr"ugh a rc£erendwn;

(3) by a majority of. all .the units of a federal state; .

(~) by a special convention.

In some cases the system of amendment is a combination of two or more cif these methods.

There are tibree ways in which the ; legislature may be allowed to amend the cQO.stitution, apart from the. case where it may do so in the ord.i~ .course of J.egislation. The simplest restriction is that .which requires a fixed quocum of members for the consideration of proposed amendments and a special majority for their passage. The latter concfuion operated in the now defunct constitution of Rumania.

According to ar#cle .146 of the Constitution of USSR the Constitution , tpay :he ended on.l, y by a decision of Supreme Soviet of USSR adopt- . ed by a roajority ~. not 1~ than two-thirds of the votes in each of its

chan)be.rs .. A .second .o.rt of retriction is that whicl; i. requires a disolutiQl.'I. d .f genenJ election on the particular issue, so that the new legisJatilr, e, beil\S rc.r.ncd :witl; i a mandate for the proposal, is in es-

eni:; e, ii c; o,, nstinie, nt se111l>ly so far as that , proposal is concerned. This additionaJ check is applied in Bc!gh1m, HOiland, Denmark and No.rway (in all of which, hiowevr, a!S<? a two-thirds parliamentary majo- rity is te<tiilireil to carry t'he amendtnent after the election) and in Swe- 'den. A third method of. cotitutiqnal change by the legislature is that w!p.ch requires a majqilty of the two l:louses in joint session, that is to say, sitting togerhe.r as 'one House, as is the case, for example, in South Africa. ·

The se.cond method is .tha.t which qemands a popular vote or referedun; i or plebiseite. This device was employed in France during

the Revolution and again by :Louis Napoleon, aQd in Germany by Hitler. This system prevails iri Switzerland, Australia, Eire, Itlay, fr; uicc (with certain Pte, sident, ial prov4ios in the Fifth jlitepublic) •nd in Denmark.

rbe third method is p.eculi'11' to federations. The V()ting on I~ fr9posc4 .. ll;)easure may be cil:hcr .p<>pular Qr by the lcj!islatures .of the

states t:9l)cerned. Jn Swi, tzerlaJ1d and Australia .the rcierendum 4 .in use; in the United States any proposed amendment requires ratifica~ tion by the legislatures, or special conventions of. 1W futmih r.t the several states.

K.ESAVANANDA II. KEIL\LA (Khanna, J.) 675

The last method is one in which a special body is created ad hoe for the purpose of constitutional revision. In some of the states of the United States, for example, this method is in use in connection with the constitution of the states concerned. Such a method is also allowed if the Federal Congress proposes this method for amendment of the

United States Constitutions. This method is prevalent in some of the states in Latin America also (see Modern Political Constitutions by C. F. Strong, p. 153-154).

The decision as to which method of amending the Constitutioru should be chosen has nec:tssarily be that of the Constituent Assembly. This decision .is arrived at after taking into account the national requirements, the historical background, conditions prevailing in the country and other factors or circumstances of special significance for the nation. Once a method of amendment has , been adopted in a constitution, that method has to be adhered to for bringing about the amendment. The selection of the. method of amendment having been: ma:de by the Constituent Assemoly it is not for the court to express preference for another method of amendment.

Amendment brought about by : one method prescribed by the Constitution is as effective as it would have been if the Constitution had prescribed .another' method of .bringing about amendment unless there be something in the Constitution itself which restricts the power of ainendment. Article 138 of the Italian Constitution makes provision: for referendum to bring about amendment of the Constitution. It has,

hocver, been el'Pressly provided in die article that referendum does not take place if a law has been ~!\Proved in .its second vote by a majority of two-thirds of ihe members of each chamber. The Italian C', onstitution tl).us makes a vote of majority of two-thirds of the members of each chamber at the second voting as effective as a referendum. 4rticle 89 of the C"onstitutiOlll: of the French Fifth Republic like-wise makes provis'1on for referendum for amendment of Constitution.

It is, however, provided in that artick that the proposed amendment is not submitted to a referendum when the President of the Republic decides to submit it to Parliament convened in Congress; in that case the proposed amendment is approved only if it Is accepted by threefifth majQrity of the votes cast.

We may at this stage advert to article 5 of the United States Constitution which reads as under:

"The Congress, whenever tw<>-thirds of both Houses shall deem it necessary; sll propose a!11endments to th!s Constitution, or, on the apphca!IOll of the 1cgislature cl. two-thlrds of the several States, shall . call a convention for proposing amendments, which in either case, shall be alid to all intents and purposes, as part of this Constitution when ratified by the legislatures of three fourths of

676 SUPREME COURT REPORTS [1973] Supp. s.c.ll.

the several States, or by conventions in three fourth thereof, as the one or the other mode of ratificatio11 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 oi the first article; and that no State,. without its consent, shali be deprived oi its equal suffrage in the Senate."

 The above article makes it clear that there arc two methods of framing and proposing amendments.

(A) Congress may itself, by a tw<>-thirds vote in each house, prepare and propose amendments.

(B) The legislatures of two.thirds of the States may require Congress to summon a Constitutional Convention. Congress shall thereupon de so, having no option to refuse; and the Convention when called shall draft and submit amendments. No provision is made as to the election and composition of the Convention, matters which . would therefore appear to be left to the discretion of Congress.

There arc the following two methods of enacting amendments framed and proposed in either of the foregoing ways. It is left oo Congress to prescribe one or other method as Congress may think fit.

(X) The legislatures of -three-fourths of the States may ratify any amendments submitted to them.

(Y) Conventions may be called in the several States, and threc,. fourths of. these conventions may ratify.

Except for Twenryfirst Amendment, on all the occasions. on which the amending power has been exercised, method A has been employed and method X for ratifying-i.e., no drafting conventions of the whole Union or ratifying conventions in the seveial States have ever been summoned. The consent of the President is not required to a constitutional amendment (see American Commonwealth by James Bryce, pp. 365-366).

There is one provision of the Constitution which cannot be changed by this process. It is that which secures to each and every State egual representation in one branch the legislature because according to proviso to article V, no State without its consent shall be deprived of. its equal suffrage in the Senate.

The question as to whether the width of power of amendment is greater in case the amendment is pasacd by a peopl~' s convention compared to the width of the power if ids pasacd by the prribcd majority in the legislatures arose in the taso oi United St•s "· SpraliESAVANANDA ti. Xl!llALA (Khanna, J.) 677

gue(') decided by the Supreme Court of the United States. In that case the constitutional validity of the Eighteenth Amendment was assailed on the ground that it should have been ratified by the Conventions because it took away the powers of the States and conferred new direct powers over individuals. The trial .court rejected all these views and yet held the Eighteenth Amendment unconstitutional on theories of

"political science," the "political thought" of the times, and a "scientific approach to the problem of government." The United States Supreme

Court on appeal upheld the Eighteenth Amendment. After referring to the provisions of article 5 Roberts J., who gave the opinion of the court, . observed:

"The choice, therefore, of the mode of ratification, lies in the sole discretion of Congress. Appellees, however, pointed out that amendments may be of different kinds, . as e.g., mere changes in the character of federal means or machinery, on the one hand, and matters affecting the liberty of the citizen on the other. They say that the framers of the Constitution expected the former sort might be rat!ified by legislatures, since the States as entities 'would be wholly competent to agree to such alterations, whereas thC]' intended that the latter must be referred to the people because not only of lack of power in the legislatures to ratify. hut also because of doubt as to their truly representing the people."

Repelling the contention on behalf of the appellees, the court obse~-· ved:

"If the framers of the instrument had any thought that amendments differing in purpose should be ratified in different ways, nothing would have been simpler than so to phrase article 5 as to. exclude implication or speculation, The fact that an instru

ment drawn with such meticulous care and by men who so well understood how to make language fit their thought does not contain any such lin\it'ing phrase affecting the exercise of discretion by the C'.ongress in choosing one or the other alternative mode of ratification is persuasive evidence that no qualipcation was intended."

The court referred to the Tenth Amendment which provided that "the

powers not delegated to the United States by the Constitution nor prGhibited by it to the States, are reserved to the States respectiveliy or 'to the people." The argument that the language of the Tenth Amendment demonstrates that the people reserved to themselevs powers over

their personal liberty, that the legislatures were not competent to enlarge the powers of the Federal Government in that behalf and that the people nevet: delegated to the Congress the unrestricted po"".er of choos-

(1) 282 U.S. 716.

678 SW.llEME COURT REPORTS (1973] Supp; s.c.R.

ing the mode of ratilication of a proposed amendment was described by the Court to be complete non sequitur. The fifth Article, it was observed, does not purport to delegate any governmental power to the United States, nor to withhold any from it. On the contrary, that article is a grant of authority bY. the people to Congress, and not to the United States. The court further observed :

"They (the people) deliberate.Ly made the grant of power to Congress i.t1 respect to the clioice of: the mode of ratification of amendmepts. Unless and until that Article be changed by amendment, Congress must function as the delegated agent of the people in the choice of the method of ratification." I am, therefore, of the view that there is no warrant for the pro- \)Osition that as the amendments under article 368 are brought about by the prescribed majority of the two Houses of Parliament and in certain cases are ratified by the State Legislatures and the amendments are not brought about through referendum or passed In a Convention, the power of amendment under article 368 is on that account subject to limitations.

Argument has then been advanced that if power be held to be vested in Parliament under article 368 to take away or abridge fundamental rights.. the power would be, or in any case could be, so used as would result in repeal of all provisions containing fundamental rights. fndia, it is urged, in such an event would be reduced to a police state wherein all cherished values like freedom and liberty would be non-existent. This argument, in my opinion, is essentially an argument of fear and distrust in the majocity of representatives of the people. It is also based upon the belief that the power under article 368 by two-thirds of the members present and voting in eaclt House of Parliament would be abused or used extravagentfy. I find it difficult to deny to the Parliament the power to amend the Constitution so as to take away or abridge fundamental rights by complying with the procedure of article 368 because of anv such supposed fear or possibility of the abuse of power. I may in this context refer to the observations of 1farshall C. J. regarding the possibilitv of the abuse of power of legislation and of taxation in the case of The Providence Bank v. Alphetts Billings.(')

"This vital power may be abused; but the Constitution of the United States was not intended to furnish the corrective for every abuse of power which may be committed by the State governments.

The iatercst, wisdom, and justice of the representative body, and its relations with its constituents furnish the only security where there is no express contract against unjust and excessive taxation, as well as against unwise legislation generally."

(1) 29 U.S. 514.

KESAVANANDA v. KERALA (Khanna, J.) 679 nm pmvcr may be abused furnishes no ground for denial of its existence if government is 0to he maintained at all, ils a proposition, now too wcll established (fee the unanimous opinion of US Supreme Court in Erparte fohn L. Rapier(')). Same view was expressed by the Judicial Committee in the case of Barik of Toronto and U.mbe(") while dealing with the provisions of section 92 of the British North America Act relating to the power of Quebec legisl.atur~.

Apart from the fact that the possihility of abuse of power is no ground for the denial of power if it is found to have been legally vested, I find that the power of amendment under article 368 has been vested not in one individual but in the majority of the representatives of .1lhe people in Parliament. For tllis purpose, the majority has lo k of not less than two-thitds of the members present and .voting in .each House. In addition to that, it is required that the 11111endme111: Bill $hoi.ild be passed in each House by a majority of

the total ,1rx1crohip of. that House. It i>s, therefore, not possible te> pass an amcndmcmt Bill by a snap vote in a House wherein a small number of members are present to satisfy the requirement of the rule of quorum. The condition about the passing of the Bill by each House, including the Ra 1'a Sabha, by the prescribed , majority ensures that it is not permissible to get the Bill passed in a joilnt sitting of: 'he two Houses (as in the case of ordinary legislation) wherein the members of the Raj ya

Sabha can be outvoted by the members of the Lok Sabha because of the latter's greater numerical strength. The effective voice of the '.Rajya Sabha in tl; ie passing of 1he amendment Bill further ensures that unless the prescribed majority of the representatives of the states agree the Bill cannot be passed. The Rajya Sabha under our Constitution is a perpetual body; its me, mbers are elected by the members of the State Assemlies and one-third of them retire every two years, We have besides that the provision for the ratification of the amendment by not less than one-half of the State Legislature in case the amendment rClatcs to certain provisions which impinge upon the rights of the St; i.tes. The fact that .a prescribed majority of the people's representatives is required. f()r bri, nging about the amendment is normally itself a guarantee that the power would not be abused. The best safeguard against , the abuse or cxt; ravagant uso of , power i.s public opinion

and nO'.t ; i Jetter on lhe right of people's representatives to change the ronstil;\l, t, i<Jn by followil)g the procedure ii.aid down .in . the const1tution

if. It would l!Qt be a correct approach .to start with a distrust in the pe<iple's 1'eprese#ives in the Parliament and to assume that majority of them would have an aversion fot the liberties of the people

( 1) 15 U.S. 93=26 Law. Ed. 110.

( 2) 12, A.C. 575.

680 SUPREME COURT REPORTS [1973] Supp. s.c.R .

.and would act against the public interest. To quote the wotds of Justice Holmes in Missouri Kansas &: Texas Ry. v. May(1),

"Great constitutional provisions must be administered with caution. Some play must be a1lowed for the joints of the machine and it must be remembered that legislatures are ultimate guardians of the liberties and welfare 'of the people in quir.c as great a degree as the courts."

L.B. Orficld has dealt with the question of the abuse of. power in oo book "The Amending of Federal Constitution", in the following

words on page 123 :

" 'Abuse' of the amending power is an anomalous term. The proponents of implied limitations resort to the method of reductio ad absurdum in pointing out the abuses which might occur if there were no limitations ()n the power to amend ...... The amending power is a power of an alltogcther different kind from the ordinary governmental powers. If abuse occurs, it occurs at the hands of a special organization of the nation and of the states representing an extraordinary majority of the people, so that for •II practical purposes it may be sa.id to be the people, or at least the highest agent of the people, and one exercising soverign powers. Thus the people merely take the consequences of thdr own acts:"

1t has already been mentioned above that the best safeguard against lhc abuse of power is public opinion. Assuming that under the sway of some overwhelming impulse, a cl'imate Is created wherein cherished values like liberty and freedom lose their significance in the eyes of the people and their representlltives and they choose to do away with all fundamental rights by amendment of the Constitution, a restricted

interpretation of article 368 would not he of mu('h avail. The people ]n such .an event would forfeit the claim to have fundamental rights .and in any case fundamental rights would not in such an event save

the 11eople from political enslavement, social stagnation or mental servitude. I may i11 this context refer to the words of Learned Hand in his eloquent address on the Spirit of Liberty :

"I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. Thes<i arc false hopes; bel'ieve me, these are false hopes. Liberty lies in the hearts of men and worr.en: when it dies there, no constitution, no law. no court can save it; no constitution, no law. no court can even do 1111.1rh to help it. While it lie.~ there it needs no constitution, no law, no court to save it. And what is this liberty which must

( 1 ) 194 U.S. 267 (on p. 270).

KESAVANANDA v. KERALA (Khanna, J.) 681

lie in the hearts of men and women? It is not the ruthless, the unbridled will; lt is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recogni7.e no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow." (see pages 189-190 Spirit of Liberty edited by Irving Dilliard).

Similar i(iea was expressed in another celebrated passage by Learnecl Hand in the Contribution of an Independent Judiciary to Civilization :

"You ntay ask what then will become of llhe fundamental princi pies of equity and fair play which our constitutions enshrlne; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say what will be left of those principles; I do not know whether they will serve only as counsels; but this much I think I do know that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades it• responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish." (see p. 164 supra).

It is axiomatic that the involvement-of a nation in war by a declaration of war against another country can change the entire course of histllry of the nation. A wrong decision in this respect can cause untold suJfering, .result 'i.n national humiliation, take toll of thousands of Jives and cripple the economy of the nation for decades to come. If the Government and the Parliament can be entrusted with power of such far reaching magnitude on. the assumption that such a power would not be abused but would be exercised reasonably in the national

interest, it would seem rather anomalous to have an approach of distrust in those very organs of the state and to deny to the Parliament the power of amendment of fundamental rights because of the supposed possibility of the abuse of such power.

There is one other aspect of the matter which may be not lost sight of. Part III deals with a number 0£ fundamental rights.

Assu~ ming that one relating to prope~, ou~ of the rnanv damen?11 rights, is found to be an obstacle m pushing forward certain amho rative measures and it is proposed i.o abridge that fundamental nght and it is also decided not to abridge or take away any other fundamental right, the present position, according to the stand tak~ on behalf of the petitioners, is that there is no _power under a~· cle 368 to abridge the obstmctive fundamental nght. The; _result ts that even though reference is made on behalf of the petitioners t~ those fundamental rights as enshrine w; thin themselves the valued con--

682 SUPREME COURT REPORTS [1973] Supp. s.c.P..

<cpt of liberty of person and freedom of expression, the protection which is, in fact, sought is for the fundamental right to property which .:auses obstruction to pushing forward ameliorative measures for national weal. It is not, in my opinion, a correct approach to assume that if Parliament is held entitled to amend Part llI of the Constitution so as to take away or abridge fundamental rights, it would automatically or necessarily result in the abrogation of all fundamental rights. I may mention in this context that for seventeen years, from 1950 .till 1967 Golak. Nath case (supra) was decided, the accepted pooition was t11at die Parliament had t11e power to amend Part III of the Constillution so as to take away or abridge fundamental rights. Despite

die possession of that power by the Parliament, no attempt was made by it to take away or abridge fundamental rights relating to. cherished values like liberty of person and freedom of expression. If it was not done in the past, why should we assume that t1ie majority of members of die Parliament in future would acquire sudden aversion and dislike for these values and show an anxiety to remove diem from the Constitution. There is a vital distinction, in my opinion, between the vesting of a power, the exercise of die power and the manner of its exercise. What we are concerned with is as to whether on the true construction of article 368, the Parliament has or has not the power to amend the Constitution so as to take away or abridge fundamental rights. So far as this question is concerned, the answer, in my opinion, should be in the affirmative, as long as die basic structure of the Constirution is retained.

fo the context of aouse of power of the amendment, reference has been made on behalf of the petitioners to he Constitution of Weimar Republic and it is urged that unless there are restrictions on t1ie power of amendment in so far as fundamental righl's are concerned,. the danger is that the Irldian Constitution may also meer die same fate as did tlie Weimar Constitution at the hands of Hitler. Thls argument, in my opinion, is wholly misconceived and is based upon correct appreciation of historical facts.

Following mi!Jtary reversals when Kaiser fled to Ho1land in 1918 his mutihous subjects proclaimed a republic in Germany. There was thus a break in die continuity of the authority and the Weimar Republc had to face staggering political problems. It had to bear the burden of concluding a humilitating peace. It was later falsely blamed for the defeat itself by some of the politicians who were diemselves responsible for the collapse and capitulation of 1918. The Republic had to wrestle, within a decade and a half, with rwo economic crises of catastrophic proportions which ruined and made desperate the <>rdinarily stable elements of society.

The chaos with pol'itical party divisions in the country was reflected in Reichstag where no party obtained a clear majority. There were 21 cabinets in 14 years. It was in those conditions tliat Hitler emerged on the scene. He made use of article 48 of the Weimar

KESAVANA1'."DA v. KERALA (Khanna, J.) 683

Constitution which dealt with emergency powers. Under article 48 of the Constitution, the President was empowered. to issue. decrees

uspending the iights guaranteed by the basic law and to make direct use of the army and navy should emergency conditions so require.

The purpos~ of the provisions was, of course, to provide the executive with means to act in the event of some grave national emergency where. the immediate and concentrated use of the power of the state might become suddenly necessary. But what happened was that almost from its beginning the government found. itself in one emergency after another, so that rule by executive decrees issued under the authority provid- <:d for by article 48 supplanted the normal functioning of the legislative branch of government. The increasing division among the political parties, the staggering economic problem and the apparent failure of the parliamentary government to function, were accompanied by the steady growth in power of the National Socialist under Hitler. In less than two years, the Weimar Republic . was transformed into a totalitarian dictatorship. The Enabling Act of March 23, 1933, pushed through the Reichstag by a narrow Nazi majority, provided government by decree without regard to constitutional guarantees. The Act empowered the Government to enact the statutes without the sane~

tion of the Parliament_ Hitler made a show of following the constitution, but the acts of his party in and out of the government in practi- <:e violated the basic Jaw_ The few limitations imposed upon the government were ignored, and Hitler's Third Reich was launched., (see

Modern Constitutions by R. F. Moore, p. 86-87 and The Constitutions of Europe by E. A. Goerner, p. 99-100). It would thus appear that it was not by use of the power of amending the Constitution but by

acting under the cover of ar"ticle 48 of the Constitution dealing with emergency powers that Hitler brought about the Nazi Jictatorship.

He thus became what has been described as" .. , the supreme political leader of the people, supreme leader and highest superior of the administration, supreme judge of "the people, supreme commander of the armed forces and the source of all law."

 Apart from the fact that the best guara; tee gainst the abuse of power of amendment is good sense of the majority of the members of Parliament and not the unamendability of Pan III of the Constitution, there is one other aspect of the matter. Even if Part III may be left in~ tact, a mockery of the entire parliam"entary system can be made by amending articles 85 and I72; which are not in Part III and according to which the life of the Lok Sabha and Vidhan Sabhas of the States. unless sooner dissolved; would be five years, and by prov:iding that the life of exiing _Lok Sabha and Vidhari Sabh,~.' shall be fifty years.

This would be a flagrant abuse of the power of amendment and I refuse to believe that public opiniori in our country would reach such abysmal depths and the standards of political and constitutional morality would sink so low that such an arriendment would. ever be pass..

• 684 sUPREME COUIIT REPORTS (1973] Supp. S.C.L

ed. I need exj)ress no opinion for the purpose of this case as to w he ther this Court would also not quash sueh an, amendment. In any case such an. amendment would be an open invitation for and be a precursor of revolution.

Even without amending any article, the emergency provisions of the Constitution contained in article 358 and 359 can theoretically be used in such a manner .as may make a farce of the democratic set up by prolonging the rule. of the party in power beyond the period of five years since the last general election after the party in power has lost public support. A Proclamation of Emergency under article 352 can 'be issued by the President if he is satisfied that a grave emergency exists whereby the security of India or of any part of tho territory thereof is threatened, whetlher by war or external aggression or even by internal disturbance. Such a Proclamation h.as to be laid before each House of Parliament. Resolution approving the Procbmation has thereafter to be passed by the Houses of Parliament According to article 83, the House of the People, unless sooner dissolved, shall continue for five

year~ from tlhe date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the House provided that the said period may, while a Proclamation of 'mergency is in operation; be extended by Parliament by laW for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate. As the Government and Parliament play a vital part in the Proclamation and continuation of emergency, the emergency provisions can theoretically !Jt,. used for avoiding the election and continuing a party in power even though •it has lost popular support by extending the life of House of the People in accordance with article 83 (2). The effective check against such unabashed abuse of power is the sense of political respon.Fbility, the pressure of public opinion and the fear of popular uprising. We need not go into the qilcstion as to whether ihe court would also intervene in such an event It iS; in my opinion, inconceivable that a party would dare to so abuse the powers grant

ed by the emergency provisions. The grant of the above power under artiCie 83 (2) is necessarily on the a&9Ulllption that such a power would not be abused. • Argument has then been advanced on behalf of the petitioners that the power of amend'ment might we1l be used in such a manner as m•ght result in doing away with the power of amendment under article 368 or in any case so amending that articles as might make it iinpossible to amend the Constitution. It is, in my opin1on, difficult to think that majority of members of future Parliament would attempt at any time to do away with the power of amendment in spite of the knowledge as to what was the fate of unamendable con., titutions in other countries like France. Assuming that at any time such

KESAVANANl?A IJ. KERALA (Khannt1, J.) 685

an amendment to abolish all amendments of constitution is passed and made a part of the Constitution, it would be nothing short of laying the seeds of a future revolution or other extra-constitut10nal methods to do away with unamendable constitution.. It is not necessary for the purpose of this case to go into the question of the constitutional validity of b'llch an amendment.

We may now deal with.the quesllion as to what is the scope of the power of amendment under a, rticle .368. This would depend upon the connotation of the word "amendment". Question has been posed during arguments as to whether the power ro amend under the above article includes the power to completely abrogate the constitution and replace it by an entirely new constitution. The answer to the above question, in my opinion, should be in the negative. I am further of the opinion that amendment of the constitution necessarily contemplates that the constitution has not to be abrogated but only changes have to be made in it. The word "amendment" postulates that the old

constitution survives without loss of its identity despite the change and continues even though it has been subjected to alterations. As a result of the amendment, the old constitution cannot be destroyed and done away with; it is retained though in the amended form. What then is meant by the ret.ention of the old constitution? It means the retention of the basic structure or framework of the old constitution.

A mere retention of some provisions of the old constitution even though the basic structure or framework of the constitution has been destroyed would not amount to the retention of the old constitution. Although it is permissible under the power .of amendment to effect changes, "howsoever important, and to adapt the system fo the requirements of

chan<z; ini~ coPdition•. it is not permissible to touch the foundation or to alter the basic institutional pattern. The words "amendment of the constitution" with alL their wide sweep and amplitude cannot have the effect ci_. destroying or abrogating the basic structure or framework of the constitution. It would not be competent under the garb of amendment, for instance, to change the democratic government into dictatorship or hereditary monarchy nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the state according to which the state shall not discriminate against any citizen on the ground of religion only cannot likewise be done away with. Provision regarding the amendment of the constitutiOD does not furnish a pretence for subverting the 91ructure of the consli-- tution nor can article 368 be so construed as to embody the death wish of the Constitution or provide ction for what may perhaps be called its lawful harakiri. Suc\l subversion or destruction cafmot be described to be amendment of the Constitution as contemplated by article 368.

44-36 S.C. India/73

686 'SUPREME COURT REPORTS (1973] Supp. S.C.R.

The words "amendment of this Constitution" and "the Constitution shall stand amended" in article 368 show that what is amended

is the existing Constitution and what emerges as a result of amendment is not a new and different Constitution but the existirig Comtitution though in an amended form. The language of article 368 thus lends support to the conclusion that one cannot, while acting under that article, repeal the existing Constitut10n and replace it by a new Constitution.

The connotation of the amendment of the Constitution was brought out clearly by Pt. Nehru in the course of his speech in support of the First Amendment wherein he said that "a Constitution which is responsive to the people's will, which is rCAponsive to their ideas, in that it can be varied here and there, they wiIJ respect it all the more and they will not fight against, when we want to change it." It is, therefore, plain that what Pt. Nehru contemplated by amendment was the varying of the Constitution "here and there" and not the elimination of tits basic structure for that would necessarily result in the Constirution losing its identity.

Reference to some authorities in the United States so far as the question is concerned as to whether the power to amend under article 5 of US Constitution would tinclude witliin itself the power to alter the basic structure of the Constitution are not helpful because there has been no amendment of such a character in the United States. No doubt the constitution of the United States had in reality, though not in form, changed a good deal since the beginnting of last century; but the change had been effected far less by formally enacted constitutional amendments than by the growth of customs or institutions which have modified the working without altering the articles of the constitution (see The Law of the Constitution by A. V. Dicey Tenth Ed. p. 129).

It has not been disputed during the course of arguments that the power of amendment under artticle 368 does not carry within itself the power to repeal the entire Copstitution and replace it by a new Constitution. If the power of amendmenb dOCA not comprehend the doing away of the entire constitution but posrulates retention or continuity of the existing constitut!ion, though in an amended form, question arises as to what is the miriimum of the existing constirution which should be left intact in order to hold that the existing constitution has been retained in an amended form and not done away with.

In my opinion, the minimum required is that which relates to the basic structure or framework of the constlitution. If the basic strucrure is retained, the old constitution would be considered to continue even though other provisions have undergone change. On the contrarv, if the basic structure is changed, mere retention of some articlles of the existirig constitution would not warrant a conclusion that the existing .constitution continues and survives.

KESAVANANDA fl. lWIAL.l (K.Iumruz, J.) 687

Although there arc some observations 'in "Limitations of Amendment Procedure and the Constituent Power" by Conrad to which it is not possible to subscribe, the following observations, in my opinion, represent the position in a substantially COITCCt manner :

"Any amending body organized within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority."

It has further been observed :

"The amending procedure is concerned with the statutory framework of which it forms part itself. It may effect changes in detail, remoultl the legal expression of underlying principles, adapt the system to the needs of changing conditions, be in the words of Calhoun 'the medicatrix of the system', but should not touch its foundations."

A similar idea has been brought out in the. following passage by Carl J. Friedrich page 'l72 of "Man and His Government" (1%3) :

"A constitution is a living system. But just as in a living, organk system, such as the human body, various organs develop and decay yet the basic structure or pattern remains the same with cael1 of the organs having its proper function, so also in a constitutional system the basic institutional pattern remains even though the different component parts may undergo significant alteration$.

For it is the characteristic of a system that it perishes when one of its essential component parts is destroyed. The United States may retain some kind of constitutional government, without, say, the Congress or the federal division of powers, but it would not be the constitutional system now prevailing. This view is uncontested even by many who do not work wiW! the precise concept of a constitution here insisted upori."

According to "The Construction of Statutes" by Crawford, a law is amended when it is in whole or in part permitted to remain and something is added to or taken from it or in some way changed or altered in order to make it more complete or perfect or effective. It should be noticed, however, that an amendment is not the same as repeal; although it may operate as a repeal to a certain degree. Sutherland in this context states that any change of the scope or effect of an existing statute whether by addit'ion, omission or substitution of provisions which does not wholly terminate its existence whether by an Act purporting to amend, repeal, revise or upplcrnent or by an Act independent and original in form, is treated as amendatory.

688 SUPREME COURT REPORTS [1973] Supp. s.c.R.

It is, no doubt, true that the effect of the above conclusion at which I have arrived is that there would be no provision in the constitution giving authority for drafting a new and radically different constitution with different basic st!ructure or framework.

This fact, in my opinion, would not show that our Constitution has a lacuna and is not a perfect or a complete organ.ic instrument, for it is not necessary that a constitution must contain a provision for its abrogation and replacement by an entirely new and different constitution. The people in the final analysis are the ultimate sovereign and if they dei; ide to have an entirely new i; onstitution, they would not need the authority of the existing constitution for this purpose.

Subject to the retention of the basic structure or framework of the Constitution, I have no doubt that the power of amendment is plenary and would include within itself the power to add, alter or repeal the Yariou1 articles including those relating to fundamental rights. During the course of years after the oonstitution comes into force, diflicul, ties can be experienced in the working of the constitution. It is to overcome those difficulties that the constitution is amended. The amendment can take different forms. It may sometimes be necessary to repe; il a particular provision of the constitution without substituting another provision in its place. It may in respect of a different article become necessary to replace it by a new provision. Necessity may also be felt in respect of a third article to add some further clauses in it.

The addition of the new clauses can be either after repealing some of the earlier clauses or by adding new clauses without repealing any of the existing clauses. Experience of the working of the constitution may also make it necessary to insert some new and additional articles in the constitution. Likewise, experience might reveal the necessitv of deleting some existing articles. All these measures, in my opinion, would lie within the a, mbit of the power of amendment. The denial of S\lch a broad and comprehensive power would introduce a rigidity in the constitution as might break the constitution. Such a rigidity i~ open to serious objection in the same way as an unamendable constitution.

The word "amendment" in article 368 must carry the same meaning whether the amendment relates to taking away or abridging fundamental rights in Part III of the Constitution or whetl1er it pertains to some other provision outside Part III of the Constitution. No serious objection is taken to repeal, addition or alteration of provisions of the Constitution other than those in Part III under the power of amendment conferred by article 368. The same approach, in my opinion, should hold good when we deal with amendment relating to funda- , nental rights contained in Part. III of the Constitution. It would be impermissible to differentiate between scope and width of power of

KESAVANANDh v. KERALA (Khanna, J.) 689

amendment when it deals with fundamental right and the scope and width of that power when it deals with provisions not concerned with fundamental rights.

We have been referred to the dictionary meaning of the word "amend", according to which to amend is to "free from faults, correct, rectify, reform, make alteration, to repair, to better and surpass". The dictionary meaning of the word "amend" or "amendment", according to which power of amendment should be for purpose of bringing about an improvement, woulld not, in my opinion, justify a restricted con 1truction to be placed upon those words. The sponsors of every amendment of the Constitution would necessarily take the position that the proposed amendment is to bring about an improvement on the existing <Anst:itution. There is indeed an element of euphemism in every amendment because it proceeds upon the assumption on the part of the proposer that the amendment is an improvement. In the realities and controversies of politics, question of improvement becomes uncertain with the result that in legal parlance the word amendment when used in reference to a constitution signifies change or alteration. Whether the amendment is, in fact, an improvement or not, in my opinion, is not a justiciable matter, and in judging the valicftty of an amendment the colirts would not go into1 the question as to whether the amendment has iu effect brought about an improvement. fo is for the special majority in each House of Parliament to decide as to whether it constitutes an improvement; the courts would not be substituting their own opinion for that of the Parliament in this respect. Whatever may be the personal view of a judge regarding the wisdom behind or the improving quality of an amendment, he would be only concerned with the legality of the amendment and this, in its turn, would dnd upon the question as to whether the formalities prescribed in article 368 have been complied with.

The approach while determining the. validity of an amendment of the Constitution, in my opinion, has necessarily to be different from the approach to the question relating to the legality of amendment of pleadings. A constitution is essentially different from pleading filed in court by litigating parties. Pleadings contain claim and counter-claim of private parties engaged in litigation, while a constitution provides for the framework of the different organs of the State, viz., the executive, the legislature and the iudiciary. A constitution also reflects the hopes an_d spirations of a people. Besides laying down the norms

or the funct1onmg of different organs a constitution encompasses within itself the broad indications as to how the nation is to march forward in times to come. A constitution cannot be regarded as a mere legal document to _be read as a will or an agreement nor is constitution like a pbint or .a Written statement filed in a suit between two litigants. A constitutton must of necessity be the vehicle of the life of a nation. It has

690 SUPREME -COIJaT UPOaTS [1973) Supp. s.c.R.

abo to be borne in mind that a constitution is not a gate but a road.

Beneath the drafting of a constitution is the awareness chat things do not stand till but move on, that life of a progressive nation, as of an irulividual. ''S not tatic and stagnant but dynamic and dashful. A constitution must therefore conl!ain ample provision for experiment and triat in the task of administration. A constitution, it needs to be emphasised, is not a document for fastidious <!Wectics but the means of ordering the life of a people, It had its roots in the past, its continuity is reflected in the present and it is intended for the unknown future.

The words of Holmes while dealing with the US Constitution have equal relevance for our Constitution. Said the great Judge :

" ... the provisions of the Constitution arc not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dlctionary, but by considering their origin and the line of their grow, tlb.." (See Gompers v. United Staks, 233 U.S. 604, 610(1914).

It is necessary to keep in view Marsha1l's great premises that "it is a Constitution we are expounding". To quote the words of Felix Frankfurter in his tribute to Holmes :

"Whether the Constitution is treated primarily as a text for interpretation or as an instrument of government may make all the difference in the world. The fate of cases, and thereby of legislation, will turn on whether the mcamng of the document is derived from itself or from one's conception of the country, its development, it~ needs, its place in a civilized society:"· (See "Mr. Justice Holmes" edited by Felix Frankfurter, p. 58) .

• The principles whlch should guide •the court in constrning a constitution have been aptly laid down in the following passage by Kania C. J. in the case of A. K. Gopalan v. Th~ S; i/te flf Ma4r{ls('):

"In respect of the construction ot .I. .Constitution Locd Wright in James v. The Commonll!eahh of Aus""1i11(2 ) obsctved that 'a Constitution most not be cons!tued ill any narrow or pedantic sense'. Mr. Justice Higgins in Attrnney-Gent1rltl i1f New South Wales v. Brewery Employees .Union,(1) observed : "Although we arc to interpret words of lhe Constititltion on the same principle' of imerpretation as we apply to.any ordinary law, these: very principles of mterprct:Rion com~) us to take int.o account tM nature and scope of the Act th:tt we arc interpretirig-to remc:mber that it is a Constitution, a mechanism under which l'aws arc

( 1) (1950) S.C.R. 88 (at p. 119-121). (I) (1936) A.C. 578 (at 614). . (•) ( 1908] 6 Com. Wt 469 (at 611-12).

KESAVANANDA II. KEM.LA (Khanna, J.) ii91

to be made and not a mere Act which declares what the law is to be.'' In In re The Central Provinces and Berar Act XIV of 1938(1), Sir Maurice Gwyer C. J. after adopting these observatiOllls said : "Especially is this true of a Federal Constitution with its n'ice balance of jurisdictions. I conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert to language of the enactment in the interest of any legal or constitutional theory or even for the purpose of supplying omissions or of correcting supposed errors.'' There is r, onsiderable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in Wt)rds. Where the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument. It is difficult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Const'itution give that authority. It is also stated, if the words be positive and without ambiguity, there is no authority for a Court to vacate or repeal a Statute on that ground alone. But it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation that one can find a safe and solid ground for the authority of Courts of justice to declare void any legislative enactment. Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great and too indefinite either for its own security or the protection of private

rights,"

Reference has been made on behalf of the peritioners to para 7 of the fifth Schedule to the Constitution which empowers the Parliament .to amend by way of addition, variation or real any of the provisions of that Schedule dealing with the adrninestration and control of scheduled areas and scheduled tribes.

Likewise, para 21 of the Sixth Schedule gives similar power to the Parliament to amend by way of addition, variation or repeal any of the provisions of the Sixth Schedule relating to the adminiSltration of tribal areas. It is urged that while article 368 contains the word "amendment" simpliciter, the above two paragraphs confer the power to amend by way of addition,

variation or repeal and thus enlarge the scope of the power of amend-

( 1 ) [1939] F.C.R. 18 (at 37).

6n SUPllMI! COUJ.T Rl!Pbats [1973]'Supp. s.c.Jt •

.mCl).t.

This contention, in my opinion, is , not ',\'.ell foundc\!. The ·.words "by way of addition; variation or 'repeal" merely amplify the meaning of the WQrd "amend" and clarify what was already implicit in that word. It, however, cannot be said tiiat if the words "by way of addition, variation or repeal" had not been there, the power of amendment would not have also included the power to add, vary or repeal. These observations would also hold good in respect of amended section 291 of the Government of India Act, 1935 which gave power to the Governor-General at any time by Order to make such amendments as he considered necessary whether by way of addi tion, modification or repea~ in the provisions of that Act or of any Order made thereunder in relat.ion to any Provincial Legislature with respect to the matters specified in that section. A clarification by way of abundant caution would not go to show that in the absence of the clarification, the power which inheres and is implicit would be nonexistent. Apart from that, I am of the view that sub-paragraph (2) of paragraph 7 of the Fifth Schedule indicates that'the word "amendment" has been used in the sense so as to cover amendment by way of addition, variation or repeal. According to that paragraph, no law mentioned in sub-paragraph ( 1) shall be deemed to be an amendment of the Comtitution for purpose of article 368. As sub-paragraph (1) deals wi.th amendment by way of addition, variation or repeal, the amendment. of Constitution for purpose of article 368 referred to in sub-paragraph (2) should be construed to be co-extensive and comprehensive enough to embrace within itself amendment by way of addition, variation or repeal. The same reasoning would also apply , to sub-paragraph (2) of paragraph 21 of the Sixth Schedule.

The Judicial Committee in the case of British Coal Corporation \'.

The King(') laid down the following rule:

"In interpreting a constituent or organic statute such as the Act, d1at construction most beneficial to the widest possible amplitude of its powers must be adopted."

The Judicial Committee also quoted with approval the following pas,_ :ige from Clement's Canadian Constitution relating to provision of British North America Act :.

"But these are statutes and statutes, and the strict construcnon. deemed proper in the case, for example of a pe!Jal or. taxing statute, or one passed to regtilate the affairs of an. English parish, would be often subversive of Parliament's real intel)t if applied to an Act passed to ensure the peace, order and gOQd go.vermw:pt .... ".

( 1) (1935] A.C. 500.

KESAVANANDA v. KERALA (Khanna, J.)

Orfield, while dealing with the amendment of the constitution has observed that the amendment of a constitution should always be constrncd more liberally. To quote from his book ''The Amending of the Federal Constitution" (p. 158) :

"ls there a restriction that an amendment cannot add but on! y alter? An argument very much like the foregoing is that an amendment may alter bur may not add. This contention is largely a quibble on the definition of the word 'amendment'. It is asserted that by amending the Constitution is me.ant the changing of something that is already in the Constitution, and not the addition of something new .and unrelated. Cases prescribing the very limited meaning of amendments in the law of pleading arc cited as authoritative. It would seem improper however, ro accept such a definition, as amendments to constitutions have always been construed .more liberally and on altogether different principles from those

; pplicd to amendments of pleadings."

It may also be mentioned that article 5 of the US Constitution confers powers of amendment. The word used in that article is amendment simpliciter and not amendment by way of addition, alteration or repeal. In pursuance of I.he p<>wer C1Jllferred by article S, articll: 18 was added to the American Constitution by the Eighteenth Amendment. Subsequently that article (article 18) was repealed by the Twenty-fir>t Amendment. Section 1 of article 21 was in the following words:

"The Eighteenth .article of amendment to the Constitution of the United States is hereby repealed."

The addition of the eighteenth article, though challenged, was upheld by the Supreme Court. No one has questioned the repeal of the eighteenth article on the ground that the power of amendment would not include the power to repeal.

I cannot subscribe to the view that an amendment pf the constitu tion must keep alive the provision sought to be amended and that it must be consistent with that provision. Amendment of constitution has a wide and hroad connotaJ:ion and would embrace within itself the total repeal of some articies or their subs!itution by new articles which may not be consistent with or in conformity with earlier articles. Amendment in article 368 has been used to denote change. This is clear from the opening words of the proviso to article 368 according to which rat'.!fication by not less. than half of State Legislatures would be necessary if amendment seeks to make a change in the provisions of the Constitution mentioned in the proviso. The word change has a -wide amplitude and would necessarily cover .:ascs of repeal and replacement of earlier provisions by new provisions of different nature.

694 SUPREME COURT REPORTS (1973] Supp. s.c.R.

Change can be for the better as well as for the worse. Every amendment would always appear to be a change for the worse in the eyes of those who oppose the amendment. As against that, those who sponsor an amendment would take the stand that it is a change for the better. The court in judging the validity of an amendment would not enter into the arena of this controversy but would concern itself with the question as to whether the constitutional requirements for making the amendment have been satisfied. An amendment of the Constitution in compliance with the procedure prescribed by article 368 cannot be struck down by the court on the ground that it , is a change for the worse. If the court were to strike down the amendment on that grou11d, it would be tantamount to the court substituting its own opinion for that of the Parliament, reinforced in certain cases by that of nut less than half of State Legislatures, regarding the wisdom of makmg the impugned comtitutional amendment. Such a course, which has the effect of empowering the court to sit in appeal over the wisdom of the Parliament in making constitutional amendment, on the supposed assumption that the court has superior wisdom and better capacity to decide as to what is for the good of the nat'ion is not permissible. It would, indeed, be an unwarranted incursion into a domain which essentially belongs to the representatives of the people in the two Houses of Parliament, subject to ratification in certain cases by the State Legislatures. We may in this context recall the words of Holmes J. , in Lochner v. New York(').

"This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, 1 should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law."

The above observations were contained in the dissent of Holmes J.

The above dissent has subsequently been accepted by the US Supreme Court to lay down the correct law (see Ferguson v. Skrnpa(') wherein it has been observed by the court :

"In the face of our abandonment of the use of the 'vague contours' of the Due Process Clause to nullify laws wH1ch a majority of the Court believed to be economically unwise, reliance on Adams v.

Tanner is as mistaken as would be adherence to Adkins v. Children's Hospital, overruled by West Coast Hotel Co. v. Parrish, 300 US 379, 81 L ed 703, 57 S Ct 578, 108 ALR 1330 ( 1937) ........ .

( 1) (1904} 198 U.S. 45.

( 2) (1963) 372 U.S. 726.

~AVAN~NDA "· KERALA (Khanna, J.) 695

We refuse to sit as a 'superlegislature to weigh the wi.l.dom of legislation', and. we emphatically refuse to go back to the time when courts used the Due Process c:Liuse to strike down state laws, regulatory of business and industrial col!ditions, because they may be unwise, improvident, or out of harmony with a particular school of thought'."

It has also been urged on behalf of the petitioners that the framers of the Constitution could not have intended that even though for the amendment of articles referred to in the proviso to article 368, ratification of not. less than one half of the State Legislatures would be necessary, in the case of an amendment which deals with such a vita! matter as the taking away or abridgement of fundamental rights, the amendment could be brought about without such a ratification. This argument, in my opinion, is untenable. The underlying fallacy of this argument is that it assumes that ratification by the State Legislatures is necessary under the proviso in respect of constitutional amendments of great importance, while no such ratification is necessary in the case of comparatively less important amendments. Plain reading of article 368, however, shows that ratification by the State Legislatures has be.en made imperative in the case of those constitutional amendments which relate to or affect the rights of the States. In other cases no such ratification is necessary. The scheme of article 368 is not to divide the articles of the Constitution into two categories, viz., important and not so important articles.

Wha~ article 368 contemplates is that the amending power contained 'in it should cover all the articles, leaving aside those provisions which can be amended by Parliament by bare majority. In the case, however, of such of the articles as relate to the federal principle or the relations of the States with the Union, the framers of the Constitution put them in the proviso and made it impera. tive to obtain ratification by not less than half of the State Legisl:atures in addition to the rwo.diirds majoi'ity of the members .present and voting in each House of the ParLiament for bi'inging about the amendment. It is .plain that for tthe purpose of ratification by the State Legislatures, the framers of the Constitution attached greater importance to the federal structure than to the individual rights. Such an approach is generally adopted in the case of a provision for amendment of the federal constitution. K. C. Wheare in his book on the Federal Government has observed on page 55 :

"It is essential in a federal government that if there be a power of amending the constitution, that power, so far at least as concerns those provisions of the constitution which regulate the status and power of the general and regional governments, should not be confided exclusively either to the general governments or to the regional governments."

696 SUPREME CO!JKT REPORTS [ 1973] Supp. s.c.ll.

W c may in this context refer to the speech of Dr. Ambedkar who while dealing with the category of articles for the amendment of which

.ratification by the States was requ'ircd, observed :

"Now, we have no doubt put certain 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. I shall explain why we think that in the case of certain articles it is dcsirabll: to adopt this procedure.

If Members of the Howe who arc interested in this matter arc to examine the articles that have been put under the proviso, they will find that they refer not mer cl y to the Centre but to the relations between the Centre and the Provinces. We cannot forget the fact that while we have in a large number of cases invaded provincial autonomy, we still intend and have as .a matter of fact seen to it that the federal structure of the Constitution remains fundamentally unaltered. We have by our laws given certain rights to provinces, and reserved certain rights to the Centre. We have distributed legislative authority; we have distributed executive authority and we have distributed administrative authority. Obviously to my that even those articles of the Constitution which pertain to the administrative, legislative, financial and other powers, such as the executive powers of the provinces should be made liable to alteration by the Centra1 Parliament by

two-thirds majority, without permitting the provfriccs or States to have any voice, 'is in my judgment altogether nullifying the fundamentals of the Constitution."

Learned counsel for the petitioners has addressed us at some length on the point that even if there are no express limitations on the power of amendment, the same is subject to implied limitations, also described as inherent limitations.

So far as the concept of imphed limillltions is concerned, it has two facets. Under the first facet, they .2J'c limitations which flow by riecessiary implication from express provisions of the Constitution. The second facet postulates limitations which must be read in the Constitution irrespective of the fact whether they flow from express provisions or not because they arc stated to be based upon cerra'in higher values which are very dear to the human heart and are generally considered essential traits of civili- zed existence. It is also stated that those higher values constitute the spirit and provide the scheme of the Constitution.

Thi~ aspect f implied limitations is linked with the existence of natural nght1 and 1t is stated that such rights being of paramount character, no amendment of constitution can result in their erosion.

I may at this stage clarify that there are certain limitations ':"h!ch inhere and are implicit in the word "amendment". These are hm1ta-

.l(.ESAVANANDA "· KERALA (Khanna, J.) 697

tions which flow from the use of the word "amendment" and relate to the meaning or construction of the word "amendment" This aspect has been dealt with elsewhere while construing the word "amendment". Subject to this clarification, we may now advert to the two facets of the concept of implied limitations referred to above.

So far as the first facet is concerned regarding a limitation which flows by necessary implication from an expresa provision of the Constitution, the concept derives its fu.rce and is founded upon a principle of interpretation of statutes. In the absence of any compelling reason, it may be said that a constitutional proviS!on is not exempt from the operation of such a principle. I have applied this principle to article 368 and despite that, I have not been able to discern in the language of that article or other relevant articles any implied limitation 9n the power to make amendment contained in the said article.

We mav now deal with the second aspect of the question which pertains to limitation on the power of making amendment because such a limitation, though not flowing from an express provision, is stated to be based upon higher values which are very dear to the human heart and arc considered essential traits of civilized existence.

So far as this aspect is concerned, one obvious objection which must strike every one is than the Constitution of India is one of the lengthiest constitutions, if not the lengthiest, of the wodd. The framers of the Constitution dealt with different constitutional matters at considerable length and made detailed and exhaustive provisions about them. Is it then conceivable that after having dealt with the matter so exhaustively and at such great length in express words, they would leave things in the realm of implication in respect of such an important article as that relating to the amendment of the Constitution. If it was intended that limitations should be read on the power of mak'ing amendment, question would necessarily arise as to why the framers of . the Constitution refrained from expressly incorporating such limitations on the power of amendment in the Constitution itself. The theory of implied limitations on the power of making amendment may havr. •ome fascination and attraction for political theorists, but a deeper teflection would reveal that such a theory is based upon a doctrinaire 1pproach and not what is so essential for the purpose of construing :md working a Constitution, viz., a pragmatic and practical approach.

This circumstance perhaps accounts for the fact that the above theorv of implied limitations has not been accepted by the highest court in any country.

ri.s the concept of implied limitations on the power of amendment under the second aspect is not based upon some express proviiion of the Constitution, it must be regarded as essentially nebulous. The concept has no definite contours and its acceptance would necessarily

698 SUPREME oom.r llPOllrl'S [1973j Supp. s.c.11.

introduce clements ci uncertainty and vagueness in a matter of so vital an impoqance as that pertaining to the amendmell.t of the Cons.titlition. Whatever might be the justification for invoking the concept of

implied limitations in a short constitution, so far as the Constitution of India with all its detailed provisions is concerned, there is hardly

ny scope or justification for invoking the above concept. What was intended by the framers of the Comtitution was put in express words and, in the absence of any words which may expressly or by necessary implication point to the eiistence of limitations on the power of amendment, it is, in my opinion, not permissible to read such limitations in the Omstitution and poo them on the power of amendment. I fiiid it difficult to accede to the submisSion that the framers of the Constitution after having made such detailed provisi0ll$ for different subjects left something to be. deCided by imphication, that in addition to what was said there were things which were not said but which were intended to be as effective as things said. The quest for things not said, but which were to be as effective as things said, would take us to the realm of speculation and theorising and must bring in its wake the uncertainty which inevitably is there in. all such speculation and theorising. All the efforts of the framers of the Constitution to make its provisions to he definite and precise would thus be undone. We shall be in doing so; not merely ignoring but setting at naught what must be regarded as a cardinal principle that a Constitution is not a subject of fastidious and abstract dialectic$ but has to be worked on a practical plane so that it may become:. a real and effective. vehicle of the nation's progress. As observed by Story in para 451 of the Constitution of the United States, Volume I constitutions are not designed for metaphysical .or logical subtleties, for niceties of expression, for critical propriety, for elalJorate shades cJf meaning, or for the exercise of philosophieal acuteness, or jndal research. They are instruments of practical nature, founded on c c001mon business of human life, adapted to common wants, designed

for common use, and fitted for common understandings.

In the National Prohibition Cases (supra) the petitioners challenged before the US Supreme Court the validity c:i.. the Eighteenth Amendment relating to prohibition. It was urged that the aforesaid am- . cndmcnt had resulted in encroachment! upon .the police. power c:i. the States. There was implied limitation on the power to 111akc Mich an amendment, according to the petitioners in those caSCll. under anick 5 of the US Constitution. Although the Supreme damt ga\llt no reasons in support of its conclusion, it upheld the validity of the Eigh~ th Amendment. Argument about the implied limitations on the power -Of amendment was thus tacitly rejected.

Eminent authors like Rott.chatter and Willis ha~ tak¢ the-~ that the theory of implied limitations $hould. be tak(ll. w flavc bceii

KESAVANANDA v. KF.RAI.h (Khanna, J.) 699

rejected in the National Prohibition Cases (supra) by the US Supreme

Court. Rottschaefer in Handbook of American Constitutional Law has observed on pages 8 to 10 :

"The only assumption on which the exercise of the amending

power would be inadequate to accomplish those results would be the existence of.express or implied limits on the subject matter of amendments. It has been several times contended that the power of amending the federal Constitution was thus limited, but the

Supreme Court has thus far rejected every such claim, although at least one state court has subjetted the power of amending the state constitution to an implied limit in this respect. The former position is clearly the more reasonable, since the latter implies that the ultimately sovereign people have inferentially deprived themselves of that portion of their sovereign power, once possessed by them, ot determining the content of their own fundamental law."

Question of implied limitation on the powers to make amendment also arose the case of Jeremish Ryan and Others v. Captain Michael

Lennon (1) Article SO of the Constitutill!!l. of the Irish Free State whi.ch came into force on December 6, 1922, as originally enacted, provided as follows:

"Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas, but no such amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the votes on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters in the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation and as such shall be subject to the provisions of article 47 hereof."

By the Constitution (Amendment No. 10) Act, 1928, passed within the said period of eight years, the Constitution was ameuded by, inter alia, the deletion of article 47 (dealing with referendum) and the deletion from article SO of the words "and as such shall be subject to the provisions of article 47 thereof'. By the Constitution (Amendment No. IS) Act, 1929, also passed within the said period of eight years, article SO was amended by the substitution of the words "sixteen

( 1 ) [1935) lrish Reports p. 170.

700 SUPREME COUR'C REPOll.TS [1973] Supp. s.c.R.

years" for the words "eight years" therein. By the Constitution (Amendment No. 17) Act, 1931 the Constitution was amended by inserting therein a provision relating t.o the establishment of a Tribunal consisting of officers of Defence Forces to try a number of offences. Power of detention on suspicion in certain cases was also conferred. It was m the context of the validity of the establishment of such Tribunals that the question arose as to whether there was an implied limitatjon on the power to make amendment. It was held by the Supreme Court

(FitzGibbon and Murnaghan JJ. and Kennedy C .. J. dissenting),. whik: dealing with the first two amendments, that these enactments were within the power of amendment conferred on the Oireachtas bv article 50 and were valid amendments of the Constitution; and that,. consequently, an amendment of the Constitution; enacted after the expiry of the original period of eight years was not invalid by reason of not having been submitted to a referendum of the people under article 50 or article 47 as originally enacted. Dealing with the Constitution (Amendment No. 17) Act, 1931 it was held by the same majority that it was a valid amendment and was not ultra vires by reason of involving a partial repeal of the Constitution or by reason of con: flicting with sJiecific art:icles of the Constitution such as article 6 relnting to the liberty of the person, article 64 relating to the exercise of judicial power or article. 72 relating to the trial by jury or by reason of infringing or abrogating other articles of the Constiturion or principles underlying the various articles of the Constitution which were claimed to be fundamental and immutable. Kennedy C. J., after re-· ferring to the different articles of the Constitution, held that there was not, either expressly or by necessary implication, any power to amend the power of amendment itself. He observed in this connection :

"No doubt the Constituent Assembly could, if it had so intended, have given a power of amendment of the power to amend the Constitution, but in that case it would seem far more likely that it would rather have conferred on the Oireachtas a general open and free power of amendment of the Constitution, unlimited in scope and without limiting and restraining requirements for its exercise, than have done the same thing indirectly by giving a strictly limited power with power to remove the limitations. The Constituent Assembly clearly, to my mind, did not so intend. In my op_inion.on the true interpretation of the power before us, upon a cons1deratton of the express prohibition, limitations and requ'reents of the clause containing it, the absence of any express authontv, the donation of the effective act in the exercise of the power to the people a1> a whole the relevant surrounding circumstances to which I have already eferred, and the documents and their tenor n teir .entirety, there is not here, either e<epressly or by nccary .. rmphcat10n, any power to amend the power of amendment itself.

KESAVANANDA "· KERALA (Khanna; J.) 701

FitzGibbon J. dealt with this question in these words:

"Unless, therefore, these rights appear plainly from the express provisions of our Constitution to be inaTienable, and incapaole of being modified or taken away by any legislative act, I cannot accede to the argument that the Oireachtas cannot alter, modify, or repeal them. The framers of our Constitution may have intended 'to bind man down from mischief by the Chains of the Constitution', but if they did, they defeated their object by handing him the key of the padlock in Article 50."

Murnagham J. observed:

"The terms in which Article 50 is framed does authorise the am endment made and there 1s not in the Article any express limitation which excludes Article 50 itself from the power of amendment. I cannot, therefore, find any ground upon which the suggested limitation can be properly b:iScd."

The theory of implied limitations on the power of amendment was thus rejected by the majority of the Judges of the Irish Supreme Court. It would further appear that the crucial question which arose for determination in that case was whether there was any power to amend the article rel; ating to amendment of the constitution or wh~ ther there was any restriction in this respect. No such question arises under our Constitution because there is an express provision in clause ( e) of the provi.lo to article 368 permitting such amendment. Apart from that I find tlrat in the case of Moore and Others v. The Attorney-

General for the Irish Free State and Others(') the counsel for the appellant did not challenge the constitutional validity of the 1929 Amendment. The counsel conceded that the said Amendment was regular and that the validity of the subsequent aincndments could not be attacked on the ground that they had not been submitted to the people

in a referendum. Dealing with the above concession, the Judicial Com• mittee observed that the counsel had rightly conceded that pOint. The Judicial Committee thus expressed its concurrence with the conclusion of the majority of the Irish Supreme Court relating tp the constitutional validity of the Amendment Act of 1929.

A. B. Keith has also supported the view of the majority aad has observed that the view of the Chief Justice in this respect was wrong (see Letters on Imperal Relations Indian Reform Constit)ltional & International Law 1916-1935, p. 157). Keith observed in this connec

tion:

"But that the Chief Justice was wrong on this head can hardly be denied. Article 50 of the Constitution, which gave the power

( 1) [1935] A.C. 484.

45-36 S. C. India/73

102 SUPREME COURT REPORTS [1973] Supp. s.c.11.

for eight years to effect changes by simple Act, did not prevent alteration of that Article itself, and, when the Constitution was

nacted, it was pan of the constitutional law of the Empire that a power of change granted by a Constitution applies to authorize change of the wwer itself, unless it is safeguarded, as it normally is, by forbidding change of the section giving the power. The omission of this precaution in the Free State Constitution must have been intentional, arid therefore, it was natural that the Dail, at Mr. Consgrave's suggestion, and with the full approval of Mr. de Valeta, then in opposition should extend the period for change without a referendum."

Dealing with the doctrine of implied limitations on the power of amendment, Orlield observes :

"Today at a time when absolutes are discredited, it must not be too readily assumed that there are fundamental purposes in the Constitution which shackle the amending power and which take precedence over the general welfare and needs of the people of today and of the future." (see The Amending of the Federal Constitution (1942), p. 107).

It has been further observed :

"An argument of tremendous practical importance is the fact that It would be exceedingly dangerous to Jay down any limitations . beyond those expressed. The critics of an unlimited power to amend have too often neg)cctcd to .give due consideration to the fact that alteration of the federal Constitution is not by a simple majority or by a somewhat preponderate majority, but by a thrcefourths majority. of ahl the sta.rcs: Undoubtedly, where a simple majority is .. required, . it is not an especially serious matter for the cCOUtt to supervise clooely the amending process both as to procedure

and as to substance. But when so large a majority as three-fourths has nnallyc cxpres&ed its will in the highest poosible form outside of revoliltion, it becomes perilous for the judiciary t.o intervene."

(see ibid. p. 120).. ·

Orlield in this context quoted the following .· passage from a judicial dcci<ion ·:

"Impressive words of counsel remind us of our duty to maintain

the inf.egrity of constitutional govcrnmmt by adhc:lring to the limitations laid by the sovereign people upon the expresSion of its wilt .. ·.

Not less imperative, however, is our duty to refuse to magnify their scope by resort to subtle implication. • • Repeated decisions have informed us that only when conflict with the Constitution is clear and indisputable will a statute be condemned as void. Still more obvious is the duty of caution and moderation

XESAVANANDA "· KEBALA (Khanna, J.) 703

when the act to be reviewed is not an act of ordinary legislation, but an act of the great constituent power which has made Constitutions and hereafter may unmake them. Narrow at such times are the bounds of legitimate implications." (see ibid. p. 121).

H. E. \Villis has rejected the theory of implied limitations in his book "Constitutional Law of the United States" in the following words :

"But it has been contended that there are all sorts of implied limitations upon the amending power. Thus it has been suggested that no amendment is valid unless it is germane to something else in the Constitution, or if it is a grant of a new power, or if it is legislative in form, or if it destroys the powers of the states under the dual form of government, or if it changes the protection to personal liberty.

The United States Supi; eme Court has brushed away all of these arguments, .... " (see p. 123).

We may now deal with the concept of natural rights. Such rights 3l'e stated to be linked with cherished values like liberty, equality and democracy. It is urged that such rights are inalienable and cannot be affected by an amendment of the constitution. I agree with the learned counsel for the petitioners that some of the natural rights embody within themselves cherished values and represent certain ideals for which men have striven through the ages. The natural rights have, however, been treated to be not of absolute character but such as are subject to certain limitations. Man being a social being, the exercise of his rights has been governed by his obligations to the fellow beings and the society, and as such the rights of the individual have been subordinated to the general weal. No one has been allowed to so exercise his rights as to impinge upon the rights of others. Although different streams of thought stlill persist, the later writers have generally taken the view that natural rights have no proper place outside the constitution and the laws of the state. It is up to the state to incorporate natural rights, or such of them as are deemed essential, and subject to such limitations as are considered appropriate, in the constitution or the laws made by it. But independently of the constitution and the laws of the state, natural rights can have no legal sanction and cannot be enforceC.

The courts look to the provisions of the constiitution and the statutory law to determine the rights of individuals. The binding force of constitutional and statutory provisions cannot be taken away nor can the:ir amplitude and width be restricted by invoking the concept of natural rights. Fttrther, as natural rights have no place in order to be legally enforceable outside the provisions of the constitution and the statute, and have to be granted by the constitutional or statutory provisions, and to the extent and subject to such limitations as are contained in those provisions, those rights, having been once incorporated in the constitution or the statute, can be abridged or taken away by amendment of

704 sUPIU!ME OX1ft 1W10DS ~1973] Supp. s.c.a.

the constitutio'ii or the statute. The rights, as such, cannot be deemed to be supreme or of superior validity. to the enactments made by the

state, and not subject to the amcndatocy process.

t may_ be empha!iscd in the above context that those who refuse to subscribe to the theory of enforceability of natural rights do not deny that there are certain essential values in life, nor do they deny that there arc certain requirements necessary for a oivilized existence. It is also not denied. by them that there arc certain ideals which have inspired mankind through the CDllfidor. of centuries. and that there arc certain objectives and desiderata for which men have struggled and made sacrifices. They are also cm1scious ci the noble impulses. yearning for a better order of things, of longings natural in most human hearts, to attain a state. free from imperfections where higher values prevail and are accepted. Those who do not subscribe to the said theory regarding natural rights, however, do maintain that rights in order to be justiciable and enforceable. must form part ci the law or th~ constitution, that rights to be effective must. receive their sanction and sustenance from tlie l'.aw of the land and that rights which have not been codified or otherwise made a part ci the law, cannot be enforced in courts of law nor can those right~ .override or restrict. the scope of the plain language of the statute or r constitution.

Willoughby while dealing. with the concept of natural rights has observed in Vol. I of Constituti:>n ci the United States:·.

"The so-callccl 'natural' or unwritten laws defining the natural,

inalienable, erent rights of the citizen, which, it is oolnetimcs claimed, sp'riug frol!; l the vci:y' __ nature of free government, have no force ~er io restr'ict or to extend the written provisions of the Constitution. The Jltmost that can be 'Said for them is that where, ' :'-'' -· '. ' . ' '

- ' .. - '' the e of dfo COnistitution admits of doubt, it is. to be presume<; I \h~ authority is not' given for the violatiiin ci acknowledged principles ofjllstice and. berty." (p. 66) .

It woulc(be pertinent while dg with the riatural 1 rights to reproduce following passage from . Salmond on Jllrisprudcnce, 'fwclftli Editi_on : ·

"Rights, like wrpngs and dutiea, are eithct moral or legal. A. mQl'al or natural right Is an interest. recognized and protected by a rule of morality;,..m interest the violatidn of which would be a moral wrong, and rcspe(t for whkh is a mini duty. A legal right, Qll the other hand, is an interest re<;<>gnizcd and protected by a rule of law--an interest the violallion of which would be a legal wrong done to h1m whose inter.est it is, and respect for which i.s a liega1 duty.

DSAVANANDA 11. DLU.A (Kh11"na, J.)

?OS

Bentham sc~ the fashion still follow"! by many oE denying that there arc any such things as natural rights at. all. All rights att legal rights and the creation of the law. 'Natural law, natural rights', he says, 'are two kinds of fictions or metaphors, which play

SQ great a part in books of ltgisi.tion, that they deserve to be examined by themselves ...... Rights properly so called an: the creatures of law properly so called; real laws give rise ID real rights.

Natural rights are the creatures oE natural law; they arc a meta phor which derives its origin from another metaphor.' Y ct the claim that men have natural rights need not involve . us in a theory of natural law. In so far as we accept ruks and principles of morallty prescribing how men ought to behave, we may speak of there being moral or natural rights; and in so far as these rules lay" down that men have certain rights, we may speak of moral or natural rights. The fact that such natural or moral rights and duties arc not prescribed in black and whl.te like their legal counterparts points to a distinction between law and morals; it docs not entail the complete non-existence of moral rights and duties: (see p. ZlS- 219).

The observations on page 61 of P.W. Peterson's "Natural Law and Natural Rights" show that the theory of natural rights which was made so popular by John Locke has since ceased to rccoivc general acceptance. Locke had propounded the theory that the community perpetually retains a supreme power of saving themselves from the attempts and designs of anybody, even of their legislators whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject (see Principles of Civil Government Book 2 S 149).

While dealing with natural rights, Roscoe Pound states on page 500 of Vol. I of his Jurisprudence :

"Perhaps nothing contributed so much to create and foster hostility to courts and law and constitutions as this conception of the courts as guardians of individual natural rights against the state l\Ild against society; this conceiving of the law as a finaE and absolute body of doctrine declaring these individual natural rigts;. this theory of constitutions as declaratory of common-law pnnc1plcs, whlch are also natural-law principles, anterior to the state and of. superior validity to enactments by the authority of the state; this theory ot constitutions as having for their purpose to guarantee and maintain the natural rights of individuals against the government and all its agencies. In effect, it set up the received raditional social, political, and economic ideals of the legal profes~10~ .as a . ~per;, constitution, beyond the reach of any agency but 1udmal dccmon.

706 SUPREME COURT REPORTS ( 1973] Supp. S.C.Il.

I may also in this connection refer to a passage on the inherent and inalienable rights in A History of American Political Theories by C. Marriam:

"By the later thinkers the idea that men possess inherent and inalienable rights of a political or quasi-political character which arc independent of the state, has been generally given up. It is held 'that these natural rights can have no other than an ethical value, and have no proper place in politics. 'There never was, and there never can be,' says Burgess, 'any liberty upon this earth and among human beings, outside of state organization'. In speaking of natural rights, therefore, it is essential to remember that these alleged rights have no political force whatever, unless recogmzed and enforced by the state. It is asserted by Willoughby that 'natural rights' could not have even a moral value in the supposed 'state of nature'; they would really be equivalent to force and hence have no eth; cal significance." (see p. 310).

It is then argued on behalf of the petitioners that essential features of the Constitution cannot be changed as a result of amendment. So far as the expression "essen6al features" means the basic structure or framework .of the Constitution, I hav.e already deah with the question as to whether the power to arnend the Constitution would include within itself the power to change the basic structure or framework of the Constitution. Apart from that, all provisions of the Constitution are subject to amendatory process and cannot claim exemption from that process by being described essential features.

Distinction has been made on behalf of the petitioners between a fundamental right and the essence, also described as core, of that fundamental nght. It is urged that oven though -the Parliament in compliance with article 368 has the right to amend the fundamental right to property, it has no right to abridge or take away the essence of that right. In my opinion, this differentiation becween fundamental right and the essence or core of that fundamental right is an over-refinement which is not permissible and cannot stand judicial scrutiny. If there is a power to abridge or take away a fundamental right, the said power cannot be curtailed by invoking the theory that though a fundamental right can be abridged or taken away, the essence or core of that fundamental right cannot be abridged or taken away. The essence or core of a fundamental right must in the nature of things be its integral part and cannot claim a status or protection different from and higher than of the fundamental right of which it is supposed to be the essence or core. There .is also no ob'ective standard to determine as to what is the core of a fundamental right and what distinguishes it from the periphery. The absence of such a standard is bound to

KESAVANANJ)j\, "' KE&AIA (Khanna, J.)

1JYI

introduce uncertainty, in. ; i iµattec of so vital an im{>Pl'tant!: • the at; nendment of the Coiistition. I am, therefore, unable oo aq:ept the , argument, that , even af a' fy, ndamerital , right be held, to be amendable, the , , core or ess, ence of . that right. should be held to be immune from. tht .amendatoey process.

The enforcement of due process clause in Fourteenth Amendment of US Constitution, it is submitted on the petitioners' behalf, has not caused much difficulty and has not prevented the US courts from identifying the area wherein that' dausc operates. This fact, according to the submission, warrants tho 'conclusion that the concept of implied

limitation on the , power of . amendment would also not cause much difficulty in actual working. I find considerable difficulty to accede to the bove submission. !The scope of due process clause in Fourteenth

Amndment and of , power of amendment of constitution in article 368 is. different; the two. prowsions operate in different areas, they are meant to deal with different subjects and there is no similarity in the object of Fourteenth Amendment and that of article 368. Any attempt to draw analogy between the two, in my opinion, is far fetched.

It may be, mentioned that the Draft Report of the Sub-Committee on Fundamental Rights initially contained clause 11, according to which "no persoii' shall be deprivea of his life, liberty or property without due process of law''. It was then pointed out that a vast volume of case law had gathered around the words "due process of

law" which were mentioned in the Fifth and the Fourteenth Amendment of the US Constitution. At first those words were regarded only as a limitation on procedure and not on the substance of legislation.

Subsequently those words were held to apply to matters of substantive law as well. It was further stated that "in fact, the phrase 'without due process of law' appears to have become synonymous with 'without just a use' the court being the judge of what is 'just cause'; and since the object of most legislation is to promote the public welfare by restraining and regulating individual rights of liberty and property the court can be invited, under this clause, to review almost any law".

View was also oxpresscd that clause 11 as worded might hamper

ocial legislation. Although the members of the Committee felt that there was no case for giving a carte bla11che to the Government to arrest, except in a grave emergency, any person without 'due process of law',. there was considerable support for the view that due process clause might hamper legislation dealing with piopcrty and tenancy.

A compromi!e formula was then suggested by Mr. Panikkar and with the supp0rt of Mr. Munshi, Dr. Ambedkar and Mr. Rajagopalachari the suggestion wa1 adopted that the word "property" should be

oniittcl from the clause. In the meanwhile, Mr. B. N. Rau during his

7'18 SUPllEME COUllT UPOlTS [197.; J Supp. s.c.Jl.

vlrit "> America had di!CU.ssion with Justke Frankfurter of the US Supreme Court who expressed the opinion that the power of review implied in the "due process" clause was not only undemocratic (because it gave a few judges the power of vetoing legislation enacted by the representatives of the nation) but also threw an unfair burden on the judiciary. This view was communicated to the Drafting Committee which replaced the expression "without due process of law" by the expression "except according to procedure established by law".

The newly inserted words were borrowed from article 31 of the Japanese Constitution (see pages 232-235 of the Framing of India's Cons- .titution A Study by Shiva Rao). Reference to the proceedings of the Drafting Committee shows that a major factor which weighed for the elimination of. tho expression "due process of law" was that it had no dclinite contXJurs. In case the view is now accepted that there are implied limitations on the power of making amendment, the effect would necessarily be to introduce an element of vagueness and indeliniteness in our Constitution which our Constitution-makers weie so keen to avoid.

Our attention has ben invited to the declaration of human rights in the Charter of the United Nations. It is po:nted out that there is similarity between the fundamental rights mentioned in Part II of the Constitution and the human rights in the Charter. According to article 56 of the Charter, all members pledge theinselves to take joint and separate actiion in c<>-0peration with the Organization for the achievement of the purposes set forth in article 55. Article 55, inter alia, provides that the United Nations shall promote universal respect foe, and. observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. It is submitted on behalf of the petitioners that if the power of amendment of the Constitution under article 368 we.e to include the power to abridge or take away fundamental rights, the amendment might well have the effect d curtailing or doing away with some of the human rights mentioned in the United Nations Charter. In this respect I am of the view that the width and scope of the power of amendment of the Constitution would depend upon the provisions of the Consti; ution. If the provisions of the Const'itullion are clear and unambiguous and contain no limitations on the power of amendment, the curt would not be. justified in grafting limitations on the power of amendment because of an apprehension that the amendment might impinge upon human rights contained in the United Nations Charter. It is only in cases of doubt or ambiguity that the courts would interpret a statute as not to make it .inconsistent with the comity of nations or established rules of international law, but if the language of the statute is clear, it must be followed notwithstanding t.he conflict between municipal law and international law which results (see Maxwell

KESAVANANDA v. KERALA (Khanna, J.) 709

on The Interpretation of Statutes, Twelfth Edition, p. 183). It has been observed on page 185 :

"But if a statute is clearly inconsistent with international law or the comity of nations, it must be so construed, whatever the effect of such a construction may be. Thre is, for instance, no doubt that a right con.ferred on an individual by a treaty made with the Crown may be taken from him by act of the legislature."

The above observations apply with greater force to a constitutional provision as such provisions are of a paramount nature. It has already been mentioned above that the provisions of our Constitution regarding the power of making amendment are clear and unambiguous and contain no !'tmitation on that power. I, therefore, am not prepared to accede to the contention that a limitation on the power of amendment

should be read because of the declaration of Human Rights in the UN Charter.

I may mention in the above context that it is always open to a State to incorporate in its laws the provisions of an international treaty, agreement or convention.

In India the provisions of the Geneva Conventions have been incorporated in the Geneva Conventions Act, 1960 (Act 6 of 1%0). According to the Treaties of European Communities, a State on becoming a member of the European Economic Communities (EEC) has to give primacy to the Community laws over the national laws. The principle of primacy of Community law was accepted in six count"ies of the European communities. Three of them, namely, Netherlands, Luxembourg and Belgium specifically amended their written constitutions to secure, as far as possible, the principle of the primacy of the Community law. The other three, namely, France, Germany and Italy have also constitutional provisions under which it would be possible for the courts in those countties to concede primacy to the Treaties of European Communities, and thus through them secure the primacy of the Community law. Ireland which became a new member of EEC with effect from January 1, 1973 has amended its constitution by the Third Amendment of the Constitution Bill,

1971. This Bill has been approved in a referendum. The relevant part of the Amendment reads as under :

"No prorision of this Constitution invalidates laws enacted, act; done or measures adopted by the State necessitated by the obliga- !tons of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institution:; thereo.f. from having the force of law in the State."

In Britain also, primacy of the European Community law over the domestic law has been recognized by section 2 of the European Com-

710 SUPREME COUXT REPORTS [1973] Supp. s.c.R.

munities Act, 1972. Question is now engaging the attention of constitutional experts as to whether it has become neces,; ary to place limitations on the legislative powers of the British Parliament and whether it is on that account essential to have a written constitution for the United Kingdom (see July 1972 Modern Law Review, p. 3.75 onwards ori the subject of Parliamentary Sovereignty and the Primacy of European Community Law).

I am also of the view. that the power to amend the provisions of the Constitution relating to the fundamenllal rights cannot be denied by describing the fundamental rights as natural righ.ts or human rights. The basic dignity of man does not depend upon the codification of the fundamental rights nor is such codification a prerequisite for a dignified way of living. There. was no constitutional provision for fundamental rights before January 26, 1950 and yet can it be said that there did .not' ex'ISt conditions for dignified way of living for Indians during the peniod between August 15, 1947 and January 26,

1950. The plea that provisions of the Constitution, including those of Part III, should be given restrospective effect has been rejected by this Court. Article 19 which makes provis\on for fundainental rights, is not applicable to persons who are not citizens of India. Can it, in view of that, be said hat the non-citizens cannot while staying in India lead a dignified life ? It would, in my opinion, be not a correct approach to say that amendment of the Constitution relating to abridgement or taking away of the fundamental rights would have the effect of denuding human beings of basic dignity and would result in the cxtinguishment of essential values of life.

It may be mentioned that the provis.ions of art; cle )9 show that the framers of the Constitution never intended to treat fundamental rights to be absolute. The fact that resonable restrictions were carved in those rights clearly negatives the concept of absolute na\ure of those rights. There is also no absolute standard to determine as to what constitutes a fondamental right. The basis of clasoification varies from country to country. What is fundamental right in some countries is not so fa other countries. On account of the difference between the fundamental rights adopted in one country and those adopted in another country, difficulty was experienced by our Constitution-makers in selecting provisions for inclusion in the chapter on fundamental rights (see in ths connection Constitutional Precedents III Series on Fundamental Rights p. 25 publ1shed by the Constituent Assembly of India).

Reference ha. been mac!e on behalf of the petitioners to the- Preamble to the Constitution anJ it is subm:tted that the Preamble would control the power of amendment. Submission has also been made in the above contexr that there is no power to amend the

KESAVANANDA v. KERALA (Khanna, J.)

71I

i Preamble because, .according to the submission, Preamble is not a part of the Constitunion but "walks before the Constitution". I am unable to accept the contention that the Preamble is not a part of the

titution. Reference to the debates of the Constituent Assembly shows that there was considerable discussion in the said Assembly on the provisions of the Preamble. A number of amendments were moved and were rejected. A motion was thereafter adopted by the Constituent

Assemby "that "the Preamble stands part of the Constitution" (see Constituent Assembly debates, Vol. X, p. 429-456). There is, therefore, positive evidence to establish that the Preamble is a part of the Indian Constitution. Jn view of the aforesaid positive evidence, no help can be derived from the observations made in respect of other constitutions on the point as to whether preamble is or is not.a part of the constitution. Apart from that, I find that the observations on p. 200.201 in Craise on Statute Law Sixth Edition show that the earlier view that preamble of a statute is not part thereof has been discarded and that preamble is as much a part of a statute as its other provisions.·

Article 394 of the Constitution shows that the said article as well as articJe 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392 and 393 came into force at once, i.e. on 26th day of November 1949 when the Constitution was adopted and enacted and the remaining provisions of the Constitut!on would come into force on the 26th day of January, 1950 "which day is referred to in this Constitution as the commence,. ment of this Constitution''. Article 394 would thus show that except for sixteen articles which were mentioned in that article, the remaining provisions of the Constitution came into force on the 26th day of January, 19.50. The words "the remaining provisions", in my opinion, would include the Preamble as well as Part III .and Part IV of the Constitution. It may also be mentioned that a proposal was made in the Constituent Assembly by Mr. Santhanam that Preamble should come into force on November 26, 1949 but the said proposal was rejected.

As Preamble is a part of the Constitution, its provisions other than those relating to basic structure or framework, it may well be argued, are as much subject to the amendatory process contained in article 368 as other parts of the Constitution. Further, if Preamble itself is amendable, its provisions other than those relating to basic structure cannot impose any implied limitations on the power of amendment. The argument that Preamble creates implied limitations on the power of amendment cannot be accepted unless it is shown that the Parliament in compliance with the provisions of article 368 is debarred from amending the Preamble in so far as it relates to matters other than basic structure and removing the supposed limitations which are said to be crea:ed by the Preamble. It is not necessary to further dilate

712 SUPBEME COUl.T BEPOllTS [1973] Supp. s.c.11.

upon this aspect because I am of the view that the principle of construction is that reference can be made to Preambl~ for purpose of construing when the words of a statute or Constitution arc ambiguous and admit of two alternative constructions. The preamble can also be used to shed light on and clarify obscurity in the language of a statutory or constitutional provision. When, however, the language of a section or article is plain and suffers from no ambiguity or obscurity, no loss can be put on the words of the section or article by invoking the Preamble. As observed by Story on Constifution, the preamble can never be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitlimate source of any implied power, when otherwise withdrawn from the constitution. Its true office is to expound the nature, and. extent, and application of the powers actually conferred by the constitution, and not substantively to create them (see para 462). The office of the Preamble has been stated by the House of Lords in Att.-Gen. v. H.RH. Prince Ernest August11s of: Hanover.(') In that case, Lord Normand said:

"When there ; s a preamble it is generalfy in its recitals that the mischief to be remedied and the scope of the Act arc described.

It is therefore clearly permissible to have recourse to it as an aid to c:onstrumg the enacting provisions. The preamble is not, however, of the same weight as an aid to construction of a section of the Act as are other relevant enacting words to be found elsewhere in the Act or even in related Acts. There may be no exact correspondence between preamble and enactment, and the enactment may go beyond, or it may fall short of the indications that may be gathered from the preamble. Agaiin, the preamble cannot be of muc:h or any assistance in construing provisions which embody qualifications or e)OCeptions from the operation. of the general

urpose of the Act. It is onl1y when it conveys a clear and definite meaning in comparison with relatively obscur¢ or indefinite enacting words that the preamble may legitimately prevail. ......... ..

If they (the enacting words) admit of only one construction, that construction wi11 receive effect even if it is inconsistent with the preamble, but if the enacting words are capable . of either of the constructions offered by the parties, the construction which fits the preamble may be preferred."

Jn the President's reference In Re: The Berubari Union and Ex- -change of Enclaves,( 2 ) the matter related to the implementation of the agreement between the Prime Ministers of India and Pakistan

( 1 ) [1957] A.C. 436.

( 2 ) [1963] S.C.R. 250.

KESAVANANDA v. KEllALA (Khanna, J.) 713

regarding the division of Berubari U ruon and for exchange of Cooch-

Bihar Enclaves in Pakistan and Pakistan enclaves in India. The conten• non which was advanced on behalf of the petinioner in that case was: that the agreement was void as it ceded part of India's territory, and in this connection, reference was made to the Preamble to the Constitution. Rejecting the contention this Court after referring to the words of Story that preamble to the constitullion is "a key to open the minds of the makers" which may show the general purposes for which they made the several provisions, relied upon the following observations ef Willoughby about the Preamble to the American Constitution :

"It has never been regarded as the source of any substantive power conferred on the Government of the United States, or on any of its departments. Such power embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted."

To the above observations this Court added :

"What is true about the powers is equally true about the prohibitions and limitations."

Apart from what has been stated above about the effect of Preamble on the power of amendment, let us deal with the provisions of the Preamble itself. After referring to the solemn resolution of the people of lndna to constitute India into a sovereign democratic republic, the Preamble makes mention of the different objectives which were to be secured to all its citizens. These objectiv~ are :

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;.

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY auuring the dignity of the individual and the unity of the Nation.

It would be seen from the above that the first of the objectives mentioned in the Preamble is 11)1 secure to all citizens of India justice, social, economic and political'. Article 38 in Part IV relating to the Directive Principles of State Policy recites that 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, shah! inform all the institutions of tho national life.

714 SUPREME COURT REPORTS (1973) Supp. S.C.R,

Since the later half of the eighteenth century when the idea of :political equality of individuals gathered force and led to the formation of democratic governments, there has been a great deal of exten- sioo. of the idea of equality from political to economic and social fields.

Wide disparities in the standard of hving of the upper strata and the lower strata as also huge concentration of wealth in the midst of .abject poverty are an index of social maladjustment and if contilmed for long, they give rise to mass discontent and a desire on the part of those belonging to the lower strata to radically alter and, if. necessary, blow up the social order. As those belonging to the lower -strata constitute the bulk of the population, the disparities provide a fertile soil for violent upheavals. The prevention of such upheavals :is not merely necessary for the peaceful evolution of society, it is also in the interest of those who belong to the upper strata to ensure that the potential causes for violent upheaval are eliminated. Various remedies have been suggested in this connection and the stress has been laid mainly upon having what is called a welfare state. The modern states have consequently to take steps with a view to ameliorate the conditions of the poor and to narrow the chasm which divides them from the affiuent sections of the population. For this purpose the state has to deal with the problems of social security, economic planriing and industrial and agrarian welfare. Quite often in the implementation of these policies, the state is faced with the problem of conflict between the individual rights and interests on the one side and Jights and .welfare of vast sections of the population on the other. The approach which. is now generally advocated for the resolving of the above confl.ict is to look upon the rights of the individuals as conditioned by social responsibility. Harold Laski while .dealing with this matter. has observed in Encyclopaedia of the Social .Sciences :

\ \

"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 politicil' 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. . ...

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 this insistence that the democratization of political power mean equality and that its absence would be regarded by the masses as oppression with the argµment of Lord Acton that liberty and equality arc antitheses. 'To the latter liberty was essentially an autocratic ideal; democracy destroyed individuaiaty, which was the very pith of liberty, by seeking identity of conditions. The modern emphasis is rather :toward the iirinciple that material equality is growing inescapable

KESAVANANDA v. KERALA (Khanna, J.) 715

and that the affirmation of personality muse be effective upon an immaterial plane." (see Vol. IX, p. 445).

I may also refer to another passage on page 99 of Grammar of Politics by Harold Laski : "The State, therefore, which seeks to survive must continually transform itself to the demands of men who have an equal claim upon that common welfare which is its ideal purpose to promote.

We arc concerned here, not with the defence of anarchy, bui with the conditions of its avoidance. Men must learn to subordinate their self-interm to the common welfare. The privileges of some must give way before the rights of all. Indeed, it may be urged

thJt the interest of the few is in fact the attainment of those rights, since in no other environment is stability to be assured."

A modern state has to usher in and deal with large schemes.having social and econorn1c content. It has to undertake the challenging task of what has been called social engineering, the essential aim of which is the eradication of the poverty, uplift of the downtrodden, the raising of the standards of the vast mass of people and the narrowing of the gulf between the rich and the poor. As occasions arise quite often when the individual rights clash with the larger interests of the society, the state acquires the power g> subordinate the individual rights to the larger interests of society as a step towards social justice.

As observed by Roscoe Pound on page 434 of Volume I of Jurisprudence under the heading "Limitations on the Use of Property" :

''Today the law is imposing social limitations-limitations regarded as involved in social life. It is endeavouring to delimit the individual interest better with respect to social interests and to confine the legal right or liberty or privilege to the bounds of the interest so delimited."

To quote the words of Friedmann in Legal Theory :

"But modern democracy looks upon the right to property as one conditioned by s6cial responsibility by the needs of society; by the 'balancing of interests' which looms so large in modern Jurisprudence, and not as preordained and untouchable private right."

(Fifth Edition, p. 406).

With a view to bring about economic regeneration, the state devises various methods and puts into opc; ation certain socio-economic measures. Some of the methods devised and measures put into operation may impinge upon the property rights of individuals. The courts may sometimes be sceptical about tho wisdom behind those methods and measures, but that would be an altogether extraneous consideration in determining the validity of those methods and measures. W c • 4

716 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.

need not dilate further upon this aspect because we are only concerned with the impact of the Preamble. In this respect I find that altho:ugh it gives a prominent place to securing the objective of social. economic and political justice to the citizens, there 'is 'nothing in it which gives primacy to claims of individual right to property over the claims of social,· economic and political justice. There is, as a matter of fact, no _clause or indication in the Pr=ble which stands in the way of abridgement of right to property for securing social, economic and political justice. Indeed, the dignity of the individual upon which also the Preamble has laid stress, can onlybe assured by_ securing the objective of social, economic and political justice.

- ·

Reference has been made on behalf of the - petitioners to the Nehru Report in order to show that in the pre-independence days, it was one of the objectives of nationalist leaders to have some kind of charter of human rights. This Circumstance, in my opinion has not muclt material bearing on the point ofcontroversy before us. Our Constitution-makers did incorporate in Part. III of the Constitution certain rights and designated them as fundamental rights. In_ addition to that, the Ovlstitution-makers put in Part IV of the Constitution certain Directive Principles. Although those Directive Principles were not to be criforceable by any court, article -37 declared that those pnncipks ·

were nevertheless fundamental in the governance of the country and it should be the duty of the State to apply those principles in making laws. The Directive Principles embody a commitment which was imposed by the Constitution-makers on the State to bring about economic and social regeneration of the teeming millions who are steeped in poverty, ignorance and social backwardness. They incorporate[' a pledge to the coming generafions of what the State would strive to usher in. No occasion has arisen for the amendment of the Directive Principles. Attempt have, however, been made from time to time to amend the fundamental rights in Part III. The question with which we are concerned is whether there 'is power of amendment under article 368 so as to take away or •. abridge the fundamental rights.

This question would necessarily have to depend upon the_ language of article 368 as well as upon the width and scope of the . power of amendment under article 368 and the. consideration of th_e Nehru Report in this context would be not helpful. If the language of article 368 warrants a wide power of amendment as may include the power to take away or abridge fundamental rightS, _the said power cannot be held to be non-existent nor can its ambit be restricted by reference to Nehru Report. The extent to which historical ma_terial can -be called in aid has been laid down in Maxwell on Interpretation of Statutes on page 47-48 as under: -

"In theinterpretation of statutes, the interpreter may call to his aid all those external or historical facts which are necessary for

I KESAVANANDA v. KERALA (Khanna, J.) 717

comprehension of the subject-matter, and may also consider whether a tatute was intended to alter the law or to leave it exactly where 1t stood before. But although 'we can have in mind the circumstances when the Act was passed and the mischief which then existed so far as these are common knowledge .... we can only use these matters as an aid to •he construction of the words which Parliament has used. We cannot encroach on its legislative function by reading in some limitation which we may think was probably intended but which cannot be inferred from the words of the Act." The above observations hold equally good when we are construing the povisioi_is of a constitution. Keeping them in view we can get no matenal assistance in support of the petitioners contention from the Nehru Report.

Apart from what has been stated above, we find that both before the dawn of independence as well as during the course of debates of the Constituent Assembhy stress was laid by the leaders of the nation upon the necessity of brillj!ing about economic regeneration and thus ensuring social and economic justice. The Congress Resolution of 1929 on social and economic changes stited that "the great poverty and misery of the Indian people aro due, not only to foreign exploitatiore in India but also to the economic structure of society, which the. alien. rulers support so that their exploitation may continue. In order therefore to remove this poverty and misery and to ameliorate the conditiom of the Indian masses, ii i.s, essential to make revolutionary changes ilk the prestnt economic and social structure of society and to remove, the: gross inequalities''. The resolution passed by the Congress in 1931 recited that in order to end the cxpFoitation of the masses, political'. freedom must include real economic freedom of the starving millions ..

The Objectives Resolution which was moved by Pt. Nehru in the: Constituent Assembly on December 13, 19'16 and was subsequentlfpassed by the Constituent Assembly mentioned that there would be guaranteed to all the people of India, "justice, social, economic, and political; equality of status, of opportunity and before the law; freedom of thought, expression, belief,· faith, worship, vocation, association and action subject to law and public morality". It would, therefore, appear that even in the Objectives Resolution the first position was given t<>

justice, social, econ<>mic and political. Pt. Nehru in the course of one of his speeches, said :

"The service of India means the service of the millions who suffer.

It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us, but as long as there are tears and suffering, so long our work will not be over."

46-36 S.C. India/73

718 SUPllEME COtJil.T 'IU!PORTS [-1973) Sopp; s.c.a.

Granville ; Austin in his book "Extracts from the Indian Constitution : Cornerstone of a Nation" after quoting the abovewords'bf Pt. Nehru has stated :

''Two revolutions, the national and the social, had been running parallel in India since the end of the First World War. With independence, the national revolution would be completed, but the social revolution must go on. Freedom was not an end in itself, only. 'a means to -an end', Nehru had said, 'that .end being the raising of the people . . . to higher levels and hence the general advancement of humanity'.

The fust task of this Assembly (Nehru told the members) is to free India through a new Constitution, to "feed the starving people, and to clothe the naked masses, and to give every Indian the £ullest; opportunity to develop himsel£ according to his capacity.

K. Santhanam, a prominent.southern member of the Assembly and editor of a major newspaper, described. the situation in terms of three revolutions. The political =olution .would end, he wrote, with indcpendcru:e. The social revolution meant 'to get (India) out of the medievalism based on birth, religion, custom, and. community and. reconstruct her . social structute on modern founda-- tions of law, individual merit;· and secuiar education'. The third revolution was an economic.· one : 'The transition from primitive rural economy to scientific and planned agriculture and industry'.

Radhakrishnan (now President of li1dia) believed India must have a 'socio"onOmic revolution' designed not only to bring . about 'the real satisfaction of the fundamental needs of the common pian', but to go much deeper and bring ahout---'a fundamental

change in the structure of Indian society'.

On the achievement of this_; great social cliangc depended India's survival. 'If we cannot solve this problem soon, 'Nehru .warned the Assembly, 'all our paper constitutions will become useless and purposeless ... '

'The choice for India, 'wrote Santhanam,' . . . . is between - rapid evolution and violent revolution . . . because the Indian masses carmot and will not wait for a long time to obtain the satisfaction of their minimum needs.' ·· · •••••••••

What was of greatest "importarice to most Assembly members, however, .was not that socialism be embodied in the Constitution,

, -

KESAVANANDA "· KERALA (Khanna, J.) 719

but that a democratic constituti<>n and with a socialist bias be framed so as to allow the nation in the future to bcco!ne as socialist as its citizens desired .or its needs demanded. Bcirjg, in general, imbued with the goals, the humanitarian bases, and some of the techniques of .social democratic thought, such was th~ type of constitution' that Constituent Assembly members created."

Dealing with the Directive Principles, Granville Austin writes:

"'In the Directive Principles, however, one finds an even cle11rcr

statement of the social revolution. They aim at making the Indian masses fe in the positive sense, free from the passivity engendered by centuries of coercion by s<x:iery and by nature, free from the abject physical conditions that had prevented them from fulfilling

their best selves. . ... •·• ..

13y establishing these positive obligations of the state, the members

of the Constituent Assembly made it the responsibility of future 'Indian governments to find a middle way between individual liberty and the public good, between preserving the property and •the privilege of the few and bestowing benefits on the many in -order to liberate 'the powers of all men equally for contributions i:o the common good' .

•••••••

The Directive Principle$ were a declaration of economic independence, a decl:aration that the privilege of the colonial era had ended, that the Indian people (through the democratic institutions of the Constitution) had assumed economic as well as political control of the country, and that Indian capitalists should not inherit the empire of British colonialists."

Pt Nehru, in the course of his speech in support of the Constitution (First Amendment) Bill, said :

"And as I said on the liast occasion the real difliculty we have to face is a conflict between the dynamic ideas contained in the Directive Principles of Policy and the static position of certain things that arc called 'fundamental' whether they relate to property or whether they relate to something else. Both arc important undoubtedly. How are you to get over them ? A Constitution which is unchanging and static, it docs not matter how good it is, how perfect it is, is a Constitution that has past its use."

720 SUPREME COURT REPORTS (1973) Supp. S.CJt.

Again in the course of his speech in support of the Constitution (Fourth Amendment) Bill, Pt. Nehru said :

"But, I say, that if that is correct, there is an inherent contradiction in the Constitution between the fundamental rights and the Directive Principles of State Policy. Therefore, again, it is up to this Parliament to remove that contradiction and make the fundamental rights subserve the Directive Principles of State Policy."

It cannot, therefore, be said that the stress in the impugned amendments to the Constitution upon changing the economic structure by narrowing the gap between the .rich and the poor is a recent phenomenon. On the contrary, the above material shows that this has been the objective of the national leaders since before the dawn of independence, and was one of the underlying reasons for the Fust and Fourth Amendments of the Constitution. The material further indicates that the approach adopted was that there should be no reluctince to abridge or regulate the fundamental right to property if it was felt necessary to do so for changing the economic structure and to attain the objectives contained in the Dire.ctive Principles.

So far as the question is concerned as to whether the right to property can be said to pertain to basic structure or framework of the Constitution, the answer, in my opinion, should plainly be in the negative. Basic structure or framework indicates the broad outlines of the Constitution, while the right to property ill a matter of detail.

It is apparent from what has been discussed above that the approach of •the framers of the Constitution was to subordinate the individual right to property to the social good. Property right has also been changing from time to time. As observed by Harold Laski in Grammar of Politics, the historical argument is fallacious if it regards the regime of private property as a simple and unchanging thing. The hi.story of private property is, above all, the record of the most varied limitations upon the use of the powers it implies. Property in slaves was valid in Greece and Rome; it is no longer val.id today. Laski in this context has quoted the following words of John Stuart Mill:

"The idea of property is not some one thing identical throughout history and incapable of alteration . . . at any given time it is a brief expression denoting the rights over things conferred by the faw or custom of some given society at that time; but neither on this point, nor on any other, has the law and custom of a given time and place, a claim to be stereotyped for ever. A proposed reform in laws or customs is not n<cessarily obiectionable becuse its adoption would imply, not theadaptatii:>n of all human affairs to the existing idea of property; die. growtli and improvement of human affairs."

Xl!SAVANANDA fl, DllALA (Khanna, J.) 721

The argument that Parliament cannot by amendment enlarge its -OWn powers 'is 'Untenable. Amendment of the Constitution, in the

Tery nature of things, can result in the conferment of powers on or the enlarge.ment of powers of. one of the organs of the state. Likewise, it can resiilt in the taking away or abridgement of the powers which were previously vested in an organ of the state. Indeed nearly every expansion of powers and functions granted to the Uriion Government would involve consequential contraction of powers and functions in the Government of the States. The same is true of the converse position. There is nothing in the Constitution which prohillits or in any other way prevents the enlargement of powers of Parliament as a result of constitutional amendment and, in my opinion, such an amendment cannot be heltl to be impermissible or beyond the purview of article 368. Indeed, a precedent is afforded by the Irish case of Jeremish Ryan (supra) wherein amendment made by the Oirechtas as a result of which it enlarged its powers inasmuch as its power of amending the Constitution without a referendum was increased from eight years to 16 years was held to be valid. Even Kennedy C.J. who gave a dissenting judgment did not question the validity of the amendment on the ground that Oirechtas had thereby increased its power. He struck it down on the ground that there was no power to amend the amending clause. No such difficulty arises under our Constitution because of the existence of an express provision. I am also unable to accede to the contention that an amendment of the Constitution as a result of which the President js bound to give his assent to an amendment of the Constitution passed in accordance with the provisions of article 368 is not valid. Article 368 itself gives, inter alia, the power to amend article 368 and an amendment of article 368 which has been brought about in the manner prescribed by that article would not suffer from any constitutional or legal infirmity. I may mention in this context that an amendment of the US Constitution in accordance w'1th article 5 of the US Constitution does not require the assent of the President. The change made by the Twentyfourth Amendment in the Constitution of 1ndia, to which our attention has been invited, has not done away with the assent of the President but has made it obligatory for him to give his assent to the Constitution Amendment llill after it has 'been passed in accordance with artide 368. As it is not

uow open to the President to withhold hls assent ro a Bill in regard to a constitutional amendment after it has been duly passed, the element of personal discretion of the President disappears altogether. Even apart from that, under our Constitution the position of the President is that of a constitutional head and the scope for his acting in exercise <>£ h'is personal discretion is rather small and limited.

Reference was made during the course of arguments to the provisions of section 6 oI tbe Indian Independence Act, 1947. According to

722 SUPREME cOURT REPORTS [1973] Supp. s.c.R.

sub-section (1) of that section, the Legislature of each of the new Dominions shall have full power to make laws for that Dominion, incl\uding laws having extra-teriitorial opeartion. Sub-section ( 6) of the .section provided that the power referred to in sub-section (1) of this section extends to the making of laws limiting for the future the powers of the Legislature of the Dominion. No help, fa my opinion, can be derived from the above provisions because the Constinient Assembly framed and adopted the Constitution not on the basis of any power derived from section 6 of the Indian Independence Act. On the contrary, the members of the Constituent Ambly framed and adopted the Constitution as the representatives of the people and on behalf of the people of India. This is clear from the opening and concluding words d the Preamble to the Constitution. There is, indeed, no reference to the Indian Independence Act in the Constitution e.xcept about its repeal in article 395 of the Constitution.

Apart from the above, I find that all that sub-section ( 6) of section 6 of the Indian Independence Act provided for was that the power referred to in sub-section ( 1) would extend to the making of laws. limiting for the future the powers of the Legislature of the Dominion, The Provisional Parliament acting as the Constituent Assembly actually framed the Constitution which placed limitations on the ordinary legislative power of the future Parliaments by providing that the legislative laws. would not contravene the provisions of the Constitution.

At the same time, the Constituent Assembly inserted article 368 in the Constitution which gave power to the two Houses of future Parliamen~ .to amend the Constitution in compliance with the procedure laid down in that article. There is nothing in section 6 of the Indian Independence Act which stood in the way of the Constituent Assembly against the insertion of an article in the Constitution conferring wide power of amendment, and I find it difficult ta restritt the scope of article 368 because of anything said in section 6 of the Indian Independence Act.

Argument on behalf of the petitioners that our Constitution represents a compact on the basis of which people joined the Indian Union and accepted the Constitution is wholly misconceived.

The part of India other than that comprised in erstwhik Indian States was already one territory on August 15, 1947 when India became free. So far as the erstwhile Indian States were concerned, they acceded to the Indian Union long before the Constitution came into force on January 26, 1950 or was adopted on November 26, 1949. There thus arose no question of any part of India comprising the territory of India joining the Indian Union on the faith of any assurance furnished by the provisions of the Constitution. Some assurances were given to the minorities and in view of that they gave up certain demands. The ri2hts of minorities are now protected in articles 25 to 30. Apart from

KESAVANANJYA v. KERAJ.A (Khanna, J•) 723

the articles relating to protection to the minorities, the various articles conta; ned in Part III of the Constitution are applicable to all citizens.

There is nothing to show that the people belonging to different re gions would have or indeed could have declined to either join the Indian Union or to remain in the Indian Union but for the incorpo. ration of articles relating to fundamental rights in the Constitution.

The Constitution containing fundamental rights was framed by the people of India as a whole speaking through their representative and if the people of India as a whole acting again through their representatives decide to abridge or take away some fundamental right like one relating to property, no question of breach of faith or violation of any alleged compact can, in my opinion, arise.

This apart, compact means a bargain or agreement mutually entered into, which necessarily connotes a choice and volition for the party to the compact. Whatever may be the relevance or significance of the concept of compact in the context of the US Constitution where different States joined together to bring into existence the United States of America and where further each one of the States ratified the Constitution after it had been pepared by the Philadelphia Con vention, the above concept has plainly no relevance in the context of the Indian Constitution. The whole of India was, as already mentioned, one country long before the Constitution was adopted. There was. also no occasion here for the ratification of the Constitution by each State after it had been adopted by the Constituent As.; embly.

Reference has been made on behalf of the petitioners to the casc of Mangat Singh & Anr. v. Union of India(') which related to the Punjab Reorganization Act, 1966. This Court while upholding the validity of the Act dealt with article 4, according to which any law referred to 'm article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law} as Parliament may deem necessary, and observed :

"Power with which the Parliament is invested by Arts. 2 and 3,. is powe~ to admit, establish, or form new States which conform to the democratic: pattern envisaged by the Constitution; and the power which the Parliament mav exercise by law is supplemental,

incidental or consequential to the admission, establishment or formation of a State as. contemplated by the Constitution, and is not power to override the constitutional scheme. No State can therefore be formed. admitted or set up by law under Art. 4 by


724 SUPREME COU!lT REPORTS [1973] Supp. s.c.R.

the Parliament which has not effective legislative, executive and judicial organs."

The above passage, in my op'inion, docs not warrant an inference of an implied limitation on the power of amendment as contend.ed on behalf of the petitioners. This Court dealt in the above passage w1.th the import of the words "supplemental, incidental and consequenal

provisions" and held that these provisions did not enable the Parliament to override the constitutional scheme. The words "constitutional

scheme" had plainly reference to. the provisions of the Constitution which dealt with a State, its legislature, judiciary' and other matters in Part VI. Once the State of Haryana came into being, it was to have the attributes of a State contemplated by the different aricles of Pa.rt VI in the same way as did the other States. No question arose. m that case about limhation on the power of amendment under article 368 and as such, that case cannot be of any avail to the petitioners.

Learned counsel for the petitioner has invited our attention to the constitutional position specially in the context of ci4il l!iberties in Canada. In thi:s respect we find that the opening words of the Preamble to the British North America Act, 1867 read as under :

"Whereas the provisions of Canada, Nova Scotia, and New Brunswick have expressed their desire to be federally united into one dominion under the Crown of the United Kingdom of Great Britain .and Ireland, with a constitution similar in principle to that of the United Kingdom;"

Section 91 of the above mentioned Act deals with the legislative authority of Parliament of Cana.Ia. The opening words of section 91 are as under :

"It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces; and for greater certainty, but not so as to restrict the generality of the foregoing terms of the section, it is hereby declared that ( notwithstanding anything In this Act) the exclusive 'legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated; that is to say,--".

There follows a list of different subjects. The first amongst the subiects, which was inserted by British North America Act 1949, is : "The amendment from time to time of the Constitution of Canada, except as regards matters coming within the classes of subjects by this

KESAVANANDA v. KERALA (Khanna, J.) 725

Act assigned exclusively to the Legislatures of the provinces, or " It is no; necessary to give the details of other limitations on the power of amendment. Section 92 of the British North America Act enumerates the subjects of exclusive provincial legislation. According to this section, in each province the Legislature m1y exc!ll5ivcly make laws jn relation to matters coming Within the classes of subjects next hereinafter enumerated. There then follows a list of subjects, the first amongst whlch is "TI1e amendment from time to time, notwithstanding anything in this Act, of the constitution of the province, except as regards the office of the Lieutenant Governor". In view of the fact that amendment of the Constitution is a!l1'lng the subjects of legislation, the only distinction in Canada, it has been said, between ordinary legislation by Parliament and constitutional law is that the former concerns all matters not speciallly stated as within the ambit of pr~ vincial legislation while the latter concerns any fundamental change m the division of rights. Further, although because of the federal character of the State, the Canadian constitution cannot be called flexible, it is probably the least rigid of any in the modern federal states (see Modern Political Constitutions by C. F. Strong).

It appears that at least six different views have been propounded in Canada about the constitutional position of basic liberties. To date, the Supreme Court of Canada has not given Judicial approval to any of these views. Different members of the Court have voiced various opinions on the matter, but all of these fall far short of settling the ; ssue. It should also be noted that the fundamental problem is not whether Parliament or the legislature may give to the people basic freedom, but rather which one may interfere with them or take them away (see Civil Liberties in Canada by D.A. Schmeiser P. 13).

An important case which had beating on the question of civil liberties was the Alberta Press case (1). That case related to the validity of an Act which had placed limitations on the freedom of the Press

and the Supreme Court of Canada held that the Act was ultra vires, since it was ancillary to and dependent upon the Alberta Social Credit Act, which itself was ultra vires. Three of judges, including Duff C. J., went further than this, and dealt with the freedom of speech and freedom of Press. It was obsenied that curtailment of the exercise of the right of the public discussion would interfere with the working of parliamentary institutions of Canada. Opinion of Duff C.J. was based not on the criminal law power but OJ). the necessity for maintaining democratic society as contemplated by the Constitution. A later decision dealing with free speech was Switzmand v. Elbing and Attorney-Gene

ral of Quebec('). In that case the Supreme Court declared invalid the

( 1) [1938] S.C.R. 100 (Canada). (') [1957] S.C.R. 285 (Canada).

726 1 SUPREME COURT REPORTS (1973) Supp. S.C.R.

Quebec Communistic Propaganda Act. All the judges but one were agreed that the statute did nodall with.inprovincial ccmpetence under property and Civil rights or matters of a merely lOICai or private nature in the province .. Abbott J. held that the Parliament itself could not abrogate the right of discussion and. debate.

An article by Dale Gibson 'in Volume 12-196667 in McGill Law Journal shows . that though the proposition enunciated by Duff C. J. has commanded the allegiance of an impressive .. 11umber of judgcSo and has not been decisively rejected, it has never oeen accepted by a majority of the members of the Supreme Court of Canada or of any other court. Some judges have assumed that basic freedoms may properliy be the subject matter of legislation separate and apart from a11y other-subject matter. Others have taken the view tha~ unlimited jurisdiction falls within Dominion control tinder its general power to make laws "for the peace, order and good government of Canada". A third view which has been taken is that the creation of a Parliament and reference in the Preamble to "a constiiution similar in principle to that of the United Kingdom" postulates that legislative body would be elected and function in an atmosphere of free speech. It is not necessary to give the other views or dialate upon different views. Bora .Laskin while dealing with the dictrim of Abbott J. has observed in Canadian Constitutional Law : ·

"Apai:t from the dictum by Abbott J. in the Switzman case, supra, there is no high authority which places civil liberties beyond the legislative reach of both Parliament and the provincial Legislatures.

There are no explicit guarantees of c'ivil liberties in the B.N.A. Act -nothing comparable t<;> the Bill of Rights (the 1st ten amendments) in the Constitutioh''of the United States, which, within limits and on co.nditions prescribed by the. Sup(eme Court as ultimate cxp0urtder . of the meaning and range of the Constitution, prohibits both federal and state -:tion infringing, inter alia, freedom of religion, of .spee1=h, of the press aqd of assembly." (see p. 970). ' '

It would ppear. from the above that the different views which have been expressed in Canada 'are i1i.'the context of the prei:rible 'ahd section ofi:the British North Ameriea Atr, the provisions of which are materially differeni fi611.1 our Conititution. 'Even In ihc context of the British oiih _America A\:t,._the osrvations .\if; .A?boit J. ', iied upon on behalf of the petitioners have not been accepted by the roajority of the judges of the Canadian Supreme Courf, and in my opinion,' they

~1fford a fragile bas.is for building a theory of ill'lplicd litnliatloris:

' "

KESAVANANDA v. KERALA (Khanna, J.) 727

It may be. mentioned that in August 1%0 the Parliaent of Canada passed the Canadian Bill of Rights. Section 1 of the Bill declared certain human rights and fundamental freedoms and reads as under :

"1. It is hereby recognized and declared that in Canada there have existed and. shall continue to exist without discrimination by rctason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

(b) the right of the individual to equality before the law and the protection of the law; ·

( c) freedom of religion;

( d) freedom of speech;

( e) freedom of assembly and association; and

(f) freedom of the press."

According to section 2 of the Bill, every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall

operate notwithstanding the Canadian Bill! of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorise tM

abrogation, abridgement or infringement of any of the rights or freedoms therein recognized and declared. The relevant part of section 2 reads as under :

"Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the ahrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to ... " (underlining supplied).

Plain reading of section 2 reproduced above makes it manifest that the human rights and fundamental freedoms mentioned in section l of the

Dill are not absolute but are subject to abrogation or abridgement if an express declaration to that effect be made in a law of Canada. Section 2 of the Bill shows that if an express declaration to that effect be made an Act of the Parliament can override t)le, provisions of the Bill of Rights. Section 2 is thus inconsistent with the theory of implied limitations based on human rights on the power of the Canadian Parliament.

728 SuPREME COUllT REPORTS [1973) Supp. S.C.R.

Another case from Canada which has been referred to on behalf of the petitioners and which in my opinion is equally of no avail to them is The Attorney Gem:ral of Nova Scotia and The Attorney General of Canada(') decided by the Supreme Court of Canada. It was held in that case that an Act respecting the delegation d jurisdiction from the Parliament of Canada to the Legislature of Nova Scotia and vice versa, if enacted, would not be constitutionally valid since it contemplated

<lelegation by Parliament of powers, exclusively vested in it by section 91 of the British North America Act, to the Legislature of Nova Scotia; and delegation by that Legislature of powers, exclusively vested in Provincial Legislature under section 92 of the Act, to Parliament. The -Parliament of Canada and each Provincial Legislature, according to the Supreme Court of Canada, was sovereign body within its sphere, possessed of exclusive jurisdiction to legislate with regard to the subject matters assigned to it under section 91 or section 92, as the case may be. Neither was capable therefore of delegaling to the other the powers with which it had been vested nor of receiving from the other the powers with which the other had been vested. It is plain that that case related to the delegation of powers which under the British North America Act had been assigned exclusively to Parliament or to the Provincial Legislatures. Such a delegation was held to be not permissible. No such question arises in the present case.

We may now deal with some of the other cases which have been referred to on behalf of the petitioner. Two of those cases are from Ceylon. The constitutional position there was that section 29. of the Ceylop (Constitution) Order in .Council, 1946 gave the power to make laws as well as the power to amend the Constitution though the procedure prescribed for the two was ditferent. Section 29 reads as under :

"29 ( 1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island.

(2) No such law shall-

( a) prohibit or' restrict the free exercise of any re!igion; or

(b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable ; or

( c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions; or

( 1 ) (1950] S.C.R. 31 (Canada).

KESAVANANDA "· KEllALA (Khanna, J.) 729

( d) alter the constitution of any religious body except with the consent of the governing authority of tb.at body, so, however, that in any case where a religious body is incorporated by law, no such alteration shall be made except at the re- .quest o£ the governing authority of that body :

Provided, howeve.-, that the preceding provisions of this, subsection shall not apply to any law making provision for, relating to, or connected with, the election of Members o£ the House of Representatives, to represent persons registered as citizens of Ceylon under the Indian and Pakistani Residents (Citizenship) Act.

This proviso shall cease to have effect on a date to Le fixed by the Governor-General by Proclamation published in the Gazette.

(3) Any law made in contravention o£ sub-section (2) of this section shall, to the extent of such contravention, be void.

(4) In the exercise of its powers under this section, Parliament may amend or repeal any Gf the provisions of this Order or of any other Order of Her Majesty in Council in its application to the Island:

Provided that no Bill for the amendment or repeal of any of the provisions of this 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 (including those not present).

Every certificate of the Speaker under this sub-section shall be conclusive for all purposes and Sihall not be questioned in any court of law."

In Liyanage and Others v. The Queen(') the ppellants had been charged with offences arising out of an abortive coup d'etat on Januany 27, 1962. The story of the coup d' etat was set out in a White Paper issued by the Ceylon Government. On March 16, 1962 the Criminal Law (Special Provisions) Act was passed and it was given restrospective effect from January l, 1962. The Act was limited in operation to those who were accused o£ offences against the State in or about January 27, 1962. The Act legalised the imprisonment of the appellants while they were awaiting trial, and modified a section of the Penal

Code so as to enact ex post facto a new offence to meet the circumstances of the abortive coup. The Act empowered the Minister of Justice

( 1) [1966] All E.R. 650.

730 SUPREME COUJIT REPORTS (1973) Supp, S.C.R.

to nominate the three judges to try the appellants without a jury. The validity of the Act was challenged as well as the nomination which had been made by the Minister of Justice of the three judges. The Ceylon Supreme Court upheld the objection about the vires of some of the provisions of the Act as weH as the nomination of the judges.

Subsequently the Act was amended and the power of nomination of the judges was conferred on the Chief Justice, The appellants having been convicted at the trial before a court of three judges nominated under the amended Act, went up in appeal before the Judicial Committee. The conviction of the appellants was chaJlenged on three grounds but the Judicial Committee dealt with only two grounds. The first ground was that the Ceylon Parliament was limited by an in.ability to pass legislation which was contrary to fundamental principles of justice. The two Acts of 1962, it was stated, were contrary to such principles in that they were not only directed against individuals but also ex post facto created crimes and for which those.. individuals would otherwise be protected. The second conltention was that the Acts of 1962 offended against the Constitution in that they amounted to a direction to convict the appellants or to a legislative plan to secure the conviction and severe punishment of the appellants and thus constituted an unjustifiable assumption of judicial power bi the legislature, or an 'interference with judicial power, which was outside the legislature's competence and was inconsistent with the severance of power between legislature, executive, and judiciary which the Constitution ordained. Dealing with the first contention, the Judicial Committee referred to the provisions of the Ceylon (Constitution) Order in Council, 1946 and the Ceylon Independence Act, 1947 and observe&

that the joint effect of the said Order and Act was intended to and resulted In giving the Ceylon Parliament the full legislative powers of an independent sovereign state. The legislative power of the Ceylon Parliament, it was held, was not limited by inability to pass laws which offended fundamental principles of justice. On the second ground, the Judicial Committee held the Acts of 1962 to be invalid as they involved a usurpation and infringement by the legislature of judicial powers inconsistent with the written Constitution of Ceylon, which, while not in terms vesting judicial functions in the judiciary, manifested an intention to secure in the judiciary a freedom from a political, legislative and executive control.

It would thus appear that the decision is based upon the ground of severance of powers between legislature, judiciary and executive under the Ceylon Constitution and furnishes no support for the theory of implied limitations on the power of Parliament. On the contrary, the Judicial Committee while dealing with the first contention rejected the theory of limitations on the power of Par1iament to make a law in violation of the fundamental principles of justice. The Judicial

KESAVANANDA ti. KERALA (Khanna, J.) 731

Committee, it is also noteworthy, expressly pointed out that there had been no amendment Qf the Constitution in accordance with Section 29( 4) of the Constitution by two-thirds majority and as such they had not to deal with that situation.

Another case to which reference was made on behal£ of the peti~ tioners was The Bribery Commissioner v. Pedrik Ranasinghe( 1 ). In . that case it was found that the members of the Bribery Tribunal had been appointed by the Governor-General on the advice of the Minister of Justice in accordance With Bribery Amendment Act but in con:ra vention of section 55 of the Ceylon Constitution. [Ceylon (Constitution) Order in Council, 1946) according to which the apP?irtmcnt of judicial officers was vested in the Judicia! Service Com~sion. It was held that a legislature has n9 power to ignore .the .conditions of law-making that arc imposed by the instrurn.ent which itself regulates its power to make law. This restriction cxi&ts independently of the question whether the legislature is sovereign, as is that of Ceylon.

It would appear from the above that the point of controversy which arose for determination in that case was diifercnt from that which arises in the present case because we are not in this case concerned with any law made by a' legislature in contravention of the constitutional provisions Reference has been made on behalf of the petitioners to a passage in the judgment wherein while dealing with s1.1b-scct'ion (2) of section 'l9 of the Ceylon Constitution, the provisions of which have been reproduced earlier, the Judicial Committee observed that the various clauses of sub-section (2) set out entrenched religious and racial matters which shall not be the subject of legislation. It was further observe.ii that those provisions represented the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution and these are therefore unalterable under the Constitution. It is contended that those observations show that the rights mentioned in section '19(2) of the Ceylon Constitution which were similar to the fundamental rights in Part III of the Indian Constitution, were held by the Judicial Committee to be unalterable under the Constitution.

There was, it is further submitted, sim'.ilarity between the provisions of section 29(3) of the Ceylon Constitution and article 13(2) of the Indian Constitution because it was provided in section 29(3) that any law made in contravention of section '19(2) shall to the extent of such contravention be void.

I find it difficult to accede to the contention that the Judicial Committee .lad down in the above case that sections 29(2) and 29(3) placed a .restncuon on .the power of amendment of the Constitution under

('> [1965] A.C. 172.

732 SUPREME COURT REPORTS [1973] Supp. s.c.R.

section 29(4) of the Constitution. The question with which the Judi cial Committee was concerned was regarding the validity of the appointment of the members of the Bribery Tribunal. Such appointment though made in compliance with the provisions of the Bribery Amendment Act, was in contravention of the requirements of section 55 of the Ceylon Constitution. No question arose in that case relating to the validity of a constil'Utional amendment brought about in compliance with section 29( 4) of the Constitution. Reference to the argument of the counsel for the respondent on the top of page 187 of that case shows that it was conceded on his behalf that "there is no_!imi. tation at the moment on the right of amendment or repeal except the requirement of the requisite majority".

The Judicial Committee nowhere stated that they did nQt agree with the above stand of the counsel for the respondent. Perusal of the judgment shows that the Judicial Committee dealt with sections 18 and 29 together and pointed out the difference between a legislative law, whlch was required to be passed by a bare majority of votes under section 18 of the Constitution, and a law relating to a constitutional amendment which was required to be passed by a two-ii:hirds majority under section 29( 4).

Dealing with the question of sovereignty, the Judicial Committee observed:

"A Parliament does not cease to be sovereign whenever its component members fail to produce among themselves a requisite majority, e.g., when in the case of ordinary legislation the voting is evenly divided or when in the case of legislation to amend the Constitution there is on! y a bare majority if the Constitution requires something more. The minority are entitled under the Constitution of Ceylon to have no amendment of it which is no~ pas.sied by_ a two-thirds majority. The limitation thus imposed on some lesser majority of members does not limit the sovereign power of Parliament itself whlch can always, whenever it chooses, pass the amendment with the requisite majority."

fr has been submitted on behalf of the respondents that the above passage indicates that the Judicial Committee took th~ v!ew .that :he amendment of all the provisions of the Ceylon Const1tut10n mcludmg those contained in sub-sections (2) and (3) of section 29 could be passed by a two-thlrds majority. I~ is also stated that the restr.icti?ns imposed by sub-section (2) of section 29 of the Ceylon Constitution are on the power of ordinary legislation by simple majority and not on the power of making constitutional amendment ?Y . twC>-thirds majority in compliance with section ~( 4) of th~ Constitution. t :was in that sense that the Judicial Comm.tttee, according to the submission, used the word "entrenched". Our attention has also been invited to the observations on pages 83 and 84 of the Constitutional structure

KESAVANANDA v. KERALA (Khanna, J.) 733

by K. C. Wheare 1963 Reprint that "these safeguards (contained in section 29) of the rights of communities and religions could be repealed or amended by the Parliament of Ceylon provided it followed the prescribed procedure for amendment of the Constitution". These submissions may not be bereft of force, but it is, in my opinion, not necessary to dilate further upon this matter and discuss the provisions of the Ceylon Oinstirntion at greater length. The point of controversy before us would have to be decided in the light essentially of the provisions of our own Constitution. Suffice it to say that Ranasinghe's case does not furnish any material assistance to the stand taken on behalf of the petitioners.

We may now advert to the case of McCawley v. The King.('). The said case related to the Con:titution of Queensland in Australia.

Queensland was granted a Constitution in 1859 by an Order in Council made on June 6. The Order in Council set up a Legislature in the territory consisting of the Queen, a Legislative Council and a Legislative Assembly and the law making power was vested in the Queen acting with the advice and consent of the Council and Assembly. Any law could be made for the "peace, welfare and good government of the co!ony'', the phrase generally employed to denote the plenitude of sovereign legislative power even though that power be confined to certain subjects or within certain reservations. The Legislature passed a Constitution Act in 1867. By section 2 of that Act the legislative body was declared to have power to make laws for the peace, welfare and good government of the colony in aH cases whatsoever. The only express restriction on this comprehensive power was in section 9 which required a two-thirds majority of the Council and of the Assembly as a condition precedent to the validity of legislation altering the constitution of the Council. In 1916 the Industrial Arbitration Act was passed. The said Act authorised the Governor in Council to appoint the President or a judge of the Court of Industrial Arbitration to be a judge of the Supreme Court of Queensland. lt was also provided that the judge so appointed shall have the jurisdiction of both offices, and shall hold office as a judge of the Supreme Court during good behaviour. The Governor in Council, by a commission, appointed the appellant who was the President of the Court of Industrial Arbitration to be a judge of the Supreme Court during good behaviour. The Supreme Court of Queensland held that the appellant was not entitled to have the oath of office admin:istered to him or to take his seat as a member of the Supreme Court: Subsequently, the Supreme Court of Queensland gave a judgment in ouster against the appellant The provisions of section 6 of the Industrial Arbitration Act of 1916 under which the appellant had been appointed a judge of

( 1) [1920] A.C. 691. 47-36 S.C. Ind; a/73

734 SUPREME COURT REPORTS (1973] Supp. S.C.R.

the Supreme Court were held to be inconsistent with the provisions of the Constitution Act and as such void. On appeal four out of the _seven judges of the High Court of Australia agreed with the Supreme

Court of Queensland, while the three other judges took the opposite view and expressed the opinion that the appeal should be allowed.

The matter was then taken up in appeal to the Privy Council. Lord Birkenhead giving the opinion of the Judicial Committee held (1) that the Legislature of Queensland had power, both under the Colonial Laws Validity Act, 1865, and apart therefrom, to authorise the appointment of a judge of the Supreme Court for a limit_ed period; and (2) that section 6 of the lndustrial Arbitration Act authorised an appointment as a judge of the Supreme Court only for the period during which the person appointed was a judge of the Court of Industrial Arbitrat; on. The appellant was further held to have been validly appointed.

The above case though containing observations that a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law, laid down the propo, ition that in the absence of a restriction, it is not.possible to impose a restriction upon the legislative power. It was observed :

"The Legislature of. Queensland is the master of its own household, except in so far as its powers have in special cases been restricted.

No such restriction has been established, and none in fact exists, in such a case as is raised in the issues now under appeal."

It was also observed :

"Still less is the Board prepared to assent to the argument, at one time pressed upon it, that distinctions may be drawn between different matters dealt with by the Act, so that it becomes legitimate to say of one section : 'This section is fundamental or organic; it can only be altered in such and such manner'; and of another : 'This section is not of such a kind; it may consequently he altered with as little ceremony as any other statutory provision.' "

The decision in the above cited case can hardly afford any assistance to the petitioners. On the contrary, there are passages in the judgment which go against the stand taken on behalf of the petitioners.

Section 5 of the Colonial Laws Validity Act, 1865 to which there was a reference in the McCawley's case reads as under:

"Every colonial legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish courts of judicature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein; and every representative legislature shall; in respect to the colony under its jurisdiction have,

KESAVANANDA fl, XllALA (Khanna, J.} 735

and h¢ deemed at all times to have had, full power to make laws respecting the constitution, powers, and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Or<kr in Council or colonial law for the time being in force in the said colony."

Reference has been made during arguments to the decision of the Privy Council in the case of Attorney-General f<>r New South Wales

v. Trethowan(1 ). The said case related to a Bill passed by the New

South Wales Parliament for repeal of a section proding for referendum as well as to another Bill for abolition of the Legislative Council.

The Privy Council affirmed-the decision of the Australian High Court

which had held by majority that the Bills had not: been passed in the "manner and form" within the meaning. of seotion 5 of the Colonial Laws Validity Act, and as such could not be presented for Royal assent. The Privy Council based its decision upon the language of the above section and the meaning of the word "passed" in that section.

We are not concerned in the present case w\th the aforesaid provisions.

There is also nothing in the conclusions at whi~\ I have arrived which runs counter to the principles laid down in the Trethowan' s case.

Another Australian case to which reference has been made during the course of arguments is The State of Victoria v. The Commonwealth.<') It has been laid down by the High Court of Australia in that case that the Commonwealth Parliament tin exercise of its powers under section Sl(ii) of the Constitution may include the Crown in right of a State in the operation of a law imposing a tax or providing for the assessment of a tax. The inclusion of the Crown in right of a State, according to the court, in the definition of "employer" in the Pay-roll Tax Assessment Act, thus making the Crown in right of a State liable to pay the tax in respect of wages paid to employees, including employees of departments engaged in strictly governmental functions, is a valid exercise of the power of the Commonwealth under the above provisions of the Constitution. There was disimssion in the course of the judgment on the subject of implied limitation on the Commonwealth legislative power under the Constli.tution arising from the federal nature of the Constitution and different views were expressed. Three of the Judges, including Barwick C. J. took the view that there was no such limitation. As against that, four Judges were of the opinion that there was an implied limitation on Commonwealth .legislative power under the Constitution but the impugned Act did not offend such limitation. Opinion was expressed that the Commonwealth Parliament while acting under the Iegiislative entry of taxation

( 1 ) [1932] A.C. 526.

( 2) 45 Australian Law Journal Reports 251.

736 SUPREME COURT REPORTS [1973) Supp. S.C.R.

could \lot so use the power of taxation as to destroy the States in a federal structure. The question as to what is the scope of the powe£ of amendment was not considered in that case. The above case as such cannot be of much assistance for determining as to whether there a:e any implied lim'1tations on the power to make constitutional ;1::'!cn<ln1ent.

I am, therefore, of the opinion that the majority view in the Goiak Nat\i's case that Parliamew did not have the power to amend any of the provisions of Parr Ill of the Constitution so as to take away or abridge the fundamental rjghts cannot be accepted to be correct.

Fundamental rights contained in Part III of our Constitution can, in my opinion, be abridged or taken away in compliance with the procedure prescribed by arnicle 368, as long the basic structure of the Constitution remains unaffected.

We may now deal with the Twentyfourth Amendment. It has sought to make clear matters regarding which doubt had arisen and conflicting views had been expressed by this Court. We may in this context set forth the Statement of Objects and Reasons of the Constitution (Twentyfourth Amendment) Bill. The Statement of Objects and Reasons reads as under :

STATEMENT OF OBJECTS AND REASONS

"The Supreme Court in the well-known Golak Nath's case 1%7 (2 SCR 762) reversed, by a narrow majority, its own earlier decisions upholding the power of Parliament to amend all parts of the Constitution including Part III relating to fundamental rights.

The result of the judgment is that Parliament is considered to have no power to take away or curtail any "f the fundamental rights guaranteed by Part III of the Constitu6c:1 .even if it becomes necessary to do so for giving effect to the Directive Principles of State Policy and for the attainment of the objectives set out in the Preamble to the Constitution. ft is, therefore, considered necessary to provide expressly that Parliament has power to amend any provision of the Constitution so as to include the provisions of Pa rt III within the scope of the amending power.

2. The Bill seeks to amend article 368 suitably for the purpose and makes it clear that article 368 provides for amendment of the Constitution as well as procedure therefor. The Bill further pm vides that when a Constitution Amendmont Bill passed by both Houses of Parliament is presented to the President for his assent, he should give his assent thereto. The Bill also seeks to amend article 13 of the Constitution to make it inapplicable to any amendment of the Constitution under article 368."

KESAVANANDA v. KERALA (Khanna, J.) 737

Section 2 of the Bill which was ultimately passed as the Constitution (Twentyfourth Amendment) Act has added a clause in article 13 that nothing in that article would appl, y to any amendment of the Constitution made under article 368. As a result of section 3 ot the Amendment Act, article 368 has been re-numbered as clause (2) thereof and the marg; nal heading now reads "Power of Parliament to amend the Comtitution and procedure therefor". Non-obstante clause (I) has been inserted in the article to emphasise the fact that the power exercised under that article is constituent power, not subject to the other provisions of the Constitution, and embraces within itself addition, vanation and repeal of any provision of the Constitution.

Amendment has also been made so as to make it obligatory for the President to give his assent to the Amendment Bili! after it has been passed in accordance with the article. Clause (3) has further been added in article 368 to the effect that nothing in article 13 would apply to an amendment made under article 368. Although considera- .ble arguments have been addressed before us on the point as to whether the power of amendment under article 368 includes the power to amend Part III so as to take away or abridge fundamental rights, it has not been disputed before us that the Constitution (Twentyfourth Amendment) Act was passed in accordance with the procedure laid down in article 368 of the Constitution as it existed before the passing

of the said Act. In view of what has been discussed above at length.

I find no infirmity in the Constitution (Twentyfourth Amendment) Act. I, therefore, uphola the validity of the said Act.

We may now deal with the Coristitution (Twentyfifth Amnd ment) Act, 1971. The Twentyfifth Amendment has made three material changes :

(i) It has amended article 31(2) in two respects.

{a) It substitutes the word "amount" for the word "compensation" for property acqwred or requisitioned.

(b) It has provided that the law for the purpose of acquisition or requisition shall not be called in question on the ground that the whole or any part of the "amount" is to be given otherwise than in cash.

(ii) It has provided that the fundamental right to acquire, hold and dispose of property under article 19(1)(£) cannot be invoked in respect of any such law as is referred to in article 31(2).

(iii) It has inserted article 31C as an overriding article whicla

makea the fundamental rights conferred by articles 14, 19 and 31 inapplicable to certain categories of laws passed by

the Parliament or by any State Legislature.

738 SUPREME COURT REPORTS (197~] Supp. S.C.R.

So fa.r as the substitution of the word "amount" for the word "compensation" for property acquired or requisitioned in article 31 (2) is concerned, we find that this Court held m Mrs. Bela Bose(') case that by the guarantee of the right to compensation for compulsory acquisition under article 31(2), before it was amended by the Constitution (Fourth Amendment) Act, the owner was entitled to receive a ."just equivalent" or "full indenmification". In P. Vajravelu M ud11har's(') case this Court held that notwithstanding the amendment of article 31(2) by the Constitution (Fourth Amendment) Act and even after the addition of the words "and no such law shall be called in question in any Court on the ground that the compensatlion provided by that law is not adequate", the expression "compensation continued to have the same meaning as it had in article 31 (2) before it was amended, viz., just equivalent or full indemnification. Somewhat difterent view was taken by this Court thereafter, in the case of Slzantilal Mangaldas("). In the case of P. Vajravelu Mudaliar (supra) i~ was observed that the constitutional guarantee was satisfied only if a just equivalent of the property was !liven to tho owner. In the case of Slzantilal Mangaldas (supra) it was held that "compensation" being itself incapable of any precise determination, no definite connotation could be attached thereto by calling it "just equivalent" or "fuU indemnification", and under Acts enacted after the amendment of article 31(2) it is not open to the Court to call. in question the law providing for compensation on the , round that it is inadequate, whether the amount of compensation is fixed by the law or is to be determined according to principles specified therein (see observations of Shah J. on page 5% in the case of R. C. Cooper v. Union('). After further discussion of the views expressed in those two cases, Shah J. speaking for the majority, observed :

"Both the lines of thought which converge in the ultimate result, support the view that the principle specified by the law for determination of compensation is beyond the pale of challenge if it is relevant to the determination of compensation and is a recognized principle applicable in the determination of compensation for property compullorily acquired and the principle is appropriate in determining the value of the class of property sought to be acquired. On the application of the view expressed in P. Vajravelu Mudaliar's case (supra) or in Shanti/al Mangaldals case (supra) the Act, in our judgment, is liable to be struck down as it fails

( 1 )

[ 1954] S.C.R. 558.


 ( 8)


KESAVANANDA "· KERALA (Khanna, J.) 739

to provide to the expropriated banks compensation determined according to relevant principles."

The amendment in arti.cle 31 (2) made by the Twentyfifth Amc1)dment by substituting the word "amount" for the word "compensation" is necessarily intended lo get over the difficulty caused by the use of the word "compensation". As the said word was held by this Court to have a particular connotation and was construed to mean just equivalent or full indemnification the amendment has replaced that word by the word "amount". In sub'stituting the word "amount" for

"compensation" the Amendment has sought to ensure that the amount determined for acquisition or requisition of property need not be just equivalent or full indemnification and may be, if the legislature '° chooses, plainly ina<lequat~. It is not necessary to further dilate upon thjs aspect because wha'ever may be the connotation of the word "amuunc', it would not affect the validitv of the amendment made in article 31 (2). .

Another change made in article 31(2) is that the law tor the purpose of acquisition or requisition shall not be called in question on the ground that the whole or any part of the "amount" fixed or determined for the acquiSJtion or requisition of the property is to be given otherwise than in cash. I have not been able to find any infirmity in the above changes made in article 31(2).

According to clause (2B) which has been added as a result of the Twentyfifth Amendment in article 31, nothing in sulxlausc (f) of clause (1) of article 19 shal~ affect any such law as is referred to in clause (2). In this connection we find that this Court held in some cases that articles 19(l)(f) and 31(2) were exclusive. In A. K. Gopalan

v. The State of Madras(') a person detained pursuant to an .order made in exercise of the power conferred by the Preventive Detention Act applied to this Court for a writ of habeas corpus claiming that the Act contravened the guarantee under articles 19, 21 and 22 of the Constitution. The majairity of this Court (Kania C.J., and Patanjali Sastri, Mahajan, Mukherjea and Das JJ.) held that article 22 being a complete code relating to preventive detention, the validity of an order of detention must be determined strictly according to the terms and "within the four corners of that Article". They hold that a person detained may 11ot claim that the freedom guaranteed under article 19(l)(c) was infringed by his detention, and that validity of the law providing for making orders of detention will not be tested in the light of the reasonableness of the restrictions imposed thereby on the freedom of movement, nor on the ground that his right to personal

( 1) [ 1950] S.C.Jl.. 81.

740 SUPREME COURT REPORTS [ 19731 Supp. s.c.R.

liberty is infringed otherwise than according to the procedure established by law. Faz! Ali, J. expressed a contrary view. This case formed the nucleus of the theory that the protection of the guarantee of a fundamental freedom must be adjudged in the light of the object of State action in relation to the individual's right and not upon its effect upon the guarantee of the fundamental freedom, and as a corollary thereto, that the freedoms under articks 19, 21, 22 and 31 arc cxclusiv.,_,, ach article enacting a code relating to protection of distinct rights (see p. 571 in the case of R. C. Cooper, (supra). The view expressed in Gopalan's case (supra) was reaffirmed in Ram Singh and Others v. The State of Delhi('). The principle underlying the judgment of the majority was extended to the protection of the right to property and it was held that article 19(1)(f) and article 31(2) were mutually exclusive in their operation. In the case of State of Bombay v. Bhanii Munii & A.nother(2 ) this Court held that article 19(1) (f) read w1th clause (5) postulates the existence of property which can be enjoyed and over which rights can be exercised because otherwise the reasunable restrictions contemplated by clause (5) could not be brought into play. If thorc is no property which can be acquired, held or disposed of, no restriction can .be placed on the exercise of the right to acquire,. hold or dispose it of. In Kava'•ppara Kottarathil Kochuni's(') case, Subba Rao J. delivering the judgment of the majority of the Court, observed that clause (2) of article 31 alone deals with compulsory acquisition of property by the State for a public purpose, and not articlt: 31 ( 1) and he proceeded to hold that the expression "authority of law"- means authority of a valid law, and on that account validity of tho law seeking to deprive a person of his property is open to challenge on the ground that it infringes other fundamental rights, e.g., under article 19(1)(f). It was also observed that after the Constitution (Fourth Amendment) Act, 1955 Bhanji Munji's case (supra) "no longer holds the field". After the decision in K. K. Kochuni's case (supra) there arose two divergent lines of authority. According to one view, "aµthority of law" in article 31(1) was liable to be tested on the ground that it violated other fundamental rights and freedoms, inclu&ng the right to hold property guaranteed by article 19(1) (f). The other view was that "authority of a law" within the meaning of article 31 (2) was not liable to be tested on the ground that it impaired the guarantee of article 19(1) (f) in so far as it imposed substantive restrictions-though it may be tested on the ground of impairment of other guarantees. In the case of R. C. Cooper (supra), Shah J. speaking for the majority held that in determining the impact of State action upon constitutional guarantees which arc

(') [1951] s.c.R. 451.

(2) [1955] I S.C.R. 777.


KESAVANANDA ti, KP:RALA (Khann•, J.) 741

fundamental, the extent of protection against impairment of a fui; idamental right is determined not by the ob.ject of the Legislature nor by the form of the action, but by its direct operation upon the individual's right!. It was further observed :

"We are therefore unable to hold that the challenge to the validity of the provision for acquisition is liable to be tested only on the ground of non-compliance with article 31(2). Article 31(2) requires that property mmt be acquired for a public purpose and that it must be orqui-.r1. under a law with characteristics let out in that Article.' Formal compliance with the conditions under article 31(2) is not sufficient to negative the protection of the guarantee of the right to property. Acquisition mu1t be under the authority of a law and the expression "law" means a L.w which is W?thin the competence of the Legislature, and doe1 not impair the guarantee of the rights in Part III. We are unabl~ thcrtlore, to agree that article 19( 1) ( f) and 31 (2) are mutually exclusive."

The Twentvfifth Aendment seeks to overcome the effect of the above decision in R. C. Cooper's case. It nas sought to resolve the earlier conflict of views noticeable in this respect in the judgments of this Court. Provision has accordingly been made that the fundamental right to acquire, hold or dispose of property under article 19(1) (f) cannot be invoked in respect of any such law as is referred to in article 31(2). In view of what has been discussed earlier while dealing with the Twentyfourth Amendment, the change made by addition of clause (2B) in article 31(2) is permissible under article 368 and cannot be held to be invalid.

We may now deal with article 31C, introduced as a result of the Twentyfifth Amendment. Perusal of tliis article which has been reproduced in the earlier part of this judgment shows that the article consists of two parts. The first part states that notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing the principles speaified in clause (b) or clause ( c) of article 39 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 artiicle 31. According to the second part of this article, no law containing a declaration that it is for giving effect to such policy shall be called in q11estion in any court on the ground that it does not give effect to such policy. There then follows the proviso, according to which where such law is made by the Leg'islature of a State, the provisions of the article shall not apply

thereto unless such law, having been reserved for the consideration of the President, has received his assent.

742 SUPREME COURT REPORTS [1973] Supp. s.cJ\.

Th~ first part of article 31C is similar to article 31A except in respect 1>t the subjLct matter. Artick 31A was insertecl by the Constitution (; First Amendment) Act, 1951. Clause (!) of article 31A as then inaerted was in the following words :

"(!) Notwithstanding anything in the foregoing provisions of this :!!art, no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or mod;. fication of any such rights shall be deemed to be void on the ground' that it is inconsistent withi or takes away or abridges any of the rjghts 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."

Subsequently, clause (I) of article 31A was amerided by the Const'itution (Fourth Amendment) Act, 1955. New clause (!) was in the following word~ : "(!) 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 manngement of any property by the State for a limited period either in the pubhc interest or in order to secure the proper management of the property, or

( c) the amalgamation of two or more corporations either in he public interest or in order to secure the proper management of any of the corporations, 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 cxtinguishment 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 agri:cment, lease or licence,

shall be deemed to be void on the ground that it is inconsistcn~ with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31 :

KESAVANANDA "· KERALA (Khanna, J.) 743

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 die President, has received his assent." Clause (b) and (c) of article 39 referred to in article 31C read u undtr:

"39. The State shall, in particular, direct its policy toward! securing-

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; ( c) that the operation of the economic system docs not result in the concentration of wealth and means of productioti to the common detriment; • . . . . . . .

It would appear from the above that while article 31A dealt witii a law providing for the acquisition .by the State of any. estate or of any rights therein or the extinguishment or modification of such righ11 or other matters mentioned in clauses (b) to ( e) of that article, article 31C relates to the securing of the objective that the ownership and control of the material resources of the community arc so distributed as best to subserve the common good and that operation of the economic system docs not result in the concentration of wealth and means of production to the common detriment. But for the difference in subjects, the language of the firsr dame of article 31A and that of the first part of article 31C is identical. Both articles 31A and 3IC deal with right to property. Article 31A deals with certain kinds of property and its effect is, broadly speaking, to take those kinds of property from the persons who have rights in the said property. The objective of article 31C is to prevent concentration of wealth ao.d means ot producnion and to ensure the distribution of ownership and control .of the material resources of the community for the commOD good. Article 31C is thus essentially an extension of the principle

which was accepted in article 31A. The fact that the provisions of article 31C are more comprehensive and have greater width compared to those of article 31A would not make any material difference.

Likewise, the fact that article 31A deals with law providing for certain subjects, while article 31 C deals with law ving effect to the policy awards securing the principles specified in clause (b) or clause

( c) of .article 39, would not detract from the conclusion that article 31.C .is an .extension .of the principle wHich was accepted ill article 31A.

Indeed, the legislature in making a law giving effect to the policy of the State towards securing the principles specified in clause (b) or

744 SUPllEME COURT J!EPOllTS ( 1973) Supp. S.CJl,

clause (c) of article 39 acts upon the mandate contained in article ~. according to. which the Directive Principles arc fundamental ln the governance of the country and it shall be the duty of the State to apply those principles in making laws. If the amcndmont of the Constitution by which art'icle 31A was inserted was valid, I Cal\ sec no ground as to how the Twentyfifth Amendment re]/ating to the insertion of the first part of article 3.lC can be held to be invalid. The validity of the . First Amendment which introduced article 31A was upheld by this

Court as long ago as 1952 in the case of Sankan' Prasad v. Unirm of

India (1upra). Article 31A having becri held to be valid during all these years, its validity cannot now be questioned .on account of the doctrine of nare decisis. Though the period for which Sankari Prasad's case stood unchallenged was not very long, the effects which have followed in the passing of the State laws on the faith of that decision, as observed by Wanchoo J. in Golak Nath's case, arc so overwhelming that we should not &sturb the decision in that case upholding the validity of the First. Amendment It cannot be disputed that millions of acres of land have changed hands and millions of new titles in agricultural lands which have been created and the State laws dealing with agriculitural land which have been passed in the course of the years after the decision in Sankani Prasad's case have brought about an agrarian revolution. Agricultural population constitutes a vast mapority .. o( the population in this country. In these circumstances, it would in my opinion be .wrong to hold now that the decision upholding the First Amendment was not correct, and thus disturb all that has been done during these years and create chaos into the lives of millions of our countrymen who have benefited by these laws relating to agrarian reforms. I woulkl, therefore, hold that this is one of the fittest cases in which the principle of stare decisi.J. should be applied.

The ground which sustained the validity of clause (1) of article 31A, would equally sustain the validity of the first part of article 31 C. I may in this context refer to the observations of Brandeis J. in Lesses v.

Garnett(') while upholding the validity of the 19th Amendment, according to which the right of citizens of the United States to vote shall not be denied or abridged by the United States or by States on account of sex. This case negatived the contention that a vast acld'ition to the electorate destroyed tl1c social compact and tihe residuary rights oi the States. Justice Brandeis observed :

''This amendment is in character and phraseology precisely siinilar to the 15th. For each the same rmthod of adoption was pursued.

One cannot be valid and the other invalid. That the 15th is valid . . . has been recognized and acted upon for half a century ...

The suggestion that the 15th was incorporated in the Constitution

(') (258) U.S. 130.

KESAVANANDA "· KERALA (Khanna, J.) 745

not in accordance with law, but practically as a war measure which has been validated by acquiesence cannot be entertained.".

We may now deal with the second part.of article 31C, according to which no law containing a declaration that it is for. Biving effect to the policy of State towards securing the principles spccihed in clause

(b) or clause (c) of article 39 shall be called in question in any court on th• ground that it does not give effect to such policy. The effect-of the second part is that once the declaration contemplated by that article is made, the validity of such a law cannot be called in question in any court. on the ground that it. is inconsistent with or takes away or abriJges any of the rights conferred by articl~ 14, 19 or 31 of the Constitution. The declaration thus gives a complete prOll:ection to the provisions of law containing the declaration from being assailed on the ground of being violative of articles 14, 19 or 31. However tenuous the connection of a law with the objective mentioned in clause (b) and clause ( c) of article 39 may be and however violative it may be of the provisions of articles 14, 19 and 31 of the Constitution, .it cannot be assailed in a court of law on the said ground because of the insertion of the declaration in question in the law. The result is that if an Act contains 100 sections and 95 of them relate to matters not connected with the objectives mentioned in clauses (b) .iand ( c) of article 39 but the remaining five sections have some nexus with those objectives and a declaration is granted by the Legislature fa respect of the entire Act, the 95 sections which have nothing to do with the objectives of. clauses (b) and ( c) of article 39, would also get protection. It is wcllknown that State Legislatures are quite often swayed by local and regional considerations. It is not difficult to conceive of laws being made by a State Legislature which are directed against citizens of India who h2il from other States on the ground that the residents of the State in question are economicall'Y backward. For example, a law might be made that as the old residents in the State are economically backward and those who have not resided in the State for more than three generations have an affiuent business in the State or have acquired property in the State, they shall be deprived of their business and property with a view to vest the same in the old residents of the

State. Such a law if it contains the requisite declaration,.. would be protected and it would not be permissible to assail it on the ground of being violative of articles 14, 19 and 31 of the Constitution even though such a law strikes at the integrity and unity of the country.

Such a law might also provoke the Legislatures of other States to make Jaws which may discriminate in the economic sphere against the persons hailing from the State which was the first to enact .such discriminatory law .. There would thus be a chain reaction of laws which discriminate between the people belonging to different States and which in the very nature of things would have a divisive tendency from a

'746 SUPt!P.ME couRT REPORTS f1973) Supp; s.c.R.

lllltional point of view. The second part of article 31C would thus provide the cover for the making of laws with a regional or local laias even though such l; iws imperil the oneness of the nation and contain the dangerous seeds of national disintegration. The classic

words of Justice Holmes have a direct application to a situation like this. Said the great J udgc :

"I. do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States." (Holmes, Collected Leaa:I Papers (1920) 295·96).

The fact that the assent of the President would have to be obtained for rnch a law might not provide an effective safeguard because occasions can well be visualized when the Stateconcerned might pressurise the Centre and thus secure the assent of the President. Such occasions would be much more frequent when the party in power at the Centre has to depend upon the political support of a regional party which is responsible for the law in question passed by the State Legislature .

. It seems that while incorporating the .part relating to declaration in article 31C, the sinister implications of this part were not taken mto account and it. repercussions on the unity of the country were not realised. In deciding the. question relating to the validity of this part of article 31C, we should not, in my opinion, take too legalistic

a view. A legalistic judgment would indeed be a poor consolation if it affects the unity of the country. It would be apposite in this context to reproduce a passage from Story's Commentaries on the Constitution of the United States wherein he adopted the admonition of Burke with a slight variation as under :

"The remark of Mr. Burke may, with a very slight change of phrase be addressed as an admonition to all those, who are called upon to frame; or to interpret a constitution. Government is a practical thing made for the happiness of mankind, and not to furnish out a spectacle of uniformity . to gratify the schemes of visionary politicians. The business of 'those, who are called to administer it, is .to rule, and not !JO wrangle. It would be a poor compensation, that one had triumphed in a dispute, whilst we had lost an empire; that we had fr'ittered down. a power, and at the same time had destroyed the republic (para 456}."

The evil consequences which would flow from the second part of article 31C would not, however, be determinative of the matter. I would therefore examine the matter from a legal angle. In this respect I find that there can be three type~ of constitutiona~ amendments which !!lay be concei:ved to give protection to legislative measures and

make them immune from judicial scrutiny or attack in court of law.

KESAVANANllA "· KlllALA (Khanna, J.) 747

According to the first type, after a statute has already been enact cd by the Leislature a constitutional amendment is made in accordance with article 368 and the said statute is inserted in the Ninth Schedule under article 31B. Such a statute or any of the provisions thereof cannot be struck down in a court of law and cannot be deemed to be void or ever to have become void on the ground that the statute rir any provisions thereof is inconsistent with or takes away or abridges any of the rights conferred by any provision of Part III. In such a case, the provisions of the entire statute arc placed before each House of Parliament. It is oven to not less than one-half of the members of each House and not less than twCl-cltlrds, of the members of each House. voting . and present after appling their mind to eithe1 place the st; itute in the Ninth Schedule in its entirety or a part thereof or not to do so. It is only if not less than one-half of the total members of each House of Parliament and not less than two-thirds of the mem bcrs present and voting in each House decide that the provisions of a particular statute should be protected under article 31B either in their entirety or partly that the said provisions are inserted in the Ninth Schedule. A constitutional amendment of this type relates to an existing statute of which the provisions can be examined by the two Houses of Parliament and gives protection to the statute from being struck down on the ground of being vi<llative of any provision of Part III of the Constitution. Such an amendment was introduced by the Constitution (First Amendment) Act, 1951 and its validity was upheld in Sankari Prasad's case (mpra).

The second type of constitutional' amendment in that where the constitutional amendment specifies the subject 'in respect of which a law may be made by the Legislature and the amendment also provides that no law made in respect of that , ubject 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 Part III of the Constitution. In such a case the Iaw is protected even though it violates the provisions of Part III of the Constitution. It is, however, open in such a case to the court, on being moved by an aggrieved party, to see whether the law has been made for the purpose for which there is constitutional protection. The law is thus subject to judicial review and can be struck down if it is not for the purpose for which protection has been afforded by the constitutional amendment. To this category belong the laws made undctr article 311'l. of the Constitution which has sped fied the subjects for which laws might be made, and gives protection to those laws .. It .i.! always open to a party to assail the validity of such a law on the ground that it does not relate to any of the subjects mentioned in article 31A. It is only if the court finds that tht impugned lavi' relates to a subject mentiontd in article 31A that tht protection aiiltemplated Drthat artick wOIJld be a&rded lb the impugned law

7411 SuPDME COU!l.T REPORTS [1973] Supp. s.c.a.

and not otherwise. Article 31A was introduced by the Constitution (First A.mendment) Act, 1951 and as mentioned earlier, the val'idity oi the First Amendment was upheld in Sankari Prasad's case (supra).

The third type of constitutiona' amendment is one, according to which a law made for a specified object is protected from attack even though it violates articles 14, 19 and 31. The constitutional amendment further provides that the question as to whether the law is made for the specified object is not justiciable and a declaration for the purpose made by the legislature is sufficient and would preclude the court from going into the question as to whether the law is made for the object prescribed by the constitutional amendment. To such category belongs that part of Twentyfifth Amendment which inserted article 31C when taken along with its second part. The law made under article 31C is not examined and approved for the purpose of protection by not less than one-half of the members of each House of Parliament and not less than two-thirds of the members present and voting in each House, as is Becessary in the case of laws inserted m the Njnth Schedule of the Constitution. Nor can the law made under article 31C be subject to judicial review with a view to find out whether the law has, in fact, been made for an object mentioned , in arficle 31C. Article 31C thus departs from the scheme of article 31A, because while a judicial review is permissible under article 31A to find out as to whether a law has been made for any of the objects mentioned in article 31A, such a judicial review has been expressly prohlbited under article 31C.

The result is that even if a law made under article 31C can be shown in court of law to have been enacted not for the purpose mentioned in article 31C but for another purpose, the law would still be protected and cannot be assailed on the ground of being violative of articles 1"', 19 and 31 of the Constitution because of the declaration made by the legislature as contemplated by second part of article 31C. It may also be mentioned in this context that such a law can be passed by a bare majority in a legislature even though only. the minimum number of members required by the 'quorum, whlch is gener1lly one-tenth of the total membership of the legislature, are present at the time the law is passed.

The effect of the above amendment is that even though a law is in substance not in furtherance. of the objects mentioned in articles 39(b) and ( c) and has only a slender connection: with those objects, the declaratio11 1J1ade by the Legislature would stand in the way of a party challenng'it on the gr0W1d that it is not for the furtherance of those objects. A power is thus being conferred upon the Central and State Legislatures as a result of this provision to make a declaration in respect of any law made by them in viol; ition of the provisions of articles 14, 19 and 31 and thus give it protection from being assail.cil

KESAVANANDA (I, KERAL.A (Khanna, J.) 749

on that ground in a court of law. The result is that even though for the purpose of making an amendment of the Constitution an elaborate procedure is provided in article 368, power is now given to a simple majority in a State or Central Legislature, in which only the minimum number of members are presont to satisfy the requirement of quorum, to make any law in contravention of the provisions of articles 14, 19 and 31 and make it immune from attack by inserting a declaration in that law. It is natural for those who pass a law to entertain a desire that it may !)ot be struck down. There would, therefore, be an inclination to make an Act iinmune from attack by inserting such a declaration ven though only one or two provisions of the Act have

31 connection with the objects mentioned in article 39(b) and ( c).

Articles 14, 19 and 31 can thus be reduced to a dead letter, an ineffective purposeless showpiece in the Constitution.

The power of making an amendment is one of the most important powers which can be conferred under the Constitution. As mentioned earlier, according to Finer, the amending clause is so fundamental to a constitution that it may be called the constitution itself while according to Burgess, the amending clause is the most important part of a Constitution. This circumstance accounts for the fact that an elaborate procedure is prescribed for the amending of the constitution. The power of amendment being of such vital importance can neither be delegated nor can those vested with the authority to amend abdicate that power in favour of another body. Further, once such a power is granted, either directly or in effect, by a constitutional amendment to the State Legislatures, it would be difficult to take away that power, because it can be done only by means of a constitu~ tlonal amendment and the States wouhl be most reluctant, having got . such a power, to part with it. In empowering a State Legislature to

make laws violative of articles 14, 19 and 31 of the Constitution and in further empower'ing the State Legislature to make laws immune_ from attack on the ground of being violaiive of articles 14, 19 and 31 by inserting the requisite declaration, the authority vested with the pc; wer to .make amendment under article 368 (viz., the prescribed majority in each House of Parliament) has, in effect, delegated or granted the power of making amendment in important respects to a State Legislature. Although the objects for which such laws may be made have been specified, the effect of the latter part of article 31C relating to the declaration is that the law in question may relate even to objects wliich have not been specified. Article 31C taken along with the second part relating to the declaration departs from the scheme c:if article 31A because while the protection afforded by article 31A is to laws made for specified subjects, the immunity granted under article 31C can be availed of even by laws which have not been made for the specified objects. The law llhus made by the State Legislatures would have the effect of [lrO-tanto amendment of the Constitution. Such a

48--36 s. a. lndia/73

7 50 SUPREME COURT RE~ORTS [ 1973] Supp. S.CJl.

power, as pointed out earlier, can be exercised by the State Legislature by a simple majority in a House wherein the minimum number of members required by the rule of quorum are present.

In Re Initiative and Referendum Act(1) the Judicial Committee after referring to a previous dcdsion wherein, the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to Taverns observed on, page 945 :

"But it docs not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence. Their Lordships do no more than draw attention to the gravity of the censtitutional questions which thus . ,, anse.

If it is impermissible for a legislature to create and endow with its own capacity a legislative power not created by the Act to which it owes its own existence, it should, in my opinion, be equally impcrmissib1c in the face of article 368 in its present form under our Constitution, for the amending authority to vest its amending power in another authority like a State Legislature. It has to be emphasised in this context that according to article 368, an amendment of this Constitution may be initiated onhy by the introduction of a Bill for the purpose in either House of .Parliament. The word "only" has a significance and shows that as long as article 368 exists in its present form, the other methods -0f amendment are ruled out.

It may be mentioned that apart from the question of legislative competence, the articles for the violation of which statutes have been quashed in overwhelming majority of cases are articles 14, 19 and 31.

The question as to whether the impugned statute is beyond legislative competence can be agitated despite the protection of article 31C in the same way as that question can be agitated despite the protection of article 31A, but in other respects, as would appear from what has been stated above, article 31C goes much beyond the scope of articles 31A ; and 31B.

In a federal system where the spheres of legislaave powers are distributed between the Central Legislature and the State Legislatures, there has to be provided a machinery to decide in case of a dispute as to whether the law made by the State Legislatures encroaches upon the field earmarked for the Central Legislature as also a dispute whether a law made by the Central Legislature deals with a subject which can be exch1sively dealt with by the State Legislatures. This is true not only of a federal system but also in a constitutional set up like ours wherein

-(1) [1919] A.C. 935.

:itllSAV.A, NANl>A "· DRALA (Khanna, J.) 751

the 'Constitution-makers, though not strictly adopting the federal 'ystem, have imbibed the features of a federal system by distributing and setting apart the spheres of legislation between the Central Legislature and the State Legislatures. The machinery for the resolving of disputes as to whether .the Central Legislature has t:l'C$passed upon the

kgisfative field of the State Legislatures or whether the State Legislatures have encroached upon the legislative domain of the Central Legislature IS furnished by the courts and they are vested With the powers of judicial review to determine the validity of the Acts passed by the legislaturts. The power of judicial review is, however, confined not merely to deciding whether in making the impugned laws the Central or State Legislatures have acted 'l'l'.ithin the four corners of the

legislative lists earmarked for thC!ll; .the courts also deal with the question as to whether the laws arc made in conformity with and not in violation of the other provisions of the Constitution. Our Constitution-makers have provided for fundamental rights in Part III and made them justiciable. As long as some fundamental rights exist and are a part of the Constt'totion, the powF'" of judicial review has also to be

xercised with a view to sec that the guarantees afforded by those rights are not contravened. Dealing with draft article 'l5 (corresponding to present article 32 of the Constitution) by which a right is given to move the Supreme Court for enforcement of the fundamental rights, Dr. Ambedkar speaking in the Constituent Assembly on December 9,

1948 observed :

"If I was asked to natije any particular article in this Constitution as the most important-an article without which this Constitution would be a nullity-I could not refer .to any other article except this one. It is the very soul of the Constinition and the very heart of it and l am glad that the House has .realised its importanco."

(CAD debates, Vol VII, p. 953).

T!!dicial review has thus become an integral part of our constitutional system and a power has been vested in the High Courts and the Supreme Court to decide about the constitutional validity of provisions of statutes. If the provisions of the statute are found to be violative of any article of the Constitution, which is the touchstone for the validity of all laws, the Supreme Court and the High Courts are empowered to strike down the said provisions. The one sphere where there is no judicial review fur finding out whether there has been infraction of the provisions of Part III and there is no power of striking down an Act, regulation or prov'ision even though it may be inconsistent with or takes away or abridges any of the rights conferred by Part III of the Constitution is that incorporated in article 31B taken along with the Ninth Schedule. Article 31B was inserted, as llllClltioned earlier, 'by the Constirotion (Fust Amendn; icnt) Act.

752 SUPREME COUJl.T REPORTS (1973] Supp. S.C.ll.

According to article 31B, 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 P.art III of the Constitution. The one thing significant .to be noted in this connection, however, is that the power under article 31B of exclusion of judicial review, which might be undertaken for the purpose of finding whether there has been contravention of any provision of Part III, Is exercised not by the legislature enacting the impugned law but by the authority which makes the constitutional amendment under article 368, viz., the prescribed majority in each Bouse of Parliament. Such a power is exercised in respect of an existing statute of which the provisions can be scrutinized before it is placed in the Ninth Schedule. It is for the: prescribed majority in each House to decide whether the particular statute should be pj; iced in the, Ninth Schedule, and if so, whether it should be placed there .'in its entirety or partly. As against that, the position under article 31C is that though judicial review has been

r.xcluded by the authority making the constitutioual amendment, the law in respect of which the judicial review has been excluded is one yet to be passed by the legislatures. Although the object for which such a law can be enacted has been' specified in article 31C, the power to decide as to whether the law enacted is for the attainment of that object has been vested not in the courts but in the very legislature which passes the law. The vice of article 31C is that even if the law enacted is not for the object mentioned in article 31C, the declaration made by the legislature precludes a party from showing that the law is not for that object and prevents a court from going into the questinn as to whether the law enacted is really for that object. The kind of limited judicial review which is permissible under article 31A for the purpose of finding as to whether the law enacted is for the purpose mentioned in article 31A has also been done away with under article 3fr©rilI!lit'1!1fa:t110f the declaration mentioned in article 31C is to grant pWtecllClti t"'the:::\aw1 :enacted by a legislature from being challenged aii''lltOOllds'!of•e®ilirwvdncio.u.of articles 14, 19 and 31 even though such

a"'faW<~Mn :lk'llhiwmnlnnhen1mun ro have not been enacted for the clJjects"fuert'IOOt'>l!lliriro :wdiclti 3K}.['.01,141cConstitution postulates Rule of L!tii' lWthl31!iC'ilsel'(iJ!:lsUfDfreimacy1nfo:Uio10nnstitution and the laws as ~'C'd m.11£tbiw.inmSf 'f.ii<iimsnillg !tiiw.ern0fc.exclusion of judicial revil'iv ifir I a ctc!!lsllltd~! ·.inclurlingi 16tiiteidl.egia\amr<k i§()ntempMed by

afucle''3i~, irf''lnf opinlc!m\>1stril:H5 a1rl!harbasioihui:lill•J1.i1>f; e. Constitilcilii'lfilt ffllll !llfi'tJof.cirtkrl"q31£ tlum klJl:S!hymi.<il.rth¢·p; ir~ible llt'iilt1 >lif oWh1i/gi:o..,.Htilire$' lllllt'lcundm a11ilih: i36il.1

1l 1las ueerrr&gi&Eot/obeJ.talbbfutlie2rcipOi!(lmts that1 tcckcmk1 tfon reftrbli; iJn/2rtialei3)C iwDulchnoOprJ1du4d .~It §O\lffnofr~

KESAVANANDA "· KERALA (Khanna, J.) 753

finding whether a !<aw is for giving effect to the policy of. the State towards securing the principles specified in clauses (b) and ( c) of article 39 and that if an enactment is found by the court to be not for securing the aforesaid objectives, the protection of article 31C would not be available for su.ch legislation.

I find it difficult to accede to this contention in view of the Ian guage of article 31 C pertaining to the declaration. The above conten

tion: would have certainly carried weight if the second part of the articli: relating to the declaration were not there. In the absence of the declaration in question, 'it would be open to, and indeed necessary, for the court to find whether the impugned law is for giving effect '° the policy of the State towards securing the principles specified in clauses (b) or ( c) of article 39 before it can uphold the validity of the impugned law under article 31C. Once, however, a law contains such a declaration, the declaration would stand as bar and it would not be permissible for the court to find whether the impugned law is for giving effect to the policy mentioned in article 31C. Article 31C

protects the law giving effect to the policy of the State towards secur ing the pimciples specified in clauses (b) or ( c) of article 39 and at the same. time provides that no law containing a declaration that it is for giving effect to such pi>licy sha!D. be called in question in any coUrt on the ground that it does not give effect ti> such policy. It. is, therefore, manifest that once a law contains the rquisite declaration, the court would be precluded from going into the question that the law does not give effect to the policy of the State towards securing the principles specified 'in clauses (b) or ( c) of article 39. In view of the conclusive nature of the declaration, it would, in my opinion, be straining the language of article 31C to hold that a court can despite the requigjte declaration go into the question that it does not give effect to the policy of the State towards securing the principles specified in clauses (b) or ( c) of article 39. The result is that if a law contains the declaration contemplated by article 31C, it would have complete protection from being challenged on the ground of being viol'ative of articles 14, 19 and 31 of the Constitution, irrespective of the fact whether the law is or is not for giving effect to the policy of the State towards securing the principles specified in clauses (b) or ( c) of article 39: To put it in other words, even those laws which do not give effect to the policy of the State towards securing the principles specified in clauses (b) or (c) of article 39 would also have the protection if they contain the declaration mentioned in article 31C.

I am also of the view that the validity of the latter part ot article 31C relating to declaration cannot be decided on the basis of any concession made during the course of arguments on behalf of the respondents. Such a concession if not warranted by the laQguage of

754 SUPREME COURT REPORTS [1973] Supp. s.c.a.

the impugned provision, •cannot be of much avail. Matters relating to construction of an article of the Constitution or the constitutional validity of an impugned provision have to be decided in the light of the relevant provisions and a concession made by the Sttatc counsel or the opposite counsel would not absolve the court from determining the matter independently of the concession. A counsel may sometimes make a concession in order to secure favourable verdict on an other important point, such a concession woulq, however, not be binding upon another counsel. It is well-settled that admission or concession made on 'a point of law by ther counsel is not binding upon the party represented .by the counsel, far less woukl such admission or concesion preclude other parties from showing that the concession was erroneous and not justified in law. It may, therefore, be laid down u a broad proposition that constitutional matters cannot be disposed of in terms of agreement or compromise between the parties, nor can the decision in such disputes in order to be binding upon others be based upon a concession even though the concession emanates from the State counsel. The concession has to be made good and justified in the light of the relevant provisions.

The position as it emerges is that it is open to the authority amending the Constitution to exclude judicial review regarding the validity o~ an existing statute. It is likewise open to the said authority to exclude judicial review regarding the validity of a staute which might be enacted by the legislature in future in respect of a specified subject. In such an event, judicial review is not excluded for finding whether the statute has been enacted in respect of the spcilicd subject Both the above types of constitutional amendments arc permissible under article 368. What is not permissible, however, is a third type of constitutional amendment, according to which the amending authority not merely excludes judicial review regarding the validity of a statute whicli might be enacted by the !legislature in future in respect of a specified subject but also excludes judicial review. for finding whether the statute enacted by the legislature is in respect of the subject for which judicial review has been excluded.

In exercising the power of judicial review, it may be mentioned that the couns do not and cannot go into the question of wisdom behind a legislative measure. The policy decisions have essential to be those oE the legislatures. It is for the liegislatures to decide as to what laws they should enact and bring on the statute book. The task of the courts is to interpret the laws and to adjudicate about their validity, they neither approve nor disapprove legislative policy. The office of the courts is to ascertain and declare whether the impugned legislation is in consonance with or in violation of the provisions of the constitution. Once the courts have done that, their duty ends.

The courts do not act as super legislature to suppress what they deem

KESAVANANDA "· KERALA (Khanna, J.) 755

to be unwise lrgislation for if they were to do so the courts will clivert criticism from the legislative door where it belongs and will thus dilute the responsibility of the electd representatives of the people. As was observed by Shri Alladi Krishnaswamy Iyer in' speech in the Constituent Assembly on September 12, 1949 "The Legislature may act wisely or unwisely. The princips formulated by the Legislature may commend themselves to a Court or they may not. The province of the Court is normally to administer the law as enacted by the Legislature within the limits of its power".

In exercising the power of judicial review, the courts cannot be oblivious of the practical needs_ of the government. The door h~• to be left open for trial and erroa:. Constitutional law like other mortal contrivances has to take some chances. Opportunity must be allowed for vindicating reasonable belief by experience. Judicial review is not intended to create what is somet'imes called Judicial Oligarchy, the the Aristrocracy of the Robe, Covert Legislation, or Judge-made law.

The proper forum to fight for the. wise use of the legislative authority is that of public opinion and legislative assemblies. Such contest cannot

be transferred to the judicial arena. That all constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy to their decisiou have to keep aloof from the din and controvCTsy of politics and that the fluctu:iting fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision. The sobering reflection has always to be there that the constitution is meant not merely for peoplie of their way of thinking but for people of fundamentally differing views. As observed by Justice Holmes while dealing with the Fourteenth Amendment to the US Constitution :

"The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics ... Some of these laws embody convictions or prejudices which judges are likely to share. Some may not.

But a constitution is not intended to embody a particular economk theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundainentalliy differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States." (see Mr. Justice Holmes, p. 82-83 (1931 Edition).

756 SUPREME COURT REPORTS (1973] Supp. S.C.R.

It would also be pertinent in this context to reproduce the words of Pat:mjali Sastri CJ, in the case of State of Madras v. V. G. Row(') while dealing with reasonable restrictions :

"In evaluating such elusive factors and forming their own conception of what is reasonable, in aU the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibi!icy and self-restraint and the sobering reflection that the Constitution is meant not only for peop)j: of their way of think:ing but for all, and that the majority of the elected representatives of the people have,. in authorising the imposition of the restrictions, considered them to be reasonable." In my opinion" the scc'Ond part of article 31C is liable to . be quashed on the followin~ grounds : . ('1:) It gives a carte blanche .to the Legislature to make any law violative of articles 14, 19 .and 31 and make it immune from attack by inserting the requisite declaration. Article 31C taken along with its second part gives in effect the power to the Legislature, including a State Legislature, to amend the Constitution.

(2) The legislature has been made the final authority to decide as to whether the law made by it is for the objects mentioned in article 31C. The vice of second part of article 31C lies in the fact that even if the law enacted is not for the object mentioned in article 31C, the declaration made by the Legislature precludes a party from sh.owing that the law is not for that object and prevents a court jrom going into the question as to whether the law enacted is really. for that object. The exclusion by the Legislature, including .. a State Legislature, of even that limited judicial review strikes at the basic strucnue of the Constitution. The second part of article .31C goes beyond the permissible limit of what constitutes amendment under article 368. ·

The second part of article 31C can be severed from the rc:iµaining part of article 31C and its invalidity would not affect the validiIY of the remaining part. I would, therefore, strike down the following . words in article 31C :

"and no law containing a declaration that it is for giving effect to such poticy shall be called in question in any court on the ground that it does not give effect to such policy," ·

(') [1952] S.C.R. 597.

XESAVANANDA v. KERALA (Khanna, J.) 757

We may now deal with the Constitution (Twentyninth Amendment) Act. This Act, as mentioned earlier, inserted the Kerala Act 35 of 1969 and the Kerala Act 25 of 1971 -as entries No. 65 and 66 in the Ninth Schedule to the Constitution. I have been ablie to find no infirmity in the Constitution (Twentyrinth Amendment) Act. It may be mentioned that an argument was advanced before us that articles 31B and 31A are linked together and that only those enactments can be placed in the Ninth Schedule as fall within the ambit of article 31A. Such a contention was advancl:d in the case of N. B. /eeieebhoy

v. Assistant Collector, Thana Prant, Thana.(') Repelling the contention Subba Rao J. (as he then was) speaking for the Co"5titution Bench of this Court observed :

"The learned Attorney-General contended that Arts. 31-A and Art. 31-B should be read together and that if so read Art. 31-B would only illustrate cases that would otherwise fall under Art. 31-A and, therefore, the same construction as put upon Art. 31-B should also apply to Art. 31-A of the Constitution. This construction was sought to be based upon the opening words of Art. 31-B, namely, 'without prejudice to the generality of the provisions contained in article 31-A .. We find it difficult to accept this argument. The words 'without prejudice to the generality of the provisions', indicate that the Acts and regulations specified in the Ninth Schedule would have the immunity even if they did not attract Art. 3'1-A of the Constitution. If every Act in the Ninth Schedule would be covered by Art. 31-A, this article would become redundant. Indeed, some of the Acts mentioned therein, namely, items 14 to 20 and many other Acts added to the Ninth Schedule, do not appear to relate to estates as defined in Art. 31-A(2) of the Constitution. We, therefore, hold that Art. 31-B is not governed by Art. 31-A and that Art. 31-B 'is a constitutional device to place the specified statutes beyond any attack on the ground that they infringe Part III of the Constitution." I see no cogent ground to take a different view. In the result I uphold the validity of the Constitution (Twentyninth Amendment) Act.

I may now sum up my conclusions relating to power of amendment under article 368 of the Constitution as it existed before the amendment made by the Constitution (Twentyfourth Amendment) Act as well as about the validity of the Constitution (Twentyfourth Amendment) Act, the Constitution (Twentyfifth Amendment) Act and the Constitution (Twentyninth Amendment) Act :

(i) Article 368 contains not only the procedure for the amendment of the Constitution hut also confer~ the power of amen. ding the Constitution.

( 1) [1965] I S.C.I\. 636.

758 SUPREME.COURT REPORTS [1973] Supp. s.c.R.

(ii) Entry 97 in List I of the Seventh Schedule of the Constitution

dt>es not cover the subject of amendment of the Constitution.

(iii) The word "law" in article 13(2) does not include amendment of the Constitution. It has reference to ordinary piece of legislation. It would also in view of the definition contained in clause (a) of article 13(3) include an ordinance, order. bye. law; rule, regulation, notification, custom or usage having in the territory of India the force of law.

(iv} Provision for amendment of the Constitution is made with a

view to overcome the difficulties which may be encountered in future in the working of. the Constitution. No generation has a monopoly of wisdom nor has it a right to place fetters on future generations to mould the machinery of governments. If no provision were. made for amendment of the Constitution, the people would have recourse to extra-constitutional method like revolution to change the Constittttion.

(v) Argument that Parliament can enact legislation under entl')' 97 List I of Seventh Schedule for convening a Constituent

Assembly or holding a referendum for the purpose of amendment of Part III of the Constitution so as to take away or abridge fundamental rights j, untenable. There is no warrant for the proposition that as the amendments under article 368 are 1iot brought about through referendum or passed m a Convention !lie power of amendment under artkle 368 is on that !itcourtt subject to limitations.

(vi) The possibility that power of amendment may be abusea

furnishes no gtound for clcnial of its existence. The best safe. guard against abuse of power is public opinion and the good

sense of the majority of the members of Parliament. It is also not correct to assume that if Parliament is held entitled te> amend Part Ill of the Constitution, it would automatically and necessari, ly result in abrogation of all fundamental rights.

(vii) The power of amcndtnent under artitle 368 .does not incllilc

power to abrogat< the Consti111tion nor does . it include the. power to alter the basic structure or fntnework of the C'.onstitution. Subject to the retention of die basic 1tructur~ or framework of the Constitution, the power of anienameni is plenary

and includes within itself the p0wcr to amend \:he various articles of the Constitution, including those relating to fundamental rights as well as those which tnat/ be said to relate t<>

' I

KESAVANANDA I/, KERALA (Mathew, J.) 759

essential features. No part of a fundamental right can claim immuniy from amendatory process by being described as the essence or core of that right. The power of amendment would also include within itself the power to add, alter or repeal the various articles. ·

(viii) Right to property does not pertain to basic structure or framework of the C', onstimtion.

(ix) There are no implied or inherent limitations on the power of amendment apart from those which inhere and are implicit in the word "amendment". The said power can also be not restricted, by reference to natural or human rights. Such rights in order to be enforceable in a court of law must hecome a part of the statute or the Constitution.

(x) Apart from the part of the Preamble which relates to the basic structure or framework of the Constitution, the Preamble does not restrict the power of amendment.

(xi) The Constitution (Twentyfourth Amendment) Act doe.~ not suffer from any infirmity and as such ii valid.

(xii) The amendment made in article 31 by the Constitution (Twentyfifth Amendment) Act is valid,

(xiii) The first part of article 31C introduced by the Constitution (Twentvfifth Amendment) Act is valid. The said part is as under. ·

"31C. Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause ( c) of article 39 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 made by the Legislature of a State, the provisions of the article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.'

(xiv) The second part of article 31C contains the seed of national disintegration and is invalid on the following two grounds :

(1) It gives a carte blanche to the Legislature to make anv law violative of articles 14, 19 and 31 and make it immune from attack by inserting the requisite declaration. Article 31C taken along with its second part gives in effect the power to the Legislature, including a. State Legislature, to amend the Constin1tion in important respects.

(2)

SUPREME COURT REPORTS [1973] Supp. s.c.R.

The legislature has been made the final authority to decide as to whether the law made by it is for objects mentioned in article 31C. The vice of second part of article 31C lies in the fact that even if the law enacted is not for the object mentioned in article 31C, the declaration made by the Legislature precludes a party from showing that th~ la".I' is not for that object and prevent~ a court from gomg mto the question as to whether the law enacted is really for that object. The exclusion by Legislature, including a State

Legislature, of even that limited judicial revjew strikes at the basic structure of the Constitution. The second part of article 31C goes beyond the permissible limit of what oonstitutes amendment under article 368.

The second part of article 31C can be severed from the remaining part of article 31C and its invalidity would not affect the validity of remaining part. I would, therefore, strike down the following words in article 31C .:

"and no law containing a declaration that h is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy."

(xv) The Constitution {Twentyninth Amendment) Act docs not suffer from any infirmity and as such is valid.

The petition shall now be posted for hearing before the Constitution Bench for disposal in the light of our findings.-

MATHEW, J. In the cases before us, the Constitution of our country, in its most vital parts has to be considered and an opinion expressed which may essentially influence the destiny of the country. It is difficult to approach the question without a deep sense of its importance and -of the awesome responsibility involved in its resolution.

I entertain little doubt that in important cases it is desirable for the future development of the law that there should be plurality of -Opinions even if the conclusion reached is the same. There are dangers in there being only one opinion. "Then the statements in it have tended to be treated as definitions and it is not the function of a Court to frame definitions. Some latitude should be left for future developments.

The true rat!o of a decision generally appears more clearly from a comparison of two or more statements in clifferent words which arc intended to supplement each other"('). In Cassell & Co. Ltd. v. Brome

( 1 ) see Lord Reid in Callie v. Lee, [1970] 3 W.L.R. 1078.

KESAVANAND!> ti. K.ERALA (Mathew, J.) 761

and Another( 1), Lord Chancellor Lord Hailsham said that Lord Devlin's statement of the law 'm Rookes v. Bar1Jard(') has been misunderstood particulary by his critics and that the 'l'icw of the House of Lords has suffered to some extent from the fact that its reasons were given in a single speech and that whatever migh~ be the advantages of a judgment delivered by one voice, the result may be an unduly fundamentalist approach to the actual language employed. In Graves v. New York(") Frankfurter, J. in his concurring judgme.nt, characterised the expression of individual opinions by the justices as a healthy practice rendered impossible only by the increasing volume of the business of the Court.

As the arguments were addressed mainly in Writ Petition No. 135/ 1970, I will deal with it now. Jn this writ pttiticl>n the petitioner challenged the validity of the Kerala Land Reforms Amendment Act, 1969, and the Kcrala Land Reforms Amendment Act, 197li for the reason that some of the provisions thereof violated articlC.) 14, l9(1){f)', 25, 26 and 31 of the Constitution. ·

During the pendency of the Writ Petition, te Amending Body under the Constitution passed three constitutional arnendl!; lents, namely, the Constitution 24th, 25th and' 29th Amendment Acts.

The 24th Amendment made certain changes in article 368 to make it clear that the Parliament, in the exercise of its .constitµent power, has competence to amend by way of addition, varia\ion or repeal, any of the provisions of the Constitution in accordance with the procedure laid down in the article and that article 13(2) would not be a bar to any such amendment. By the 25th Amendment, the word 'amount' was substituted for the word 'compensation' in clause (2) ·.of article

31. That was done in order to make it clear that the law for acquisition or requisition of the property need only fix an amount or lay down the orinciples for determining the amount and not the just equivalent in money of the market value of the property acqhlred or requisitioned. The Amendment al.o makes it clear that no such law shall be called in question in any Court on the ground that the whol.e

or anv part of such amounc is to be given otherwise than in cash. The 29th Amendment put the two Acts in question, viz., the Kerala Land Reforms (Amendment) Act, 1969, and the Kerala Land Reforms (Amendment) Act, 1971, in the Ninth Schedule with a view to make the provisions thereof immune from attack on the ground that the Acts or the provisions thereof violate any of the Fundamental Rights.

The petitioner challenges the validity of these Amendments.'

(1) [1972] I All E.R. 801, 821.

( 2) [1964] I All E.R. 367.

( 8) 306 u .s. 466.

762 SUPJU!ME COURT JU!PORTS (1973) Supp. S.C.R.

As the validity of the 25th and the 29th Amendments CllC!ltially depends upon the validity of the 24th Amendment, it is necessary to consider and decide that question first. I, therefore, turn to the circunu. tances which necessitated the Constitutional 24th Amendment A&t.

The Constitution (First Amendment) Act, 1951, was passed by Parliament on June 18, 1951. Sections 2, 3 and 4 of the Act made amend ments .in some of the articles in Part III of the Constitution. The validity of the Amendment was challenged before this Court in Sankari Prasad v. The Union of India('), and one of the questions which fell for decision was whether, in view of clause 2 of article 13, Parliament had power to amend the Fundamental Rights in such a way as to take away or abridge them. And the argument was that the word "State" in clause 2 of article 13 includes Parliament and the word 'law' would take in an amendment of the Constitution and, therefore, Parliament had no power to pass a law amending the Constitution in such a way_ as to' take away or abridge the Fundamental Rights. Patanjali Sastri, J. who delivered the judgment of the Court said that although the word 'law' would ordinarily include constitutional law, there is a distinction between ordinary law made in the exercise of legislative power and constitutional law made in tlie exercise of constituent power and that in the context of clause 2 of article 13, the word 'law' wo1,1ld not include an amendment of the Constitution.

This decision was followed in Sajjan Singh v. State of, Rajasthan(2 ) There, Gaj endragadkar, C. J ., speaking for himself and two of his collc; agues, substantially agreed with the reasoning of Patanjali Sastri,

J. in Sankari Prasad v. The Union uf India( 1 ). Hidayatullah and Mudholkar, JJ. expressed cenain doubts as to whether Fundamental Rights could be abridged or taken away by amendment of the Constitution under article 368.

The question again came up before this Court in Golaknath v.

State of Punjab("), hereinafter called 'Golaknath Case' where the validity of the 17th Amendment was challenged on much the same grounds. The majority constituting the Bench decided that Parliament has no power to amend the Fundamental Rights in such a way as to take away or abridge them, but that the 1st, 4th and 17th Amendments were valid for all time on the basis of the doctrine of prospective overruling and that the Acts impugned in the case were protected by the Amendments.

( 1) [1952] S.C.R. 89.

( 2) [1965] I S.C.R. 933.


KESAVANANDA o. KERALA (Mathew, J.) 763

'The reasoning of the leading majority (Subba Rao, C.J., and the colleagues who concurred in the judgment pronounced by him) wa1

that article 368, as it stood then, did not confer the substantive power to amend the provisions of the Constitution but only prescribed the

procedur~· for the same that the substantive power to amend is in articles 245, 246 and 248 read with entry 97 of List I of the Seventh Schedule, that there is no distfuction between a law amending the Constitution and an ordinary law passed in the exercise of the legislative power of Parliament and that the word 'law' in clause 2 of article 13 would include an amendment of the Constitution.

Hidayatullah, J. who wrote a separate judgment concurring: with the conclusion of the leading majority, however, took the view that article 368 conferred the substantive power to amend the Constitution but that Fundamental Rights cannot be amended under the article oo as to take away or abridge them. He said that there is no distinction between constitutional law and ordinary law, that both arc laws that the Constitution limited the powers of the Government but not the sovereignty of the State, that the State. can, in the exercise of its supremacy, put a limit on its supremacy, echoing in effect the view that there could be 'auto-limitation' by a sovereign of his own supreme power and that, by clause 2 of article 13, the State and all its agencies, including the Amending Body, were prohibited from makiing any law, including a law amending the Constitution, in such a way as to take away or abridge the Fundamental Rights.

Let me first take up the question whether article 368 as it stood before the 24th Amendment gave power to Parliament to amend the rights conferred by Part III in such a way as to take away or abridge them.

In Golaknath Case('), Hidayatullah, J. said that it is difficult to take a narrow view of the word 'amendment' as including only minor changes within the general framework, that by an amendment, new matter may be added, old matter removed or altered, and that except two dozen articles in Part III, all the provisions of the Constitution could be amended. Wanchoo, J. speaking for the leading minority in that case was of the view that the Wllird 'amendment' in its setting in the article was of the widest amplitude and that any provision of the Constitution could be amended. Bachawat, J. was also inclined to give the widest meaning to the word. Ramswami, J. did not specifically advert to the point, but it seems clear from the tenor o£ his judgment that he was also of the same view.


764 SUPREME COURT REPORTS (1973) Supp. S.C.R.

Mr. Palkhivala for the petitioner contended that the word 'amendment' in the article could only mean a change with a view to make improvement; that in the context, the term connoted only power to make such changes as were consistent with the nature and purpose of the Constitutin, that the basic structure and essential features of the Constitution cannot be changed by amendment, and that the assumption made by these judges that the word 'amendment' in the article was wide enough to make any change by way of alteration, addition or repeal of any of the provisions of the Constitution was unwarranted.

He said that the article was silent as regards the sbject matter in respect of which amendments could be made or the extent and the width thereof, that it was set in a low key as it did not contain the words "amend by way of addition, variation or repeal", that these circumstances should make one pause before ascribing to the word 'amendment' its widest meaning and that, in the context, the word has only a limited meaning.

I do not think that there is any substance in this contention.

In the Oxford English Dictionary, the meanings of the word 'amend' are given as :

"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."

According to "Standard Dictionary", Funk and Wagnalls (1894), the meanings of 'amendment' are : '

"The act of changing a fundamental law, as of political constitution, or any change made in it according to a prescribed mode of procedure; as, to alter the law by amendment; an amendment of the Constitution".

The proviso to article 368 used the expression 'change' and that could indicate that the term 'amend' really means 'change'. The main part of article 368 thus gave power to amend or to make changes in the Constitution. Normally, a change is made with the object of making an improvement; at any rate, that is the professed object with which an amendment is sought to be made. The fact that the object may not be achieved is beside the point. Amendment contains in it an element of euphemism of cooceit in the proposer, an assumption that the proposal is an improvement. Beyond this euphemistic things, amend-·

ment as applied to alteration of laws according to dictionaries means 'alter' or 'change'(').

( 1) see McGovney, "Is the Eighteenth Amendment Void Because of its Contents?" Columbia Law Review, Vol. 20.

KP.SAVANANDA v. KERALA (Mathew, J.) 765

In the National, Prohibition Cases('), it was argued before the United States Supreme Coon that an amendment under Article V of the United States Constitution must be confined in its scope to an

alteration or improvement of that which is already contained in the Constitution and canoot change its basic features but this argument was overruled.

In Rvan's Case(') the Supreme Court of Ireland held by a majority that the word 'amendment' occurring in article 50 of the Irish Constitution was of the widest amplitude. Fitz Gibbon, J. observed after reading the various meanings of the word 'amendment' that the word as it occurred in a Constitution Act must be given its widest meaning.

Murnaghan, J. observed that although complete abolition of the Constitution without any substituted provisions might not properly be called in law an 'amendment', the word is wide enough to allow of the repeal of any number of articles of the Constitution, howver important they might be. Kennedy, C. J. did not specifically deal with the meaning of the word.

In this context it is relevant to keep in mind the general rules of construction for interpreting a word like 'amendment' occurring in a

constituent Act like the Constitution of India.

In In Re the Central Provinces and Berar Sales of MoPJr Spir; t and Lubricants Taxation Act, 1938, etc.(') Sir Maurice Gwyer said that a broad and hberal spirit should inspire those whose duty it is to interpret a Constitution, that a Court should avoid a narrow and pedantic approach and that when a power is granted without any restriction, it can be qualified only by some express provision or by scheme of the

instrument.

The basic principles of construction were definitively enunciated by the Privy Council in The Queen v. Burah(') and those principles were accepted and applied by Earl Loreburn in Attorney General for Ontario v. Attorney General for Canada(°) Lord Selborne said in the former case that the question whether the prescribed limits of a power have been exceeded has to be decided by looking to the r.erms of the

( 1 ) Rhode Island v. Palmer 253 U.S. 350.

(2) The State (At the Prosecution of Jeremiah Ryan and Others v. Captain Michael Lennon and Others, (1935) Irish Reports 173.

(') (1939) F.C.R. 18.

(4) (1878) 3 A.C. 889, 904-905.

(•} (1912) A.C. 572 at 583. 49-36 S. C. !ndla/73

766 SUPREMl! COURT REPORTS [1973] Supp. S.CJI.

instruml:nt by which, affirmatively, the power was created, and by which, negatively, it is restricted .and that if what has been done is within the general scope of the aflirmativc words which give the power, ai; id if it violates no express condition af restriction by which that power is limited, it is not for any court af justice to inquire further, .or to enlarge constructively those conditions and restrictions. In other words, in interpreting a Constitution, as Lord Lorebum said in the latter case, if the text is cxpficit, the text is conclusive alike in what it

.directs and what it prohibits.

 I should think that in such matters everything turns upon the spirit in which a judge approaches the question before him. The words must construe are, generally speaking, mere vessels in which he can pour nearly anything he will. "Men .do not gather figs of thistles, nor supply institutions from judges whose outlook is limited . by parish -0r . class. They must be aware that there arc before them more than verbal problems; more than final solutions cast in generalisations in every society which make it an organism; which demand new schema Ill -Of adaptation; which will disrupt it, if rigidly confined" (1). A!I this

is why President Roosevelt. said that the judges of the Supreme Oxirt must be not only great justices, but they inust be great constiuctive :statesmen(').

Therefore, although the word 'amendment' has a variety of meanings, we have to ascrlbe to it in the article a meaning which is app~

priatc to the function to be played by it in an instrument apparently intended to endure for ages to come and to meet the various crises to which the body politic will be subject. The nature of that instrument demands awareness of certain presupposition. The Constitution has no doubt its roots in the past but was designed primarily for the unknown

futur~ The reach of this consideration was indicated by Justice Holmes in langilage that remains fresh no matter how often repeated : (")

" .... when we arc dealing with words that also arc a constituent act, like the Constitution of the. United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begettcrs ...• "

. (') See the passage of Learned Hand quoted in "Cases and Materiais on the Legal Process" by F. K. H. Maher and others, 2nd ed., p. 498. (') Sec the passage quoted by Frederic R. Coudcrt in 13 Yale Law Journal, 1' 338. . (•) Missouri v. Holland, 252 U.S. 416, 433.

KESAVANANDA ti. KERALA (Mathew, J.) 767

Every well drawn Constitution wiJI therefore provide for its own :amendment in such a way as to forestall as is humanly possible, all revolutionary upheavals('). That the constitution is a framework of sreat governmental power tO be exercised for great public ends in the future, is not a pale intellectual concept but a dynamic idea which must domiinate in any consideration of the width of the amending power.

No existing constitution has reached its final form and shape and become, as it were. a fixed thing incapable of further growth. Human societies keep changing; needs emerge, first vaguely felt and unexpressed, imperceptibly gathering strength, steadily becoming more and more exigent, generating a force which, if left unheeded and denied response so _as to satisfy the impulse behind it, may burst forth with an intensity that exacts more than reasonable sati.iaction<').

As Wilson said, a living constitution must be Darwinian in structure and practice('). The constitution of a nation is the outward and visible manifestation of the life of the people and it must respond to the deep pulsation for change within. "A constitution is an experiment as all life is an experiment"('). If the experiment fails, there must be provision for making another. Jefferson said that there is nothing sanctimonious about a constitution and that nobody should regard it as the ark of the covenant, too sacred to be touched. Nor need we ascribe to men 9f preceding age, a wisdom more than human and

mppose that what they did should be beyond amendment A constitution is not end in itself, rather a means for ordering the li£e of a nation. The generation of yesterday might not know the needs of today, and, 'if yesterday is not to paralyse today', it seems best to permit each generation to take care of itself. The sentiment expressed by Jefferson in this behalf was echoed by Dr. Ambedkar("). If there is one sure conclusion which I can draw from this speech of Dr. Ambedkar, it is this : He could not have conceived of any limitation upon the amending power. How could he have said that what Jefferson said is. "not merely true, but absolutely true", unless he subcribed to the view of Jefferson that "each generation as a distinct nation with a right, by the will of' the majority to bind themselves hut none to bind the succeeding generations more than the inhabitants of another country'', and its corrollary which follows as 'the night the day' that each generation .should have the power to determine the structure of the constitution under which they live. And how could this be done unless the power of

( 1) Sec Carl J, Friedrich, "Constitutional Government and Democracy", p. 135,' '

( 2) Sec Fclik Frankfurter,. "0£ Law and Men", p. 35:

( 8) Sec Constitutional Government in the United States, p. 25. (') Sec Justice Holmes in Abrams v. United States, 250 U.S. 616.

(") Constitution, Assembly Debates, Vol. X, pp. 296-297.

768 SUPREME COURT Rl!PORTS [1973] Supp. s.c.R.

amendment is plenary, for it would be absurd to think that Dr. Ambedkar contemplated a revolution in every generation for changing the constitution to suit its needs and aspirations. I should have thought that if there is any implied limitation upon any power, that limitation is that the amending body should not limit power of amendment of the future generation by exercising its power to amend the amending power. Mr. Palkhivala said that if the pmver of amendment of the amending power is plenary, one generation can, by exercising that power, take away the power of amendment of the constitution from the future generations and foreclose them from ever exercising it. l think the argument is too speculative to be countenanced. It is just like the argument that if men and women are given the freedom to choose their vocations in life, they would all jump into a monastery or a nunnery, as the case may be, and prevent the birth of a new generation> or the argument of some political thinkiers that if freedom of speech is allowed to those who do not believe in it, they would themselves deny it to others when they get power and, therefore, they should be denied that freedom today, in order that they might not deny it to others tomorrow.

Seeing, therefore, that it is a "constitution that we are expounding" and that the constitution-makers had before them several constitutions where the word 'amendment' or 'alteration' is used to denote plenary power to change the fundamentals of the constitution, I cannot approach the construction of the word 'amendment' in article 368 in niggardly or petty fogging spirit and give it a narrow meaning; but

"being a familiar expression, it was used in its familiar legal sense"(').

However, Mr. Palkhivala contended that there are provisions in the Constifution which would militate against giving the word 'aniendment' a . wide meaning in the article and he referred to the wording in Schedule V, para 7(1) and Schedule VI, para 21(1). These paragraphs use along with the wor~ 'amend', the expression "by way of addition, variation or repeal". Counsel said that these words were chosen to indicate the plenitude of the power of amendment and that this is in sharp contrast with the wording of article 368 where only the word 'amendment' was used. But Schedule V, para 7(2) and Schedule VI, para 21(2) themselves indicate that, but for these provisions, a11 amendment of the schedule by way of addiition, variation or repeal would be an amendment of the Constitution under article 368. In other words, the sub-paragraphs show clearly that the expression "amend by way of addition, variation or repeal" in para 7(1) of Schedule V and para 21 (1) of Schedule VI has the same content as the word 'amendment' in article 368.

(') Sec Justice Holmes in Hmry v: Uniud Sl4U1, 251 U.S. 293, 295.

KESAVANANDA v. KEllALA (Mathew, J.) 769

Reliance was also placed by counsel on s. 291 of the Government of India Act, 1935, as amended by the Third Amendment Act 1949, which provided that "such amendments as he considers necessary whether by way of addition, modification or repeal in the Act". No inference can be drawn from the use of these words as to the meaning to be assigned to the word 'amendment' in article 368 or its width

~ it is well known that draftsmen use different words to indicate the same idea for the purpose of elegance or what is called "the graces of style" or their wish to avoid the same word, or sometimes by the <ircumstance that the Act has been compiled from different sources and sometimes by alteration and addition from various hands which the Acts undergo in their progress in Parliament(').

It was submitted that if the word 'amendment' is given an unlimited amplitude, the entire Constitutim could be abrogated or repealed and that certainly could not have been the interltion of

the makers of the Constitution. The question whether the power of amendment contained in article 368 as it stood before the amendment went to the extent of completely abrogating the Constitution and substituting it by an entirely new one in its place is not beyond doubt. I think that the power to amend under that article included the power to add any provision to the Constitution, to alter any provision, substitute any other provision in its place and w delete any provision.

But when the article said that, on the bill for the amendment otf. the Constitution receiving the President's assent, "the Constitution shall. stand amended", it seems to be fairly clear that a simple repeal or abrogation of the Constitution without substituting anything in the place of the repealed Constitution would be beyond the scope of the amending power, for, if a Constitution were simply repealed, it would not stand amended. An amendment which brings about a radical .change in the Constitution like introducing presidential system of government for cabinet system, or, a monachy for a republic, would not be an .abrogation or repeal of the Constitution. However radical. the change might be, after the amendment, there must exist a systlem by which the State is constituted or organised. As already stated, a simple repeal or abrogation without more, would be contrary to the terms of article 368 because it would violate the constitutional provision that "the Constitution shall stand amended''.

Even if the word 'amendment' in article 368 as it stood originally was wide enough to empower the amending body to amend any of the provisions of the Constitution, it was submitted by the petitioner, that

( 1 ) See Maxwell on the Interpretation of Statutes, 12th ed., p. 286.

770 SUPREME COURT R'l!PORTs [1973] Supp. s.c.R.

article 13(2) was a bar to the a1nendment of the Fundamental Right$ by Parliament in such a way as w take away or abridge them :

"13(2) The State shall not make any iaw which takes away or abridges the rights conferred l; y this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void".

In this context it is necessary to understand the basic distinction between a flexible and a rigid constitution to appreciate the argument that an amendment of the Constitution is 'law' within the purview -0f the subarticle.

The outstanding characteri.ltic of a fleible constitution like the British Constitution as contrasted with a rrgi.d one like ours is the unlimited authority of the Parliament to which it applies, to pass any law without any restriction. In rigid constitution, there is a limitation upon the power of the legislature by something outside itself. There is a greater law than the law of the ordinary legislature and that is the law of the constitution which is of superior obligation unknown to a flexible constitution. It does not follow that because a constitution is written, it is therefore rigid. There can be a written constitution which is flexible. ''The sole criterion of a rigid constitution is whether the constituent assembly which drew up the constitut; ion left any special

direction as to how it was to be changed"('). If a special procedure is prescribed by the constitution for amending it, different from the procedure for passing ordinary law, then the constitution is rigid.

It is said that articles 4 and 169, paragraph 7 of the Fifth Schedule and paragraph 21 of the Sixth Schedule show that amendment of the Constitution can be made by the ordinary law-making procedure.

Thes" provisions themselves show that the amendment so effected shall not be deemed to be amendment for the purpose of article 368. This is because the procedure prescribed by them is different from the pr<>- cedure laid down in article 368.

Mr. Palkhivala did not contend that the power to amend is located in articles 245, 246 and 248 read with entry '17 of List I of the Seventh

Schedule. He only submitted that it is immaterial whether the power is located in articles 245, 246 and 248 read with enry '17 of List I of the Seventh Schedule or in article 368. I do not think that there could be any doubt that article 368 as it stood before the 24th Amendment

( 1 ) See generally C. F. Strong, Modern Political Constitutions (1963). PP• 1;2-153. .

KESAVANANDA ti. KERALA (Mathew, J.)

contained not only the procedure but also the substantive power of amendment. As the article laid down a procedure different from the procedure for passing ordinary laws, our Constitution is a rigid one and the power to amend a constituent power.

 The vital distinction between constitutional law and ordinary law in a rigid constitution lies in the criterion of the validity. of the ordinary law. An ordinary law, .when questioned, must be justified by reference to the higher law embodied in the constitution;· but in the case of a constitution, its validity is, generally speaking, inherent and lies within itself. Kelsen has said, the basic norm (the constitution) is not created in a legal procedure by: a law-creating organ. It is n<;>t-as a p:isitive legal norm is-valid because it is created in a certain way by a legal act, but it is valid because it is presupposed to be valid; and it is pre supposed to be valid because,. without this presupposition, no human act could be interpreted legal, especially as a norm-creating act. In other words, the validity of the constitution generally lies in the social fact of its being accepted by the community and for the reason that its norms have become efficacious. Its validity is meta-legal(').

Whether. the observations of Kelsen would apply t~ our Constitu tion would depend upon the answer to the question whether the legaT source of the Constitution should be traced to the Indian Independence Act, 1947, or, whether the Constitution was the result of the exercise of the revolutionary constituent power of the people. . .

It does not follow from hat has been said that there are no basic rules in a flexible constitution like that of Great Britain. The principle of the English Constitution, namely, that the Court will eruorce Acts of Parliament is not derived from any principle of common law, but is itself an ultimate principle of English Constitutional La:v(').

Once it is realised that a constitution differs from law in that a constitution is always valid whereas a law is valid only. if it is in conformity with the constitution .and that the body which makes the constitu\ion is a sovereign body and . generally needs na legal authority whereas a body . which makes . the ordinary law is not sovereign, but derives its power from the constitution, an amendment to the constitution has the same validity as the constitution itself, although the question whether the amendment has been made in the manner and form and within. the power conferred by the constitution is always justiciable. Just as an ordinary law derives its validity from . .

:"' ( 1) See Haridelsen, "General Theory of Law and State", p. 116. :

( 2) See H.W.R. Wade, ''The Basis of Legal Sovereignty", {1955) (Cam bridge Law, fournal, 172.

772 SUPREME. COUllT REPORTS [1973) Supp. S, CJI,

its conformity with the constitution, so also, an amendment of the constitution derives its validity from the constitution. An amendment of the constitution can be ultra vires just as an ordinary law can be.

When a legislative body is also the sovereign constitution-making body, naturally the distinction between constitution and an ordinary law becomes conceptual and, i:n fact, disappears as that body has both the constituent power of the sovereign as wcll as legislative power. The British Constitution under which the distinction between the sovereign and the ordinary legislature is eclipsed due to the theory of the sovcreo . ignty of the British Parliament, is certainly not the ideal constitution to choose for appreciating the distinction between constitutional law and ordinary law under our polity. Sir Ivor Jennings said that thcte is no clear distinction between consti11Utional law and ordinary law in England and that the only fundamental law there is that parliament is suprcmc(1). Strictly speaking, therefore, there is no constitutional law at all in Britaili; there is only arbitrary power of parliament.

It is said that The BiJl of Rights (1689), Act of Settlement (1701), etc., partak, ie the character of constitutional law and there is no reason to exclude that type of law from the ambit of the word 'law' in clause

(2) of article 13.

In a llcxible constitution like the British Constitution the only dividing line between constitutional law and ordinary law is that constitutional law deals with a particular subject mattr. namely, the distribution of the sovereign power among the various organs of the

State and other allied matters; out in India, as I have said, that distribution may not be quite relevant. For our purpose, the only relevant factor to be looked into is whether a provision is embodied in the Constitution of India. Any provision, whether it relates strictly to the distn'bution of sovereign power among the various organs of the State

or not, if it is validly embodied in the documen~ known as "The Constitution of India", would be a law. relating to the constitution. In other words, irrespective of the subject matter, the moment a provision becomes validly embodied in the constitution, it acquires a validity of its own which is beyond challenge and the question whether it relates to constitutional law with reference to the subject matter is wholly irrelevant. "Where a written constitution exists, it is approximately true to say that the constitution itself provides such a supreme norm .... even so, the constitufion may not be altogether identified with. ihe supreme norm; for there may. be rules for its interpretation which judges accept as binding but which arc not prescribed in the constitution. Effectively, therefore, it is the traditional judicial interpretation

( 1 ) See Jennings, "The Law and the Constitution" (1933). p. 614.

USAVANANDA "· KE!IALA (Mathew, J.) 773

of the constitution that is the supreme norm"('). For, .as B!shop Hoadley said in his sermon "Whoever hath absolute authority to mterpret any written or spoken laws, it is he who is the law-giver to all int!cnts and purposes and not the person who first <Wrote or spcke them"(').

As I said, for the purpcse of article 13(?-), e ny rlevnt question is whether an amendment of the Consutuuon is law. Smee both an amendment of the Constitution and an ordinary law derive their validity from the Constitution, the criterion that an ordinary aw can be tested for its validity on the touchstone of the Consutuuon must equally apply to an amendment of the Constitutio~. Therefore, by and large, the only distinction between a law amendmg the Constitution and an ordinary law in :i rigid constitution is that an amendment of the constitution has always to be made in thr. manner and form specially prescribed by the constitution.

Mr. Pa}khivala contended that when article 13(1) and 372 speak of "laws in force" in the territory of India immediately before the commence1nent of the Constitution, the expression would take in also all constitutional law existing in the territory of India immediately before the coming into force of the Constitution, and therefore, the

word 'law1 in clause (2) of article 13 must also include constimtional law. Assuming that the expression "laws in force" in article 13(1) and 372 is wide enough to include constitutional law, the question is, what is the type of constitutional law that would be included? So far as British India was concerned, article 395 repealed the Indian Independence Act, 1947, and the Government of India Act, 1935, together with all enactments amending and supplementing the latter Act. I a1n not sure whether there were any Orders passed under the Government of India Act which could be called constitutional law.

That ap; irt, I doubt whether the Government of India Act, 1935, and the Indian Independence Act, 1947, were constimtional laws in the sense of their being the supreme law of the land like the Constitution of India, for, both of them could have been repealed by the

leg~! sovee!gn, namely, the British Parliament And the reason why tl1eir provismns could not h.we been challenged in a Court of Law Was not tt they wer~ the .supreme law of the land but because they were !~':'" in c?nformtty with the supreme law, namely, the will of the Bnush Parliament. As regards the native States, the fact that the Courts therein could not have challenged the validity of the provisions of a constirution promulgated by an absolute monarch would

( 1 ) S, CC Snley. I. Bena, "The Use of Sovereignty", in the book "In Defence of Sovereignty , edited by W. J. Stankiewicz, 67, 70.

(2) See Gry, Nature and Sources of the Law 102 125 172 (2nd ed) (1921), ' • ' .

774 SUPREME COURT REPORTS (1973] Supp. s.c.R.

not show that those provisions could be equated with the provmons of the Constitution of India. A constitution established by an abso. lute monarch will be enforced bv the Coun of the State, not because the constitution is the supreme law of the State but because it is a law in conformity with the supreme law, namely, the supreme will. of the monarch which alone is the supreme law, unless, as Alf Ros~ said, the constitution was granted by the monarch with the intention that it should not be revocable('). Therefore, those constitutional laws cannot be characterised as constitutional laws in the sense in which we speak of the Constitution of India, for, such of the provisions of those constitutions in the native States existing before th<!' commencement of the Constitution of. India which contravened the provisions of Part III became void (article 13 (I)) and others which mntinued, continued subject to the provlsions of the C'.onstitution (article 372). In other words, for the purpose of article 13(2), what

i~ relevant is whether the word 'law' there, is comprehensive enough to take in constitutional law in the sense of a law embodied in a constitution which is the supreme law of the land and from which all other laws llerive their validity. The constitutional laws in force in the territory of India immediately before the commencement of the Constitution did not have the status of constitutional law in the sense of a law which is su1Jreme. \Vere it otherwise, none of them would have been void under atice 13(1) and none of them subject to the provisions of the Com.t1tut1on under article 372.

, It seems to me to he clear that the word 'law' in article 13(2), in the context, could only mean an ordinary law .. When article 13

(2) said that the State shall not make any 'law' tbe meaning of the expression 'law' has to be gathered from the context. Though, analytically, it might be possible to say that the word 'law' would include an amendment of the constitution also, from the context it would be clear that it only meant ordinary law. A word by itself is not crystal clear. It is tbe context that gives it the colour. In the setting of article 13 (2), what was prohibited that the Parliament shall not pass a law in pursuance of its powers under Chapter I of Part XI or ariy other provisions enabling it. le;> pass laws, which were legislative in character. The Constitution-makers only wanted to provide against the more common invasion of Fundamental Rights by ordinary legislation.

If the power to amend was to be found within article 368 and not under article 248 read with entrv 'fl of List I of the Seventh Schedule, it stands to reason to hold that constituent power for amend-

(') Alf Ros.•, "On Law and Justice", p. 82.

KESAVANANDA fl. KERALA (Mathew, J.) 775

ment of the Constitution is distinct from legislative power. The leading majority in the Golaknath Case(1) took pains to locate the power to amend in arl1icle 248 read with entry 97 of List I of the Seventh Schedule to show that the Constitution can be amended by an ordinary law and that such a law would be within the purview of article 13(2). But if .the pow•!r to amend the Constitution is a legislative power and is located in the residuary entry (97 of List I of the Seventh Schedule), then any law amending the Constitution by vir tue of that power, can be passed only "subject to the provisions of the Constitution" as mentioned in article 245. A power of amendment by ordinary law "subject to the provisions of the Constitution" seems to me a logical contradiction; for, how can you amend the provisions of the Constitution by an ordinary law which can be passed only subject to the provisions of the Constitution?

It would be strange that when a whole chapter has been dvoted to the "Amendment of the Constitution" and when the question of amendment loomed large in the mind of the Constitution-makers that, even if the power to amend the Constitutio.n was thoght t? be legislative in character, it was not put as a specific. entry in . Lis~ I but relegated to the residuary entry ! And, considenng the legislative history of the residuary entry, it is impossible to locate .the power of amendment in that entry. The legislative power of Parliament under entry 97 of List I of the Seventh Schedule is exclusive and the power to amend cannot be located in that entrv because, in respect of the matters covered by the proviso to articic 368, Parliament has no exclusive power to amend the Constitution.

That apart, the power to amend a rigid constitution, not being an ordinary legislative power but a constituent one, it would be strange that the Constitution-makers put it sub-ri!entio in the residuary legislative entry.

Article 368 was clear that when the procedure prescribed by the article was followed, what resulted was an amendment of the Constitution. The article prewih.d a procedure different from the legislative procedure prescribed in articles 107 to Ill read with article !CX; Article 100 runs as follow; : "Save as otherwise provided ire this Cor,-

stitution a!! questions at any sitting of either House or joint sittin<' of the Houses shall be determined by a majority of vots of the members present and voting .... ". Certain types of amendment, as is clear from article 368, also require to be ratified. The first part of article 368 required that a hill must be passed in each House (!) by


776 SUPREME COU!lT llEPOllTS [1973] Supp. s.c.11.

a majority of the total membership of that House and (2) by a maio- rity of not less than two-thirds of the members of that House present :and voting. These provisions rule out a joint sitting Qf both the Houses under article 108 to resolve disagreement between the two Houses. Again, the majority required to pass a bill in each ouse is not a majority of the members of that House present and voting but a majority of the total membership of each House and a majority of not less than two-thirds of the members of that House present and voting. As regards matters covered by the proviso, there is a radical departure from the legislatiive procedure prescribed for Parliament by articles 107 to lll. Whereas in ordinary legislative matters Parliac

ment's power to enact laws is not dependent on the State legislan1res, in matters covered by the proviso to article 368, even if the two Houses pass a bill by the requisite majorities, the bill cannot be presented to the President for his assent unless the bill has been ratified by resolutions to that effect passed by the legislatures of not less than half the number of States.

Subba Rao, C. J., in his judgment in Golaknath case(') relied on Mccawley v. The King(') and The Bribery Commissioner v. Pedrick Ranasinghe(8 ) to show that the power to amend the Constitu- tion was a legislative p6wer. In M cCawley'; Case, Lord Birkenhead said that it is of the utmost importance to notice that where the Constitution is uncontrolled th'e consequences of its freedom admit of. no qualification whatever and that it would be an elementary common place that in the eye of the law the legislative document or; documents which defined it occupied precisely the same position as the Dog Act or any other Act, however humble its subject matter and that the so called constitutional law (I call them so called because it is constitutional law only with reference to the subject matter, not with reference to its superior character) will stand amended by the Dog Act, if it is in any way repugnant to the legislative document or documents.

_ In Ranasinghe's case, the question for determination before the Privy Council was whether the statutory provU; ion for the appointment of members of the panel of the Bribery Tribunal, otherwise than by the Judicial Service Commission, violated s. 55 of the Constitution Order and, if so, whether that provision was void. Sections 18 and 29 of the Order provide as follows : "S. 18: Save as otherwise provided in sub-section (4) of s. 29. any question . proposed• for decision by either Chamber shall be

( 1) (1967) 2 S.C.R. 762.

( 2) (1920) A.C. 691.

( 8) (1964) 2 W.L.R. 1301; (1965) A.C. 172.

KESAVANANDA 11. KERALA (Mathew, J.) 777

determined by a majority of votes of the Senators or Members,

1 as the case may be, present and voting. The President or Spca ker or other person presiding shall .not vote in the first instance but shall have and exercise a casting vote in the event of an equality of votes.''

"S. 29 : (1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island. (2) No Sllch law shall-( a) prohibit or restrict the free exercise of any religion; or (b) II\ak• persons of any community or religion liable to disabilities . or restrictions to which persons of other communities or religion$ arc not made liable; or ( ~) confer on persons of any comm1mity or religion any privilege or advantage which is not conferred on persons of other communities or religions; or (d) alter the constitution of any religious body except with the consent of the governing authority of that body: Provided that, in any case where a religious body is incorporated by law, no_ such alteration shall he made except at the request of the governing authority of that body. (3) Any law made in contravention of sub-sectio11

(2) of this section shall, to the extent of such .contravention, be void. ( 4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order,

or of any other Order of His .Majesty in Council in its application to the Island : Provided that 110 Jlill for the amendment or repeal of any of the provisio11S of this Order shall be presented to the Royal Assent unless it has endorsed on it a certificate under the hand of the speaker that the number of votes east in favour thereof in the House of Representatives amounted to not less than

twe>-thirds of the whole number of members of the House (including those not present). Every certificate of the Speaker under this sub-section shaU be conclusive for all purpose and shall not be questioned in any court of law."

The appellant . contended that whereas s. 29(3) expressly provided that a law which conoravened s. 29(2) was void, there was no such provision for the violation of s. 29( 4) which was merely procedural and that as Ceylon was a sovereign State, and had the power to amend the Constitution, any law passed by the legislature was valid even -if i~ contravened the Constitution, and McCawley's case was cited

as supporting this contention. But the Privy Council said that the law impugned in McCawley's ease was not required to be passed bv 3

specil procedure, but in the present case the law which contravener! s. 55 could only be pissed .QS zequircd by s. 29( 4) for the amendment of :the .constitution and it W:M not S& passed, it was rtltra trires and v01d.

778 SUPREME COURT REPORTS [1973] Supp. s.c.R.

It is not possible to draw the inference which Subba Rao, C. I. drew from these two cases. There is a distinction between a general power to legislate and a power to legislate by special legislative pr<>- cedure and the results of the exercise nf the two powers are different.

In McCawley's case it was observed that if a legislature has full power to make a law which conflicted with the Constitution, the law was valid Siince it must be treated as a pro-tanto amendment of the constitution which was neither fundamental in the sense of being beyond change nor so constructed as to require any special legislativ~ process to pass upon the topic dealt with, and an ordinary law in conflict with the constitution must, in such a case be treated as an implied alteration of the constitution. In Ranasinghe's Case, the Privy Council said that where even .an express power of a legrslature to alter can be exercised only by laws which comply with the "Special legislative procedure laid down in the constitution", such a legislature has no general poVl'.er to legislate for the amendment of the constitiution, and a law pissed in the exercise of such general power is void if the law contravenes the constitution. And, where a legi.'1ative power is "subject to the provisions of the constitution", any cxer

cise of it in contravention of such provisions renders it invalid and ultra-vires : As already stated, in a controlled constitution which confers general legislative power subject to the provisions of the consti tution and provides a special procedure for amendment of the constitution, law passed in the exercise of the general legislative power ancl conflicting with the constitution must be void because the constitution can be amended only by special procedure. In a constitution which confers general legislative power including a power to amend the constitution, the constitution is uncontrolled and is not a fund:imental document by which the laws made under it are to be tested, for, any law .contrary to the constitution impliedly alters it. The result is that no law passed under an uncontrolled comtitution is , ultra vires(').

The ubstance of the decision in Ranasilighe's Case is that thouith Ceylon Parliament has plenary power of ordinary legislation, in. the exercise of its constitution power it was subject to the special procedure laid down in s. 29( 4). The decision, therefore, makes a clear distinction between legislative and constituent powers.

It was contended that tl1e amending power can be a legislative power as in Canada and, therefore, there was nothing wrong in the .1eading majority in Golaknath Case('), locating the power .of

amendment in the residuary entry.

(') See Seervai "Constitutional Law", Vol. 2, pp. 1102-1103; al"' Dr. Wynes "''Legislative, Executive and Judicial Powers in Awtralia", footnote at p. 508.


KESAVANANDA v. KERALA (Mathew, J.) 779

Section 91(1) of the British North America Act provides for a restricted power of amendment of the constitution. This power, undoubtedly, is a legislative power and the constitution, therefore, to \hat extent is an uncontrolled or a flexible one. There is no analogy between the power of amendment in Canada which is legislative in character and the power of amendment under article 368 which is a constituent power.

As I indicated, even if there was an entry for amending the Constitution in List I of the Seventh Schedule, that would not have enabled the Parliament to make any amendment of the Constitution because the opening words of article 245 "subject to the provisions of this Constitution" would have presented an insuper able bar to amend any provision of the Constitution by the exercise of legislative power under the Constitution. Under a controlled Con stitution like ours, the power to amend cannot be a legislative power; it can only be a constituent power. Were it otherwise, the Constitution would cease to be a controlled one.

It was submitted that if Fundamental Rights were intended to be amended by the Constitution-makers in such a way as to abridge or take them away, considering the paramount importance of. these rights, the procedure required by the proviso to article 368 would, at any rate, have been made mandatory and that not being so, the intention of the Constitution-makers was that the Fundamental Rights should not be amended in snch a way as to abridge or take them away. This argument overlooks the purpose of the proviso.

The proviso was maiply intended to safeguard the rights and powers of the States in their juristic character as persons in a federation. The purpose of the proviso was that the rights, powers and privileges of the States or their status as States should not be taken away or impaired without their participation to some extent in the amending process. Fundamental Rights are rights of 'individuals or minorities, and they are represented in Parliament. The States, as States, arc not particularly affected by amendment of Fundamental Rights. As Wheare said, it is essential iln a federal government that if there be a power of amending the constitution, that power, so far at least :u

concerns those provisions of the. Constitution which regulate the status and powers of the general and regional governments, should not be confided exclusively either to the general governments or to the regional governments('). ·

The Constitution (First Amendment) Act amended the Fundamental Rights under articles 15 and 19 in such a way as to abridge

( 1) Whcare, "Federal Government", 4th ed., p. 55.

780 SUPREME COURT REPORTS [1973} Supp. s.c.R.

them. The speech of Pandit Jawaharlal Nehru in moving the amend ment and those of others who were responsible for drafting the Con stitution make it clear that they never entertained any doubt as to the amendability of the Fundamental Rights in such a way as t.o abridge them. Strong opponents of the amendments like S. P. Mukherjee, never made even the whisper of a suggestion in their speeches that Fundamental Rights were not amendable in such a way as to abridge them. Contemporaneous practical exposition is a valuable aid to the meaning of a provision of the constitution or a statute('). •

Mr. Palkhivala also relied upon the speech of Dr. Ambedkar made on September 17, 1949, in the Constlituent Assembly to show that Fundamental Rights could not .be taken away or abridged by . .,,, an amendment of the Constitution.

The question whether spccehes made in the Constituent Assem-. bly are admissible to ascertain the purpose behind a provision of the Constitution is not free from doubt. In A. K. Gopalan '" The State of Madras("), Kania, C. J. said that while it ia not proper to take into consideration the individual opinions of members of Parliament or Convention to construe the meaning of a particular clause, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be permitted. In the same case, Patanja!n Sastri, J. said that in construing the provisions of an Act, speeches made in the course of the debates on a bill could at best be indicative .of the subiective intent of the speaker but they could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Mukherjea, J. said that in construing a provision in the Constitution it is better to leave out of account the debates in the Constituent Assembly, but a higher value may be placed on the report of the Drafting Committee.

In State of T1'avancore-Cochin and Others v. 1'he Bombay Co. Ltd., etc.('), Patanjali Sastri, C.J. delivering the judgment o(the Court said that speeches made by the members of the Constituent Assem bly in the course of the debates on the draft Constitution cannot be used as aids for ii:terpreting the;. Constitution. In Golaknath Case(') Subba Rao, C. J. referred to the speech of Pandit Jawaharlal Nehru made on April 30, 1947, in proposing the adoption of the interim report on Fundamental Rights and that of Dr. Ambedkar made on September 18, 1949, on the amendment proposed by Mr. Karnath to

( 1) See McPherson v. Blacker, 146 U.S.!., 27.

( 2) (1950} S.C.R. 88.

(•) (1952) S.C.R. 1112.


KEUVANANJl!t ti. UllALA (MatheUJ,).:)

article S04 of the draft Constitntion: (present article 368) and ob.

served that the ipeeches were referred. to, not for. interpreting the provisions of article 368 but to show. the transcendental character of Fundamental Rights. I am not dear whet)ler the speech of Dr.

Ambcdkar throws any light on the transcendental character of Fundamental Rights. That . speech, if it . is useful for any purpose, i1 useful only to show that Fundamental Rip; hts cannot be amended. In the Prit1y Purse Case(1) Shah, J. rcferied .to the peech of Sardar Vallabhbhai Patel for understanding the purpose of article 291 of the Constirution. Speeches made by members of the .Constituent Assembly were quot.d in profusion 'in the Union of India v. Harbhaian Singh Dhillon(2 } both in the majority as well as in the minority judgments. In the majority ]udgffient it was said that they .wcr~ glad to find that the construction placed by them on the scope of entry 91 in the draft Constitution corresponding to the present entry rJ of List I of the Seventh Schedule agreed with the view expressed in the peeches referred to by thm. The minority. referred to the speeches .made by various members to show . that their construction was the correct one. Cooley said : ''When a question of Federal Con stitutional law is involved, the purP<15c of the C'.onstitution, and the object to be accomplished by any particular grant of power, arc often most important guides i11 reaching the real intent; and the debates in the Constitutional Convention, the discussions in tho Federalist, and . in the conventions of t11e States, arc often. referred to as throwing important light on clauses in the Constitution which seem blind or of ambiguous import"('). Julius Stone, the Australian jurist, has expressed the opinion that in principle the Court should be free to i.i)form itself concerning the social cont of the problems involved from all reliable sources and that it is difficult to see in principle why

British courts should exclude rigidly all rrcourse to the debates attending .the legislative process. He asked the question on what basis is it explicable that lawyers can regard with equanimity cases in which iuclges may pronounce cr-cathcdra that so and so clearly could not have been in the legislators' minds when the parliamentary debates. ready at hand might show that that was precisely what was in their iri.inds (').

Logically, there is n.;- reason why we should exclude altogethi:r the speeches made in the Constituent Assembly by individual mem-

(' )·.µaJhav Rao v. Union of India, [197l], 3 S.C.R 983. (•))1971 J 2 s.~.c. 779. ·.. . . .. . (") See Cooley on Constitutional Law, 4th ed. (1931), pp. 195-196. ·

(')

0 sJ Juli.is Stone, ''LCgal System and Lawyer's Reasoning",. p. 351;, also H.C.L. Merillat, ''The . Sound 'Proof. Room : , A Matter of lntcrpretanon . '(1967) 9, Jiiutrial of the 'Indian Law InstlllitC, p. 521.

 S0-36 S. C. India/73

782 SUPREME COUJ.T REl'ORTS (1973) Supp. S.C.ll.

bers if they throw any light which will resolve latent ambiguity in a provision of the Constitution. Chief Justice Marshall struck at the core of the matter when he said:(')

"Where the mind labours to <liscover the design of the legislature, it seizes everything from which aid can be derived."

If the purpose of construction is the ascertainment of meaning, nothing that is logically relevant should, as a matter of theory, . be excluded. The rigidity of English Courts in interpreting language merelyby reading it, disregards the fact that enactments are, as it were, organisms which exist in their environment. It is, of course, difficult to say that judges who profess tb exclude from their consideration all extrinsic sources are confined psychologically as they purpon to be legally. A judge who deems himself limited to reading the provisions of the Constitution . without an awareness of the history of their adoption in it woul<l be taking a mechanical view of the task of c0nsiruction(2).

If the <lebates in the Constituent Assembly can be looked into to understand the legislative history of a provision of the Constitution including iti derivation, that is, the various steps leading up to and attending its enactment, to ascertain the intention of the makers of the Constitution, it is diflicult to see why the debates are inadmissible to throw light on the purpose and general intent of the provision. After all, legislative history onlv tends to reveal the legislative purpose in enacting the provis.ion and thereby sheds light upon legislative intent. It would be drawing an invisible distinction if resort to debates is permitted simply to show the legislative history and the same is not allowed to show the legislative intent in case of latent ambiguity in the provision. Mr. W. Anderson said : "The nearer men can get oo knowing what was intended the better. Indeed the search for intention is justified as a search for the meanings that the framers had in mind for the words used. But it is a search that must be undertaken in humility and with an awareness of its great diffi, culties"( 8). _That awa:ness must make one ocrutinize the solemnity of the occasion on whicl1 the speech was made .• the purpose for which it was made, the preparation and care with which it was made• and the reputation and scholarship of' the person who made i, t. A painstaking detailed speech bearing directly on the immediate question

( 1 ) Uni"d States v. Fisher, 2 Cranch 358, 386 U.S. 1805.

( 2) See Frankfurter "On reading the statute" in "Of Law and Men", p. 64.

( 3 ) See "The Inrention of the Framers": A No•t'. on the Constitutional Inter-· prcra.tion, American Political Science Review, V:il. ~'2.JX, June, 1955.

XESAVANANDA v. KEMLA (Mathew, J,) 783

might be given the weight of an "encyclical" and would . 5ettle the matter one wav or the other; but a loose statement made 1mprompt11 in the heat of

0 the debate will not be given a decisive role in decision making process. I should have thought that if there was a definitive pronouncement from a person like Dr. Ambedkar in the Constituent Assembly, that woulrl have thrown considerable light upon the matter in controversy. In the speech relied on by counsel Dr. Ambedkar is reported to have said(') :

"We divide the articles of the Constiitution under three categoric~. The first catgory 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 art 304, all that is necessary for them is to have two-thirds majority. Then they can amend it.

"Mr. President : Of Members present.

"Yes. Now we have no doubt put certain 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".

There is scope for' doubt whether the speech has been correctly reported. That apart, from the speech as reported, it would seem that according to Dr. Ambedkar, an amendment of the articles mentioned in Part III and article 368 requires two-thirds majority plus ratification by the Stalles. He seems to have assumed that the provisions of Part III would also fall within the proviso to article 368 but he never said that Part III was not amendable. That it was his view that all the articles could be amended is clear from his other speeches in the Constituent Assembly. He said on November 4, 1948(2) :

". . . . It is only for amendments of specific matters-and they: are only few, that the ratification of the State legislatures is requtred. All other articles of the Constitu.tion 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 ... "

(1) Constituent Assembly Debates, Vol. IX, p. 1661.

(2) Constituent Assembly Debates, Vol. Vil, p. 43.

784 .

SUPUME.-oouJ.T B.EPQR~ [1973) Su9p, s.c.ll.

 Dr; .Ainbedar,· speaking .on draft article 25 (present rticlc 32). , on , December ?. 1948, stressed its importance in th~ following words( ) :

"If. I was asked to name any particular article in this Con'. stitution as the most important-an article. without which. this Constitution would be. a nullity-I could not refer to. ari.Y other article except, .this one, It is. the very soul of the Const1tuuon .and the very heart of it and I am glad that the House has realized its importance".

But having said he proceeded : ": .. . The Cotitution 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 Legislat11re. (emphasis added).

On November 25, 1949, Dr. Ambedkar refuted the suggestion that FWldamental Rights should be absolute and unalterable. He said after referring to the view of tlic Jefferson already referred to, that the Assembly has not only refrained from putting a seal of finality and infallibility upon the Constimtion by denying to the people the . right to amend the Constitution as in Canada or by making . the amendment of the Coostitution subject to the fulfilment of extraordinary terms and conditions as in America or Allstralia but has provided a most facile procedure for amending the Constitution(').

It is difficult to understand why the Constitution-makers did riot specifically provide for an exception in article 368 if they wanted that the Fundamental Rights should not he amcndd in such a way as to take away or abridge them. Article 304 of the raft Constimtion cor~ responds to article 368 of the Constitution. Article 305 of the draft Constitution provided :

"Article 305 : Reservation of seats for minorities to remain in force

for only ten years unless continued in operation by amendment of the

Constitutiott, ·

"Notwithstanding anything contained in article 304 of the Constimtion, the . provisions of this Constitution relating to the .CServation of scats for the Muslims, the Scheduled Castes, the Scheduled Tribes or the Indian Chri<tians either in Parliament or in the legislature of any State for the time being specified in Part I of the First Schedule shall not he amended during a period

(1) ConstilUent Aseembly DCbatcs, Vol. VII, p. 953. {2) Constituent Aucmbly Debates, Vol. XI, pp. 975-976.

KESAVANANDA. fl. KERALA (Mathew, J.) 785

of ten years from the commencement of this Constitution and shall cease to have effect on the expiration of that period unless continued in operation by an amendment of the Constitution."

If it had been the intention of the Drafting Committee to exclude Fundamental Rights from the purview of the constituent power in tended to be conferred by article 304, following the analogy of article 305, it could have made an appropriate provision in respect of the said rights. . . .

In A. K .. G.opalan v .. State of Mad~('}, Kania, C. J. sai~ that article 13 was inserted by way of abundant caution, that even if th~ article were, absent, the result would have been the same. Mr. Palklil- .wala submitted that the view of the learned Chief Justice was wrong, that article l.3 i!1 the context of article 368 before the 24th Amend .. ment, a function to play in the scheme o~ the osi~1tio_n, namely, that it stated the authorities against which the inh1b1tion n article 13(2) operated, the categories of law to which the inhibition applied and the effect of a violation of the inhibition. Whether thr. latter part of article 13(2) was enacted by way of abundant caution or not would depend upon the answer to the question whether the word 'law' in that article woultl mclude an amendment of the Constitution also. If the word 'law' would include amendment of the Constitution, it cannot be said t11at the latter part of the article was redundant. The dictum of Chief Justice Kania is helpful only to show his reading of the meaning of the word 'law' in the article. Had the learned Chief Justice read the word 'law' in the article as including an amendment of the Constitution also, he would certainly not have said that the article was redundant. Sir Ivor Jennings has taken the view that it was quite unnecessary to have enacted article 13(2), as, even otherwise, under the general doctrine of ultra vires, any law which is repugnant to the provisions of the Constitution, would, to the extent of the repugnancy, become void and inopcrative(1).

However, I think that article 13(2) was necessary for a different purpose, namely, to indicate the extent of the invasion of the fundamental right which would make the i.mpugned law void. The word 'abridge' has a special connotation in the American constitutional jurisprudence; and, it i~ only fair to assume that when the Constitution-makers who were fully. aware of the language of the First Amendment to the United States Constitution, used that expression,

( 1) [1950] S.C.R. 88.

( 2) See Ivor Jennings, "Some Characteristics of the Indian Constitution", pp. 38-39.

786 suPIEMlt coUaT BEPOllTS [1973} Supp. s.c.R.

they intended. to adopt the meaning which tha~ word had acquired there. Every limitation upon a fundamental right would not be an abridgement of. it. Whether a specific law operates to abridge a specifically given fundamental right cannot be answered by any dogma, whether cl a priori assumption or of mechanical jurisprudcnce. The Court must arrive at a value judgment as to what it is that is to be protected frO!D, abridgement, and then, it must i; nake a further value judgment ¥ to whether the law iqipugned. really amounts to an abridgement of that right. A textual reading might not always be conclusive. A judge confronted with the question whether a particular law abridges a Fundamental Right must, in the exercise of the judicial functin, advert. to, the moral right embodied in the Fundamental Right and . then . come to the conclusion whether the law would abridge that right. In this process, the Court will have to look to the Directive P, rincipks in Part IV to see what exactly is the content of the F, undatl\ental Right and whether the law alleged to be in detraction or abridgCl!lent of the right is really so. The Court would generally be more aStute to protect personal rights than property rights.

In other words, Fundamental Rights relating to personal liberty or freedom would receive greater protection from the hands of the Court than property rights, as those right$ come with a momentum lacking in the case of shifting economic arrangements. To put it differently, the type ci restriction .whicp would constitute abridgement might be different for personal rights and property rights as illustrated by the doctrine of preferred freedoms. However, it is unnecessary to pursue the matter further for the purpose of this case.

Mr. Palkhivala contended that even if the word 'amendment' i, n article 368 before it was amended is given its widest meaning and the word 'law' in article 13(2) is assµmed not t~ include an amendment of the Constitution there were and am certain inherent and implied .limitations upon the power of amendment flowing from tliree basic features which. must be present in the canstitution .of eyery republic. According to cowlsel, these limitations flow from the fact that the ultimate legal sovereignty resides in the people; that Parliament is a c.reature of the Constitution and not a constituent body and that the power to alter or destroy the essential features of the Constitution belongs only to the people, the ultimate legal sovereign. Counsel submitted that if Parliament has power to alter or

deroy the essential features of the Constitution, it would cease to be '1 creature of the Constitution and would become its master;, that dO onstituted body like the Amending Body can radically change the , Constitution in such a way as to damage or destroy the basic CllflSllitutional structure, as the basic structure was decided upon by the people, in the exercise of their constituent revolutionary power.

](ESAVANANDA v. Kl!llALA (Mathw, J,) 737

Counsel also argued that it is constitutionally imperssible for one constituent assembly to create a second perpetul constituent assembly above the nation with power to alter its essential features and 1!1at Fundamental Rights constitute an essential feature of the Constitution.

The basic premise of counsel's argument was that the ultimat.c legal sovereignty under the Constitution resides in the people. The preamble to the Constitl, ltion of India says that "W.e the pe'?Pl~ ?.£ India, .... adopt, enact and give unto ourselves. th.is Constlttlon • Every one knows that historically this is not a fact. The Consututlon Wa& framed by an assembly which was elected indirectly on .a ited_ franchise and the assembly did not represent .the. vast rna1onty of the people of the country. At best it could represent only 285 per .cent of the adult population of the provinces, let alone the population of the Native States('). And who would dare maintain that they alone consliituted the "people" of the country at the time of framing .the Constitution I (2) The Constituent Assembly derived its legal coinpetentc to frame the Constitution frotn s. 8( l) of the Indian Independence Act, 1947~ The British Parliament, by virtue of its legal sovereignty over India, passed the said enactment and invested the Assembly with power to frame the Constitution. Whatever might be the constitutional result flowing from the doctrine that sovereignty is inalienable and that the Indian Independence Act itself could have been repealed by Parliament, independence, once granted, cannot be revoked by an erstwhile sovereign; at any rate, such revocation will not be recognised by the Courts of the country to which independence wasgranted. What makes a transfer of sovereignty binding is simply the possession on the part of the transferee of power and force sufficient to prevent the transferor from regaining it('). The assertion by some of the makers of the Constitution that the Constitution proceeded from he people can only be taken as a rhetorical flourish, probably to lay its foundation on the more solid basis of popular will and to give it an unuestioned supremacy, tor, ever since the davs of justinian, it was thou?ht that the ultimate legislative power including the power to frame a constitution resides in the people, and, therefore, any law or constitution must mediatelv or immediately proceed from them. "It is cmtomary nowadays to ribe the legality as well as the supremacy of the Co11,1, titution-the one is, in truth, but the obverse of

. ('J. See Granville Awtin, "The Indian Costitution" (1972), p. 10 and Appendix I, pp. 331.332. . ..(2) As to who ar; the people in .a Country, see the Chapter "The People~ m Modern Dcmocraacs" by Bryce, Vol. 1, pp. 161-169.

( 8 ) Sec V. Willoughbv. "Nature of state" (1896) p. 229 also 'Diccy's Law cf the Constitution" 5th ed, (1897), pp. 65n and 6&i. '

788 suPREME com:t lll!P6us [1973] Supp. s.c.R .

. the other-exclusively to the fact tha~ in its own phraseology, it was 'ordained' by 'the people of the United States' .. Two ideas are thus brought into play. One is the so-called 'positive' conception of law as a general expression merely for the particular. commands of a human law-giver, as a series of acts of human will; the other is that the highest possible embodiment of human will, is 'the people'. The same two ideas occur in conjunction in the oft-quoted xt of" Justinian's Institutes: "Whatever has pleased the prince has the fore~ ol law, since the Roman people by the lex regia enacted concerning his imperium have yielded up to him all their power and authority.

The sole difference between the Constitution of the United States and the imperial legislation justified in this famous text is that the former is assumed to have proceeded immediately from the people, while the latter proceeded frOl'.!l a like wurce only mediately"(').

ft is said that the assertion in the preamble that it was the. people who enacted the Constitution raises an incomravertible presumption and a Court is precluded from finding out the truth. There is a similar preamble to the Constitution of the U.S.A. Yet, when Chief )us. tice Marshall was called upon to decide the question . whether that constitution proceeded from the people, he did not seek shelter under the preamble by asserting that the Court is concluded by the recital therein, but took pains to demonstrate by referring to historical facts that -the constitution was ratified by the people in the State conventions and; therefore. in form anJ substance, it proceeded from the people themselves(2 ). It does not follow that because the people of India did not frame the Constitution or ratified it. the Constitution has no legal validity. The validity of a constitution is one thing; the source from which it proceeds is a Jilferrnt one. Apart from its legal. validity derived from the Indian Independence Act; its norms have become efficacious and a Court which is a creature of the Constitution will not entertain a plea of its invaiidity. If the legal source for the validity of the Constitution is not that it was framed by th.e people, the amending provision has to be construed Clll its own language, without reference to any extraneous consideration as to whether the people did or did not delegate all their constituent power to the Amending Body or that the people reserved. to themselves the Fundamental Rights.

Let me, however, indulge in the legal fiction and assume, as the preamble has done, tha~ it was the people who framed the Constitution. What follows? Could it be sai.cl that, after the Constitution was

. ( 1) See Edward Gorwin, 'The Higher i..aw' Background of American Constitutional Law", pp. 3-4.

( 3 ) See McCulloch v . . Morykuid, 4 Wheaton 316 (1819).

KESAVANANDA "· KERALA (Mathew, J.) 789

framed, the people still retain and can exercise their sovereign cn stituent power to amend or modify the hasic structure or the essential features of the Constitution by virtue of their legal sovereigntv?

According to .Austin, a person ur bod:• is said to have )egal sovereignty, when he or it has unlimited law-u;.aking power and that there <is no person or body superior to him or it. Perhaps, it woiVd be cor-

-rect to say that the possession of unlimited law-making po""er is the criterion of legal sovereignny in a State, for, it is difficult to see how there can be any superior to a person or group that can make laws on all subjects since that person or group would pass a law abolishing the powers of the supposed superior. The location of sovereignty in a quasi-federal constitution like ours is a most difficult ta•k for :111y hwyer and I shall not attempt it. Many writers take the view that wvereignty in the Austinian sense does not exist in any State(') and <hat, at any rate, in a Federal State, the concept of sovereignty in that sense is incapable of being applied('). This Court has said in State of West Bengal v. Union of India(') that the "legal theory on which 'the Constitution was based was the withdrawal or resumption of all the powers of sovereignty into the people of this country" and that the " .... Legal sovereignty of the Indian nation is vested in the peopl~ of India, who, as stated by the preamble, have solemnly resolved to ·<onstitute India into a Sovereign Democratic Republic .... " I am not quite sure of the validity of the assumption implicit in this dictum.

The Supreme Court of U.S.A. has held that sovereignty vests in ti1e people('). The some view has been taken by writers "like Jamesc .. 1, Willis, Wilson and others, But it is difficult to understand how the unorganised mass of the people can legally be sovereign. In no country, except perhaps in :l direct deniocracy. can the people en maJse be called legally sovereign. This is only lo put more explicitly what Austin rr1eant vvlien he said that political power m1Jst be in a determinate person or body of ptrsons, for, the people at large, thl'! \vholc JH.:ople, as distinct fro; n particular person or persons, arc incapable of concerted action and hence, of exercising political power and therefore of legal supremacy('). "When the purported sovereign is anyone

ut a single acwal person, h~ designation of him must include the statement of mies for the "'certainmem of his will, and these rules,

( 1) See W. J. Ress, "Theory of Sovereignty Re-stated" in the book "In 'Defense of Sovereignty" by W. J. Stankiewicz, p. 209.

(~) See Salmond's Jurisprudence, 7th ed., p. 531.


.. (.1) See "From John Austin to John C. Hurd" by Irving B. Richman in Harward La\v Review, Vol. 14, p. 364.

790 SUPREME COURT REPORTS [1973) Supp. s.c.11.

since their observance is a condition of the validity of his legislation, are Rules of law logically prior to him. .. It is not impossible to ascertain the will of an individual without the aid of rules: he may be presumed to mean what he says, and he cannot say more than one thing at a time. But the extraction of a precise expression of will from a multiplicity of human belljgs is, despite all the realists say, an artificial process and one which cannot be accomplished without arbitrary rules. It is, therefore, an incomplete statement to say that in a stat•: such and such an assembly of human beings is sovereign. It can only pe sovereign when acting in a certain way prescribed by law. At least some rudimentarv manner and form is demanded of it : the simultaneous incoheret cry of a rabble, small or large, cannot be law, for lt is unintelligible".('). 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 whieh it is to act('). And what is the provision in the Constitution or the law for the people to act as legal sovereign or as regards the manner and form when they act as legal sovereign 1

The supremacy enjoyed by the Constitution has led some to think that the document must be regarded as sovereign. They talk abou1 the government of laws and not of men; but sovereignty, by defini tion, must be vested in a person or body of persons. The constitu tion itself is incapable of action, Willoughby has said that sovereignty of the people, popular sovereignty and national sovereignty .:annot accurately be held to mean that, under an established government, the sovereignty remains in the people. It may mean, however, that the constitutional jurispmdence of the State to which it is applied is pre· dicated upon the principle that no political or individual or orgalf of the government is to be regarded as the source whence, by delegation, all other public powers are derived, but that, upon the contrary, all legal authority finds its original source in the whole citizen body or ; n an electorate representing the governed('). Probably, if sovereignty is dropped as a legal term and viewed as a term of political science, the view of the Supreme Court of the U.S.A. and the writers who maintain that the people are sovereign might be correct;. No concept. bas raised so many conflicting issues involving jurists and political theorists in '° desperate a maze as the genuine and proper meaning of sovereignty.

( 1) See Latham, "What is an Act of Parliament" (1939) King's Counsel, p. 152.

(2) See Orfield, "The Amending of the Federal Constitution", p. 155.

(3) See Willoughby. "Fundamental Concepts of Public Law", pp. 99-100.

, ....

KESAVANANDA v. XERALA (Mathew, J.) .

Seeing, however, .that the people have no constitutional r; r legal . power assigned to them under the Constitution and at !'Y .vutue of their political supremacy they can unmake the Consotut10n oi; ly .h.Y a method not sancti.ned by the juridical order, namely, revolution, 1t is difficult to agree with the proposition of counsel that the legal sovereignty. under the Constitution resides in the _people, or, that as. ulti'mate legal sovereign the people can constitutionally . change the basic structure of the Constitution even when the Constitution provides for .a specific mechanism for its amendment. . In the. last analysi'- perhape, it is right to say that if sovereignty is said to exist in any sense at all; it must exist in the Amending Body, for, as Willoughby has said : "In all those cases in which owing to the: distnbution of governillg po\ver there is doubt as to the political body in which 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 a> well as that of others('). In Germany, the publici>ts have developed a similar theory known as the "kompetenz... kompetenz theory"('); . . ·

This. howeYer. does not mean that the people h:we no right . to frame the Constitution by which tbey would be governed. Of the people as well as the body politic, all that one can say is, not that they are sovereign, but that they have the natural right to full autonomy or to self-government. The people exercise this right when they esta-- b!ish a constitution('). And, under our Co.nstitution, the peopk have delegated the power to amend the in.trument wliich the-r created to the Amending B'ody.

When a person holds a material good, it cannot be owned byanother. He cannot give it to another without his losing possession of. it and there can only be a question of transfer of ownership or a don~ tion. But. when it is a que.stion of a fr1oral or spirimal quality such a'

a right or power, one can invest another with a right or power with-- out losing possession of it, if thn man receives it in a vicarious manner, as a vicar of .the man who transferred it. The people are possessedof their right to goveri1 themselves in an inherent and permanent> manner •. their representatives are invested with power which exists in. the people, bl)t in a vicarious manner('). ·

( 1) Willoughby, "The Nature of the State" (1928), p. 197. ·

... ( 2 ) See Merriam~ -"Histdry of the Theory f Sovereignty s1.nce Rosseau 7'° ( t900), 190-196. . . . . . . . . . ..

(') see Jacques Maritain, "Man and the State", p. 25. (') see J1cques Maritain, "Man and the State", pp. 134-135.

792 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.

Delegation does not imply a parting with powers of one wbc: grants the delegation but points rather to the conferring of an authority to do things which otherwise that person would have to do him- 'Sclf. It does not mean that the delegating person parts with the power in mch a way as to denude himself of his rights(').

I will assume that the people, by designating their representat!vt111 and by transmitting to them the power to amend the Constitution, did not lose or give up possession of their inherent constituent power. (There was great controversy among the civilians in the Middle Ages whether, after the Roman people had transferred their authority to legislate to the emperor, they still retained it or could reclaim it(').

There is always a distinction between the possession of a right nr power and the exercise of it It was in the exercise of the constituent -power that the people framed the Constitution and invested the Amending llocly with the power to amend the very instrument they -created with a super-added power to amend that very power. Th'

instrument they created, by neces>ary implication, limits the further exercise of the power by them, though not the possession of it. The Constitution, when it exists, is supreme over the people and, as the people have voluntarily excluded themselves from any direct or immediate participation in the process of making amendment to it, :>nd have directly place,! that power in their representative.< without reser. vation, it is difficult to understand how the people can juridically resume the power to continue to exercise it('). It would be absurd to think that there can be two bodies for doing the same thing under the Constitution. It would be most incongruous to incorporate in the Constitution a provision for its amendment, if the constituent power to amend can also be exercised at the same time hv the mass of the people, apart from the marhinery provided for tl{e amendment: In other words, the people having delegated the power of amendment, tliat power cannot be exercised in any way other tbn that perscribed nor by any instrumentality other than that designated for that purpose by the Constitution. There ore many constitutions which provide for active participation of the people in the mechanism for amendment either by way of initiative or referendum as in Switzerland, Australia and Eire. But, in our Constitution, there is no provision for any such popular device and the pflwer of amendment is vested only in the Amending Body. --------

( 1) See Huth v. Clarke (1890) 25 Q.B.D. 391, 395; also John Willis, "De/egatus non potest delegare", 21 Candian Bar Revic\v, p. '!.57.

( 2) Sec Carlyle, "A History of Medieval Political Theory in the West" Vol. VI, pp. 514-515.

(") See Dodge v. Woolsey (1856) 18 How. 331, 348.

KESAVANANDA v. 'K£RALA (Mathew, J.) 793

It is said that "it is within the power ot the people who made the Constitution fo un-make it, tha.t it is the creature of their own will and exists only by their will('). This dictum has no diret reeva?-cy on the question of the power of the people to amend the Const1tut1on.

It only echoes the philosophy of John Locke that people have the political right to revolution in certain circumstances and to frame a constitution in the exercise of their revolutionary constituent power.

When the French political philosophers said that the nation alone possesses the constituent power, and an authority set up by a constitution created by the nation has no constituent power apart from a power to amend that instrument within the lines •originally adopted by the people, what is meant is that the nation cannot part with the constituent power, but only the powt: to amend the constitution within the original scheme of the constitution in minor details.

Some jurists refer to these two powers, namely, the "constituent power" and the "amending power" as distinct. According to Carl J.

Friedrich, the constituent power is the power which seeks to establish a constitution which, \n the exact senst', is to be understood the de.

facto residuary power of a not inconsiderable' part of the community to change or replace an established order by a new constitution.

The constituent power is the power exercised in establishing a constitm:ion, that is the fundamental decision on revolutionary measures for the organisation and limitation of a new government. From thio constituent power must be distinguished the amending power which. changes an existing constitution in form provided by the constitution itself, for the amending power is itself a constituted authority.

And he further points out tlm in French Constitutional Law the expression pouvoir constituant is often used to describe the 'amending

athority' as well a\ the constituent power, but the expression con st1tuent power used by him is not identical with tlie pouvoir consti- Hlant of the French Constitutional Law("). It is, however, unnecessary to enter this arid tract of whau Lincoln called 'pcrnicioljs abstraction' where no green things grow, or resolve the metaphysical n:icetieJ, for under our Constitution, there is no scope for the constituent pow.::r of amendment being exercised by the people after they hav~ delegated power of amendment to the Amending Body.

To what purpose did that instrument gie the Amending llody the power to amend the amending power itself, unless it be to confer plenary power upon the Amending Body to amend all or any of the provisions of the Constitution?

It is no doubt tru•! tliat some German thinkers,

( 1) See Cohens v. Virginia, 6 Wheat (19 U.S.) 264, 381. (') See Carl J. Friedrich, "Constitutional Government and Politics" (1937),. pp. 113, 118, 162 & 521.

794 SUPREME COURT llEPOllTS [ 1973] Supp. s.c.1.

by c1vay of protest against indiscriminate use of the amending power under the Weimar Constitution of Germany, asserted that the power of amendment is confined to alteration within the constitutional text

and th; it it cannot be used to change the basic strucnure of the constitutiup. But, as I said, to say that a nation can still exercise unlimited

conrituent power after having framed a constitution vesting plenary powo:r of amendment under it in a separate body, is only to say 1ha1 the people have the political power to ch; inge the existing order by meam of a revolution. But this doctrine cannot be advanced to place implied limitations upon the amending power provided in a writtc11 constitution.

It is, therefore, only in a 1evolntionary sense that one can distini. uish between constituent power and amending power. It is based on the assumption that the constituent power cannot be brought within die frnmework of the Constitution. "To be sure, the amending power is set up in the hope of anticipating a revolution by legal change and, therefore, as an additional restraint upon the existing government. But should the amending power fail to work, the con .. stituent power may emerge at the critical point" (1). The proposition that an unlimited amending authority cannot make any basic change and that the basic change can be made only by a revolution is some

thing extra•legal that no Court can countenance it. In other words, speaking in conventional phraseology, the real sovereign, the hundred per cent sovereign-the people-'-Can frame a constitution, but that sov-ereign can come into existence thereafter unless otherwise provided, only by revolution. ltj exhausts itself by creation of minor anci les.l!Cr sovereigns who can give any command. And, under the Indian Constitution, the original sovereign-the people-created, by the amendiug clause of the Constitution, a lesser sovereign, almost coextensive in power witp itself. This sovereign,- the one established by the revolutionary act of the full or complete sovereign ms been called by Max Radin the "pro-sovereign", the holder of the amending power under the constitution. The hundred per cent sovereign is established only by revolution and he can come into being again only by another revolution("). As Wheare dearly puts it, once the co11stitution is enacted, even when it has been submitted to the people for approval, it binds tlhereafter, not only the institutions which it establishes, but also the people themselves. They may amend the constitution, if at all, only by the method which the constitution itself provides('). Tllis is illustrated also in the case of the sovereign

( 1) Sec Carl J. Friedrich, "Constitutional Government and Democracy" (1950), p. 130.

( 2 ) See Max Radin, "Intermittent Sovereign", 39 Yale Law Journal, 514. (') See Wheare, "Modern Constitutions" (1966), p. 62.

KESAVANANDA ti. KERALA (Mathetu, J.) 795

power of the people to make laws. When once a constitution. is .

framed and the power of legislation which appertains to the people is transferred or delegated to an organ constituted under the consti-. tution, the people cannot thereafter exercise that yower •. ''The legal assumption that sovereignty is ultimately vested in the people affords no legal basis, for the direct exercise by the people of any sovereign ; power, whose direct exercise by them has not been express! y or impliedly reserved.· Thus the people possess the power of legislating directly only if their. constitution so provide:;"(1)

It is said that although the Constitution does not provide for participation of the people in the process of amendment,· there is nothing in the Constitution which prohibits the passing of a law under the residuary entry 97 of List I of the Seventh Schedule for convoking a constituent assemblv for ascertaining the will of the people in the matter of amendment of Fundamental Rights. Hoar says; "The whole people in their sovereign capacity, acting through the forms of law at a regular election, may do what they will with their own frame of government, even though that frame of government does not express! v permit such action, and even though the frame of government attempts to prohib'it such action"(2). Again, he says: ''Thus we come back to the fact that all coventions are valid if called by the people speaking through the electorate at a regular election. This is true regardless of whether the constitution attempts to prohibit or authorize them, or is merely silent on the subject. Their validity rests not upon . constitutional provisions, nor upon legislative act, but upon the fundamental

soverei'{ntv of the people themselves"('). A5 to this I think the an<wer given by Willoughby is sufficient. He said: ''The position has been quite consistently taken that constitutional amendments or new constitutions adopted in modes not provided for by the existing constitutions cannot be recognized as legally valid unless they have received the formal approval of the old existing go.vernment. Thus, in the case of the State of Rhode Island, the old constitution of which contained no provision for its own amendment, the President of the United States refused to recognize de jure a government estabilshed under a new constitution which, without the approval of the old government, had been drawn up and adopted by a majority of the adult male citizens

of that State. But, when, somewhat later, a new constitution wa< 2dopted in accordance with provisions which the old government laid down and approved, it was, and has since been held a valid instrument both

(') See Rottsehaefer on Constitutional Law (1939), p. s;

( 2 ) Hoar ''Constitutional Convention: Their Nature, Power and Limitations'~, p. 115.

( 3 ) Hoor, uconstitutional Convention: Their Nature, Power and Limitations", p. 52.

796 suPllEME coukT ru; pORTS [ 1973] Supp. s.c.R.

by the people of the State and by he National Government of thC' U'nited States"(').

' I think it might be open to the Amending Body to amend article 368 itself and provide for referendum or any other method for ascertaining the will of the people in the matter of amendment of Fundamental Rights or any other provision of the C\Jnstitution. If the basic and essential features of the Constitution can be changed only by the. people, and not by a constituted authority like the Amending Body, was it open to the Amending Body, or, would it be open to the Amending Body today to amend article 368 -in such a way as to invest the people with that power to be exercised by referendum or any other popular device ? If counsel for the petitioner is right in his submission that the power to amend the amending power is limited, this cannot be done, for the Constitution would lose its identity by making such a radical change in the constitution of the Amending Body, and, therefore, there would be implied limitation upon the power to amend the amending power in such a way as to cllange the locus of the power to amend from the Amending Body as constituted to any other body including the people. The result is tha~ ex-hypothesi, under article 368 there was, or is, no power to amend the Fundamental Rights and the other essential or basic features in such a way as to destro~ or damage their essence or core. Nor can the article be amended in such a way as to invest the people-the legal sovereign according to counsel for the petitioner-with power to do it. This seems to me to be an impossible position.

Counsel for the petitioner submitted that the preamble to the Constitution would operate as an implied limitation upon the power of amendme_nt, that the preamble sets out the great objectives of the people in establishing the constitution, that it envisages a sovereign democratic repubfic with justice, social, economic and political, liberty of thought, belief and expression, equality of status and opportunity and fratelpity as its fulcrums and that no succeeding generation can amena the provisions of the Constitution in such a way as to radically alter or modify the basic features of that form of government or the great objectives of the people in establishing the Constitution. Counsel said that the preamble cannot be amended as preamble is not a part of the Constitution, and so, no amendment can he made in any provision of the Constitution which would destroy or damage the basic form of government or the great objectives. The proceedings in the Constitutent Assembly make it clear that the preamble was put to vote by a motion which stated that the "preaq>ble

( 1 ) Willoughby, "The Fundamental Concepts of Public Law", p. 96.

KESAVANANDA v. KERALA (Mathew, J.) 797

stands part of the Constitution" and the motion was adopted(').

Article 394 of the Constitution would show that the preamble, being a part of the provisions of the Constitution, came into operation on the 26th of January, 1950, not having been explicitly stated in the article that it came into force earlier. And there seems to be no valid . reason why the preamble, being a part o£ the Constitution, cannot be

amended.

A preamble, as Dr. Wynes said, represents, at the most only an intention which an Act seeks to effect: and it is a recital of a present intention('). In the Berubari Case(') it was argued that the preamble to the Constitution clearly postulates that like the democratic republican form of government, the entire territory of India is beyond the reach of Parliament and cannot be affected either by ordinary legislation or even by constitutional amendment, but the Court said:

"it is not easy to accept the assumption that the first part of the preamble postulates a very serious limitation on one of the very important attributes of sovereignty itself". This case directly negatived any limitation of what is generally regarded a necessary and essential attribute of soereignty on the basis of the objectives enshrined in the preamble.

Story's view of the function of the preamble, that it is a key to open the mind of the makers, as to the mischiefs which are to be remedied and the objects which are to be accomplished by the provisions of the Act or a constitution is not in dispute. There is also no dispute that a preamble cannot confer any power per se or enlarge the limit of any power expressly given nor can it be the source of implied power. Nor is it necessary to join issue on the proposition that in case of ambiguity of the enacting part, an unambiguous preamble may furnlsh aid to the interpretation of the enacting part.

The broad concepts of justice, social, economic and political, equa-- lity and liberty thrown large upon the canvas of the preamble as. eternal verities are mere moral adjurations with only that content which each generation must pour intlO them a new in the light of its own experience. "An independent judiciary cannot seek to fill them from its own bosom as, if it were to do so, in the end it will cease to be independent. "And its independence will be well lost, for that bosom is not ample enough for the hopes and fears of all sorts and

, ( 1) See the proceedings of the Constituent Assembly dated October 17, 1949, c:6nstituent Assembly Debates, Vol. X, p. 429.

( 2) See Wynes,

111.egislativc, Executive and Judicial Powers in l\ustra!ia•,. (4th ed., p. 506).

(') [1960] 3 s.C.R. 250, 281-282.

51-36 S. C. India/73

798 SUPREME COURT REPORTS (1973] Supp. s.c.R.

conditions of men, nor will its answers be theirs. It must be content to stand aside from these fateful battles as to what these concepts mean and leave it to the representatives of the people(').

To Hans Kelsen, justice is an irrational ideal, and regarded from the point of rational cognition, he thinks there are only interests and hence confilct of interest. Their solution, according to him, can ho brought about by an Order that satislies one interest , at the expense of the other or seeks to achieve a cotnpron; llse between opposing interests('). Allen said that the term "social jwtice" has no definite content that it means different things to different persons('). Of 1'1berty, Abraham Lincoln said, that the world never has had a good definition of it. The concept of equality appears to many to be a myth and they say that if the concept is to have any meaniJtg in social and economic sphere the State must discriminate in order to make men equal who are otherwise unequal. It does not follow tliat because these .concepts have no definite contours. They do not exist, for, it is a perennial fallacy to think that because something cannot be cut and dried or nicely weighed or measured, therefore it .!oes not exist(').

But for a counuy strugglipg to build up a social order for freeifig its teeming millions from the yoke of proverty and destitution, the preamble cannot afford any clue as to the priority value of these concepts inter se. Justice Johnson, wjth one of his flashes of insight, called the science of government "the science of experiment"(').

And for making the experiment for building up the social ()lfder wruch

the downant opi.n.ioo. of tl_ie community desires, these Delphic concepts can offer no solution in respect of thei.r priority value as among themselves. They offer no guide in. what proportion should each. of them <:ontribute, or which of them should suffer subordination or enjoy dominance in that social order. How then can one of them operate as implied limitation upon the power of amendment when the object <>f the amendment is to give priority value to the other or others?

Mr. Palkhivala in elaborating his submission on implied limitations said that in a constitutibn like ours there are other essential features besides the Fundamental Rights, namely, the sovereignty and integrity of India, the people's right to vote and elect their representatives to Parliament or State legislatures, i:he republican form of

( 1) See Learned Hand, "The Spirit of Liberty'', ~· 125.

( 2) See Kelson, "General Theory of Law and State" (1946), p. 13.

( 8) Allen, "Aspects of Justice", p. 31, '(') See Lord Reid in Ridge v. Baldwin; (1964) A.C. 40, 64. '(') See Anderson v. Dunn, 6 '.Wheat 2(1.t: 266 U.S. 1821.

KESAVANANDA fl, KE!l"LA (Mathew, J.) 799

government, the secular State, free and independent judiciary, dual structure of the Union, separation of the executive, legislative and judicial powers, and so on, and for changing these essential features, the Parliament being a constituted :ruthority, has no power.

Whenever the question of implied limitation upon the power of amendment was raised in the U.S.A. the Supreme Court has not countenanced the contention.

1n Leser v. Garnett(") the U.S. Supreme Court upheld the validity of the 19th Amendment, rejecting the contention that the pow¢r of amendjllent conferred by the federal constitution did not extend to that amendment because of itscharacter'"" as so great an addition to the electorate, if made without the State's consent, destroys it1

autonomy as a political body""· In U.S. fl. Sprague('), the Suprem~ Court rejected the contention that an amendment, conferring on the.

United States, power over individuals, should be ratified in conventions instead of by State Legislatures. The argument before the Court was that although Congress has absolute discretion to choose the one or the other mode of ratification, , there. was an implied limitation upon that discretion when rights of individuals would be directly affected and that in such a case the amendment must be ratified by convention. The Court said that there was lio limitation upon the absolute discretion of the Congress to have the amendment ratified either by conventions or State legislatures. In. the National Prohibition Cases(") which upheld the validity of the 18th Amendment to the United States Constitution, the Supreme Court brushed aside the argument that there arc implied limitations upon the power of amendment.

Although the majority judgment gave no reasons for its conclusion, it is permissible to look at the elaborate briefs filed by counsel in the several cases and oral arguments in order to understand what was argued and what was decided('). The arguments advanced in National Prohibition Ca.1es(') before the Supreme Court were that an amendment is an alteration or improvement of that which is already contained in the Constitution, that the Amendment was really in the nature of a legislation acting directly upon the rights of individual, that since the Constitution contemplated an indestructible Union of States, any attempt to change the fundamental basis of the Union

( 1) 258 U.S. 130.

••Emphasis added.

( 1) 282 U.S. 716.

( 8 ) See Rhode Island v. Palmer, 253 U.S. 350. (') See U.S. v. Sprague, 282, u.s. 7Hi, '733.

800 SUPREME COURT REPORTS [1973] Supp. S.C.R.

was beyond the power delegated to the amending body by article V and that the Amendment invaded the police power which inheres in the State for protection of health, safety and morals of their inhabitants. The only inference to be drawn from the Court upholding the validity of the Amendment is that the Court did not countenance any of the arguments advanced in the case.

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 be deprived of its equal suffrage in the Senate. This means that by action of two-third of both Houses of Congress and of the legislatures in three-fourth of the States, all the powers of the national government could be surrendered to the State an\! all the reserved powers of the States could be transferred to the . Federal Government(').

Dodd, speaking about the effect of the decision of the Supreme CoUrt in National Prohibition Cases(') said that the CoUrt has necessarily rejected substantially all of the arguments presented in favour of the implied limitations upon the. amending power, althoogh this statement does not necessarily go to the extent of denying all limitation other than those clearly expressed in the constitutional language itself(').

"Article Five of Constitution prohibits any amendment by which any State "without its consent shall be deprived of its equal suffrage in "the Senate". Beyond this there appears to be no limit to the powef of amendment. This, at any rate is the result of the decision in the so-called National Prohibition Cases"(').

In Schneiderman v. U. S.(") Justice Murphy, after referring to National Prohibition Cases said that article V contains procedural provisions for constitutional change by amendment without any present limitation whatsoever except that relating to equal suffrage in the Senate.

In U. S. v. Dennis(") Learned Hand was of the opinion that any amendment to . Constitution passed in conformity with the provision

(') See Rhode Island v. Palmer, 253 U.S. 350.

( 2) See Burdick, "The Law of the American Constitution", pp. 44-49. (') See 30 Yale Law Journal 329. (') See Thomas M. Colley, "The General Principles of Constitutional Law in the U.S.A.", 4th ed., pp. 46-47 •.

(•) 320 U.S. 118, 137-145. (') 183 Federal Reporter 2d., 20!,

KESAVANANDA v. KERALA (Mathew, J.) 801

in Constitution relating to amendments is as valid as though the amendment had been originally incorporated in it, subject to. the excepriPn that no State shall be denied its equal suffrage in the Senate.

The latest authority is the obiter dictum of Douglas, J. for the majority of the Supreme Court in Whitehill v. Elkins('):

"If the Federal Constitution is our guide, a person who might wish to ·"alter" our form of government may not be cast into the outer darkness. For the Constitution prescribes the method of 'alteration' by the amending process in Article V; and while the procedure for amending it is restricted, there is no restraint on the kind of amendment that may be offered."

Perceptive writers on the Constitution of the U.S.A. have also taken the view that there are no implied limitations whatever upon the power of amendment, that an amendment can change the dual form of government or the Bill of Rights and that the framers of the Constitution did not intend to make an unalterable framework .of Government in which only the minor details could be changed by amendment(').

In Ryan's Case('), the Supreme Court of Ireland has occasion to discuss and decide two questions: (I) the meaning to be given to the word 'amendment' in article 50 of the Irish Constitution which provided for the amendment of the Constitution and (2) whether there arc any implications to be dra.vn from the Constitution which would cut down the scope of the amendment which could be made under article 50. I have already dealt with the decision in the case with

respect to the first point.

( 1) (1967) 389 U.S. 54, 57.

( 2 ) See Willis, "Constitutional Law" (1936), pp. 123-124; Orfield, "The Amending of the Federal Constitution" (1942), p. 99; Livingstone, "Federalism and Constitutional Change" (1956), pp. 240 241;

Rottsch3eferi HConstitutional Law", pp. 8-9; John W. Burgess, "Political Science and Comparative Constitutional Law'', \'ol. I, p. 153; Colley, "Constitutional Limitations", pp. 41-43; D. 0. 1vfcGovney, "Is the Eighteenth Amendment Void Because of Its Contents ", Columbia Law Revie\v, Vol. 20, May 1920 No. 5; \V. F. Dodd, "Amending the Federal Constitution'', 30 Yale Law Journal 329; W. W. Willoughby, "Constitutional Law of the United States", 2nd ed., Vol. I, 598. (') [1935] Irish Reports, 170.

802 SUPREME COURT REPORTS [1973] Supp. s.c.R.

& regards the second point, Kennedy, C.J. was of the opinio~ that there were certain implied limitations upon the power of amendment while the other two learned judges held that there were no such limitations. However, it is not necessary to deal with the suggested implied limitations relied on by the learned Chief Justice in the light of his observation: "the only argument advanced in support of this position is that the power to amend the Constitution gives power ' to amend the power itself. It certainly does not say so. One would ex. pect (if it were so intended) that the power would express that intention by the insertion of a provision to that efft by some sucli words as "including amendment of thls power of amendment", but no such intention is expressed and there is nothing. from which it can be implied". There might be some justification for the view of Kenneqy, C. J. that "power of amending a constitution is something outside and collateral to the constitution itself' and that unless there is express power to amend the amending power, the amending power cannot be enlarged. Alf Ross, the Scandinavian Jurist, has said that in the United States the highest authority is the constituent power

constituted by .the rules in article V of the Constitution. These rules embody the highest ideological presupposition of the American Law system. But they cannot be regarded as enacted by any authority and they cannot be amended by any authority. Any amendment of article V of the constitution which, in fact, is carried out, is an a-legal fact and not the creation of law by way of procedure that has been instituted('). Now, whereas article 50 of the Irish Con stitution did not contain any power to amend that article, proviso ( e ), of article 368 makes it clear that article 368 itself can be amended and so, the whole line of the reasoning of Kennedy, C. J. has ne> relevance for oor purpose. It is interesting to note that in Moore v.

Attorney General for the Irish State(") where the constitutional amendment made by the Irish Parliament in 1933 (Amendment No ..

22) was challenged, Mr. Green conceded before the Privy Council that Amendment No. 16 of 1929 (the amendment challenged in Ryan's Case) was regular. The validity or otherwise of Amendment No. 16 was vital for the success of his client's case and the concession of counsel was, in their Lordship's view, "rightly" made.

The decision of the Privy Council in Liyanage v. the Queen(') was relied on by the petitioner to show that there can be implied limitation upon legislative power. The question for consideration in that case was whether Criminal Law (Special Provisions) Act No. 1 of 1%2 passed by Parliament of Ceylon was valid. The Act purported ex-post facto to create new offences and to alter the rules of

(') Alf Ross, "Law and Justice\ p. 81.

(2) (1935) A.C. 484.

( 8 ) (1967) I A.C. 259.

KESAVANANDA V. KERALA

0 (Mathew, J.) 803

evidence and the criminal procedure obtaining under the general law at the time of the co=ission of the offence and also to impose enhanced punishment. The appellants contended that the Act was passed to deal with the trial of the persons who partook in the abortive coup in question and the arguments before the Privy Council were that the Act of 1962 wa~ contrary to fundamental principles of justice in that it was directed against individuals, that it ex-post facto created crimes and their punishments, and that the Act was a legislative plan to secure the conviction of these individuls and this constituted an usurpation of the judicial power by the legislature.

The Privy Council rejected the contention that the powers of the Ceylon Legislature could be cut clown by reference to vague and uncertain expressions like fundamental principles of British Law, and said that although there are no express provisions in the Ceylon Constitution vesting judicial power in the judiciary, the judicial system in Ceylon has been established by the Charter of Justice of 1833, that the change of sovereignty did not produce any change in the functioning of the judicature, that under the provisions of the Ceylon Constitution there is a broad separation of powers and that, generally speaking, the legislature cannot exercise judicial power in spite of the difficulty occasionally felt to 'tell judicial power from legislative power •.

Even since the days when John Locke wrote his "Second Treatise on Civil Government"('), it was considered axiomatic that the legislative power does not include judicial power. And I think what the Privy Council said in effect was that the power to pass a law for peace, order, or good government under s. 29(1) of the Constitution of Ceylon would not take in a power to settle a controversy between Richard Doe and John Doe in respect of Black Acre and label it a law. It is a bit difficult to see how the doctorine of implied limitation has anything to do with the well understood principle that the power to pass law would not include judicial power(2).

Nor am I able to understand how the doctrine of implied limitations can draw any juice for its sustenance from the fact that President or Governor is bound to act according to the advice of the Council of Ministers, although the expression "aid and advise" taken by itself, would not denote any compulsion upon the President or Governor to act according to the advice. The expression, when it was transplanted into our Constitution from the English soil, had acquired a meaning and we cannot read it divested of that meaning.

(1) See the Chapter, "Of the Extent of Legislative Power."

( 2) As to the distinction between legislative power and judicial power, see the observation of Holmes in Prentis v. Atlantic Coatt Line Co., (1908), 211 U.S. 210.

804 SUPREME COURT REPORTS [1973] Supp. s.C.R.

The doctrine of implied limitation against the exercise of a power once ascertained in accordance with the rules of construction was rejected by the Privy Council in Web ti. Outrim(').

Counsel for the petitioner relied on certain Canadian Cases to support his proposition that there are implied limitations upon the

power of amendment. In Alberta Press Case(2 ) Chief Justice Sir Lyman P. Duff said that the British North America Act impliedly prohibits abrogation by provincial legislatures of certain important

civil liberties. He said that the reason was that the British North America Act requires the cablishmcnt of one Parliament for Canada and since the torm 'parliament' means, when interpreted in the light of the preamble's reference to "a construction similar in principle to that of the United Kingdom'', a legislative body cleted and functioning in an atmosphere of free speech, and that a legislation abrogating freedom of speech in a particular province would be an interference with the character of the federal parliament, and therefore, ultra vires the provincial legislature. This dictum logically involves a restriction of the powers of the dominion parliament also as was pointed out by Abbott, J. in the Padlock Law case('). In that case he expressed the view, although it was not necessary so to decide, that parliament itself could not abrogate the right of discussion and debate since the provisions of the British North America Act are as binding on Parliament as on the provincial legislatures. ·

In Saumur v. City Quebec(') the preamble of the British North America Act was referred to as supporting the constitutional requirt'- inent of the religious freedom especially by Rand, J. The basic issue in that case was whether or not the Provinces had legislative authority to enact law in relation to the religious freedom, and whether the city of Quebec was justified by one of its bye-laws under a Provincial Act from prohibiting the distribution of bookaets etc. in the streets without the written permission of the Chief of Police. The petitioner, a member of Jehovah's Witnesses contended that the right to distribute booklets was guaranteed by the statement in the preamble to the British North America Act and that freedom of religion was secured by the Constitution of the United Kingdom, and that fundamental principles of that Constitution were made a part of the Canadian Constitution by implication of the preamble and accordingly the impugned Quebac bye-law was null and void. This contention was rejected by a majority of the Court. Rinfret, C.J.C., Taschereau, J.

( 1) (1907) A.C. 81 (P.C.).

( 2) (1938) 2 D.L.R. 81. (') See Switzman v. Elbling, (1957) 7 D.L.R. 337.

(') [1953] 4 D.L.R. 641.

KESAVANANDA v. KERALA (Mathew, J.) 805

concurring, stated that the Privy Council, on several occasions had , declared that powers distributed between Parliament and the Legislatures covered absolutely all the powers which Canada could exercise as a political entity. Kerwin, J. stated that the British North America Act effected a complete division of legislative powers, Cartwright, J. (Fauteux, J. concurJing) went even further: He said that there were no rights possessed.by the citizens of Canada which could not be modified by either Parliament or the Legislatures of the Provinces. Rand, J. found some support in the preamble for freedom of speech, but did not mention freedom of religion in this context. Estey and Locke, JJ. assume that any topic of internal self-government was withheld from derived from it.

It should be noted the view that neither the provinces nor the dominion Parliament could legislate on civil liberties so as to affect them adversely is contrary to the view of the Privy Council that no topic of internal self-Government was withheld from Canada. "It would be subversive of the entire scheme and policy of the Act to assume that any topic of internal self-government was withheld from 'Canada(').

The main objection however to the proposition that the British North America Act contains an implied bill of rights is that it is inconsistent with the doctrine of parliamentary supremacy. If the "Constitution is similar in principle to that of Great Britain, it must follow that the legislature is supreme as that is the fundamental law '()f the British Constitution. Therefore, no subject would be beyond the legislative competence of both parliament and provincial legislatures. Whether there are any implied limitations upon the power 'Of parliament or not, it is clear that the dictum of Abbott, J. in Swit7~

man's case is based on no high authority as there is nothing in the 'British North America Act to indicate that civil liberties are beyond the legislative reach of the parliament and the provincial legislatures. 'There was no express guarantee of civil liberties in the British North America Act, nothing comparable to the Bill of Rights in the American Constitution or to the Fi:damental Rights under our Comtitu- tion.

It is, however, impossible to see the relevance of these dicta so far as the interpretation of article 368 is concerned as none of these cases are cases relating to implied limitation on the power of amendment of any constitution. They are cases on the legislative competence of legislatures to affect civil liberties. The Canadian BiU of Rights.

19~0, makes it clear that parliament of Canada can dispense with the

(') A.G. Ontario v. A. G. Canada, [1912] A.C. 571.

806 SUPREME COURT REPORTS (1973] Supp. s.c.R.

application of the Canadian Bill of Rights in respect of any legislation which it thinks proper. Section 2 of the Canadian Bill of Rights provides:

"2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared and in particular, -no.

law of Canada shall be construed or applied so as to .... "

Nor is there anything in the actual decision of the Privy Council in Re the lnhiatfre and Referendum Act(') to show that there are implied limitations upon the power to amend any provision of the Constitution. The only point decided in that case was that in the absence of clear and unmistakable language ln s. 92(1) of th<; British North America Act, 1867, the power of the Crown possessed through a person directly responsible to the Crown cannot be abrogated. That was because s. 92(1) provides for an express exception to the power of amendment and that the Act in question, on a true construction of it, fell within the exception. The case is an authority only as to the true meaning of the expression "excepting as regards the office of Lieutlenant Governor" in s. 92(1) of the aforesaid Act. I am not concerned with the obiter dictum of Lord Haldane to the effect that a provincial legislature cannot "create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence".

However, it is relevant in this context to refer to the comment of Bora Laskin on the obiter dictum of Lord Haldane in the above case: "This oft-quoted passage remains more a counsel of caution than a

constitutional limitation". He then read the above passage and continued : "This proposition has in no way affected the widest kind of delegation by Parliament and by a provincial legislature to agencies of their own creation or under their control; see Reference re Regulations (Chemicals.) (1943) 1 D.L.R. 248; Shannon

v. Lower Mainland Dairy Products Board (1938) A.C. 708(').

Reference was made by counsel for the petitioner to Taylor v. Attorney General of Queensland(1 ) as authaity for the proposition that power of amendment can be subject to implied limitation. The questiom.

(1) [1919] A.C. 935, 945.

(2) See Canadian Bar Review, Vl. XXXIV (1956), footnote on p. 219 .. (') 23 C.LR. 45i.

KESAVANANDA v. KERALA (Mathew, J.) 807

which the Court had to consider in the case were: (1) Was the Parlia...

mentary Bills Referendum Act of 1908 a valid and effective Act of Parliltment? and (2) Was there power to abolish the Legislative Concil of Queensland by an Act passed in accordance with the provisions of the Parliamentary Bills Referendum Act of 1908? These Acts did not alter the 'representative' character of the Legislature as defined in s. 1 of the Colonial Laws Validity Act, 1865, nor did they affect the position of the Crown. Therefore, the question whether the representative character of the Legislature could be changed, or the Crown eliminated did not call for decision. This will be clear from the observations of Gavan Duffy and Rich, JJ. at p. 477.

The judgment of Issacs, J. shows that the opinion expressed by him as regards the "representative" character of the legislature is based on the meaning to be given to the expression 'constitution of such legislature' on a true construction of s. 5 of the OOOonial Laws Validity Act.

Issacs, J. held that the word 'legislature' did not include the Crown.

Having reached this conclusion on the express language of the Colonial Laws Validity Act, he made the observation:

''When power is given to a colonial legislature to alter the Constitution of the legislature, that must be read subject to the fundamen ta! conception that consistently with the very nature of our Constitution as an Empire, the Crown is not included in the ambit of such power".

These observations arc made in the context of the provisions of the Colonial Laws Validity Act where a "colony" is defined to include "all

of Her Majesty's possessions abroad in which there shall exist a legislature as hereinafter defined, except the Channel Islands, the Isle of Man".

The observation of Issacs, J. can ooly mean that when power to alter the Constitution of the legislature is conferred upon a colony which is a part of Her Majesty's possessions abroad (the Empire), it is reasonable to assume that such power did not include the power to eliminate the Queen as a part of a colonial legislature. It is to be noted that Issacs, J. had arrived at that conclusion on the true construction of the Colonial Laws Validity Act, namely, that the word 'legislature' did not include the Crown.

Mangal Singh v. Union of lndia,(1) was also relied on as authority for the proposition that the power of amendment is subject to implied limit.lion. The only question which was considered in the case was that when by a law made under article 4 of the Constitution, a


808 SUPREME COURT REPORTS [1973] Supp. s.c.R.

Sta~ was formed. that State should have the legislative, executive and judidal organs; the Court said:

" •..... Power with which the Parliament is invested by article 2 al)d 3, is power to admit, establish, or form new Stattcs which con form to the democratic pattern envisaged by the Constitution; and the power which the Parliament may cli:ercise by law is supplemental, incidental or consequential to the admission establishment or formation of a State as contemplated by the Constitution, and not power to override the constitutional scheme. No State can therefore be formed, admitted, or set up by law under article 4 by the Parliament which has not effective legislative, executive and judicial organs".(').

I am unable to understand how this case lends any assistance to the petitioner for it is impossible to imagine a modern State without these organs.

Section 128 of the Australian Constitution Act provides for alteration of that Constitution. There arc certain restrictions upon the power

of amendment. W c are not concerned with the controversy whether those restrictions can be taken away in the exercise of the power of amendment, as proviso(e) of article 368 makes it clear that the amenr ding power itself can be amended. Leading writers on the Constitution of Australia have taken the view that there arc no other limitations upon the power ot alteration and that all the provisions of the constitution can be amended(').

Reference was made to the case of Victoria v. Commonwealth(8} in suppon of the proposition that there are implied limitations upon the power o.f Commonwealth Parliament in Australia and therefore, there could be implied limitation upon the power of amendment. The pay roll tax imposed by the Pay Roll Tax Act, 1941 (Com.) was, according to the Pay Roll Tax Assessment Act, 194J-69, to be levied and paid or payable by any employer. Section 3(1) of the Pay Roll Tax Assessment Act defined 'employer' to include


 ( 2) See A. P. Canaway, K. C., "The Safety Valve of the commonwealth Constitution'', Australian Law Journal, vol. 12, (1938-39), p. 108 at 109; A. P. Canaway, K. C. (N.S.W.), ''The Failure of the Federalism in Australia", Appendix: Power to Alter the Constit\).tion, A Joint Legal Opinion, p. 211; John Quick and Robert Randolph Garran, "Annotat<d Constitution of the Australian Commonwealth", pp. 988-9; W. Anstey Wynes, ''Legislative, Executive and Judicial Powers in Australia", Third Ed. pp. 695.698; Colin Howard, "Australian Federal Constitutional Law" (1968).

( 3) 45 Australian Law Journal 251.

KESAVANANDA v. KERALA (Mathew, J.) 809

the Crown, in the right of a State. The State of Victoria sought declaration that it was beyond the legislative competence of the Commonwealth to levy tax on wages paid by the Crown in the right of the

State to officers and employees in the various departments. Menzies, Windeyer, Walsh and Gibbs, JJ. held that there was implied limitation on Commonwealth legislative power under the Constitution, but the Act did not offend such limitation. Barwich, C. J. and Owen, J. held that a law which in substance takes a State or its powers or functions of government as its subject matter is invalid because it cannot be sup. ported upon any granted legislati.ve power, but there is no implied limitation on Commonwealth legislative power under the Constitution

arising from the federal nature of the Constitution. McTiernan, J. held that there was no necessary implication restraining the Commonwealth from making the law.

As to the general principle that non-discriminatory laws of the Commonwealth may be invaHd in so far as they interfere with the performance by the States of their constitutional functions, it must be noted that that is not claimed to rest on any reservation made in the Engineers' Case(') itself tOi the general principle it advanced. It must also be noted that Menzies, Walsh and Gibbs, JJ. were not prepared to formulate the proposition as a single test in precise and comprehensive terms and that tihey were alive to the great difficulties which would be encountered in the formulation.

If there are difficulties in formulating an appropriate test, is it not legitimate to ask whether the proposed principle is one that is capable of formulation? Is it not legitimate to ask whether there is a judicially manageable set of criteria available by which the proposed general principle may be formulated? The theory of the implied limitation propounded might invite the comment that "it is an interpretation of the Constitution depending on an implication which is formed on a vague, individual conception of the spirit of the compact". It is difficult to

state in clear terms from the judgments of these judges as to what kind of legislative action by the O>mmonwcalth will he invalid because of the application of the general principle.

The stated purpose of the general principle is to protect the continued existence and .independence of the States. Po the judgments of Menzies, Walsh .and Gibbs, JJ. disclose any reason why that existence and independence of the States will be threatened in the absence of the implied general principle?

~ 1 ) Amalgamated Society. of Enginem v. Adelaide Steamship Co. LtJ,

(1920) 28 C.LJt 129.

810 SUPREME COURT REPORTS [1973] Supp. s.c.R.

Windeyer, J.'s judgment is a little uncertain. He said that once a law imposes a tax it is a law with respect to taxation and that if it is invalid it must be for reasons that rest on other constitutional prohibitions, e.g., an implied prohibition on a tax discriminating against a State. However, many cases arise in which competing possible characterizations of a Commonwealth law are possible; on one characterization it is valid, on another it is invalid. The Courts, when faced with competing possible characterizations, may not hold law valid because one possible characterization is that the law is with respect to one of the enumerated heads of legislative power.

Windeyer, J. said that° a law of the Commonwealth which is directed against the States to prevent their carrying out of their functions, while it may be with respect to an enumerated subject-matter, i~ not for the peace, order and good government of the Commonwealth.

The basic principle of construction which was definitely enunciated by the Court was that adopted by Lord Selborne in Queen v. Burah(1).

The judges who took the view that there was implied limitation on the power of Commonwealth to aim their legislation against the State .did not differ in substance from the theory propounded by Barwick,

C.J. and Owen, J. who said that it is a question of lack of power as the legislation is not with respect to a subject within the power of taxation conferred by s. 51 of Australian Constitution (2).

I am unable to understand the relevancy of this decision. In a federal or quasi-federal State, the continued existence of the federated States, when the constitution exists, is a fundamental pre-supposition and the legislative power of the federal legislature cannot be exercised in such a way as to destroy their continued existence. But when we arc dealing with an amending power, is there any necessity to make that fundamental assumption? There might be some logic in implying limitation upon the legislative power of the federal legislature, as that power can be exercised only subject to the fundamental assumption underlying a federal state, namely, the continued existence of States. But what is its rclevanq when we arc dealing with implied limitation on the amending power, which is a power to .alter or change the constitution itself?

It is relevant in this connection to note ':he vicissitudes in the fortune of the doctrine of immunity d instrumentalities which was based .on the theory of implied prohibition. Marshal, C.J. said in McCulloch

( 1) [1878] 3 A.C. 889.

( 1) See generolly Falgenbaum and Hanko, "Australian Constitutional 4.,.. .(1972), pp. 576-580.

KESAVANANDA v. KERALA (Mathew, J.) 811

v. Maryland('). "The rule thus laid down was based upon the existence of an implied prohibition that, the Federal and State Governments respectively being sovereign and independent, each must be free from the control of the other; the doctrine was thus based upon the necessity supposed to arise in a federal system". The progressive retreat from the doctrine in its original form has been traced by Dixon, J. in Essendon Corporation v. Criterion Theatres( 2 ). He said:

"The shifting of judicial opinion shown in the foregoing formed a prelude to the decision of the Court in Graves v. New York 306

U.S. 466 where the Court thought it imperative to "consider anew the immunity .. for the salary of an employee of a Federal instrumentality (at p. 485) from State Income tax and decided that there should be no immunity". Frankfruter, J. remarked: "In this Court dissents have gradually become majority opinions and even before the present decision the rationale of the doctrine had been undermined" (at p. 491). This case marked the end of the old doctrine"

I would add that the theory of immunity of instrumentalities was definitely rejected by this Court in State of West Bengal v. Union of India(').

Mr. Palkhivala argued with considerable force that if there are no limitations upon the power of amendment, the consequences would be far reaching. He said that it will be open to the Parliament to prolong the period of its existence, to make India a satellite of a foreign country, do away with the Supreme Court and the High Courts, abolish the Parliamentary system of Government and take away the power of amendment or, at any rate, make the exercise of the power so difficult that no amendment would be possible. As I said there is no reason to think that the word 'amendment' was used in anv narrow sense in article 368 and that the power to amend under the article was in any way limited. If there is power, the fact that it might be abused is no ground for cutting down its width.

In Vacher and Sons v. London Society of Composittm(') Lord Atkinson said that it is well establishC!d that, in construing the words of a statute susceptible of more than one meaning, it is legitimate to consider the consequences which would result from any particular construction, for, as there are many things which the Legislature is presumed not to have intended to bring about, a construction which would not lead to any one of these things should be preferred to one

( 1) (1819) 4 Wheaten 316.

(') (1947) 74 C.L.R. 19-22.

( 8) A.l.R. 1963 S.C. 1241. (') (1913] A.C. 107, at p. 121 a: 118.

812 SUPREME COU1lT REPORTS [1973] Supp. s.c.R.

which would lead to one or more of. them. In the same case, Lord McNaughton said that a judicial tribunal has nothing to do with the policy of any Act and that the duty of the Court, and its only duty, is to expl>und the language of the Act in accordance with the settled rules of construction.

In Bank of Toronto v. LAmbe(1 ) bhe Privy Council was concerned with the question whether the Legislature of a Province could not levy a tax on capital stock of the Bank, as that power may be so exercised as to destroy the Bank altogether. The Privy C, ouncil said that if on a true construction of s. 92 of the British North America Act, the power fell within the ambit of the section, it would be quite wrong to deny its existence because by some possibility that it may be abused or may limit the rane which oclierwise would be open to the Dominion Parlia ment. The Privy Council observed that ''Their Lordships cannot conceive that whn the Imperial Parliament conferred wide powers of local self-government on great countries such as Quebec, it intcllded to limit them oil the speculation that they would be used in an injurious manner. People , who are trusted with the great power of making laws for property and civil rights may well be trusted to levy a tax".

In Ex-parte Crossman(") it was held that the presumption is that every organ of a State will act in coordination, that though one organ can, by its action, paralyse the functions of the other organs and make the constitution come to a standstill, yet no constitution proceeds on tm:

assumption that one organ will act in such a way as to defeat the action of the other.

Our Constitutidn, in its preamble has envisaged the establishment of a democratic sovereign ; epublli:. Democracy proceeds on the basic assumption that the rewesentativcs of the people in Parliament will reflect the will of the peaple and that they will not exercise their powers to be!ray the people or abuse the trust and confidence rcsposed in them by the people. Some of the great powers appertaining to the sovereignty of the State are vested in the representatives of the people. They hav( the power to declare war. They have power over coinage and currency.

These disaster-potential powers are insulated from judicial control. These powers, if they are imprudently, exercised, can bring about cons_equence• so extensive as to' carry down with them all else we value; War and inflation ave"released evil forces_ which have destroyed liberty. If these great powers could be entrusted to the representatives of the pcbple' in the hope and confidence that they will not. be abused, where is the warrant for the assumption that a plenary power. to amen~ will be

( 1 ) [1887] 12 A.C. 575, 586.

(') 267 U.S. 120,, 121.

llSAVANANDA ti, liRALA (Mathew, J.) 813

abused? The remedy of the people, if these powers are abused, is in the polling booth and the ballot box.

The contention that if the power to amend Fundamental Rights in such a way as to take away or abridge them were to vest in Parliament, it would bring about the catastrophic consequences apprehended by counsel has an air of unreality when tested in the light of our experience of what has happened between 1951 when Sankari Prasad's case(') recogni 0ed the power of the Parliament to amend the Fundamental Rights and 1967 when the Golknath Case(') was decided. It should be remembered in this connection that the Parliament when it exercises its power to amend Fundamental Rights is as much the guardian of the liberties of the people as the Courts.

If one of the tests to judge the essential features of the Constitution is the difficulty with which. those features can be amended, then it is clear that the features which are broadly described as "federal features"

contained in clauses (a) to (d) of the proviso to article 368 are essential features of the Constitution. The articles referred to in clause (a) to (d) deal with some of the essential features of the Constitution like the Union fudiciary, the High Courts, the legislative relation between the Union and the States, the conferment of the residual power and so on.

The power to amend the legislative lists would carry with it the power to transfer the residuary entry fmm the Union List to the State List.

This would also enable Parliament to increase iii; power by tran1ferring entries from the State List or Concurrent List to the Union List. The proviso to article 368 thus makes it clear that the Constitution-111akers

visualised the amendability of the essential features of the Constitution.

Mr. Palkhivala contended that Fundamental Rights are an essential feature of.the Constitution, that they are the rock upon which the Constitution is built, that, by and large, they are the extensions, combinations or permutations of the natural rights of life, liberty and. equality possessed by the people by virtue of the fact that they are human beings and thanhese rights were reserved by the people to themselves when they framed the Constitution and cannot be taken away or abridged by a constituted authority like Parliament. He said that the implied limitation stems from the character of those , rights as well as the nature oi the authority upon which the power is supposed to be con- .rerrcd.

On the other hand, the respondents submitted tfuit the people oc India have only such rights, as the Constitutii>ri conferred upon them, that before the Constitution came into force; they had no Fundamental

( 1) [1952] S.C.R. 89.

( 1) [1967) 2 S.c.R. 1Q. '2-36 S. C. Jndia/73

814 SUPREME COURT REPORTS [1973] Supp. s.c.R.

Rights, that the rights expressly conferred ui>on the people by Part III of the Constitution and that there is no provision in our Constitution like article 10 of the United States Constitution which reserved the rights of the people to themselves. They also said that the characterisation of Fundamenial Rights, as tran cendental, sacrosanct or promodilll in the sense that they are "not of today or yesterday but live eternally and none can date their birth" smacks of sentimentalism and is calculated to cloud the mind by an out-moded political philosophy, and would prevent a dispassionate analysis of the real issues in the case.

The question presented for decision sounds partly in the realm of political philosophy but that is no reason why the Court should not solve it, for, as De Tocqueville wrote: "scarcely any political question arises in the United States that is not resolved sooner or later into a judicial question"('). For the purpose of appreciating the argument of Mr. Palkhivala that there is inherent imitation on the power of Parliament to amend Fundamental Rights, it is necessary to understand the source from which these rights arise and the reason for their fundamentalness.

Let it be understood at the very outset that I mean by natural rights those rights which are appropriate to. man as a rational and moral being and which are necessary for a good life. Although called 'rights', they are not_per se enforceable in Courts unless recognized by the positive law of a State. I agree that the wbrd 'right' has to be reserved for those claims and privileges which are recognized and protected by law. But to identify rights with legally recognized rights is to render oneself helpless before the authoritarian state. Your rights, on this theory, arc precisely those which the State provides you and no more. To say that you have rights which the State ought to recognize is, from this point of view, a plain misuse of the language. "However, from the point of view of the Declaration of Independence, to recognize the existence of rights prior to and independent of political enactment, is the beginning of political wisdom. if the governments are established to 'secure these rights', the pre-existence of these rights is the whole basis of the political theory''('). The preamble to our Constitution shows that it was to 'secure' these rights that the Constitution was established, and that, by and large, the Fundamental Rightt< are a recognition of the pre-existing natural rights. "They owe nothing to their re- ' cognition in the Constitution-such recognition was necessary if the Constitution was to be regarded complete"(').

( 1) See &Tocqueville, "Democracy in America" (19-48), Bradly ed. 'p. 280.

( 2)' See 'Hotking, ''Ftted6in of the Pre11", footnote at p. 59. (') See Corwin "The Higher Background of the American Constitutional Law"., p. 5,

KESAVANANDA f/, KERALA (Mathew, J.) 815

The philisophical foundation of the rights of man is natural law and the history of rights of man is bound up with the history of natural law('). That law is deduced not from any speculative void but from the general condition of mankind in society. According ro St. Thomas Aquinas the order of the precepts of the natural law follows the order of natural inclinations, because, in man there is first of all an inclination to good in accordance with the nature which he has in common with all substances in as much as every substance seeks the preservation of its own being, according to its nature; and by reaocm. of this inclination, whatever is a means of preserving human life, and the warding

off its obstacles, belongs t!O the natural law('). In a diiferent context Spinoza proclaimed the very same principle in his famous words "Every

being strives to persevere in being(')". Secondly, according to St.

Thomas Aquinas, there is in man an inclination to things that pertain to him more specially, according to that nature which he has in common with other animals: and in virtue of this inclination, those things are said to belong to the natural law whfr:h nature has taught to all animals, such as sexual intercourse, the education of the offspring and so forth(') And thirdly, there is in man an inclination to good according to the nature of his reason which inclination prompts him to know the truth and to live in society.

The law of nature is both an expression of reality and a standard to measure the rightness and justice of positive law. The inl!uence of natural law on the concept of natural justice and of the reasonable man of the common law, on the conflict law, the law of merchants and the law of quasi-contract, with special reference to the common law of India has been traced with great learning by !::ir Frederic Pollock in his essay on the "History of the Law of Nature"(').

It is true that law of nature has incurred the charge of being _fanciful and speculative and several of the theories advanced in support of natural law have been discredited. Mr. Max M. Laserson has riglitlv said that the doctrines of natural law must not be confused with natural law itself. The doctrines of natural law, like any other political and legal doctrines, may propound various arguments or theories in order to substantiate or justify natural law, but the overthrow of these theories

( 1) See Jacques Maritain, "Man and the State", pp. 80-81. (') See Summa Theologica, Part II, Section I, Question 91, Article 2 (trans lated by the English Dominicans), Vol. 3.

( 8 ) See "Ethics", Part III, Proposition No. 6.

( 4) Sec "Essays in Law", p. 31.

816 SUPREME COURT REpOJlTS [ 1973] Supp. s.c.R.

cannot signify the overthrow of natural law itself, just as the overthrow of some theory of philosophy of law does not lead to the overthrow of law itsef(1).

The social nature of man, the generic traits of his physical and mental constitution, his sentiments of justice and the mora:ls within, his instinct for individual and collective preservation, his desire for happiness his sense of human digni.ty, his consciousness of man's station and purpose in life, all these are not products of fancy bur objective factors in the realm of existence('). The Law of Nature is not, as the English utilitarians in their ignorance of its history supposed, a synonym for arbitrary individual preference, but that on the contrary, it is a living embodiment of the collective reason of civilized mankind, and as such

s adopted by the Commwi Law in substance cliough not always by

pame(•).

"The sacred rights of mankind are not to be rummaged for among old parchments of musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of Divinity itself, and can never be obscured by mortal power"(').

ln State of West Bengal v. Subodh Gopal(') Patanjali Sastri, J. said that article (article 19) enumerates certain freedoms under the cap- . tion "right to freedom" and deals with those great and basic rights which are recognized and guaranteed as the narural rights inherent in the status of a citizen of a free country.

In the United States of America, reliance upon natural law on the partof vested interests inimical to the economic freedom of man was destined to prove a persistent feature in the 19th century. In the second half of the 19th century, the ideas of natural law and of natural rights were resorted to in an attempt to curb State interference with rights of private property and freedom of contract. The ideas of natural law and natural rights were revived and endowed with fresh vigour .for that purpose('). Bv reference to natural rights of man, Courts in the United States often declared to be unconstitutional legislation for securing

( 1 ) Sec "Positive and Natural Law and their correlation in Interpretation of Modern Legal Philosophies" Essays in Honour of Roscos Pound (New York Oxford University Press), (1947). (') See Lautcrpaeht, ."Jnicrnational Law and Human Rights", p. IOI.

( 8) See Sir Frederic Pollock, ''The Expansion of the Common Law" (1904), p. 128. (') See the passage quoted in ''the tJjStoq ~.F.rcedom and Other Essays~ by Lord Acton (1907), p. 587. . -

( 1) [1954] S.C.R. 587, 596. (') See Haines, "The Revival cl Natutal La•· Ccinccp"aH, PP' 117-123.

KESAVANANDA "· XERALA (Mathew, J.) 817

humane conditions of work, for protecting the employment of women and children, for safeguarding the interests of consumers, and for controlling the powers of trusts and corporatins. This past history explains why natural rights have been regarded in some quarters with suspicion and why writers affirming the supremacy of a higher law ever the legislature or the constitution have spoken with impatience of the damnosa hereditas of natural rights. This idea of natural law in defence of causes both paltry and iniquitous has caused many to reject it with impatience. A great pracllical reformer like Jeremy Bentham, a great judge like Mr. Justice Holmes and a great legal philosopher like :Hans Kclsen-all believers in social progress--have treated the law of nature with little respect and have rejected it as fiction. Mr. Justice Holmes remarked : ''.The jurists who believe in natural law seem to me to be in that naive state of mind that accepts what has been familiar and accepted by them and their neihbours as something that must be accepted by all men everywhere" ( ) • Professor Kelsen considers the typical function of the natural law school to have been the defence of established authority and. institution~£ established governments, of private property, of slavery, of marriage(').

Despite these attacks and the ebb and flow in its fortune, there has been a revival of the law of nature in the 20th century and there is no gainsaying the fact that the doctrine of the law of nature was the bulwark and the lever of the idea of the rights of mam embodied in the International Bill of Human Rights with a view to make the recognition of these rights more effective and to proclaim to the world that no

State should violate these rights('). Whether you call these rights, natural rights or not, whether they flow from the law of nature or not, as I said, these are rights which belong to man as a rational and moral being. "Man's only right, in the last analysis is the right ro be a man, to live as a human person. Specific human rights arc all based on

man's right to live a human life('). Harold Laski said:(")

"I have rights which are inherent m me as a member of so9ety; and I judge the state, as the fundamental instrument of !OCiety, by the manner in which it seeks to secure for me the substance of those rights. . . . Rights in this sense, are the groundwork of the state. They arc the quality which gives ro the exercise of el 'Holines,. "Collected Legal Papm", p. 312. (') See Kelscn, "General Theory of Law and State", pp. 413-418 •

. ( 1) See Lautcrpacht, "International Law and Hwnan Righ!S", pp. 112.113.

(') See ''Weapon• for Peace" by Thomas P. Neill, quoted in 'The Natural Law" by Rommncn, footnote at p. 243. ·

( 1) Harold Laski, "Grammar of Politics" (New Haven) (1925), pp. 39-40.

818 SUPREME COURT REPORTS [1973] Supp, s.c.R.

its power a moral penumbra. And they are natural rights in the sense that they are necessary to go<id life."

Mr. Seervai submitted that article 33 of the Constitution which states that Parliament may, by law determine to what. extent the.Fundamental Rights, in their application to members of the Armed Forces cir

forces charged with the maintenance of public order be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them, would show that no natural rights are recognised by our Constitution, as otherwise, the limitation on the exercise of the Fundamental Rights by Parliament would be unwarranted. In support of this position, he has relied upon the observations of S.K. Das, J. in Basheshar 'Nath v. Commissi'oner. of lncome Tax, Delhi, etc.(') where he said:

''There are, in my opinion, clear indications in Part III of the Constitutior itself that the doctrine of "natural rights" had played no part in. the formulation of the provisions therein. Take articles 33, 34 and 35 which give Parliament power to modify the rights conferred by Part III. If they were natrural rights the Constitution could not have given power to Parliament to modify them".

I do not think that it was the contention of Mr. Palkhivala llhat natural rights as such are enforceable by Courts without the backing of positiive law or that they are not liable to be limited in certain circumstances.

That all natural rights are liable to be limited or even taken away for common good is itself a principle .recognized by all writers on natural law. "However, even though man's natural rights are commonly tertned absolute and inviolable, they are limited by the requirements of the universal Order to which they are subordinated. Spccili' cally, the natural rights of man arc limited intrinsically by the end for

which he has received them as well as extrinsically by the equal rights of other men, by his duties towards others".(2 ) And when the Parliament restricts or takes away the exercise of the Fundamental Rights by military personnel or the police charged with the duty of maintaining the peace, that does not mean that there are no natural rights, or, that by and large, the Fundamental Rights are not ll recognition of , the natural rights. It only shows that Fundamental Rights like .natural rights are liable to be limited for the comn\on good ·· of the' society.

John Locke himself did not understand that natural rights were absolute and nowhere did he say so. In other words, because Parliament

(') [1959] Supp. I S.C.R. 528, 605.

(2) Sec Romcn, "The Natural Law" (1947), footnote 49, p. 2'B.

KESAVANANDA v. KERALA (Mathew, J.) 819

can restrict the exercise of or even take away the Fundamental Rights of the military personnel or the

0 police charged with the duty of maintaining peace by law, it does not follow that Fundamental Rights, by and large, are not a recognition of the basic human rights or that those rights are not liable to be limited by positive law for common good.

Natural law cannot supplant positive law; positive law must provide the practical solution in the choice of one measure rather th!lll another in a given situation. Sir Frederic 1 Pollock said that natural justice has no means of fixing any ruk to terms defined in number or measure, nor of choosing one practical solution out of two or more which are in thcmslves equally plausible. Positive law, whether enacted or customary, must come to our aid in such matters. It would be no great feat for natural reason to tell us that a rule of the road is desirable; but it could never have told us whether to drive to the right hand or to the left, and in fact custom has settled this differently in different countries, and even, in some parts of Europe, in different provinces of one State.(')

Nor am. I impressed by the argument that because non-citi:i:ens are not granted all the Fundamental Rights, these rights, by and large, are not a recognition of the human or natural rights. The fact that Constitution does not recognize them or enforce them as Fundamental Rights for non-citizens is not an argument against the existence of these rights. It only shows that our Constitution has chosen to withhold recognition of these rights as fundamental rights for them for reasons of State policy. The argument that Fundamental Rights can be suspended in an emergency and, therefore, they do not stem from natural rights suffers from the same fallacy, namely the natural rigllts have no limits or are available as immutable attribues of human person without regard to the requirement of the social order or the common good.

Mr. Palkhivala contended that there are many human rights which are strictly inalienable since they are grounded on tihe very nature of man which no man can part with or lose. Although this may be correct in a general sense, this does not mean that these rights are free, from any limitation. Every law, and particularly, natural law, is based on the fundamental postulate of Aristotle that man is a political animal .and that his nature demands life in society. As no human being is an

1slan~, and can exist by himself, no human right which has no intrinsic

relation to the common good of the society can exist. Some of the rights like the right to life and to the pursuit of happiness are of such a nature that the common good would be jeopardised if the body

( 1 ) See Pollock, "The Expansion of the Common Law" U904), p. 128.

820 SUPREME COU!lT BEPOJ.TS [ 1973] Supp. s.c.1..

politic would take away the possession that men naturally have of them without justifying reason. 'fhey are, to a certain extent, inalienable.

Others like the right of free speech or of association arc of such a nature that the common good would be jeopardised if the body eolitic could not restrict or even take away both the possession and the exercise of them: They cannot be said to be inalienable. And, even absolutely inalienable rights are liable to limitation both as regards their possession and as regards their exercise. They arc subject to conditions and lifnitations dictated in each cas~ by justice, or by considerations of the satety of the realm or the common good of the society. No society ha! e\ler admitted than in a just war it could not sacrifice individual welfare for its own existence. And as Holmes said, if conscripts are nccess!try for its army, it seizes them and marches them, with bayonets in their rear to death('). If a criminal can be condemned to die, it is because by his crime he has deprived himself of the possibility of justly asserting this right He has morally cut himself off from the human community as regards this right(').

Perceptive writers have always taken the view that human rights are only prima facie rights to indicate that tihe claim of any one of them may be overruled in spocial circumstances. As I said the most fundamental of the pre-existing right; s-the right to life-is sacrificed without scruple in a war. A prima facie right is one whose claim has prim"

facie jpstification, i.e., is justified, unless there are stronger counterclaims in the particular situation in which it is made, the burden of proof testing always on the .counter-claims. To say that natural rights or hullilan rights are prima facie i; ights is to say that there are cases in which it is perfectly just to disallow their claim. Unless we have deli- . rute assurance as to the limits within which this may occur, we may have no way of telling whether we are better off with these prima facie rights han we would be without them. "Considerations of justice allow us to make exceptions to a natural right in special circumstances as the same c(msiderations would require us to uphold it in general.(')

Owing to the complexity of social relations, rights founded on one set of relations may conflict with rights founded on other relations. It is obvio\ls that human reason has become aware not only of the rights

d man ; as a human and civil person bua also of his social and economic rights, tbr instam:e, the right of a worker to a just wage that is sufficient to secure his family's living, or the right to unemployment relief

' { 1) SCe Common Law, p. 43.

(2) Sec Jacques Maritain, Man and State, p. 102. {') sec generally "Justice and Equality" by Gregory Vlastos in. "S.Cial fYsticc", pt 31 ed. by Richard B. Brandt.

XESAVANANDA v. K.ERALA (Mathew, J.) !121

or unemployment insurance, sick benefit~, social ecurity an.d othr just amenities, in short, all those moral nghts which are envisaged m Paro IV of the Constitution. But there was a natural tendency to inflate and make absolute, unrestricted in every respect, the familiar fundamental rights, at the expense of other rights which should counter-balance them. The economic and social rights of man were never recognised in actual fact without having had to struggle against and overcome the bitter opposition of the fundamental rights. This was the story of the right to a just wage and similar rights in the face of the right to free 'ffiutual agreement and right to private ownership.

To determine what is finally right involves a balancing of different claims. From an ethical point of view, all one can say is that particular rights are subject to modification in a given situation by the claims arising out of other rights or of the body of rights as a whole. Since no single right whether natural or not is absolute, claims based on any one right may be subject to qualifications in accordance with claims based on other rights or the requirements of the total order or way of life, namely, the principle of the common good('). It is significant to note that article 29(2) of the Declaration of Human Rights provides :

"In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society." ·

It shall be my endeavour to show in a subsequent part of this judgment how the general welfare of our democratic society requires li.mitation or even taking away of Fundamental Rights in certain circumstances.

The framers of our Constitution realised that the Fundamental Rights, like natural rights, were not absolute and it was because of this

that ey provided fur restrictions being imposed upon the exercise of these nghts by law. But it was impossible for them, or for that matter, for any .Prson, hwever, gifted they or he might be, to foresee the type of restntJons which woul.d be necessary to meet the changing needs of a society. Even men with the most prophetic vision could not have focescen all te. developments of the body politic in the future and the type of restrictions necessary upon the Fundan1ental Rights to meet them. . The question :ovhether a particular Fundamental Right should be tak.cn aay or .abndged for the common good of the society must be decided m the light of the experience of each generation and not by

( 1 ) See Morri• Ginsberg, Justice in Society, p. 77.

822 SUPREME COUllT REPORTS [1973) Supp. s.c.a.

what was said or laid down at the time of the framing of the Constimtion. It would be asking the impossible to expect one generation ID plan a government that would pass through all the revolutionary changes in every aspect of life.

Let us now see whether in the past the Parliament was justified in amending some of the Fundamental Rights and whether the far expressed by the counsel for the petitioner, that great catastrophic COilsequences will follow if the Fundamental Rights are permitted to abridged by constitutional Amendments is justilied.

The First Amendment made certain changes in article 15 whim deals with prohibition of discrimination on the ground of religioo, race, caste, sex or place of birth. Clause (3) of artitle 15 allowed the state to make special provision for women and children. A new clause was added by the Amendment which reads as follows :

"(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 edutionally backward classes <f citizens 0, r for the Scheduled Castes and the Scheduled Tribes."

This Amendment was necessitated on account of the decision of this

Coun in the State of Madras v. Champakam( 1 ) w the effect that reservation of seats for backward classes, Scheduled Castes and Tribes in public institutions was invalid, as it would offend the Fundamental Rights guaranteed under article 29(2). When this Court said that the reservation of seats for these classes offended the Fundamental Right guaranteed under article 29(2), what option was left but for the Parliament to .enact the Amendment, for, social justice required discriminatory treatment in favour of the weoker sections of the people and in particular the Scheduled Castes and Tribes in order to promote their educational and economic interest anJ to give them a position of equality. It is possible to sympmhise with those who bewail the decision in the case as a 'self-inflicted wound'. But when a Bench of five Judges held so, not all the tears in the world can recall a word of what was written, hut only an amendment by Parliament, since the chance of the decision being overruled was remote and problematical.

The second and sixth clauses of article 19 were also amended by the First Amendment. Article 19(1)(a) provides that all citizens shall have the right to freedom of speech and expression. Before the amendment, article 19(2) read :

''Nothing in sub<lause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the

(') [1951 J S.C.R. 525.

KBSAVANANDA I/, KBBALA (Mathew, J.) 823

State from making any Jaw relating to libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which , undermines the security of, or tends to overthrow, the State.''

After the amendment, the same clause reads :

"Nothing in sub-dausc (a) of clause (1) shall affect te operation of any existing law, or prevent the State fro~ 1.11ak.ing any law, in so far as such law imposes reasonable restnt10ns n the exercise of the right conferred by the said sub-clause m the mterest 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.''

This amendment was necessitated by the decision of this Court in Romesh Thapar v. State of Madras(') wherein it was held that the disturbance of public order did not come within. the expression "undermines the security of the Suate.,, No douht, in State of Bihar v. Shail11 bala Devi(') this Court said that it clid not intend oo lay down in Romesh T hapar' s case that in J?O case will an offence against public order affect the security of the State, but that point is not of much interest in view of the Amendment. Wifeµ this Court held that the word 'public order' would not come witlilii llhe expression uundermines the security of State'', no option was left to Parliament but to make the Amendment. The words "friendly relations with foreign States" introduced a further abridgement of the freedom of speech but nobody would contend that maintenance of friendly relations with foreign States is unnecessary and that speoch which would prejudicially affect these relations should not be curbed even as England and America have done.

The 16th Amendment added after the words "in the interests or' the words "the sovereignty and integrity of India" in clauses (2), (3) and (4) of article 19. This means that the Fundamental Rights to freedom of speech and freedom of assembly were abridged for the sake of maintaining the sovereignty and integrity of India. Freedom of speech is the matrix upon which all other freedoms are founded and nobody would deny that it is an essential feature of the Constitution.

Bu: that had to be damaged for the sake of a greater good, namely, the mamtenance of the sovereignty and integrity of India. And who would dare J?aintain that the amendment was unnecessary? These amendments illustrate that exigencies not visualized by the makers of

( 1) fl950] S.C.R. 594.

( 1) [1952] S.C.R. 654.

824 SUPREME COUllT REPORTS (1973] Supp. s.c.a.

the Constitution would arise and that F\mdamental Rights will have to be abridged for the commongood or for securing higher values.

It was because counsel. for the petillioner realised the necessity for amendment of Fundamental Rights in certain circumstances in such a way as to abridge them that he advanced the further contention that although Parliament should have the power to amend the Fundamental Rights, there is implied limitation upon its power to amend them in such a way as to damage or destroy their aore or essence, and that the Court must, in the case of each amendment, pass upon the question whether the amendment has destroyed or damaged the essence or the core of the_ right. Counsel said that if the task of adjudging what is "reasonable restriction in the interest of public" could be undertaken successfully by Court there is no reason why 1lhe Court could not undertake the task of finding the core or essence of a right and whether the amendment has damaged or destroyed it.

Mr. Secrvai for the State of Kerala submitted that no objective standard was suggested for the Court to decide wha~ is the core or asence of a right except the perception of the trained judicial mind and that whereas judicial review of the question whether a restriction imposed by a law is reasonable or not is based on tlhe objective standard of reason, there is no divining rod for the Court to locate and find the core of a right. He referred to the dissenting judgment of Holmes in Lochner v. New York(') and to the dictum of Patanjali Sastri, J. in State of Madras v. V. G. Row(2 ) and said that the concept of 'reasonable man', that latch key to many legal doors, or, 'reasonable. restriction in the interest of public' mentioned in clauses 2 to 6 of article 19 or "reasonable restrictions" in article 304(b) are objective in character, though there might be difference of opinion in a particular case in the application of the concepts; but the task of finding the core of a Funda-· mental Right is like the quest for the "philosopher's stone", and that the Amending Body will be left without chart or compass when it proceeds to make an amendment. Mr. Seervai furtlher 'submitted that our constitution-makers deliberately omitted the phrase 'due proces•' in article 21 I!:> avoid flirtation by Court with any gossamer concepts drawn from higher law philosophy to annul legislation and that. even in America, invalidation of law on the ground of violation of substantive due process has become practically obsolete.

When a court adjudges that a legislation is had on the ground diat it is an unreasonable restriction, it is drawing the elusive ingredients for its conclusion from several sources. In fact, you measure the

( 1) 198 U.S. 45.

(') (1952) S.C.R. 5'J7.

KESAVANANDA v. li!W.A (Mathew, J.) ll2S

reasonaoleness of a restriction imposed by law by indulging in aa authentic bit of "special legislation(')". The words 'reason' and 'reasonable' denote for the common law lawyer ideas which the "Civilians" and the <;:anonists' put under the head of the 'law of nature'. Thus the law of nature may finally claim in principle, though not by name, the reasonable man of English and American law and all his works whicli are many"(2). Lord Coke said in Dr. Bonham's case(') that the common law will adjudge an Act of Parliament as void if it is against common right and reason and substantive due process in its content means nothing but testing an act or legislation on the touchstone of

realOO. The reason why the expression "due process" has never been delined is that it embodies a concept of fairness which has to be decided with reference to the facts and circumstances of each case and also according to the mores for the time being in force in a society to which the concept has to be applied.

As Justice Frankfurter said, "due process" is not a technical conception with a fixed content unrelated to time, place and circumstances('). The limitations in article 19 of the Constitution open the doors to judicial review of legislation in India in much the same manner as the doctrine of police power and its companion, the due process clause, have done in the United Stares.

The restrictions that might be imposed by the legislature to ensure the public interest must be reasonable and, therefore, the Court will have to apply the yerdstick of reason in adjudging the reasonableness. If you examine the cases relating to the imposition of reasonable restrictions by a law, it will be found thar. all of them adopt a standard which the American Supreme Court has adopted in adjudging reasonableness of a legislation under the due process clause. In Municipal Committee v. The State of Punjab(') this Court said that due process clause has no applicallion in India and that a law cannot be struck down as constituting an unreasonable restriction upon Fundamental Rights merely because its terms were vague. The Court said that a law whose terms were vague would be struck down as violative of _du~ process in America but, nevertheless, the principle has no ap_Phatmn here because there is no "due process clause" in our Const:ttuuon. With great respect, I should think that this is not correct, as the concep~ ?f "d_ue process" enters into the meaning of reasonableness of restncttons m clauses 2 to 6 of article 19. In Collector of Customs v. Sampathu(0 ), Rajagopala Ayyangar, J. said that

(') Sec Learned Hand, "Bill of Rights", p. 26.

( 2) Sec History of the Law of Nature bv Pollock, pp. 57-59.

( 3) 8 Rep. 107, 118(•). (') Sec foint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123.

(') [1969] 3 S.C.R, 447, '453. .


826 coUllT JlEPOllTS [1973] Supp. s.c.Il.

though the tests of 'reasonableness' laid down by clauses (2) to ( 6) of article 19 might in great part coincide with that for judging for 'due process' it might not be assumed that these are identica1, as the Constitution-framers deliberately avoided in this context the use of the expression 'due process' with its comprehensiveness, flexibility and attendant vagueness in favour of a somewhat more definite word 'reasonable'. In the light of what I have said, I am unable to understand how the word 'reasonable' is more definite than the words due process'. As the concept of 'due process' draws its nourishment from natural or higher law so also the concepts 'Of 'reason' and reasonableness' draw the juice for their life from the law of reason which for the common law lawyer is nothing but natural law(').

In Abbas v. Unior. of India(") Hidayatullah, C.J. speaking for the Court said:

" ...... it cannot be said as an absolute principle that no law will be considered bad for sheer vgueness. There is ample authority for the proposition that a law affecting fundamental rights may be so considered"

Where a law imposes a restriction upon a Fundamental Right which is vague in character, it would be struck down as unreasonable under clauses (2) ro ( 6) of article 19 for the same reason as an American Court would strike it down as violative of due process, viz., a person cannot be deprived of his Fundamental Right by a law whose command is uncertain and does not sufficiently indicate to the indiv~ dual affected by it how he could avoid coming within the mischief of the law. Our Constitution-makers, under the guise of testing the reasonableness of restrictions imposed by law on Fundamental Rights, brought in by the back door practically the same concept which they openly banished by the front.

I am not dismayed by the suggestion that no yardstick i, furnished ta the Court except the trained judicial perception for finding the core or essence of a right, or the essential features of the constitution.

Consider for instance, the test for determining citizenship in the United Stares that the alkn shall be a person of "good moral character" the test of a crime involving "moral turpitude", the test by which you determine the familiar concept of the "core of a contract", the "pith and substance" of a legislation or the "essential legislative function'.' in the doctrine of delegation. Few constitution~!. -issues can be presented in black and white terms. What are essential features and non essential features of the Constitution ? Where does the core of a

( 1) S<c Pollock, the Expansion 0£ Common Law, 108'109.


KESAVANANDA ti. KE.l\ALA (Mathew, J.) 827

right end and the periphery begin? These are not matters of icy ttrtainty; but, for that reason, I am not presuadd . t? hold '.hat they do not exist, or that they are too elusive for JUd1c1al perception.

Most of the things in life that are worth talking about are matters " degree and the great judges are those who are most capable of discerning which of the gradations make genuine difference.

Nor do I think that all the provisions in the Constitution are equally essential. Gladstone said, the most wonderful work ever struck off at a given time by the brain and purpose of ma~ is the Constitution. of the United States of America. Lord Bryce said much the same thing when he observed tlhat it is one of the greatest contributions ever made to politics ; is a practical art. Yet it consists only

of VII articles with the Amendments. A constitution need not partake 1hc prolixity of a code." And our Constitution could very well have dropped many of its provisions. Merely because all the provisions of

the Constitution have equal importance in one respect, namely, they are all embodied in one document, and can be amended only by the procedure prescribed in article 368, it does not follow that all of them are essential features of the dment in all other respects.

But the question will still remain, even when the core or the essence of a Fundamental Right is found, whether the Amending Jlody has the power to amend it in such a way as to destroy or damage the core. I have already "'1id that considerations of justii::e, of the common good, or "the general welfare in a democratic society" might require abridging or taking away of the Fundamental Rights.

I have tried, like Jacob of the Old Testament to wrestle all the night with the angel, namely, the tiheory of implied limitation upon the power of amendment. I have yet to learn from .what source this limitation arises. Is it because the people who were supposed to have framed the Constitution intended it and embodied the intention in an unalterable framework? If this is so, it would raise the fundamental issue whether that intention should govern the succeeding generations for all time. If you subscribe to the theory of Jefferson to which I have already eferred nd which was fully adopted by 'Dr. Ambedkar, the prmc1pal. architect .of our Constitution-and that is the only

s:in? theory-I thm.k there 1:5 n? foundati1:1n for the theory of implied l1m1tations. W re It otherwise, m actual reality it would come to this : The rep; esentat1ves of some people-the framers of our Constitutioncould . bmd the whole people for all time and prevent th f chan th · al em rom gmg e const1tut10n structure through their .

And what thi ed bou represental:Jves. . • is s sacr ness a t the basic structure f th C . tutmn ? Take the republican fonn of Government,

0the esup=d

828 suPBEME COUllT UPollTS [1973] Supp. s.c.1..

cornerstone of .the whole structure. Has mankind, after its wandering through history, made a final and unalterable verdict that it. is the best form of government? Does not history show that mankind has changed its opinion from generation to generation as to the best form of government? Have not great philosophers and thinkrs throughout the ages expressed different views on the subject? _Did not .. Plato prefer the rule by the Guardians?

And was the sapient Aristotle misled when he showed his proclivity for a mixed form of government? If there was no concensus yesterday, why expect one tomorrow?

The object of the people irt establi, hing the Constitution was to promote justice, social and economic, liberty and eciuality. The modus operandi to achieve these objectives is set out in Parts III and IV oi the Constitution. Both Part III and IV enumerate certain moral rights. Each of these Parts represents in the main the statements in one sense of certrun aspirations whose fulfilment was regarded as essential to the kind of society which the Constitution-makers wanted to build. Many of the articles, whether in Part III or Part IV, represent moral rights whlch they have recognized as inherent in every human being in this country. The task of protecting and realising these rights is imposed upon all the organs of the State, riamely, legislative, executive and judicial. What then is the importance to be attached to the fact that the provisions of Part III are enforceable in a Court and the provisions in Part IV are not? Is it that the rig)its

reected in the provisions of Part III are somehow superior to the moral claims and aspirations reflected in the provisions of Part IV?

I think not. Free and compulsory education under article 45 is certainly as important as freedom of religion under article 25. Freedoo:i from starvation is as important as right to life. Nor are the provisions in Part III absolute in the sense that the rights represented by them can always be .given full implementation in all, circumstances whereas practical exigencies may sometimes entail some compromise in the implementation of the moral claims in Part IV. When you translate these rights into socio-political reality, some degree of compromise must always be present. Part IV of the Constitution translates moral claims into duties imposed on government but provided that these duties should not be enforceable by any Court('). The question has arisen what will happen when there is a conflict between the claims in Part IV and the rights in Part III and whether rhe State would be justified at any given time in allowing a compromise or

( 1 ) Sec generally A. R. Blackshield "Fundamental Rights & Economic Viability of the Indian Nation", Journal of Indian Law Institute Vol. 10 (!~)

I, 26-28. ' . .

KESAVAN'ANDA v. KERALA (Mathew, J.) 829

sacrifice the one at the expense of the other in the realisation of the goal of the Good life of the people. What is the rlation; hip between the rights guaranteed by Part III and the moral nghts m Part IV ?

In the State of Madras v. Champakam already referred to this . Cort held that the Fund~!Dental Rights being sacrosanct, the Direcuv.e Principles of State Policy cannot override them but must run as subsidiary to them. This view was affirmed by this Court in Quareshi v.

State of Bihar('). S. R. Das, C.J. who delivered the judgment of the Court said that the argument that the laws were passed in the discharge of the fundamental obligation imposed on the State by the Directive Principles and therefore, they could override the restrictions imposed on the legislative power of the State by article 13(2) or that a harmoniDus interpretation has to be placed upon the provisions of the Act was not acceptable. It was held that the State should implement the Directive Principles but that it should do so in such a way that its laws do not take away or abridge the Fundamental Rights: as otherwise, the protecting provisions of Part III will be a mere rope of sand. In Golaknath Case, Subba Rao, C.J. said that Fundamental Rights and Directive Principles of State Policy form an intrgrated whole and were elastic enough to respond to the changing needs of' the society. There are observations in later cases of this Court that it is possible to harmonize Part III and Part IV.

The significant thing to note about Part IV is that, although its provisions are expressly made un-enforceable, that does not affect its fundamental character. From a juridical point of view, it makes sense to say that Directive Principles do form part of the Constitutional Law of India and they are in no way subordinate to Fundamental Rights.

Prof. A. L. Goodhart said :

" ...... if a principle is recognized as binding on the legislature, then it can be correctly described as a legal rule even if there is no court that can enforce it. Thus, most of Dicey's book on the Bri:ish Con:titution is cocerned ':'ith certain general principles which Parliament recogruzes as bmding on it." (1 ) .

Enforcement by a Court is not he re~! test of a law('). The conventions of English Constitution are not enforceable in a Court of law but they are, nevertheless, binding and form part of the constitutional law

( 1) ( 1959) S.C.R. 629.

( 2 ) See the passage quoted in

1'Equal Protection Guarantee and the Right to Property under the Indian Constitution", by Jagat Narain, International And Comparative Law Quarterly, Vol. 15, 1966, pp. 206-7.

( 8 ) Sec "A note on the theory of Law", "Law and the Constitution" 5th cd p. 330 by Ivor Jennings. S3-36 S. c. India/73

830 SUP1ll!ME COURT REPOllTS [1973] Supp. s.C.ll.

of the land. The similarity between the constitutional conventions in England and Directiv, e Principles of State Policy in India cannot be disputed. ·

The only purpose of article 37 is to prevent a citizen from coming forward and asking for specific performance of the duties cast upon the State by the Directive Principles. But if a State voluntarily were to implement the Directive Principles, a Court would be failing in its duty, if it did not give effect to the provisions of the law at the instance of a person who has obtained a right under the legislation. As the implementation of the Directive Principles involves financial commitments on the part of the Government and depends upon financial resources, it was thought meet that no private citizen should be allowed to enforce their implementation. But nevertheless, when the State, in pursuance of its fundamental obligation makes a law implementing them, it becomes the law of the land and the judiciary will be found to enforce the law. What is to happen if a State were to make a law repugnant to the Directive Principles? Would the Court be justified in striking down the law as contrary to the Law of the Constitution or, on what basis will a coullicn between Part III and Part IV be solved?

The questions require serious consideration.

The definition of the word 'State' both for the purpose of Part III and Part IV is the same. Whereas article 45 of the Irish Constitution addresses the directive only for the guidance of the Oireachtas, i.e., the legislature, all the directives from articles 38 to 51 of our Constitution are addressed to the 'State' as defined in article 12. That judicial process is also "State Action" seems to be clear. Article 20(2) which provides that no person shall be prosecl!ted and punished for the same offence more than once is generally violated by the judiciary and a writ under article 32 should lie to quash the order. In his dissenting judgment in Naresh v. $tale of Maharashtra(') Hid~Yatullah, J. took, the viw-I think rightly-that the judiciary is also "State" within the definition of the word "State" in article 12 of the Constitution(').

Frankfurter, J. asked the question that if the highest court oi a state should candidly deny to one litigant a rule of law which it concededly woulcl apply to all other litigants in similar situation, ocruld it escape condemnation as an unjust discrimination and therefore a denial of the equal protection of the laws(')? In Carter v. Texas(') the


[1955] I S.C.R. 1045.

(') See Backus v. Fort Str<et Union Depot Co., 169 U.S. 557, 571; also Snowden v. Hughes, 321 U.S. I.

(') 177 U.S. 442, 447.

KESAVANANDA t/. UliLA (MaJhew, J.) 831

Court observed that whenever by any action of a St*, whether through its legislature, through its courts, or thrQUgh its executive or administrative officers, all persons of the African race are excluded, solely because of their race or colour, from serving as ...... jurors in the criminal prosecution of a person rJ. the Afrilcan race, the equal protection of the laws is denied.

If convicting and punishing a person twice for an offence by a judgment is equivalent to the "State passing a law in contravention of the rights conferred by Part Ill" for the purpose of enabling the person .to file a petition under article 32 to quash the judgment, I can see no incongruity in holding, when article 37 says in its latter

par~ "it shall be the duty of the State to apply these principles in making laws", that judicial process is 'state action' and that the judiciary is bound to apply the Directive Principles in making its judgment.

The judicial function is, like legislation, both creation and application of law. The judicial function is ordinarily determined by the general norms both as to procedure and as to the contents of the norm to be created, whereas legislation is usually determined by the Constitution only in .the former respect. But that is a difference in degree only. From a dynamic point of view, the individual norm created by the judicial decision is a stage in a process beginning with the establishment of the first Constitution, continued by legislation and customs and leading to the judicial decisions. The Court not merely formulates already existing law although it is generally asserted t:p be so. It does not only 'seek' and 'find' the law existing previous to its decision, it does not merely pronounce the law which exists ready and finished prior to its pronouncement.

Both in establishing the presence of the conditions and in stipulating the sanction, the judicial decision has a constitutive character. The law-creating function of the courts is especially manifest when the judicial decision has the character of a precedent, and that means when the judicial decision creates a geeal norm. 'Yhere the. courts are entitled not only to apply pre-extstmg substantive law m their decisions, but also to create new law for concrete cases, there is a comprehensible inclination to gi v.e these judicial decisions tthe character of precedents. Within such a legal system, courts are legislative organs in exactly the same

sene as the organ which is called the legislator in the narrower and ordmary sense of the term. Courts are creators of general legal norms ( 1). Lord Reid said : (')

( 1 ) Sec Kclsen, "General Theory of Law and State" pp. 134-5 & 149-150.

( 2 ) See the recent address of Lord Reid, "The Judge as Law Maker" (1972)

12 J. S. P. T. L. (N.S.) 22, 29.

832 SUPREME COURT llPGRTS [1973] Supp. s.c.L

"There was a time when it 'was thought almost indecent to suggest that judges make law-they only declare it. Th= with a taste for fairy-tales seem to have thought that in some Aladdin's Cave there is hidden the Common Law in all i111 splendour and that on a judge's appointment there descends on him knowledge of the magic words Open Sesame. . . . But we do not believe in fairy tales any more." I do not think any person with a sense of realism believes today as Blackstone did thac the law declared by the courts has a platonic or ideal existence before it is expounded by judges. John Chipman Gray said that in the last analysis the courts also make our statute law and quoted the passage from the famous sermon of Bishop Hoadly that whoever has absolute power to interpret the law, it is he who is the law-giver, not the one who originally wrote it(').

It is somewhat stlrange that judicial process which involves lawmaking should be called 'finding the law'. "Some simple-hearted people believe that the names we give to things do not matter. But though the rose by any other name might smell as sweet, the hisr.ory of civilizatiOl!l bears ample testimony to the momentous influence of names. At any rate, whether the process of judicial legislation should be called finding or making the law is undoubtedly of great practical moment" (2). Nobody doubts today that within the confines of vast spaces a judge moves with freedom which stamps his action as creative. "The law which is the resulting product is rrOll: found, but made. The process, being legislative, demands the legislator's wisdom"(').

It is relevant in this context to remember that in building up a just social order it is sometimes imperative that the Fundamental Rights should be subordinated to Directive Principles. The makers of the Constitution had the vision of a future where liberty, equality and justice would be meaningful ideals for every citizen. There is a certain air <i unreality when you assume that Fundamental Rights have any meaningful existence for the starving mi!Hons. What boots it to them to be told that they are the proud possessors of the Fundamental Rights including the right to acquire, hold and dispose of prQperty if the society offers them no charu:e or opportunity to come by these rights? Or, what boots it to the beggar in the street to be told that the Constitution in its majestic equality, holds its scales even and forbids by law both his tribe and the rich to beg in the street, to steal bread or sleep under the bridge? This is non to say that the struggle for a just economic order should be allowed to take priority over the struggle for the more

( 1) See "Nature and Sources of the Law" pp. 102, 125, 172. (') See M. R. Cohen, "Law and the Social Order" (1933), pp. 121-124. (') See Benjamin N. Cardozo, "The Nature of the Judicial process", p. 115,

KESAVANANDA ti. K1U1ALA (Mathew, J.) 83'.\

intangible hopes of man's personal .self-£ulfilment. But in particular contexts, fundamental freedoms and rights must yield to mat~· rial and practical needs. Economic goals have an un.-contestabJe claim for priority over ideological ones on the ground that excelence

comes only after existence('). It is on! y if men exist that there can be fundamental rights. "Tell an unprovisioned man lost in the desert that he is free to ear, drink, bathe, read. . . . . . . . No one is hindering him. For the attainment of most of these ends he might better be in prison. Umestraint without equipment is not liberty for any end which demands equipment ...... Unemployment is a literal unrestraint, a marked freedom from the coercions of daily toil but as destructive of means it is the opposi~ of freedom for ...... To contemporary consciousness it has become an axiom that there can be no

freedom without provi'sion(').

The twentieth century juristic thinking has formulated two Jura! postulates. They are (I) Every one is entitled to assume that the burdens incidental to life in sdeiety will be borne by society; (2) Every one is entitled to assume that at least a standard of human life will be assured to him; not merely equal opportunities of providing or attaining it but immediate material satisfaction(').

The concept of liberty or equality can have meaning only when men are alive today and hope to be alive tomorrow. "One hates to

think how few Indians, for example, have any idea that their Constitution provides basic rights, let alone what those rights are or how they could be defended when violated by Government"(').

So the ma.in task of freedom in India for the large part of the people is at the economic level. '

Roscoe Pound who expounded his theory of interest as a criterion of justice insists without qualification that the "interest" or "claims"

( 1) See generally A. R. Blackshicld "Fundamental Rights and Economic Viability of the Indian Nation'', Journal of the Indian Law Institute, Vol.

(1968) I.

(2) Sec Hocking "Freedom of the Press", pp. 55-56.

(') See Roscoe Pound, "Jurisprudence" Vol. I, section 46 (Twentieth Century).

(') Sec Carl J. Friedrich, Man and .His Government, p. 272,

834 SUPREME cou.r JIEPOllTS [1973] Supp. s.c.a.

or "demands" with which he ia concerned are de facto psychological phenomena which pre-exist and arc not merely the creation of. the legal order(').

Pound's proposals seem, in the last analysis, to be an attempt to implement the familiar thought that there should be a correspondence between the demands made by man in a given society at a given time and its law at that titp.e.

The scheme of interests should include, all the de facto claims actually made. This, of course, is not to say that every de facto claim or interest which finds a place in the scheme of interests will be given effect in all circumstances. Claims within a legal order which arc not necessarily mutually incompatible may nevertheless come into conflict in particular siruations. Indeed most of the problems in which the judgment of justice is called for arise from a conflict of two or more of such de facto claims, non~ of which can be given effect to completely without prejudice to the others. The scheme of interests, like the jural posl!Ulates, is a device for presenting to the mind of the legislator a rough picture of the actual claims made by men in a given society at a given time, to which justice requires them to give effect so far as posSible(2). And what arc the de facto claims crying aloud for recognition as interests for the millions of people of this country ? That can probably admit of only one answer, by those who have eyes to see and ears to hear. By and large. the rough picture of the actual claims made by the millions of people m this country and which demand recognition as interests proti:cted by law is sketched in Part IV of the Constitution. A judgment of justice is called for when these claims which call for recognition in law as interest conflict with other rights and interests.

That judgment has to be made by the dominant opinion in the community. For a Judge, tq serve as a communal mentor, as Learned Hand said,, appears to be a very dubious addition to his duties and one apt to interfere with their proper discharge. The court is not the organ intended or expected to light the way to a saner world, for, in a democracy, that choice is the province of the political branch i.e. of the representatives of the people, striving however blindly or inarticulately, towards their own conception of the Good Life.

I~ is inevitable that there should be much gnashing of teeth when a society opts for change and breaks with its older laissez faire traditin, which eld before the ccs of both the rich and the poor a golden pnze for which each may strtve though all cannot attain it and which in particular provided the rich with an enchanting vision of infinite

(') See Pound, 3 Jurisprudence, 5-24, esp. 1~21.

( 2) See Julius S_tone, Human Law and Human Jwtice, pp. 269-270.

KESAVANANDA "· KERALA (Mothew, J.) 835

expansion, and switches on to a new social order where claims of individual self assertion and expansion arc sunatcd to the common good.

To sum up this pal'lt of the discussion, I think there arc rights which inhere in human beings because they arc human being&-whcthcr you call them natural righllS or by some other appellation is immaterial.

As the preamble indicates, it was to secure the basic human rights like liberty and equality that the people gac unto themselves the Constitution and these basic rights are an essential feature of the Constitution; the Constitution was also enacted by the people to secure justice, political, social and economic. Therefore, the moral rights embodied in Part IV of the Constitution arc equally an essential feature of it, the only difference being that the moral rights embodied in Part IV are not specifically enforceable as against the Sratc by a citizen in a Court of law in ease the State fails to implement its duty but, nevertheless, they arc fundamental in the governance of the country and all the organs of the State, including the judiciary, arc bound to enforce those directives. The Fundamental Rights themselves have no fixed content; most of them arc mere empty vessels into which each generation must pour its content in the light of its experience. Restrictions, abridgement; curtailment, and even abrogation of these rights in circumstances not visualized by the Constitution-makers might become necessary; their claim to supremacy or priority is liable to be overborne at particular stages in the history of the nation by the moral claims embodied in Part IV. Whether at a particular moment in the history of the nation, a particular Fundamental Right should have priority over the moral claim embodied in Part IV or must yield to them is a matter which must be left to be decided by each generation in the light of its experi ence and its values. And, if Parliament, in its capacity as the Amending Body, decides to amend the Constitution in such a way as to take away or abridge a Fundamental Right to give priority value ro the moral claims embodied in Part IV of the Constitution, the Court cannot adjudge the constitutional amendment as bad for the reason that what was intended to be subsidiary by the Constitution-makers has been made dominant. Judicial review of a constitutional amendment for the reason that it gives priority value to the moral claims embodied in Part IV over the Fundamental Rights embodied in Part III is impermissible. Taking for granted, that by and large the Fundamental Rights arc the extensions, permutations and combinations of natural rights in the sense explained in this judgment, it does not follow that there is any inherent limitation by virtue of their origin or character in their being taken away or abridged for the oommon good. The source from which these rights derive their moral sanction and transcedental character, namely, the natural law, itself recognizes that natural rights

836 SUPREME COURT REPORTS [1973] Supp. s.c.R.

are only prima facie rights liable to be taken away or limited in special circumstances for securing higher values in a society or for its common good. But the responsibility of the Parliament in taking away or abridging a Fundamental Right is an awesome one and whenever a question of constitutional amendment which will have the above effect comes up for consideration, Parliament must be aware that they are the guardians of the rights and liberties of the people in a greater degree than the courts, as the courts cannot go intlo the validity of the amendment on any substantive ground.

In the light of what I have said, I do not think that there were any express or implied limitntions upon the power of Parliament to amend the Fundamental Rights in such a way as to destroy or damage even the core or essence of the rights and the .24th Amendment, by its language, makes it clear beyond doubt. The opening words of the amended a; rticle should make it clear that no invisible radiation from any other provision of the Constitution would operate as implied lim.ital:ion upon the power of amendment. Further, the amended article 361\ puts it beyond doubt that the power to amend the provisions of the Constitution is in the article itself that the power incl.udes the power to add, vary or repeal any provision of the Constitution, that the power is a constituent power, tlhat the assent of the President to a bill for amendment is compulsory and that nothing in article 13(2) will apply to an amendment under the article.

Article 368, as it stood before the Amendment, conferred. plenary power to amend all the provisions of the Constitution and the 24th Amendment, except in one respect, namely, the compulsory character of the assent of the President to a bill for amendment, is declaratory in character. To put it in a different language, as the majority decision in the Golaknath case(') negatived the constituent power of the Parliament to amend the Fundamental Rights in such a way as to take away or abridge them which, according to the Amending Body, was wrong, the Amending Body passed the amendment ro make it clear that the power to amend is locaned in the article, that it is a constituent power and not a legislative power as held by the majoritv decision in the Golaknath case, that the power is plenary in charactr and that article 13(2) is not a bar tlo the amendment of the Fundamental Rights in such a way as to take away or abridge them under article 368. That the object of the amendment was declaratory in character in clear from the statement of Objects and Reasons for the Amendment. That says that the Amendment was made to provide expressly that the Parliament has competence, in the exercise of its


KESAVANANDA I/, KERALA (Mathew, J.) 837

amending power, to abridge or take away the Fundamental .Rights since the majority in the Golaknath Case held that the Parliament !\ad no such power.

As I have already . said, the Amendme?t has added nGthing to the content of the arucle except the reqwrement as to the compulsory character of the asent of th~ President t~ the bill for amendment. That an Amending Body, m the exercise of it.s power to amend, if the power to amend is P.lena~! c:m make . an amendment in order to make clear what was implicit m the article and to correct a judicial error in the interpretation of the article appears to me to be clear.

Mr. Palkhivala contended that as the power to amend under article 368 as it stood before the 24th Amendment was itself limited, the power to amend that power cannot be utilised to enlarge the amending power.

There is nothing illegal or illogical in a donor granting a limited power coupled with a potential power or capacity in the donee to enlarge the limit of that power according to the discretion of the donee. It is a mistake to suppose even on the assumption that the actual power to amend under article 368 as it stood before the 24th Amendment was limited, the Amending llody cannot enlarge the limit of the power. As I said, even if i~ be assumed that the actual power for amendment under the article was limited, the article gave the Amending Body a potential power, to enlarge or contract the limit of the actual power. The potential power when exercised by the Amending Body makes the actual power either enlarged or contracd. The wording of proviso to article 368, viz., "If the amendment seeks to make any change.. .. .. ( e) in the provision of this article" makes it clear that the object of the amendment of the article is to make change in article 368. On what basis is the assumption made that by making change in the article, the area of the power, if actually limited, cannot be enlarged? I must confess my inability to perceive any limit as to the character of the change that might be made in the amending power. It was assumed by Hidayatullah, J. in his judgment in Golaknath Case .that the article can be so amended and a Constituent Assembly convoked to amend the Fundamental Rights.

Is such an amendment of article 368 possible if the argument of the petitioner is right than the power to amend the amending power cannot be exercised so as to change the locus or tfie width of the amending power? The only thing required would be that the a'?ending powe~ shuld be amended in the manner and form prescribed by the article itself. And there is no case that that has not been done.

838 SUP1'ME oot REPOl.TS [1973] Supp. s.c.R.

Cou11BC! also submitted that the opcratipn of' article 13(2) wu not liabl~ to be taken away by the amendment. He said that ijlthol, llh there was no a:pre11 provwon in article 13(2) or in article 368 which prevented the operation of article 13(2) being taken away, there wu implied limitation for the reason that, i£ the Fundamental RightJ could not have been amended in such a way as 1IO take away or abridge them because of the inhibition c<>11tained in article 13(2), that inhibition could not have been removed indirectly by amending article 368 and article 13(2). In other words, the argument was, as the Word 'law' iii article 13(2) included an amendment of the Constitution, that was an express bar to the amendment of the Fundamental Rights in such a way as to take away or abridge them and, therefore, the Amending Body cannot do, in two stages what it was prohibited from doing in one stage. Even on the assumption that the word 'law' in article 13(2) included an' amendment of the Constitution, I think there was nothing which prevented the Amending Body from amending article 368 and article 13(2) in such a way as. to exclude the operation of article 13(2) as there was no express or implied prohibition for doing so.

The next question for consideration is whether the 25th Amendment is valid. By that Amendment, article 31 (2) was arnnded atlll the amended article says that no property shall be .acquired save 1w . the authority of law which provides for acquwtion or req11isition qf the prj)perty for an 'amount' which may be fixed by sUch law or w.hich may .be determined in accordance with such principles and gi, vcn in such manner as maY be specified in such law and that no suc:h law shall be i:alled in question in any. Court on the grollnd, th; it the pomtt so fixed or dt'termined is not adequate or that the ,-whole <lt any part <J. slich lllllOUnt is to be given otherwise than in .eash .. An exception has been made in the case of acquisition of rty .belonging to .ii cducatiGnal institution established and administitred. 1by a minority referred ·.txi in clause ( 1) of article 30 by pmvidingi .chat thC State shall ensure that the amount fixed by or detetmined. urtdet1 the law•· fat acquisition of such property must be such as would not restrict !Jiff abrogate the right guaranteed under thatt clause. . Clause (2B} to ' article 31 provides for dispensing with the application of articlcr 19(1)(£.) to any law as is referred to in sub<:lausc (2) of article 31, A new article. was also inserted viz., article 31C whkh providet that notwithstanding anything contained in article 13, nci. law giving effect

to the policy of the State llOWards sccuriiig the principles specified in clause (b} or clause ( c) of article 39 shall be deemed to be void on the ground that. it is inconsistent with or takes away or abridges any of the right!S conferred by articles 14, 19 and 31 ; and no faw containing a declaration that it is for giving elfc.ct to such policy shall.

KESAVANANllA v. Kl!lALA (Mlllhew, J.) 83!>

be called in question in any court on the ground that it docs not give effect to such policy : Provided that where such law is 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.

Mr. Palkhivala contended that the Fundamental Right to acquire, hold and dispose of property is an essential feature of the Constitution,. that there can be no dignified citizens in a State unless they have the right to acquire and hold property, that the right to acquire and hold property i~ essential for the enjoyment of all other Fundamental llrights as it is the basis on which all other rights are founded, that the Fundamentil Rights guaranll:ed to the minorities would become a rope of sand if the right to i hold and dispose of property can be taken away and as power to a2quire property for an 'amount' inadequate or illusory is given to. the Parliament or State Legislature, that would damage the essence or core of the Fundamental Right to property. Counsel said that if the core or the essence of the right to hold property could be ta.ken away by a law, the right to freedom of press under article 19(1)(a) would become meaningless as a publisher could be deprived of his printing press by paying him a nominal amount and that the fundamental right of the workers to form associations and of the religious denominations to establish and maintain institutions for religious and charitable purposes would become empty wbrds.

The framers of the Constitution regarded the right to acquire and' hold property as a Fundamental Right for the reason that a dignified human life is impossible without it. Whether it is the weakest of all' Fundamental Rights would depend upon the question whether tqerc is a hcirarchy of values among the Fundamentil Rights. The concept of preferred freedoms is an indication_ that some judges are in- . dined to put the right to hold property low in the scale of values.

The. exponents of natµral law like Aristotle, St. Thomas Aquinas, Hobbes and even positivists arc agreed that right to life and property is the presupposition of a good legal order. Property, according to Aristotle, is an instrument of the best and highest life. Property isthe necessary consequence and condition of liberty. Liberty and property demand and support each other.

The doctrine of natural rights has exercised a profound in8uence upon the conception of private property. In its moo: modem form

:840 SUPREME COURT REPORTS (1973] Supp. s.c.R .

. it insists that property is indispensable to man's individual development and attainment of liberty, Without dominion over things, 111an is a slave('). ·

The most that we,, can claim, as a general principle applicable to all stages of social development, is that withou~ some property or capacity for acquiring property there can be no individual liberty, and that without some liberty there can be no proper development of

<:haracter('~· .

Persans without property en; oy no sense of background . such as would endow their individual lives with a certain dignity. They exist •On the surface; they cannot strike roots, and establish permanency(').

In short, the concept of property is not an arbitrary ideal but is Jounded on man's natmal impulse to extend his own personality.

In the long run, a man cannot exist, cannot make good his right to :marriage or found a family unless he is entitled to oW!lership through .acquisition of property.

However, it is a very common mistake to speak of property as if it were an institution having a fixed content constantly remaining the same; whereas in reality, it has assumed the mQSt diverse forms

.nd is still susceptible to great unforeseen modifu:ations.

The root of the difficulty is that in most of the discussions the notion of private property is used too vaguely. It is necessary to distingui•h at least three forms of private property : ( i) property in -durable and non.Curable consumer's goods;

(ii) property in the means of production worked by their OW!lcrs; (iii) property in the . means of production not worked or directly managed by their owners, especially the accumulations of masses of property of this kind 1n the ltands of a relatively narrow class. While the first two forms of property can be justified as necessary conditions of a free and purposCful life, the third cannot. For this type of property gives power not only -over things, but through things over persons. It is open to the charge made that any form of property which gives man power over man is not an instrument of freedom but of servitude(').

The foundation of our society today is found . not in fu11etion1, but in right1; that rights arc not deducible from the discharge of

'321.

{ 1) Sec John Moffatt Mccklin, "An Introduction to S<icial Ethics", .pp. 302-

(') See Rashdall, "Property: Its Duties and Rights", pp. 52-64.

( 1) Holland, "Property : Its Duties and Rights", pp. 183-192.

( 4) Sec Professor Morris Ginsberg, "Justice in Society", p. 101.

ltBSAVANANDA "· llJtALA (Mathew, J.) 841

function, so that the acquisition of wealth and the enjoyment of property are contingent upon the performance of services but that the individual enter• the world equipped witli rights to the free disposal. of this property and the pursuit of his economic self-interest, and that: these rights are anterior to, and independent of any service which he: may render. In other words, "the enj.oyment of property and the

direction of industry are considered to require no social justification"(').

The framers of our Constitution made the right to acquire, hold and dispose of property a .Fundamental Right thinking that every: citizen in this couritry would have an opportunity to come by a modi-· cum of that right. Therefore, as the learned Attorney General rightly contended any defence of the right to own and hold property must essentially be the defence of a well distributed proipcrty and not an.

abstra~ right that can, in practice, be exercised only by the few.

Article 39(b) provides that the State shall diirect 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 39(c) states that the State shall direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.

Sir Ivor Jennings has said than the propositions embodied in these sub-articles are derived from article 45 of the Irish Constitution and: that in turn is based upon Papal Bulls(').

His Holiness Pope Paul VI, following the previous encyclicals on the subject has said : (3)

"To quote St. Ambrose : " .... the world is given to all, and' not only to the rich". That is, private property does not constitute for anyone as absolute and unconditioned right. No one is justified in keeping for his exclusive use what he does not need, when others lack necessities. In a word, 'according to the tradi-·

tional doctrine as found in the Fathers of the Church and the great theologians, the right to property must never be exercised to the detriment of the common good."

/ ( 1) See Richard Henry Tawney, "The Acquisitive Society", .Chapter II & IV. ( 2) Sec Sir Ivor JenningS, "Some Characteristics of the Indian Constitution11 ~31~. '

( 3) See Encyclical Letter of Pope Paul VI (1967), "On the Development of Peoples", pp. 18, 58, footnote at p. 58.

2.tl SUPIU!ME OOUJ.T UPOUS ( 1973] Supp. S.C.L

!'God has intended the earth and all that it contains for the use of all men and .an peoples. Hence, justice, accompanied by charity, must so regulate the distribution of created goods that they are actually available to all in an equitable measure.'.'

"Moreover, all have the right to assess a share of earthly goods sufficient for themselves and their famils."

"In extreme necessity all goods are common, that is, are .to be shared"

The basic institution of property is not to be confused with particular forms it may assume in different ages or regions.

Thes~ will be justified according as they continue to show that they are achieving the general aim of ministering to the good of human life. Natur.al right may also be violate4 under a regime in which a great number, although theoretically free, are in practice excluded from . the possibility -0f acquiring property (1).

When property is acquired for implementing the directive principles under article 39(b) or 39( c ), is there an ethical obligation upon the State to pay the full market value? In all civilized legal systems; there is a good deal of just expropriation or confiscation without any direct compensation. Indeed, no one1 in fact, had the courage to argue that the State has no right to deprive an individual of property to which he is so attached that he refjlses any money. for it. Article 31 (2A) proceeds on the assumption that there is no obligation upon the State to pay compensation to a person who is deprived of his property.

What does it matter to the person who is deprived of his property whether after . the deprivation, the State or a Corporation owned or controlled by the State acquires title to it? Every acquisition by State pre-supposes a deprivation of the owner of the property. If when depriving a person of bis property, the State is not bound to pay compen- sation, what is the principle of justice which demands that. be should be compensated with full market value merely because the title to the property is transferred to State or the Corporation as aforesaid after the deprivation.

No absolute principle of justice requires it.

The whole business of the State : depends upon its rightful power to take away the property of Dives in the form of taxation and use it to supp<>rt Lazarus. When slavery was abolished in America, by law, the owners had their property taken away. The State did not consider itself ethically bound to pay them the £ull market value of their slaves. It is certainly a grievous shock\ to a community to have a large number of slave owners; whose wealth made them

( 1 ) See William J. McDonald, "The Social V.Uue of Property according to :St. Thoma1 Aquinas", p. 183. ·

ICESA\'ANANDA "· KUALA (Mathew, J,) 843

leaden of culture, suddenly deprived of their income, Wther it was desirable for the slaves themselves to be suddenly taken away from their master. and nit adrift on the sea of freedom without compensation is another matter. "When prhibition was introduced in America, there was virtual confiscation of many millions of dollars' worth of property. Were the distilliers and brewers entitled to compensation for their l01ses?. The shock to the distillers and brewers was not as serious as to others e. g., saloon keepers and bartenders who did not lose any legal ptoperty since they were only employees, but who found it diffi .. cult late in life to enter flew employments. These and other exam pies of justifiable confiscation without compensation arc inconsistent with the absolute theory of private property"(').

An adequate theory of social justice should.enable one to draw the line between justifiable and unjustfiable c:ises of confiscation.

The intention of the framers of the Constitution, when they drafted article 24 [the original article 31(2)], can be seen from the speech of Pandit Jawaharlal Nehru in the Constituent Assembly on September 10, 1949(2).

" .... Eminent lawyers have told us that on a proper construe tion of this clause, normally speaking, the judiciary should not and does not come in. Parliament' fixcs cithcr the compensation itself or the principles 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."

Shri K. M. Munshi (who spoke in the Constituent Assembly on the draft article 24 on September 12, 1949, observed :(')

"We find on the English Statute Book scveral Acts, the Land Acquisition Act, the Land Clauscs Act, thc Housing Act; in all of which a varying basis of compensation has becn adopted to suit not only to the naure of the property but also the purpose for which it is to be acquired. Parliament therefore is the judge and master of deiding what principles to apply in each case."

In the State of West Bengal v. Bela Baneriee('), the expectation entertained by the Constituent Assembly that the Court will not interfere with the fixation of compensation by Parliament was belied. The

( 1 ) Sec generally M. R. Cohan, "Property and Sovereignty", Law and Social Order, p. 45 onwards.

( 2) Constituent Assembly Dcbztcs, Vol. IX, 1193. (') Constituent Assembly Debates, Vol. IX, p. 1299. (') (1954) S.C.R. pp. 558, 563-4.

844 sUPRl!Mll OOUlt lU!PQB.TS [ 1973} Supp. s.c.11.

Court said in that case that the owner of the prop.orty expropriated must be paid .the. just equivalent of what he has been depnved of and that Within the limits of this basic requirement of full indemnification of the expropriated .owner, the Constitution allows free play to the legislative judgment a9 to what principles should guide the determination of the amoullll: payable.

In order to bring article 31(2) in conformity with the clear inten tion of the framers of the. Constitution. the Fourth Atnendment to the Con•titution was passed and it came into effect on April 'll, 1955.

At the end of article 31(2) the following words were introduced by the Amendment : " .. and no such law shall be called in question in any Court on the ground that th~ compensation provided by the law is not adequate." The effect of the amendment was considered by this Court in P. Vajravelu Mudaliar v. Deputy Collector('). Subba Rao, J. (a~ he then was) said that the faot that Parliament used the same expressions namely, 'compensation' and 'principles' as were found in article 31 before the amendment is a clear indication that it accepted the meaning given by this Court to those expressions in Mrs. Bel, a 1laner jee's Case and that it follows that a Legislautre in making a law of acquisition or requisition shall provide for a just equivalent of what the owner has been deprived of or specify the principles for the pur pose of ascertaining the 'just equivalent' of what the owner has been deprived of.

In Union of. India v. Metal Corporatitm( 2), it was laid down that to provide written down value of a machinery (as it was understood under the Income Tax Act) was not in compliance with article 31(2) because it did not represent the just equivalent of the machinery, mean ing thereby, the price at or about the time of its acquisition. Subba Rao, j. said that the law to justify itse1' has to provide for the payme.nt of a 'just equivalent' to the land acquired or lay down pnnciples which will lead to that result.

Two years later, in Gujarat v. Shantila/(8 ), this 0ourt overruled the decision in e Metal Corporation Case and Shah, J. observed that if the quantum of compensation fixed by the Legislature is not

liab~ to be canvassed before the Court on the ground that it is not a just equ'ivalent, the principles specified for determination of compensation will also not be open to challenge on the plea that the compensation determined by the application of those principles is not a just equivalent.

( 1) (1965) 1 S.C.R. pp. 614, 626.

( 2 ) {1967) 1 S.C.R. p. 255.

( 8 ) (1969) 3 S.C.R. 341.

KESAVANANDA ti. KERALA (Mathew, J.) 845

In the Bank Nationalisation Case('), the majority decision virtu ally overruled the decision in Gujarat v. Shanti/al. The majority was of the view that even after the Fourth Amendment 'compensation' meant "the equivalent in terms of money of the property compulsorily ac quired" according to 'relevant principles' which principles must be appropriate to the determination of compensation for the particular class of property sought to be acquired.

It was in these circumstances that the word 'amount' was substituted for 'compensation' in the sub.article by the 25th Amendment.

It was submitted on behalf of the petitioner that the word 'amount' implies a norm for fixing it and_ that at any rate, when principles for fixing the amount are referred to, the principles must have some rele vancy to the amount t; l, e fixed.

The whole purposL of the amendment was to exclude judicial review of. the question whether the 'amount' fixed or the principle laid down by law is adequate or relevant.

Mukherjea, C. J. said in Rai Sahib Ram ]awaya Kapur v. State of Puniab('}, that the Cabinet, enjoying as it does, a majority in the legislature concentrates 'in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all for

mulatai by them.

Mnch the same sentiment wa.s: expressed by Hegde, J.(8) :

"In a Cabinet form of Government, the executive is expected to reflect the views of the Legislature. In fact in most matters it gives the lead to the Legislature. However much one might deplore the ''New Despotism" of the executive, the very complexity of the modern society and the demand it makes on its government have

set in motion forces which have made it ab!olutely necessary for the legislatures to entrust more and more powers to the executive.

Text book doctrines evolYed in the 19th century have become out of date .... " When the Cabinet formulates a proposal for acquisition of pr<>- perty, it will have the relevant materials to fix the amount to be paid to the owner or the principles for its fixation. Several factors will have to be _taken into account for fixing the amount or laying down


( 2) (1955) 2 S.C.R, 225, 237.

( 8) see Sita Ram Bishambhar Dayal v. Stat< of U. P. (1972), 29 Sales Tax Cases, 206. . 54-36 S. C. India/73

846 SUPRl!ME COURT llEPdRTS [1973] Supp. s.c.a.

the principles; the . riature of the property sought to be acquired,

the purpose for which the acquisition is being made, the real investment of the owner excluding the fortuitous circumstances like uneam• ed increment and also marginal utility of the property acquired to the owner. Principles of social justice alone will furnish the yardstick for .fixing the amount or for laying down the principles. The proposal

becomes embodied in law,' if the Parliament" agrees to the Bill embedying the proposal. The whole point is that the .fixation of the amount or the laying down of the principle for .fixing it is left to the absolute discretion of the Parliament or the State Legislatures on the basis of consideration of social justice. That the fixation is in the absolute discretion of. Parliament or the State Legislature is further made clear ' when it is laid down that ''no such law sh'all be called in question in

any Court on the ground that the amount so fixed or determined is not adequate." If the Parliament or State legislature can fix any amount, on consideration of principles of sociaL justice, it .:an . also formulate the principle for fiXing the amount on the very same consideration. And the principle of social justice will not furnish judicially manageable tandards either for testing the adeq~ of the amount or the rekvancy of the .principle. . ' ·

 The article as Mn ended provides no 'norm for• the Court to test the adequacy of the amouni or the relevancy oi the. principle.. Where . as the word 'compe11sation'; even' after the Fourth .Amendment, .wp thought to giw such a norm, namely, the just' equivalent in maricy of the property acquired or full indemnification of the owner! the word 'amount' conveys no idea of anY µo!T\1-. It supplie~ no yard-sti~.

It furnishes no measuring rod.' '11ie neutral word 'amount' was deliberately chosen 'for tht- 'plll'pOl!e. I. ain lm!tblt tO tlndci'stmid the purpose in substitllling the word ':lnlOurit' for' the word ''compeilstion' in the sub ariide ilitlcss It .be 'to a Cf rive . ihe Coi1rt. of any yardstick or norm for determiiiing the adequacf tli-c ount and the telc\'ancy of the principles , fixed by law. I shoU!d 'have tholight that this coupled with the express provision precluding the Court from going into the adequacy of the amount fixed , or determined sliould put it beyood anydoubt that fixation of the amount or determination of the principle for fiXing it is a matter for the Parliament alone and that the Court has no say in the mattr.r. ·

This Court said in Shantt1al's Case(')!'. . . . . " .... ii does not however mean that' ; omethlng Jiir:~ or dttermined by the application of specified principles whlcn is ilhoory"" or can in po sense be regarded as compensation must, hF"uphel~ _ by the courts, for, to do so, woul!'l be to grant a cll'lrtct -~£ arbt ·. trariness.'' - · ·


XESAVANANDA v. KUALA (Mlllhew, J.) 847

These observations were made with reference to the sub-article as it stood before the 25th Amendment, namely, before the substitution of the word 'amount' for the word 'compensation' in it Even if the decision of this Court in Shantilal' s Case is assumed to be correct, what is its relevancy after the substitution of the word 'amount' in article 31 (2) as regards the jurisdiction oE the Court to test the adequacy of the amount on the ground of arbitrariµess:

I do not propose to decide nor is it necessary for the purpose of adjudg'ing the validity of th() 25th Amendment whether a law fixing an amown which is illusory or which is a fraud on the Constitution, can

be struck down bv Court. It is said that the instances in which the Court can interefere to test the adequacy of compensation or the relevancy of the principles for determination of compensatim had been laid down in the Bank Nationalisation Case and when the 25th Amendment did not make any change in the clause, namely, "no such law hall be called in question in any court on the ground that the amount so fixed. or determined is not adequate'' but retained it in its original form, the only inference .is that the Parliament approved the interpretation plaeed upon the clause by this Court and, therefore, the Court has power to examine the question i.vhether the 'amount fixed by law is adequate or illusory or that the principles for fixation of the amount are relevant. I am not quite sure about the nature of the presumption when the word "compensationu has, been deleted from the sub-article and the word "amount" substituted.

In Thr. R01al Court Derby Procelain Co., LtJ. v. Raymo11d Russel (1) Denning, L. J. said : ' ·

"J do not believe that whenever Parliament re-enacts a provision of a statute if thereby gives statutory authority to ¢very erroneous interpretatioli' which hasbeen put upon it; The true view is that the Court will be slow to overrule a previous decision on the interprdation of a statute i1ien it has 'long been. acted on, and it will be more than mually slow to do so when Pailiament 1'as, since the decision, re-enacted the statute in the samertcrms."

See also the speech of Lord Raddifl'e in Ga/Jowayv .. Galloway(•).

The presumption, if there is any, is always subject to awinttion to the

ontrary.

. Counsel for the petitioner argued that as article. 19(i) (f) s .. tili retained it would be paradoxical if a law could provide for acq~1s1t1on or requisition of property on payment . of madequte or illusory

amount . He. said, even if the amount given .1s not the JUSt equivalent

( 1) [1949] 2 K.B. 417 at 429.

(') [ 1956] A.C. 299.

848 SUPREME COURT RE POii.TS [1973] Supp. s.c.11..

in money of the value of the property acquired, it must at least be an amount having reasonable relation to its value as Parliament cannot be deemed to have intended by the Amendment to enable a law being passed fixing an unreasonably low amount as the right to acquire and hold property is still a Fundamental Right under article 19. If we are to import into the concept of 'amount' the implication of reasonableness with reference to the , market value of the property, it would immediately open the door to the justiciability of the question of the adequacy of the amount fixed or determined which the sulxirticle expressly says it is not open to the Court to go into.

The Fundamental Right to property is attenuated to a certain extent. But it is not wholly taken away. The right that the property 'could be acqu'ired only under a law fixing an amount or the principles for determining it and for a public purpose would still remain. This Court can strike down an amendment of the Constitution only on the ground that the amendment was not made in the manner and form required by article 368, or that the amendment was made in violation of some express or implied limitation upon the power of amendment.

A constitutional amendment which provides for the law fixing tile 'amount' or the PTincip!es for determining the amount instead of compensation or the principles for its determination and which deprives the Court of the power of judicial review of the question whether the amount or the principles fixed by law is adequate or arc relevant,

cannot be adjudged bad on the ground of some invisible radiation from the concept that the right to acquire, hold or dispose of property is Fundamental Right.

If full compensation has to be paid, concentration of wealth in tile form of immovable or movable property will be transformed into concentration of wealth in the form of money and how is the objective underlying article 39(b) and ( c) achieved by the transformation ? And will there be enough money in the coffers of the State to pay full compensation?

As the 24th Ame9dmcnt which empowers Parliament to take away or abridge Fundamental Right has been held by me to be valid, I do not think there is any conceivable basis on which I can strike down the amendment to article 31 (2). Nor can I read any implication in to the word 'amount' and say that it must be reasonable as that would imply a standard. Having regard to the neutral and colourless character of the word 'amount' and the express provision excluding judicial review of the question of the adequacy of the amount, the question of reasonableness of the amount or the relevancy of the principle is entirely outside the judicial ken.

JWAVANANl>A fl. KUALA (Mathew; J.) 849 .

Now I tum to the question of the validity of article 31C.

Counsel for the petitioner slibittcd that there is a fundamental distinction between. amcnd1Dg Fundamental Rights in such a way as to abridge 'or. take them . away and making ah amendment fu the Con-. stitution which enables Parliament inits legislative capacity and the legislatures of the States to pass a Jaw vjolating Fundamental RightJ and making it valid. According to counsel what has been done by article 31C is to enable Parliament and State Legislatures to make Constitution-breaking laws. d put the~ . beyond challenge in any Court with the result that laws which would be. void as contravening the .Fundamental Rights are deemed, by a fiction .of law, to be not void and that is a n:pudi.ation of the suprcn1acy of the Pinstitution which is an essential feature of the Con8ti.tution. Counsel further said the Directive Principles which were intended by the Constitution-makers to run . as subsidiary to Fundamental Rights have been made parainount to them and laws to implement the Directive Principles specified in article 39(b) and ( c) arc made immune from attack, even if they violate Fundamental Rights .. µnder articles 14, 19 and 31. He .further said that a declaration by Parliament or the. State legislature that a law is to give diect to the policy of the State towards securing the principles specified in article 39(b) or ( c) has been made lina1 which, in effect.

means that Parliament and State legiSlaturcs can pass any laws in the exercise of their legislative power, whether they give effect to the policy of $tate towards securing the Directive Principles contained in article 39(b) and (c) or not, and get immunity for those laws from attack under articles 14, 19 and 31.

I should have thought that article 31C is a proviso to article 13(2) in that .it enables Parliament or State Legislatures to pass laws of a particular fypc which would not be deemed to be void even if they violate the provision of articles 14, 19 and 31.

I have no doubt that 'law' in article 31C can onlv mean a law passed by Parliament or the State legislatures. The word must take its colour from the context.

The makers of the Constitution imposed a ban by article 13(2) upon the 'State' passing a law in contravention of the rights conferred by Part Ill. If 24th Amendment which enablb Parliament to make an amendment of the Fundamental Rights in such a .way as to take away or abridge them is valid, what i& there to prevent' _Parliament from enacting a constitutional amendment making it pol!Siblc for Par- 'IJiameht .or State legislatures to pals laws for implementing the Directive. Pii, nciples specified in rticle 39(b) and 39( c) "Yhich wuld be inilnune from attack on the ground that those laws v10late articles 14, 19 and 31? Is it not open to the Amending Body to enact an amendment

850 SUPUll<IE .COUllT REPllllTll [1973] S11pp. s.c.a.

saying in effect that although all laws passed by Parliament and State legislatures, which violate fundamental rights are void, laws passed by Parliament and State legislatures for giving effect to the policy of the State towards securing directive principles specified in article 39(b) and (c) would not be void, even if they contravenesome of th, e fundamental rights, namely, those under articles 14 .• 19 and 31? Arle 31C merely carves out a legislative JieM with reference to a particular type of law, and exempts that law from the ambit of article 13(2) in some respects. Parliament or State legislatures pass a law for giving effect to the Directive Principles speciJied in article 39(b) or (c), not

by virtue of article 31C, but by virtue of their power under. the appro.

priat~ legislative .entir~ What article 31C does is to confer immunity on those laws from attack on the ground that they violate the provision of articles 14, 19 and 31.

The material portion of article 31A is in (Jtlri materia with the first part of article 310; Article 31.A has been held to be valid by this Court in Sankari Prasrzd's Case('). The fact that the argument now urged did not occur to counsel who appearrd in the case or the great judges

\\•ho decided it is a weighty consideration in assessing its validity. To make a distinction between article 31A on the ground that article 31A provides for laws dealing with certain specified subjects only whi:reaa article 31C makes provisions for laws to give effect to the Ste policy

orsccurin~ the directive p~cipl.es specified in article 39(b) and (c) 1s, to my mmd; to make a d1stmc:t1on between Twccdkdum and Twcedi ledee. One can vety well say that the subject matter of' the faw (tuei. red to in article 31C is that dealt with by aititle 39(b) and (c} ot that 31A provides for !mmtinity of the laws for securing the objects specifitd therein from attack on the ground that they violate articles 1~, 19 and 31.

Doe.$ the artificial characterisation of a law as one with reference to 'ihe object or subject make any difference in this ontxt 't I think not.

 It isa bit difficult to understand how artic!C 31C has delcgt\Cd or,

i~ I may ay so.more accU'ratey; inv'dted.thc Parliament irt its legisi. ttve capacity or the State legislatures, with any power tO amC!id.' the . Constitutic; m. Mere[y because a la"'. pll.lSed ~Y em t?. ve elf~ to the policy of the State towacds secunng ~Directive P, nncii>!cs spetj4ed

in article. 39(b) and (c) in pll/sqance ,. to valid legisfvc,,~ in the appropriate Lisi'$ in the: Seventh. $cc4ule might. viob; c . die Fundan)ental Rights un, der articles 14, 19 and 31 and s~ law .is dem.!· cd not yoid . by virtue . of article 31C, it .wCl\lkl not follow t)W article 31C.has invested the Parlian; tc; nt , in its,.lcgislp, tivr .qpacity or . the State legislatures. wich power to: aixiQl<l .. the . Constrtution. It is by • virtue of the Z5th Amendmnt .that, .. the l, aw. iili¥>ajh it 111ight

( 1 ) [1952] S, C.R. 89,

KESAVANANDA I/, KERALA (Mathew, J.) 851

violate the Fundamental Rights under articles 14, 19 and 31 is not deemed viod.

Whenever Parliament or State legislatures pass such a law, the law so passed gets immuniey from attack on the ground that it

viulates the Fundamental Rights under articles 14, 19 and 31 by v'irtue of article 31 C which in effect has made a pro-tanto amendment of article 13(2) in respect of that category of laws. It is a mistake to suppose that every time when Parliament in Its legislative capacity or a State legisla

ture paS&es such a law and if the law violates. the Fundamental Rights under articles 14, 19 and 31, it is that law which am.ends the Constitution and makes it valid. The amendment of the relevant provision of the Constitution, namely article 13(2), has already been made by the 25th Amendment. And as I said it is that amendment which confers upon the law immunity from attack on the ground that it violates the Fundamental Rights under the above said articles.

Parliament in its legislative capacity or. the State legislatures cannot confer any immunity pon the laws passed by them from the attack and they do not do so. They rely upon the 25th Amendment as conferring the immunity upon the law which gives effect to the State Policy towards securing the above mentioned purpose. I confess my inability to understand the distinction between a law passed in pursuance of an amendment of the Constitution which lifts the ban of article 13(2) and a law passed in pursuance of an amendment which says that the law shall not be deemed to be void on the ground that it is inconsistent with or takes away or abridges the rights conferred by the articles in Part III. The distinction, to my mind, is invisible. Take one illustration: Artide 15(4) says,:

"Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provisions for the advancement of any sGcia\ly and educationally backward climes of

citizens or for the Scheduled Castes and Scheduled Tribes."

Suppose the sub-article had said :

"Notwithstanding anything contained in this article, or clause 2 of article 29 the State shall be competent to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes and such a law shall not be dr.emed to be void under article 13(2).'' In both the cases, the amendment has brpught about the same effect, namely, th.e law shall not be deemed to be void for contravention .of the right conferred by art; icle 15 or article 29(2), notwithstanding the difference in the wording by which the effect was brought about. And, in both cases. it is the amendment of the Constitution which gives the law rhe immunity from attack on the ground that it is in contravention of the rights conferred by Part III.

ffl SUPREME COURT REPORTS (1973) Supp, S.C.R.

. If article 31C is assumed to invest Parliament in its. legislative • capacity or State legislatures with power to pass a law of the description in question amending Fundamental Right!S under articks 14, 19 and 31 in such a way as to take away or abridge them is t)ie grant of sud! a power valid. The answer seems to me to be simple. If the effect of article 31C is as assumed, then .it is a pro-tanto amendment of arti- 1 de 368. It is not necessary that article 31C should in such a case purport to amend article 368.(1). Nor is it necessary that Article 31C should commence with the words "Notwthstanding anything contained in article 368';. Just as the Dog Act under an uncontrolled constitution, flro-tanto amends the so called constitution if it is inconsistent with it, so also under a controlled constitution an amendment of the constitution, if inconsistent with any provision of the constitution would pro-tanto amend it. The 25th Amendment was passed in the manner and form required for amendment of article 368;

I cannot read any limitation upon the power to amend the amnding power which would prlude article 368 from being amended in. such a way as to invest part of the amending power in Parliament in its ordinary legislative capacity or in State legislature, to be exercised by them in a form and manner different from that prescribed by article 368; .

The supposed bad odour about the article should not upset our judgment in adjudging its constitutionality. We have no power under the Constitution to adjudge a constitutional amendment as unconstitutional. on the ground that the amendment would in effect vest large powers in Parliament and State legislatures to pass laws which might violate articles 14, 19 and 31.

Counsel for the petitioner asked the question why the right to pass laws violating the freedom of speech guaranterd under article 19(1)

(a) is given to Parliament in its legislative capacity and to the State legislatures by article 31 C when it is seen that clauses ·(b) and ( c) of article 39 are concerned with matters wh:ich have no connection with tlut freedom.

. In my dissenting judgment in Bennett. Coleman & Co . .and Others

v. Union of India and Others etc.("), I had occasion to deal with certain aspect!S of the modern press. Mr. Seervai has rightly emphasized its commercial character and how that aspect, though connecfcd with freedom of speech might require control, Though theJress lt'allm as the purveyor of truth and the disinterested counsellor the people, it is now primarily a business concern; an undertaking conducted for

( 1) Sec MOAamet1 Samsut1een

(1968) A. C. 717, 739 to 744.

(') (1972] 2 s.c.c. 788.

Kariapper v. S. S. Wijesinha ant1 another

Xl!SAVA!j'ANDA "· llRALA (M!Zlhew, J.) 853

pqfit like any other, tht the proprietor is a man of business and

gh he may desire power as well a.• money, profit comes before political opinions. . According to Lord Bryce the power of the newspaper has two peculiar features. It has no element of Compulsion and no element of Responsibility. Whoever exposes himself to'its influence so of his own free will. He need not buy the paper, nQr read it.

JIOr believe it. If he takes it for his guide, that is his own doing. The newspaper, as it l1as no legal duty, is subject to no responsibility, be yond that which the law affixes to .indefensible attacks on private chancter or incitements to illegal conduct. The temptations to use the .inB.uence of a newspaper for the promotion of pecuniary interests, whe

thcr of its proprietors or of otlicrs,· have also increased. Newspapers .have become one of the mostavailablc instruments by which the Money power can make itself felt in politics, and. its power is practically irresponsible, for the only thing it need fear is the reduction cl circulation, and the great majority of its readers, interested only in business and sport, know little of and care little for the political errors it may <Ollllllit.(1).

The news CO'ltent of the press enters. at once into the thought pro- "ss of the public. The fulncss and unbent integrity of the news tihus :becomes a profund social concern. That which is a ncecssary condi

tion of performing a duty is a right; we 1nay thcrc:fore speak of the moral right of a people to be well served by its press. Since the citi

zcn's political duty is at stake, the right to have an adequate service -Of. news becomes a public responsibility as well. So freedom of the

press must now cover two sets of rights and not one only. With the

nght~ of editors and publishers to express thcmsc:lves there must be

associated a right of the public to be scrv"I with a substantial and honest basis of fact for .its judgments of public affairs. Of these two, it is the latter which today tends to take precedence in importance.· 'The freedom of the press has changed its point of: focus from the cditOI' to the citizen. This a.•pect of the question was considered by the United States Supreme Court in United Stmes v. Associated Press(').

Mr. Justice lllack who wrote the majority opinion secs the welfare of: the public as the. central issue. The fundamental acknowlledgement -that press functions arc now, in the eyes of the law as well as common

sen, e "clothed with a public interest" suggest an :illirmative obligation .on the part of the Government.

Nobody demurs when a I.aw preventing adulteration of food is passed. Is the adulteration of news, the everyday mental pabulum of the citizen, a less serious matter? The nd of the consumer to have.

( 1) See Lord Bryce, "Modern Democracies", Vol. I, the Chapter on 'The 1'rcss in a Democracy", pp. 104-124.

(2) 326 U.S. 20.

854 SUPREME COURT Rl!pORTS [1973] Supp. S.C.R.

adequate and uncontaminated mental food is such that he is under a duty to get it. Jlecause of this duty bi.1 intrcst acquires the status of a right since the consumer is no longer free not to consume and can get what he requires only through th<' existing press organs, the protection of the freedom of the issuer is no longer sul!icient to prc>- tect automatically the consumer or the community. The general policy of laissez faire in this matter must be reconsidered. The press is a public utility in private hands and cannot he kft free from all kinds of-regulation. The ante-thesis between complete laissez faire and complete governmental operation or coptrol of the press is for our society unreal, Therefore, the question is whether, without intruding on the press activity, the State may regulate the conditions under which those activities take place so that the public interest is better served('). As I said in my judgment, concentration of power substitutes one .controlling policy for many. independent policies, it lessens the number of competitors. The influtial part of the nation's press is large scale enterprise closely !nrer-locked with the system of finance and industry.

It will not escape the naturan bias of what it is. Yet, if freedom is to be secure, the bias must be known and overcome. It may also be necessary for the State to extend ti1e scope of present legal remedies, if a given type of abuse amounts to poisoning the wells of the public opinion. It might be necessary in passing a law for giving effect to the State policy towards securing the Directive Principles contained in article 39(b) and ( c) to deal with the commercial aspect of the press, and that aspect being connected ilh the freedom of speech, it might become inevitable for the law to abridge that freedom.

Whatever one's personal views might be about the wisdom of article 31C, whatever distrust one might li:1ve i.: the attempt at improving society by what one may think as futile if not mischievous economic tinkering, it is not for us to prescribe for the society or deny the right of experimentation to it within very wide limits.

It was said that, as article 31C bars judicial scrutiny of the question that a law containing the declaration gives effect to the policy of the State, Parliament and State legislatures can pass laws having no nexus with the Directive Principles specified in article 39(b) or (c) and violate with impunity the Fundamental Rights under articles 14, 19 and 31.

The purpose of artide 31C is only to give immunit\' to Jl law for giving effect to the policy of the State towards securing the Directive

Principles under article 39(b) and (c) from attack on the ground that its provisions violate articles 14, 19 and 31. A law whim will never give effect the State policy towards securing these principles will enjoy-

(') See Hocking, "The Freedol)l of the Press", pp. 167-9.

KESAVANANDA v. KERALA (Mathew, J.) 855

no immunity, if any of its provisions violates these articles. It is only

a law for giving effect to the State policy towards securing the principles specified in article 39 (b) and ( c) that can contain a declaratioo.

that it is for giving effect to such a policy and it is only such a declaration that will bar the scrutiny by the Court of the question that the law does not give effect to the policy. The expression 'no law' in tbc

latter pare of article 31C can only mean the type of law referred to in the first part. To be more specific the cxp1essio11 'no law' occurring in the latter part of the article can only mean 'no such law' as is referred to in the first part. It would be very strange were it otherwise. If any other construction were to be adopted, a declaration could shield any law, even if it has no connection with the. principles specified iil article 39(b) or ( c) from attack 011 the ground of violation of these articles. Any law under the Sun can be brought under the protective WD:brella of the declaration. Therefore, as I said, it is only a law for

giving effect to the policy of the State towards securing the principles specified in clauses (b) and ( c) of article 39, that can contain a declaration. If a declaration is contained in any law which does not give effect to the policy-of the State towards securing the principles specified in these clauses, the Court can go into the question whether tbc law gives effect to the said policy. Whenever a question is raised that the Parliament or State leatures have abused their power and inserted a

declaration in a law not for giving effect to the State policy towards securing the Directive Principles specified in article 39(b) or (c), the Court must necessarily go into that question and decide it. To put it ia -0ther words, the legi>lative jurisdiction to incorporate a declaratiou.

that the law gives effect to the policy of the State is conditioned upoo. the circumstances that the law gives effect to the policy of the State towards securing the Directive Principles specified in article 39(b) and (c). If this is so, the de<:laration that the law is to give effect to tbc policy of the State cannot bar the jurisdiction of the CoUrt to go int& the question whether the law gives effect to the policy. The declaration can never oust the jurisdiction of the Court to see whether the law is Qne for giving effect to such a policy, as the jurisdiction of the legi .. lature to incorporate the declaration is founded on the law being one to give effect to the policy of the State towards securing these principles.

In order to decide whether a law gives effect to the policy of tbc State towards securing the Directive Principles specified in article 39(b) or (c), a Court will have to examine the p'Lth•and substance, the true

nature and. character o[ the law as also its design and the subject matter dealt with by it together with its object and scope. If the Court cornea

to the conclusion that the declaration was merely a pretence and that the real purpose of the law is the accomplishment of some object other than to give effect to the policy of the State towards securing the Dim;. tive Principles in article 39(b) and (c), the declaration would not be

856 SUPREME COUIIT REPPl\TS [1973] Supp. s.c.R.

a bar to the Court from striking down any provision therein which

mlates articles 14, 19 or 31. In other words, if a law passed ostensibly

to give effect to the policy of the State is, in truth and substance, one for accomplishing an unauthorized object, the Court would be entitled to tear the veil created by the declaration and decide according to the real nature of the law. ·

Apart from the safeguard furnished by judicial scrutiny, there is sufficient guarantee in article 31C that a State legislature will not abuse the power as the law passed by i~ will be valid only when it has been reserved for the assent of the President and has obtained his assent. In the light of what I have said, the apprehension expressed in some quarters that if judiaial scrutiny of the question whether the law gives effect to the policy of the State towards securing these Directive Principles is barred, it will lead to the disintegration of the country has no real foundation.

Nr has the dictum of Justice Holmes:(') "I do not think that the United States would come to an end if the Supreme Court lost our. power to declare an Act of"the Congress void.

But I do think that the Union would be imperilled if we could not make that declaration as to the laws of the several States", any relevance in the context.

It was said that the Constitution-makers never intended that Fundamental Rightll should be subservient to Directive Principles and that they visualized .a society where the rjghts in Part III and the a81Jira- 1ions in Part IV would co-exist in harmony. (The docnrine of harmoniOus construction has been a f111nacea for many of our ills. But I am

not sure of its cfliciency.) A succeeding generation might view tke relative importance of the Fundamental Rights and Directive Principles in a different light or from a d.ifferene perspective. The value judgment of the succeeding generations as regards the re!ative weight and jmportance of these rights and aspirations might be entirely different from that of the makers of the Constitution. And it is no aJ11Wer to say that the relative priority value of the Directive Principles over Fundamental Rights was not apprehended or even if apprehended .was not given effect to when the Constitution was framed or to insist that . what the Directive Principles meant to the vision of that day, it must ' mean to the vision of our time.

I have no doubt in my mind as regards the validity of the 29th Amendment. For the reasons given in the judgment of my learned brother Ray, J., I hold that the 29th Amendment is valid.

( 1) Holmes, "Collected Legal Papers", pp. 295-296.

KESAVANANDA v. KERALA (Mathew, J.) 857

The argument in these cases lasted for well nigh six months.

Acres of paper and rivers of ink have been employed before and during the argument in supplying the Court with materials from all sources. It will be a tragedy if our conclusion were to fail to give adequate guidance to the Bench concerned in disposing of these cases. I do not, want the conclusions to which I have reached to remain a Delphic oracle. I would, therefore, sum up my findings.

I hold that the decision in Golakna.th Case that the Parliament . had no power to amend Fundamental Rights in such a way as to take away or abridge them was wrong, that the power to amend under article 368 as it stood before . the 24th Amendment was plenary" in character and extended to all the provisions of the Constitution, that

the 24th Amendment .did not add anything to the content of article 368 it 'stood before the amendment, that it is declaratory in character except as regards the compulsory nature of the assent of the Presi- . dent t6 11 bill for amendment and that the article as amended makes

it clear that all the. provisions of the Constitution can be amended by way of addition, variation or repeal. The only limitation is that the .COOStitution cannot be 'repealed or abrogated in the exercise of the jiower of amendment without substituting a mechanism by which the

'State is i::onsdtuted and organized. That limitation flows from the Ian- . guagc of the article itself.

I d(> nOt think there were or are any implied or inherent limitations upon the power of amendment under the article:

J:he . 24th Amendment is valid .

. ;•"' •;1_ ' . ' ' ' ' . _ .The 25th Amendment, including article 31C, is valid. The word .'amunt' in article 31(2), as amended; docs not convey the idea of any ; norm. •The fixation of the amount or the principle for determining the , amount is. a matter within the absolute discretion of the Parliament

or tlic State Legislatures. The Court cannot go into the question whether the amount fixed by law or the principle laid down for determining the amount is adequate or relevant.

The declaration visualized in article .31C that the law gives effect to the policy of. the State towards .g the principles spec.ifid !8 art'icle 39(b) and (c) of the Constitution would not oust the JUn~ tion of the Court to go into the question whether the law gives effect to .the policy. The jurisdiction' of Parliament or the State legislatura to ilicorporate the declaration.in a law is conditioned upon the circumstllnce .that the law is one for giving effect to the State policy towards securing the aforesaid principles.

158 SUPREMJ! COUllT REPORTS ( 1973) Supp. S, c.ll.

The 29th Amendment is valid.

T would have the wdt petitions disposed of i.11 the. lighit of these findings. I would make no order as to costs here. ·

BEG, /.-This reference to a special bench .of thirteen .Judges, brger than .any previous bench hearing a case in th.is Court, was made so that the correctness of a view which became binding law of this country by a narrow majodty ri one, as a result of the. eleven J udgc decision of thisCourt, in Golak Nath & Ors. v. State of Pun; ab.& Anr.,(') may be if need be reconsidered. That view was that the prohlbition contained in Article 13(2) of our Constimtion against the making of any law by the State "which takes away or abridges the rights

conferred" by the chapter on Fundamental Rights making laws made in contravention of this provision void "to the extent of the contravention" applies to Constitutional amendments also. A\though that was a decision on a limit?; tion held tp exisl!, under our Constitution, .as it then stood, on the power of amendment contained :in Articic 368 . of the Constitution, yet, it did not decide what the position would be, if Article 368 was itself amended under the expl'Clls power of such amendment recognised by clause_ ( e) of the proviso to Article 368 t2) ef the Constitution. Although, that question, which . then neith~ arose nor was decided, is before us now. directly for. decision, yet, I think, we cannot avoid pronouncing upon the correctness of the majority deci.sion in the Golak Nath's case (Supra), which h~ a bearirig upon the scope of the power of amendmene contained in the unamended Article 368. .

The cases before us have become so much loaded with learning and marked. by brilliance of exposition of all the points inV<>lved, either directly O£ indirectly, both by my learned brethren and the Il\embers of the Ear of this Court, in view of the crucial importance, for the future 9oJlstifut:iorial history of this country, of the hs\te$ placed before us," that it would be presumptuous on my part 1IO .autCJDpt to deal

with eifery point which has been raised. Indeed, it is not necessary for me to repeat eh views as I accept as correct expressed by my learned brethren with whose conclusion I agree. The reason.~ for my very respectful disagreement with those conclusions of some of my other learned brethren with which I do not concur will become evident in the course of the few Observations with whkh l shall content myscl£ before recording my conclusions. I venlture to make these o)Jscrvations because, as my learned Brother Marhew has pointed" our, jn cases oi .

the nature be£ore us, the healthier practice is to follow the mple of House of Lords even though a multiplicity of <>pinions may pr0o duce a "thicket", which, according to Judite Learned Hand, it :is the: function of judicial learnirig and wisdom to remove. I do hope that


ltESAVANANDA fl. KUALA (Beg, J.) 859

my observations will not add to the thickness of. this thicket without

some useful purpose served by making them.

 I think that we do stand in danger, in the circuces stated above, of losing sight of. the wood for the trees, and, if we get entangled in some of the branches of the trees we may miss reaching the destination; the correct conclusion or , Jecision. I think I can speak for all my learned brethren as well as myself when I say that we are all conscious of. the enormous burden which resn. upon our shoulders in placing before the .country the solution or solutions which may not only be correct but benefiCial for it without doing viQJ.encc 1P the law embodied in our Constitution to which we take oaths of allegiance, ·

I am reminded here of. what.Prof. Friedmann wrote in "Law in a Changing Society", He said at. page 61 :-

"'The task of the modern jcdge is increasingly complex. Hardly any major dec'ision can be made without a careful evaluation of the conflicting values and interests of which some examples have been given in the preceding pages. Totalitarian government e1iminates much of the conflict by dictating what should be done".

"The lot of the democratic 'judge is heavier and nobler. He. cannot escape the burden of. individual rcsponsibility, and the great, as distinct from the competent, judges have, I submit, been those who have shouldered that burden and made their decisions as arti- .culate a reflection of the conflicts before them as possible. They do not dismiss the tefhniques of law, but they are aware that by themselves, they provide no solution to the social conflicts of which the law is an inevitable reflection,..

He also .wrote there (at page 62) :-

"The law must a.spire at certainly at justice, at progressiveness, but these objectives are constantly in conflict one with the other. What the great judges and jurists have taught is not infallible knowledge, or a certain answer to all legal problems, hut an awareness of the problems of contemporary society and an acceptence of the burdet of decision which no amount of technical le1ral knowledge can take from us."

The 'Core', a term and concept which Mr. Palkiwala has tried to impress upon us repeatedly with his extra-ordinary forensic ability

~.l!d eloquence, or crux of the problem before us i< thus stated in writing, in part 10 of Book 3, containing the concluding written submission of Mr. Palkiwala.

"It is submitted that it would be impossible to dispose of these petitions without dealing with the most crucial question the true

860 SUPREME COURT REPORTS [1973]. Supp. s.c.11. .

. ambit of the amending power. This question can be decided either on the ground of the meaning of the word "amendment" in the unamended Article 368 or on the ground of inherent and implied limitations or on both the grounds, since they converge on the "::; l::t'! point." ,

"It is submitted with great respect that it . woUkl be imP<¥Sible to deal with the questions relating to the. 24th :il\d. 25th Amendments without deciding the true ambit of the ameD.ding power".

"The questions of the correct interpretation of the 24th Amen~ ment and its validity cannot be decided unless this Hon'ble Cowt first comes to a conclusion as to whether the original. power was limited or unlimit'cd. If it was originally limited the question would arise whether the 24th Amendment should be ''rad down" or whether it should be hell! to be unconstitutional Even the question of the. correct construction qf the 24th Amendment . cannot be decided unless. the starting point is first established,

namely, the true: 'SCOpe of the original aniendirig power".

"Again, it would be impossible to decide the question whether Article 31(2) which has been aled by the 25th Amend-

• mcnt should be "read down" in such a way a5 to pre the right . to property or should be declared unconstitutional as abrogatini

the right to property, unless' and until it is first decided •whether . Parliament has the right to abrogat6 the right to property.

This directly involves the question "whetlier the amending power is limited or willmitcd." ·· ·

"When one comes to Article 3iC the . necessity of deciding tht limits of the .amending powe.r comes unmistakable. The Arrick

violates 7 essential features of the Conslltution and makes the COnStiturion suffer a loss of identity. There can be no question of 'reading down' Article 31C. It can only be held <to be unconstitutional on the ground that Parliament's amending power :was limited". ·

"To decide the question .of t./ie validity of Article 3!C only on the ground that it virtually provide~ for amendment of the Constitt1tion. in a "manner and forn( different from that prescribed bJ>

Article 368 would be a most unsatisfactory ground of decfrz'on.

The question of prime importance is the limit on the amending power. The question of manner and form pales into total insz'gtri..

ficance compared to the question of substantive limitation on sJi6 amending power''. ·

.KESAVANANDA V. KUALA (&g, J.) 861

"It is submitted with the greatest respect thati the 69 days hearing would be virtually wasted if the judgment were to rest merdy on the t><>int of manner and form, avoiding the real issue of. momentous significance, namely, the scope of the; amending pow.c:r. lt is this vital issue which has really tiakm up the time of the Court for almost five months".

Before tackling the core or crux of the case which, as Mr. Palki wala has rightly pointed out, is the question of the limits of the amending power found in Article 368 of the Constitution, I must make some preliminary obser\>'ations on the very concepts of a Constitution and of legal sovereignty embodied in it, and the nature of the amending power as I conccive it. This and other parts of my judgment may also disclose what I think a judge should not hesitate to explore and

el!pose leaving it merely to be inferred from the judgment as his "undisclosed major premises". It is part of judiciali function, in my estimation, to <lisclose and to justify to the citizens of this country what these premises are.

I think that it is clear from the Preamble as well as the provisions of Parts III and JV of our Constitutiol). that it seeks to express the principle: "Salus Populi Seprema Lex". In other words, the good of the mass of citizens of our country is the supreme law embodied in our Constitution prefaced as it is by the preamble or the 'key' which puts "justice, social, economic and political" as the first of the four objectives of the Constitution by means of which "the people" of lnJia constituted "a sovercign democratic Republi~".

A modern democratic Constitution is to my mind, an expres.. sion of the sovereign will of the people, although, as we all know, our Constitution was drawn up by a Constituent Assembly whicli was not chosen by adult franchise. Upon this Constituent Assembly was conferred the legal power and authority, by Section 8 of_ the Indian Independence Act, passed by the British Parliament, to frame our Constitution. Whether we like it or not, Section 6 and 8 of an Act of the British Parliament transferred, in the eye of law, the legal soverdgnty, which was previously vested in the British Parliament, to the Indian Parliament which was given the powers of a Constituent Assembly for framing our Const'itution.

The result may be described as the transfer of political as well a'. legal sovereignty from one nation to another, by means of their legally authorised channels.

This transfer became irrevocable both as a matter of law and even more so of fact. Whatever theory sme of the die-hard exponents of the legal omnipotence ci the British

55-36 s. 0. India/73

862 SUPllMl! COURT llPOllTS [ 1973] Supp. s.c.R.

arliament may have expounded, the modern view, even in Britain,

JS that what was so transferred from one nation to another could not be legally revoked. The vesting of the power of making the Constitutiou was however, legally in the Constituent Assembly thus constituted and recognised and not in ''the people of India", in whose name the Constituent Assembly no doubt spoke in the Preamble to the Constitution. The Constituent Assembly thus spoke for the whole of the people of India without any specific or direct legal authority conferred by the people themselves to perform this function.

The voice of the people speaking through the Constituent Asscm bly constituted a new "Republic" which was both "Sovereign and Democratic". It no .doubt sought to secure the noble objectives laid down in the Preamble primarily through both the 'Fundamental rights found \n Part III and the Directive Principles of State Policy found in Part IV of the Constitution. It would, however, not be correct, in my opinion, to characterise, as Mr. Palkiwala did, the Fundamental rights contained in Part III, as merely the means whereas the Direct'ive . Principles, contained in Part IV as the ends of the endeavours of the p, eople to attain the objectives of their Co!istitution.

On the other hand, it appears to me that it would be more correct to describe the Directive Principles as laying down the path which was to be pursued by our Parliament and State Legislatures in moving towards the objectives contained in the Preamble. Indeed, from the point of view of the Preamble,· both the fundamental rights and the Directive Principles are means of attaining the objectives which were; meant to be served both by the fundamental rights and Directive Princi: pies.

If any distinction between the fundamental rights and the Directive Principles on the basis of a difference between ends or means were really to be attempted, it would be more proper, in my opinion to view fundamental rights as the ends of the endeavours of the Indian people for which the Directive principles provided the guidelines. It would be still better to view both fundamental rights and the "fundamental" Directive Principles as guide lines.

Perhaps, th~ best way of describing the relationship between the fundamental rights of individual citizens, which imposed correspond- .ing obligations upon the States and th, e Directive Principles, would be to look upon the Directive principles as laying down the path of the country's progress towards the allied objectives and alms stated in the Preamble, with fundamental rights as the limits of that path, like the banks of a flowing river, which could be mended or amended by displacements replacements or curtailments or enlargements of any part according to the needs of those who had to use the path. In

.IWAVANANDA v. XEaALA (Beg, J.) 863

Qther words, the requirements of the path itself were more important. A careful reading of the debates in the Constituent Assembly also lead me to this premise or .asswnption. If the path needed widening or narrowing or changing, the limits could be changed.

It seems to be impossible to say that the path laid down by the Directive Principks is, less important than the limits of that path. Even though the Directive Principles are "non-justiciable," in the sense that they could not be enforced through a Court, they were declared, in Article 37, as "the principles. . . fundamental in the governance of the country". The mandate of Article 37 was : "it shall be the duty of the State to apply these principles in making laws". Primarily the mandate was addressed to the Parliament and the State Legislatures, but, in so far as Courts of justice can indulge in sonic judicial law making, within the interstices of the Constitution or any Statute before them for construction, the Courts too are bound by this mandate.

Another distinction, which seems to me to be valid and very significant it that, whereas, the fundamental rights were "conferred" upon citizens, with corresponding obligations of the State, the Directive Principles lay down specific duties of the State organs. In conferring fundamentat rights, feedom of individual cltizens, viewed as individuals, were sought to be protected, but, in giving specific directi<Ves to State organs, the needs of social welfare, to which individual freedoms may have to yield, were put in the forefront. A reconciliation between the two was, no doubt, to be always attempted whenever this was reasonably possibk. But, there could be no doubt, in cases of possibl; e conflict, which of the two had to be subordinated when found embodied in laws properly made.

Article 38 shows that the first of the specific mandates to State organs says :

"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". ·

In other words, promotion of a social order in which "justice, social, economic, and political" was the first duty of all the organs of the State.

The second specific mandate to State. organs, found In Artic!C 39, contains the principks of what is known as the socialistic "welfare State". It attempts to promote social justice by means of nationalisation and State action for a better distribution of material resources Jf the country among its citizens and to prevent the exploitation of

lhe weak and the helpless. It runs as follows :

864 SUPREME cdti1T llEMaTS [1973] Supp. s.c.11.

"39. The ., State shall, in particular, direct'its policy towards seCtl' ring:- ,

(a) that the cifuens,' then and wom~ equally, have the light to an adequate means 'of livelihood. . . .. .,, . '

(h) that the ownership and control of the material rcsoutcd

ot .. the c9mtnunity are so distributed as best to subservc the common good;

( c) that the operation of the economic system does not result

in the concentration of wealth and means of production to the common deteriment; ·

( <l) that there is equal pay for equal work for both men and women;

( e) that the health and strength of workers, men and women, . and the tender age of children arc not abused and that citizens are not forced by economic necessity to enter avocations unsuited , to their age or strength; ·

(f) that childhood and youth are protected against exploitation and against moral and material abandonment".

_ On the views stated above, it would be difficult to hold that, the nw; ssarily , cha.ngeable limits of the path, which is contained in the Directive Princ'.iples, are more important than the path itself. I may mention here. that !t was observed in one of the early Full Bench decisions of the Allahabad High Coon:. in M otilal & Ors. v. The Goverilment of the State of.,.Uttar Pr"4esh 0- Ors.,(') by Sapru J :-

, " I shall also say a few words about the directives of State policy which, though not justiciable, may bc taken info account in con- ·

sidering the Constitution as a whole. These directives lay down the principles which it will be the duty of the State to apply in the making of laws and their executiro. Article 38 states that the State shall strive to promote the welfare of the people by securing a.nd protecting as effectively as it may a social order in which justice, social, economic and polifical shall inform all the irutitutions of the national life".

"Article 39 lays down the principles which must inspire State policy. Articles 40 to 51 concern themselves with such questions inter alia, as, for example, the right to work, to education and to public assistance, the promotion of education and economic interest of scheduled castes and the duty of the State to raise the level of . of nutrition and te improve public health".

(') A.I.R. 1951 All. 257 @ 296.

KES.\VAN'AN'DA ti, DL\LA (Beg,· J.) 865

"My object in drawing atten.tion to the nature of these obje~ tives is to show that what the framers of the Constitution were after was to esiablish, what is geileraIJ.y known, now as the 'welfare' or the 'social service state', in this country. They had taken a cqmprehensive view of State activities and it is quite clear that they were not dominated by the laissez faire thought of the last century. So much about Directives. Now we come to fundamental rights".

"The object of these fundamental rights, as far as I can gather from a reading of the Constitution itself, was not merely to provide security to and equality'. of citizenship of the people living fo this land . and thereby he!ping the process of riationbuilding, but also and not. less importantly to provide certain standards of conduct,. , citizenshiJI, justice and fair play. In the background of the Indian Constitution, they were intended to make all citizens and. persons appreciate that •the paramount law of the land has swept away privilege and has laid down that there is to be perfect equality between one section of the community and another in the matter of all. those rights which are essential for the material and moral perfection of man".

Indeed, in Balwant Rai v. Union of India('), Dhavan J, went so as far to hold that "the duty of the State" under Article 37 to apply these principles in "making laws" was to be carried out even by the judiciary of the State whenever it had a choice between two possible constructions that is to say, when it could indulge in judicial "law making".

The next topic on which I will venture to make some observations is the significance and meaning of the word "sovereign". What was constituted by the Constituent Assembly, speaking for the people of India, was a "Sovereign Democratic Republic".

Here, I may, mention the well-known distinction between "political sovereignty" and' "legal sovereignty". Dicey in his Law of the

Constitution (tenth edition), clisctissing the nature of Parliamentary Sovereignty said (at page 73) :

"The matter indeed may be carried a little further, and we may assert that the arrangements of the constitution are now such to ensure that the will of the dl:ctors shall by regular and constitutional means always in the end assert itself as the predominant influence in the country. But this is a policical, not .a lej!al fact.

The electors can in the long run, always enforce thCIJ' wil!. But the courts will take n0, notice of the will of the electors. The

( 1) A.I.R. 1968 AU. 14.

866 SUPREME COURT REPORTS" [1973] SUl>P; s.c.R.

judges know nothing about any will of the people except in 8o far as that will be expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground o£ its having been passed or being kept alive in opposition to the wjshes of the electors. The political sense of the word 'sovereignty' is, in is true, fully as important as the legal sense or more so. But the two significations, though intimately connected together, are essentially different, and in some part of his work . Austin has apparently confused the one sense with the other".

Legally, the British Parliament transferred the whole of its legal sovereignty . over the people and territories of this country in Bntish India to the Constituent Assembly which spoke in the name of the people of India. The Princely States came in through "Instruments of accession". This means, that the legal sovereignty was vested in the Constituent Assembly whereas the people of India may be said to be only politically "sovereign". Their views were carefully ascertained and expressed,. from various angles, by the Members 0f the C'..onstitrJent Assembly, political sovereign thus operated outside the ambit of law yet made its impact and effect fell: upon the legal sovereign, that is to say, the Constituent Assembly. In recognition of this fact and to bring oun that it was really speaking on behalf of the people of India, the: Constituent Asembly began the Preamble with the words : "We, the people of India". This meant, in my estimation, nothing more. than that the Constituent Assembly spoke for the people of India even though it was vested with the legal authority to shape the destiny of this country through the Constitution framed by it.

There is not to be found, anywhere in ortr Constitution, any transfer of legal sovereignty to the pe\}ple of India.

The people of India speak through their representatives in the two Houses of Parliament. They approach the courts for the assertion of their rights. The courts adiudicate upon the rights claimed by them and speak for the Con$1itutlioni and llQt directly for the people. Judges and other dignitaries of State as well as Members of Parliament take oaths of allegiance to the Constitution and not to the people of India. In other words, the Constitution is the "Legal sovereign" recognised by Courts, although the ultimate 'political' sovereignty may and does reside in "the people".

We need not, I thin!(, en'lbark on any academic discourse upon the various meanings of the term "sovereignty" which has given niuch trouble to political thinkers and jurists such as Luguit, Gricrke, Maitland, Laski, Cole and others . .' I will be content .with quoting the views of Prof. Ernest Barker expressed in his "Principles of Social

 ~VANANDA u, IU!RALA (Beg, J.) ' ' 867

6; Politicill Theory" on the. nature and meaning of the tenn "sovereignty", as the lawyers generally understand it. He says (at page 59):-

''There must exist in the State, as a legal association, a power of of final legal a.djustmcnt of all legal issues which arise in its ambit. The legal association will not be a single unit, and law will not be a unity, .unless there is somewhere one authority to which crucial Oifferences ultimatel'y come, and which gi"'.es, as the authority of last resort, the ultimate and final decision. Different .social groups may press different views of what is, or ought to be, law; it is even possible that different departments of the State may hold, and seek to enforce, different notions of what is legally right; there must be a final adjustment centre. That . final adjustment-centre is the sovereign, the topmost rung of the ladder, the superanus or soverano, the 'authority of the last word'.

Sovereignty is not the same as general State-authority, Or pui1sance publique : it is the particular sort of State authority which ii the power and the right of ultimate .decision". ·

. "In one sense sovereignty is 'unlimited-unlimited and illimitable.

There is no qutstion arising in the legal association, and belong ing to the sphere of its operation, which may not come up to the sovereign. and which will not be firuiliy decided by the sovereign if it so comes up to the topmost rung. The ad justment-centre must be competent to adjust every issue, without exception, which may stand in need of adjustment.

But there are other considerations also to be noticed: and these will show us that sovereign~, if it is not limited to particular questions and

Jefinite objects (limited, that is to say, in regard to the things which it handles), is none the less Ii.mited and defined by its own nature

and its own mode of ttction".

"In the first place, and as regards its nature, sovereignty is the authority of the last word. Onty questions of the last resort will therefore be brought to the Sovereign. Much will be settled in the lower ranges and in the ordinary course of . the action of general State-alithorit)'. In the second place, and as regards its mode of action, the sovereii; n is a part and an organ of the legal asS<)Ciation. Nothing will therefore come to the soverign which docs not belong to the nature and operation of the legal associa tion, . as such.· Sovereignty moves within the circle of the legal association, and only within that circle; it decides upon questions of a l:gat order, and onliy upon those questions. Moving within that circle, and ilcciding upon those questions, sovereignty will only make legal pronouncements, an<I it will make them accord-

868 suPBEl\lt COtlllT Bl!POllTS [1273] Supp, s.c.ll.

iug to rcgUlar rules of legal procedure. It iS hot a capricious power of doihg anything in any way: it is a legal power of sett'.

Hng finally leg.ii questions in a legal way".

Prof. Ernest Barker went on to say (p. 61-63)

"(a) uitiinately, and in the cry last resort, th~ soverci~ is the constitution itself-the constitution which is the eflicient and formal cause of the association; which brinjsit into being; which forms and defines the organs and methods of its operations, and may also fortn and define (if the Constitution ' either contains or is accompanied by a 'declaration of right') the purposes of its , operation. ft may be objected to this view that the sovereign is a body of living persons, and not an impersonal scheme; and that ultimate sovereignty must according)y be asCribcd, not to the constitution, but to the constitution-making body behind it which can alter and amend its provisions. But there is an answer to that objcCtion.. The impersonal scheme of the constitution is permanently present, day by day, and year by year ; it acts continuously, and without interruption, as the permanent control of the whole opcra\i.>n o{ the State. The body of persons which cap. alter and amend the constitution (and which, by the way, can act only . tinder the constitution, and in virtue of the constitution) is a body which acts only at moments of interruption,. and therefore at rare intervals: The continuous control y more properly be termr.d sovereign than the occasional interruption;. and we may accordingly say that the constitution itself, in virtue of being such a. control, is the ultimate sovereign".

"(b) Secondarily,. however; and subject to the ultimate sovereignry of.thecconstitution we may say that the body which makes ordinary lw, iii the nse of issuing the day-to -day and the yearby-year ruks of legal conduct, is the immediate 5overeign. That body' may be differently compoml in dilferr.nt political systems.

In the United States, for example, it is composed of Congress and President acting independently (though with mutual checks and reciprocal p0wers of overriding one another's authority) on a system: of CO-Ordination. In. the United Kingdom it is comi"- 1Cd of Parliament.• and His Majesty's Ministers acting interdepenll~.ntly, and with a mutual give and take (though here too there arc mutual checks, the Parliament can dismissthe Mirusters by an tdvetsc vote' as vice m"Sa they can. dismiss Parliament by advising His Majesfy to use his power of disf<>lution), on a system which is one cl conhCxt:ion rather than co-ordination. However composed, 'the 'body which makes the ordinary law of the land is the immediate sovereign, which issues finaL kgal pronouncements on ordinarY ctirrrcht questions to the extent and by the methods

:iq!AAVANANl>A tf, XDALA (Beg, J.) 869

.authorize.cl um!r the constitution:·. The immediate sovereign which makes the ordinary law in the United Kingdom is authorized by .. the .constitution to a greater extent of action, and to .action by easier and speedier methods, than the the immediate

overeign which makes the ordinary law in the United States; hut in either case tl1e immediate sovereign is a body authorized hy the constitution, acting and able to act because it is so authorized".

On the. argument which is here advanced the constitution is the ultimate sovereign, in virtue of being the permanent scheme, or standing expression, of what may be called the primary law -0f the political association; and the law and rule-making body is the immediate sovereign, in virtue of being the constant source and per-

.cnnially active fountain of what may be called the sccmdary law of the land. Two difficulties confront the argument, one of them largely formal, but the other more substantial The first and largely formal difficulty is tha.t it would appear to be inconsistent to begin by ascribing ultimate sovereignty to the constitution rather than to the con5titution-making body, and then .to proceed to

1 .ascribe immediate sovereignty to the law and rule making body

rather than to the law. Does not consistency demand either that both sovereigns should be impersonal systems, or tha.t both should

ie personal bodies; either that the ultimatc sovereign should be ''the rule of the constitution' and the immediate sovereign 'the .rule of law', or that the ultimate sovereign should be the constitution-making body and the immediate the law and rule-making body ? We may answer that inconsistency is inherent in the nature of the case. The po6iti!>f1 of the primary law of the State is different from that of the secondary law".

I have quoted rather extensively from the views of Prof. Ernete- Barker as they appeared to me to have a special significance for explaining the relevant provisions of our Constitution. Indeed, Prof. Ernest

Barker begins his exposition by citing the Preamble to the Constitution of India; and, he gives this explanation in his preface for such a beginning :

"I ought to explain, as I end, why e preamble to the Constituion of India is printed after the table oE contents. It seemed to .me, when I read it, tit-state in a brief and pithy form the argument of much of the book; and it may accordingly serve as a key-note. I am the more moved to quote it because I am proud that the people of India should begin their independent life by subscribing to th~ principles of a political tradition which we in the West r.all Wr, stcrn, but which is now sometliing more than Western".

870 SUPREME COURT UPOllTS [ 1973] liWl' s.c.&.

The "sovereignty of the Constitution", as I see it, .is "a' feature", as Bosanquet put it in his Theory of the State, "inherent in a genuine whole". This means that it is not vested in all its aspects in any one of the three organs of the State but may be divided between them A mark of such SC>vereignty is certainly the possession of "Constituent Power", although the, totality of sovereign power may be divided.

Laski wrote, in his "Grammar of Politics" (pages 'l!J6."E7) :-

"It may yet be fairly argued that, in every State, some distinction between the three powers is essential to the inaintenance of freedom. Since the work of Locke and Montesquieu, we have come generally to admit the .truth of Madison's remark that 'the accumulation of all powers . . . . in the same hands . . . may justly be pronounced the very definition of tyranny".

In order to avoid concentration of such excessive power in few hands that it may corrupt or be misused by th<Jlse who wield it, our

Constitution also divides or distnibutes legal sovereignty into three branches or organs of the State the Legislative, the Executive, and the Judicature. The sphere of the sovereignty of each is sought to be so demarcated by our, Constitution that the "genuine whole" appears in the form of three intersecting circles. In those portions of these circles where the judicial power intersects the legislative and the executive powers, the judicature acts as the supervisor or guardian of the Constitution 'and can check legislative or executive action. But, in the remaining parts of the two interhecting circles of the Legislative and the Executive spheres, the two other branches are supreme

legally, just as the judicature is in its own, so that their decisions ' there cannot be questioned by the judicilL branch of the State.

:flere w~ are concerned only with the relationship between judicial ,. and the legislative organs. Our Constitution makes the judicature the ultimate testing authority, as the guardian of the Constitution, in so far as the ordinary law making is,.concerned. In tl1e sphere of the primary fundamental law of the Constitution lies also the amending power contained in Article 368 of the Constitution over which the , control of the judicature is limited to seeing that the form and the manner of the amendment is properly observed. Beyond that, the authority llf the judicial organ over the Constituent power vested in the Constitutional bodies or organs mentioned in Article 368 of the Constitution ceases. No doubt the iudicial organ has to decide the question of the limits of a sovereign authority as well as that of other authorities in cases of dispute. But, when these authorities act within these limits, it cannot interfere.

After having made a few observations about the nature of the sovereignty of the Constitution and the judicial function connected

KESAVANANDA ti, KERALA (Beg, J.) 871

with it, f will say something about the urge for dynamic changes. amply disclosed by the speeches in the Constituent Assembly, which is fow1<1 embodied in the Preamble as well as the Directive Principles of our Constitution. Granville Austin observed in the "Indian Constitution: Cornerstone of a Nation" (at page 43) :-

"What was of greatest importance to most Assembly members, however, was not that socialism be embodied in the Constitution, but that a democratic constitution, with a socialist bias be framed so as to allow the nation in the future to become as socialist as its citizens desired or as its needs demanded. Being, in general, imbued with the goals, the humanitarian bases, and some of .the techniques of social democratic thought, such was the type of constitution that Constituent Assembly members created".

Thus, the direction towards which the nation was to proceed was. indicated but the precise methods by which the goals were to be attained, through socialism or state action, were left to be determined by th~

State organs of the future. In laying down t\ie principles, by means ofwhich the poverty-stricken, exploited, down-trodden, ignorant, religion and superstition ridderi masses of India, composed of diverse elements, were to be transferred into a strong united, prosperous, modern' nation, it was assumed and said repeatedly that India's economy must change its feudal character. Its social patterns, modes of thought and' feeling, were to be changed and guided by scientific thinking and cndavour so as to lead its people on towards higher and higher ranges of achievement in every direction.

Our Constitution-makers, who included some of the most eminent jurists in the country, could not have been ignorant of the teachings of our own ancient jurists, Manu and Parashara, who had pointed out that the laws of each age are different. In support of this view, the- late Dr. Ganga Nath /ha, in his treatise on Hindu Law, has cited the original passages from Manu and Parashara which run as follows :

(1) Anye krita yugay dharmaah tretaayam duaaparey parey anye

kali yugey nreenaam yoga roopaanusaaratah-Manu.

(2) anye krita yugev dharma tretaayaama dyaaparey parey anye

kali yugey nreenaam yuga roopaanusaratah-Parashara.

An English translation of the sense of the above passages runs as: follows: .

"The fundamental laws (imposing fundamental duties or conferring fundamental rights) differ from age to age; they are different in

:872 SUPREMI! odvRT llEPOllTS ('1973] Supp. s.c.R.

1-the a8c known as krita. £rom those in the dvaapara age; the funda,.

mental.laws .of the. kali age are different from all previous ages; the

laws of each age conform to the distinctive characta of the age (yuga

~<H>ptz nusaara tah) ". In other words, even our ancient jurists recognised the principle that one generation has no right to down future generations to its own views or laws even on fundamentals. The fundamen- ta\s may be different not merely as between one society and another but also as between one generation and another of the same society .or µation.

iA.t any rate, I am convinced that we cannot infer from anything in the language of the unamended Article 368 any distinction, beyond 'lhat found in the more difli~'Ult procedure prescribed for amendment of cettain Articles, between more and less basic parts of the Constitution. None are sacrosanct and transcendental, in the sense that they .are immune from and outside the process of amendment found in Article 368 and while others only arc subject to and within its ambit .even before its amendment.

My learned Brother Dwivedi, J., has, very, aptly, compared the mode of progress visualized by the Constitution as the movement of 1he chakra. Such a movement naturally involves that a part of the nation which may have been at t11e top at one time may move towards the bottom and then come back to the top again. The Constitution, bowever, visualizes the progress of the whole nation towards greater -equality as well as prosperity. The function of the amending provision, in such a Const'ltution, must necessan1y be that of an instrument for dynamic and basic changes in the future visualized by our Constitution makers. The whole Constitution is based on the assumption 'that it is a means of progress of all the people of India towards certain goals. The course of progress may involve, as choices of lesser of two evils, occasional abtogations or sacrifices of some fundamental rights, to achieve economic emancipation of the masses without which they are unable to enjoy any fundamental rights in any real sense. The movement towards the goals may be so slow as to resemble the movement of a bullock-cart. But, in this age of the automobile and the aeroplane, the movement could be much faster.

The Constitutional function with which the judiciary is entrusted, -in such a Constitution, is to see that the chosen vehicle does not leave the charted course or path or transgress the limits prescribed by the Constitution at a particular time. The fundamental rights, as I have said eariler, may be viewed as such limits. The power of amendment, 'in a Constitution such as ours, must include the power to change these limitations to suit the needs of each age and generation. As the celefaattd Justice Holmes said in his "Common 1.Jzw", the life of law has Dot been logic, but the "felt necessities" of the times. Every kind of

1 I

KEMVAN.\NDA fl. KEMLA (Beg, J.)

law, whethe~ fundamental or o, r9.inary, has .to be an attempted adaptation to the needs of the people at a particular time. The power of: adaptation in a progressiv~ nation, with a constitution which visualizes ..

a movement towards socialism must, therefore, be construed in the context of the whole setting of urges enshrined in the Constitution and what their satisfaction demands. So constirued, it may involve changes in the very features considered basic today.

I think it has been properly. pointed out by Mr. Niren De, the Attorney. General, and Mr. Seeravai, the Advocate-General of Maharashtra, that the proper function of Article 368, in a Constitution is to act as a safety valve against violent revorution. It can only so operate as a safety valve if we do not construe the powers of amendment contained in it so narrowly as to import, contrry to the clear meaning of its explicit language, any bar again.t the alteration or change of any features of our Constitution which may be characterised as basic.

We have been taken through a number of principles of interpretation and construction of documents, including a document such as our Constitution, containing the fundamental law of the land. It ha~ been properly pointed out that the amending power, in so elaborate a Constitution, could not possibly omit from its ambit or scope the power of amendment of any part of it so that the 24th Amendment merely clarifies the original intention to lodge a wide amending power within the bosom of Article 368. It has been rightly pointed out that the careful manner in which the Constitution, and, particularly, .the amending Art'icle 368 was framed precludes the possibility of a delibrate casus omitsus so as to exclude from its scope the making of any provision which may either take away or abridge or affect a funda-· mental right or any other basic feature. In any case, in such a Consti-- tution as ours, we must strongly lean against a construction which may enable us to hold that any part of the Constitution is exempt from the scope of Article 368 as originally framed. Without express words in Article 368 itself to that effect, I am not prepared to merely presume or infer the presence of any casus omissus here.

It was no doubt argued, on the strength of the Golak Nath case (supra), that direct or indirect abridgement or taking away of a fundamental right by an amendment under Art. 368 was expressly barred by ' the language of Art. 13 (2) of the Constitution. I am in agreement with the views of my learned brethern who hold that Article 13(2) Is meant to deal with ordinary laws or the functions of the Parliament and of State Legislatures in their ordinary law-making capacities. It was not intended to extend its scope indirectly to Article 368 which deals with the amendment of the fundamental law

.874 SUPREME COURT REPOllTS (1973) Supp, S.C.ll.

:itself of which Article 13(2) is a part. The language and the context as well as the subject matter of it, found stated in Article 13(2) of the Constitution itself, preclude me from holkling that it could possibly operate as a restriction on the powers of amendment of any part .of the Constitution contained in Article 368 of the Constitution even

bCfore it was amended by the 24th Amendment.

The majority of the learned Judges of this Court in Golak Nath case (Supra) held that the power of amendment itself and not merely its procedure was contained in Article 368 of the Constitution. They also held this power of amendment to be wide. Hidayatullah, J., however, thought that the ambit of the term "law'', as used in Art.icle 13(2) of the Constitution, was wide enough to cover a change in the fundamental law on which Article 368 exclusively operates. The view of Hidayatullah, J., turned the scales by a narrow majority of one in favour of the opinion that Art. 13(2) operates as an express restric'

tion upon the powers contained in Article 368 even though it does not say so expressly. The limitation was inferred from the wide meaning given to the term "law". But, the view of the majority of Judges -0f this Court who have had the occasion to consider this question, that is, if we include or add the number of those who gave decisions in Sajjan Singh v. State of Raiasthan( 1 ) and Sri Sankari Prttsad Singh Deo v. Union of India and State of Bihar('), is still in favour of the view that the word "law'', as used in Article 13(2) of the Constitution, .does not extend to the fundamental law or the Constitution. If it was really the intention to so extend it, at least Article 13(2) would have clarilied it.

[ am not impressed by the contention that Article 13(2), as origi- nally passed by the Constituent Assembly, contained a specific exemption of the powers of amendment exercised under Article 368 of the Constitution which was dropped afterwards. If the dropping of this .clause was intended to bring about also drastic a change in the inten

tion of the Constitution makers as the counsel for the petitioners contends for, there would have been some explanatian given by the draft ing Committee for such a change. Moreover, we have not been shown what authority the drafting committee had to adopt language imply

ing so drastic a change of 'mtention of the Constituent Assembly with out even bringing the matter to the notice of the Constituent Assembly.

The safer presumption is that the drafting committee dropped the addi

tion proposal by Mr. Santhanam and adopted by the Constituent Assembly merely because it onsiclered !he additional words !. be ot'iose and unnecessary.


'~} [1952] S.C.R. 89.

. KESAVANANDA I/, KERALA (!Jeg, J.) 875

Oµr ConstitutiQll . itself contains in various places a distinction between tJ/.c , Constitution and the law. It mentions both the "Constitution and the law" suggesting that there is a difference between them .made by the Constitution itself. Sec : C.K: :-

(1) Form of oath of the President prescribed by Arti, clc 60 of the

Constitiition to "preserve protect, and defend "tlie Constitution and the law".

(2) The form of oath pr affirmation, prescribed by Article 159 of the Cori&titution for the Governor of a State to "protect and defend the Constitution and the law". ·

(3) The form of oatl1 prescribed by Article 75(4) for a Union-

Minister given in Schedule III-F'>rm I to do "right to all manner of people in accordance with the Constitution and the law" ..

( 4) The form of oath prescribed for a Judge of the Supreme

Court, under Article 124(6) of the Constitution, given in Third Schedule-Form IV, to ·"uphold the Constitution and the laws". The form is the same for the Comptroller and Auditor:-General of India under Article 148(2) of. the Constitution. ·

(5) The form of the oath prescribed by Article 164(4) of the Constitution for a Minister of a State Government given in Third Schedule Form V to "do right to all manner of people in accordance with Constitution and the law".

(6) The form of oath prescribed by Article 219 of the Constitution for a High Court Judge given in Form VIII-Third Schedule to"uphold the Constitution and the laws".

Clause 7 of the Fifth Schedule part D, of the Constitution only explains the meaning of word amend as covering an "addition,

variation or repeal" and similar is the case with clause 21 of the Sixth Schedule. I am not attracted by the distinction between amendments,

which are "deemed'" not to be amendments, falling within Article 368, mentioned in the Fifth and Sixth Schedules, and actual amendments covered by Article 368. The word "deemed" was used in these provi

sions and articles 4 and 169 merely to indicate that the procedure required by Article 368 was not required here. These provisions certainly furnish an aid in construing and fixing die meaning of the word "amendment" wherever used in the Constitution. And, as I have already held, the scope of amendment must necessarily be wide in the context of the whole Constitution, . . ·

8 76 SUPllME OOUllT JIEPOllTS [.1973 J Supp. s.c.R.

Idnay a:lso be noticed that the tc'rm ''law",, whith is not used iB Article 368 at ali is sought to be defined in Article 13,' sub artic; le (3) of the Constitution, after stating explicitly . "artless the context otherwise requires". I have already dealit with the context of Article 368 containing the power of amendment which necessarily operates on every part of the Constitution so long as it~ operation on any pan iS not founcF. expressly excluded. ·

However, even ignoring the ontext in which Article 13(3) itselt occurs and other foregoing reasons, if we were to assume, for the sakeof argument, that, because law: iS not exhaustively defined by Article

13(3) of the Constitution, the term "law" used there could include the law of the Constitution, another princip~ of construction could alsoapply here. This is that even a prior general provision followed by an express provision dealing with a particular type of Jaw could reasonably exclude the particular and special from the purview and scope

of the general. It is immaterial if the general provision precedes the provision containjng a special law. This could not really affect the basis of the principle applicable.

The principle indicated above has been usually applied bctwecll' different pieces of legislation or to different Acts. There is no doubt that when the subsequent Act is general and the piior Act is special~

the Special Act is not repealed by the provisions of, the general Act by the application of the maxim : "Generalia specialibus non di:rogant'' i.e. provisions will not abrogate special provis, ions (See : Craies on Statute- Law p. 376). Again, '.'if a special enactment, whether it be in a public or private Act, and a subsequent general Act or absolutiely repugnant and inconsistent with one another'', it has been said that "the Courts; have no alternative but to declare the prior special enactment repealed by the subsequent general Act". See: Craie<s on Statute Law p. 380).

On the same principle, it has been held that a subsequent particular Act may have the effect of partially repealing the earlier general Act.

(See : Mirfin v. Attwood,(1) Heston & /sleworth U .D.C. v. Grout,("> Harishankar Bagla v. M. P. State).(').

The above mentioned principle has been applied generally where the question has arisen whether the , particular .Jaw .prevails overl and~ therefore, repeals the general law .. It has, however; also been held that the principle may operate to merely curtail the operation of the generaf law by exempting from its scope the special cases dealt with by the-

( 1)

[ 1869] L:R. 4 Q.B. 331>. (') [1897] 2 Ch. 306. (') A.l.R. 1954 S.C. 465.

KESAVANANDA I/, KERALA (Beg, J.) 877

particular law (See: Re Williams;(') Mirfin v .. Attwood, Harishanker Bagla v. M. P. State (Supra).). In other words, the priru:iple may so operate as to curb or reduce the extent or ambit of applicability of the general law. An application of this principle would also show that Constitutional law, as Special Law, may be removed from the purview of "law'', as found in Article 13 of the Constitution, even 'if, by stretching one's imagination, it was really possible to so Stretch the scope of the term "law", as used in Article 13 of the Constitution, as would include, but for such a principle, amendments of the Constitution. Prima facie, however, amendments of the Constitution operate on every prvision of the Constitution unless any part of it is express! y excluded from the scope of such operation, The use of such a principle to remove an assumed conflict does not appear necessary.

Mr. Palkiwala, presumably faced with insurmountable difficulties in relying entirely upon the very narrow majority decision in Golak Nath's case (Supra), in favour of the view that Article 13(2) operates as a restriction upon the power of amendment contained in Article 368 of the Constitution, relied primarily upon a theory of implied limitations. The only "implied" lin:iitation which I can read inm the word amendment, as "perhaps" necessarily implied, or, as part of the meaning of the word "amendment" is the one so characterised by Wanchoo J., in Golak Nath's case (supra). In other words, it may not include the power of completely abrogating the constitution at one stroke. It, however, seems wide enou&h to erode the Constitution completely step by step so as to replace it by another.

The Attorney General himself had, very properly, conceded that the scope of amendment ould not be so wide as to create a vacuum by abrogating the rest of the Constitution leaving nothing behind to amend. The Attorney General's argument was that, short of creating such a vacuum, the power is wide enough to cover a replacement of the present Constitution by. another. It seems to me that the necessary implication of the word "amendment'' or the meaning of the term itself may exclude a possible complete abrogation of the present Constitution although that could be done, step by step, by the bodies empowered to amend if they so desired and followed the appropriate procedure.

For the reasons already given at length by my brethern Ray, Palekar, Mathew and Dwivedi with whom I con, ur, I find that there is nothing in cases cited which could enable us .to put in implied !imitations, in a constitution such as ours, on Article 368, containing expressly the i; overeign law-making power of amendment of every part of it. The

( 1) [1887) 36 Ch. D. 573 @ p. 577. 56-36 S. C. India/73

878 SUPREME cOURT REPORTS [1973] Supp. s.c.R.

cases .hve really littl~ bearing on the interpretation of such a provision containing the constituent power. As they were cited before us andexamined by us, I will very briefly refer to the main cases cited.

The American cases really go against the submission that relied limitations could be put on expressly stated constitutional powers. They were: Oscar Leser v. /. Mercer Garnett(') U. S. A. v. William H.

Sprague &William /. Howey,( 2 ) State of Rhode Island v. A. Mitchell Palmer, Attorney General etc.(') Schneiderman v. U.S.(').

The cases from Australia decided by the Privy Council were : McCawley v. The King(°), Taylor v •. Attorney General of Queensland(") where an interpretation of Section 5 of the Colonial Law Validity Act was given in the light of a presumption tht the power transferred to a British Colonial Legislature must be read subject to the fundamental assumption underlying the Constitution of the British Empire that the position of the Crown has not been affected; Webb v.

Outrim,(') where the theory of implied restrictions on powers found in the Commonwealth Parliament Act was rejected; Victoria v. Commonwealth,(') where, without questioning the basic principle of grant of plenary powers of legislation, laid down by Lord Selborne in Q. v.

Burah,(') a decision was given on the lack of powers in the Federal Legislature, to tax a State, on a subject falling outside Section 51 of the Australian Constitution, which laid down the powers of taxation of the Federal Legislature, in the course of which some observations were made on the implications of Federalism which assumes the continued existence of States~

The cases from Canada may lend some support to the implications of a grant of power contained hy an enactmenr of the sovereign British Parliament, but they do not appear to me to be helpful in the context of the theory of the sovereignty of our Constitution, of which Article 368 is a pivotal part, which we have adopted. The cases from Canada

( 1) 258 U.S. p. 130.

( 2 ) 282 U.S. p. 7t6. (') 253 U.S. p. 350. (') 320 U.S. p. 118@ p. 137-145. (") 1920 A.C. p. 691.

( 8) 23 C.L.R. p. 457. (') [1907] 'A.C. p. 81. ( ') 45 Australian L. J. p. 251.

( 9) (1878) 3 A.C. 889.

KESAVANANDA V. KERALA (Beg, J.) 879

cited before us were : Alberta Press cases(') Switzman v. Elbing &

Attorney General of Quebec,(') Saumur v. City of Quebec & Attorney General of Quebec,(') A. G. for the Province of Ontario & Ors. v.

A. G. for the Dominion of Canada & Anr.(') where the assumption, underlying some of the decisions, that Canada did not poissess fully blossomed legislative power, seems to have been repelled ; In Re the Initiative and Referendum Act, where legislation offending Section 92 head I of the British North America Act, 1867 ; was held to be invalid.

So far as Ryan's case,( 5) is concerned, Mr. Palkiwala could only rely on the minority judgment of Kennedy, C.J. In Moore v. Attorney General for the Irish State,(") it was conceded on behalf of a petitioner who had challenged the validity of an Act of the Irish Parliament that the majority decision in Ryan's case was correct. I do not think that the Irish cases give much help to the petitioners' submissions on implied limitation.

Cases coming up from Ceylon also do not assist the petitioners. In the Bribery Commissioner v. Pedrick Ranasinghe,(') a provision of the Bribery Amendment Act, 1958, was held to be bad because it conflicted with the provisions of Section 29 of the Ceylon (Constitution) Order in Council, 1946, by which the C:onstituion of Ceylon was governed. It is, therefore, a simple case of conflict of an enactment of subordinate law-making authority with the instrument of Government which regulated subordinate law-making powers and was, therefore, supreme. In that case the requirements of manner and form as laid down in Attorney-General for New South Wales & Ors. v. Trethowan & Ors.,(') were also held not to have been complied with.

In Don fohn Francis Douglas Liyanage & Ors. v. The Queen,(') it was held, with regard to the Acts the validity of which was impug11ed :

" ...... the Acts could not be challenged on the ground that they were contrary to the fundamental principles of justice.

The Colonial Laws Validity Act, 1865, which provided that "colonial laws should be void to the extent that they were repugnant to an

(') 1938 (2) D.L.R. p. 81. '(2) 1957 (7) D.L.R. p. 337.

( 8) 1953 ( 4) D.L.R. p. 461. {') [1912] A.C. p. 571. {") [1935] Irish Reports p. 170.

( 8) [1935] A.C. p. 484. (') 1965 A.C. p. 172.

(8) 1932 A.C. p. 526. {') 1967 (1) A.C. p. 259.

880 SUPREME. COURT REPORTS [1973] Supp. s.c.R.

Act of the United Kingdom applicable to the colony but not otherwise and should not be void on' the grounds of repugnancy to the law of England, did not leave in eXistence a fetter of repugnancy to some vague and unspecified law of natural justice : those liberalising provisions were incorporated in, and enlarged by, the Ceylon Independence Act, 1947, of the British Parliament, the joint effect of which, with the Ceylon (Constitution) Order in Council, 1946, was to confer on the Ceylon Parliament the full legislative powers. of a sovereign independent state".

This case shows that repugnancy to some vague principle of "natural justice" could not invalidate the enactments of a fully competent legislative authority.

There can be no question of delegation of the power of amendment if, as I have already indicated, I hold that the Constitution is the principal and the source -Of all constitutionally valid power and authority in the eye of law. The principle delegatus non potest delegare is only applicable against a delegate but not against the principal. When an amendment is made by an appropriate procedure, the amendment becomes a part of the principal's own will and intention and action.

Of course, if the principal is and must necessarily be a human authority, the bodies of persons authorised to amend under Art. 368 of the Constitution would share the legislative spvereignty and would constitute the ''Principal" whose will is expressed in the amendment.

It may be possible to use the test of consequences in order to check an abuse of power by. a legally non-sovereign law-making body as the Parliament is when it does not exercise the Constituent power by the use of the two-thirds' majorities in both Houses of Parliament as required by Article 368 of the Constitution. It may als, o e po!\Siblc to use the theory of implied limitations by implying and annexing rules of natural justice to particular kinds of non-legislative functions laid down by statutory or even constitutional law. But, this is done only by presuming that the Constitution did not int.end abrogation of the fundamental rules of natural ]ustice. If these rules are sought to be dispensed with by any particular ordinary enactment it may be possible to assail the validity of that enactment when Articles 14 and 19 of the Constitution apply. The exclusion of Articles 14 and 19 by a constitu" tionally valid amendment only carves out or creates a new legisbtive field by a provision which becomes a part of the Constitution. by amendment, so that the constitutional validity of its creation cannot be assailed in any court of law so long as the form and manner prescribed by Article 368 of the Constitution have been observed in making the necessary amendment. Enactments properly falling within this field would be immune from attack for any alleged violat, iOns of Articles 14 and 19 n .

KESAVANANDA fl, KERALA (Beg, J.) 881

Mr. Palkiwala then made an impassioned appeal to the theories of natural law and natural rights sought to be embodied in present day international laws as well as Constitutional laws. It is not necessary for me to deal at length with the political philosophy or the juristic implications of various and conllicting natural law theories, such m those of

Spinoza, Hobbes, Locke or Rousseau, discussed by T. H. Green in his "Principles of Political Obligation". I also do not find it necessary ro

mbark on an academic discussion of ancient and medeival theories of natural law. I will, however, quote a passage from Friedmann on Legal Theory (5th Edition-p. 95-96), where the palition, place, and uses of "natural law" theories arc thus summarised :

"The history of natural law is a tale of the search of mankind for absolute justice and of its failure. Again and again, in the course ' of the last 2,500 years, the idea of natural law has appeared, in some form or other, as an expression of the search for an ideal higher than positive law after having been rejected and derided in the interval. With changing social and political conditions the notions abour natural law have changed. The only thing that has remained constant is the appeal to something higher than positive law. The object of that appeal has been as often the justification of existing authority as a revolt against it.''

"Natural law has fulfilled many functions. It has been the principal instrument in the transf_ormation of the old civil law of the Romans into a broad and cosmopolitian system ; it has been a weapon used liy both sides in the fight between the medieval Church and the German emperors ; in its name the validity of international law has been asserted, and the appeal for freedom of the individual against absolutism launched. Again it was by appeal to principles of natilral law that American judges, professing to interpret the Constitution, resisted the attempt of state legislation to modify and restrict the unfettered eoonomic freedom of the individual.''

"It would be simple to dismiss the whole idea of natural law as hypocritical disguise for concrete political aspirations and no doubt it has sometimes exercised little more than this function.

But there is infinitely more in it. Natural law has been the chief though not the only way to formulate ideals and aspirations of various peoples and generations with reference to the principal moving forces of the time. When the social structure itself becomes rigid and absolute, as at the time of Schoolmen, the ideal too will take a static and absolute contenr. At other times, as with most modern natural law theories, natural law ideals become relative or merely formal, expressing little more than the yearning o~ a generation which is dissatisfied with itself and the world, which

882 SUPREME COURT REPORTS (1973] Supp. s.c.R.

seeks something higher, but is conscious of the relativity of values ..

It is as easy to deride na.tural law as it is to deride the futility of mankind's social and political life in general, in its unceasing but

hitherto vain search for a way out of the injustice and imperfection for which Western civilisation has found no other solution but ti> move from one extreme to another".

"The appeal to ome absolute ideal finds a response in men, particularly at a time of disillusionment and doubt, and in times of simmering revolt. Therfore natural law theories, far from being theoretical speculations, have often heralded powerful political and legal development; s".

I am not prepared to use any n_atural law theory for putting a construction on Article 368 of the CCtnstitution which will defeat its plain meaning as well as the objects of the Constitution as stated in the Preamble and the Directive Principles of State Policy. I do not know of any case in which this has been done. Even in the Golak Noth's case (supra) Subba Rao, C.J. relied on a natural law theory to strengthen his views really based on an application of the supposed express bar contained in Article 13(2).

I have. already stated my point of view, that we should approach the questions placed before us from the pragmatic angle of the changing needs of social and economic orders visualised by those who were or are the final Judges of these needs in exercise of the Constituent puwer.

Checks on possible abuses of such powers do not lie through actions in Courts of law. The pressure of public opinion, and the fear of revolt due to misuse of such powers of amendment are the only practically possible checks which can operate if and when such contingencies arise.

These checks lie only in the political fields of operation. They are not subject to judicial review or control. In other words, what Dicey alls the external and the internal limits may operate to control and check possible misuses of such power. Courts of justice have no means of control over a power expressly sanctioned by the Constitution which is the legal sovereign. They can only speak for the Constitution.

Through their pronouncements must be heard the voice of the Constitution and of nothing beyond it.

Although the Courts must recognise the validity of the exercise of a legally sovereign constituent power, such power may itself be ineffcc .. tive for actually bringing about the desired results. Whether tJie change is in the direction of what_ may be considered better may itself be a matter of dispute. The answers to such questions and disputes depend upon many conditions which are outside . te control 0£ law c?urts.

The very existence or absence of such cond1t10ns cannot be appropriately

KESAVANANDA V. KERALA (Beg, J.) 883

investigated or determined in law Courts. Therefore, such investigations lie outside the judicial domain when once a change is brought in by the exercise of constituent or sovereign law making power in accordance with the prescribed procedure.

A socialistic stat~ must have the power and make the attempt to build a new social and economic order free from exploitation, misery and poverty, in the manner those in charge of framing policies and making appropriate laws think best for serving the public good. We do not today conceive of public good or progress in terms of a "movement from status to contract", but in terms of a movement for control of economic and other kinds of powers of exploitation by indivlduals so as to ensure that public good not merely appears to be served but is actually served by all individuals wherever or however placed.

The emphasis today is upon due performance of their social obligations by individuals before claiming any right however fundamental or important it may be because rights and duties are correlative.

Another contention advanced was that a creature of the Constitution could not po; sibly possess the power to create or recreate the constitution. Therefore, it was contended, resort could not be had to Article 368 to expand the power of amendment. I am unable to accept this contention in the face of the express provision in clause ( e) to the proviso to the Article 368(2) of the Constitution. There, Article 368 expressly provided either for the expansion or diminution of the scope of the powers of amendment. It cannot, therefore, be reasonably ccn tended that the power of recreation even of the whole Constitution by stages was not already contained in the unamended Article 368. This part of proviso also shows that the Constitution makers contemplated' a wide amending power so as to meet the challenges of the times offered by rapidly changing social, political, economic, national and international conditions and situations. We cannot contract what the Constitution makers clearly intended to make elastic and expansible.

for the foregoing reasons, I hold that the 24th Amendment of the Constitution is valid. It would, therefore, follow that the 25th and 29th Amendments are also valid. The reasons for the validity of each of these amendments have been so fully dealt by my learned brethren Ray,.

Palekar, Mathew, and Dwivedi, with most of which I respectfully concur, that I need not discuss or repeat any of them here. Nor have I, for this very reason, attempted to discuss the enormous array of cases, both Indian and foreign, or the great many juristic writings, placed before and closely examined by us. I will, however, indicate before I conclude, my special reasons for holding Section 3 of the Constitution

(25th Amendment) Act 1971, adding Article 31C to the Constitution also as valid.

884 SUPREME COUllT REPORTS (1973) Supp. S.C.R,

Article 31C has two parts. The first part is directed at removing laws passed for giving effect to the policy of the State towards securing the principles specified in clause (b) or clause ( c) of Article 39 of the Constitution from the vice of invalidity on the ground that any such law "is inconsistent with or takes away or abridges any of the rights conferred by Articles 14, 19 and 31 of the Constitution". If we stop here, the question whether the law is really for the purpose of glving effect to the principles specified in clauses (b) or ( c) of Article 39 would still be justiciable whenever laws passed under this provision come up before Courts. In other words, the question of relevancy of the law passed to the specified principles could still be examined by courts although the effect of invalidity for alleged violations of Articles 14 or 19 or 31 would vanish so long as the law was really meant t<;> give effect to the principles of Article 39(b) and ( c). A colourable piece of legislation with a different object altogether but merely dressed up as a law intended for giving effect to the specified principles would fail to pass the test laid down by the first part. The second part of Article 31C goes on to provide that, if such a law contains a declaration that it is for giving effect to such policy, it will become immune from judicial review altogether. In cases of laws passed by State legislatures there is a further safeguard that such laws must have been reserved for consideration by the President and assented to by him. The purpose of the declaration is, therefore, to take the place of a judicial verdic.t on relevancy of the grounds to the principles found in clauses (b) and ( c) of Article 39 as well as on effectiveness of these laws for the intended purposes. Nevertheless, the Attorney General and the Solicitor General, appearing for the Union of India, conceded, both in written submissions and in the course of arguments, that the <JUestion of relevancy or nexus with the specified principles would be open to judicial scrutiny in such cases of declarations annexed to laws passed.

My learned brother Khanna has been pleased, despite the concession mentioned above, to declare the second part of Article 31C to be void on' the ground among others, that it involves a trespass on the judicial field. It was said that, under the guise of exercise of the power of amendment, one of the pillars of the Constitution or one ot the essential features of its basic structure, that is to say, judicial review, had been removed.

I thinlo that the concession made on behalf of the Union of India is quite justifiable on a ground which I now proceed to adopt. t is that a declaration by itself is not part of the law ade, but .1t s something only attached to the law even though this annexal!on 1s by a purported law. In other words, the declaration, though provided for

KESAVANANDA ti. KERALA (Beg, J.) 885

by law, takes the place of judicial consideration by tbc Courts and involves consideration of the question whether it is reasonable and necessary to attach such a declaration to a particular law.

I do not think that it is necessary for me to decide what the exact nature of the function in giving the declaration is or whether it carries with it, by implication, the proposition that some rules of natural justice must be complied with. Such questions were not argued before us by any party. Nevertheless, I think that the concession could only be made on the strength of the view that the declaration by itself would not preclude• a judicial examination of the nexus so that Courts can still determine whether. the law passed is really one covered by the field carved out by Artide 31C or merely pretends to be so protected by parading under cover of the declaration. I, therefore, adopt this reason as perfectly good one for making the concession. Hence, I hold that both parts of Article 31C arc valid.

On questions relating to the Amendment of Article 31 (2) and the 29th Amendment of the Constitution, I adopt the reasons of my learned brethe.rn Ray, Mathew and Dwivedi with whose conclusions I concur <>n these and other questions.

My conclusions may now be stated as follows :

(1) The majority view in Golak Nath's case (supra), holding that Article 13 operated as a limitation upon the powers of Constitutional amendment found in Article 368, was erroneous. The minority view there was correct on this question.

(2) The 24th Amendment is valid.

(3) The 25th Amendment, including addition of Article 31 C, 1s valid.

(4) The word 'amount' in Article 31(2), as amended, does not convey the idea of any prescribed norm. The fixation of the amount or the laying down of a principle for determining the amount are matters within the exclusive power of Parliament or the State Legislature concerned. In other words, the norms and their satisfaction on the question of adequacy of compensation or its reasonableness, are matters within the exclusive competence of the legislative authorities to determine.

(5) The declaration contemplated by Article 31 C is like a certificate given after considering the relevancy of the principles specified in Article 39(b) and (c) of the Constitution, and, therefore, the jurisdiction of the Court is not ousted.

The Courts can still consider and decide whether the declaration is really good or a mere pretence attached to a colourable piece

886 SUPREME COURT REPORTS [1973] Supp. S.C.R,

of legislation or to a law which has no bearing on or nexus with the principles found in. Article 39(b) and (c) of the Constitution. Out of two equally acceptable views, even on the question of nexus, the one in conformity with the legislative verdict should prevail.

(6) The 29th Amendment is valid.

I would also have the petitions disposed of in the light of decisions given above. I make no order as to costs incurred by partiep for this stage of hearing

DWIVEDI, /.-I concur with the conclusions reached by brother Ray with respect to the constitutionality. of the 24th, 25th and 29th amendments. But in view of the importance of the case I wish to add my own reasons in support of those conclusions.

Idtas which failed to win the minds of Englishmen in the Stuart period and died in discomfiture are seeking transmigration into the Constitution of India now. Perceive some resemblances :

Ideas duritlg the Stuart Period

I. "Acts of Parliament 'r\lay take away fto

wer3 andorna'llents of the crown but not the crown ine!f .. , •.... "{1)

2. "The ParHament tannot deliver over the free... peopte of England to a foreign government, or to laws imposed by foreigners ......... "(')

S. "The Parliament cannot deprive the free

peopte of Engtand.oftheir innate rihts of electin~ knights, citizens and burge. sses for Parliament. In these things

of the nature of these tending to the fund mental rights and law.1 of the peop!e the parliament cannot nor ought not any way to violate thepeopleor nation."(1)

Arguments of Sri Palkhiwala

t. By virtue of Art. 368 Partiament

carinot so amend the Contitution

as to take away or abridge the essential features of the Cons. ti tu ti on.

2. Parliament cannot so amend the

Con1titution as to make the Republic of India a satellite of a foreign coun try.

3. Parliment cannot so amend the Con ..

stitution as to damage or destroy thecore ofthefundamentalrightsinPart III of the Con, titution.

(') Sir John Finch C.J., Fundamental Law in English Constitutional History by J. W. Gough, 1955 Edn. p. 73.

(2) William Ball of Barkham Esquire, Ibid, p. 107.

KESAVANANDA v. KERALA (Dwivedi, J .) 887

Ideas during the Stuart Period Arguments of Sri Palkhiwala

4. "Properties are the foundaion of Consti- . tutions, and not the con>titutions of property. Or if so be. there were no conltitution yet Law of Nature does give a principle for every man to have a property ofwhat he has or may have which is not another man's. "(1)

4. The right to property is a humam

right and is necessary for the enjoy

ment of every other right.

It is based on Natural Law. It cannot be taken away or abridged by an amendment ofthe Constitution.

5. "How ""ny representative, that has not only a more trust to pre>erve fundamen

tal but that is a representative that makes laws, by virtue of this fundamental Jaw, viz. that the people have a power in lcgislation ... canhave a right toremove or destroy that fundamental?

The fundamental mak'a the peop!e free: this free peop!e make3 a repre5entative; can this creature unqualifythecreator ?'' {1)

6. •'When an act of Parliament is against common right or reason ... , the Common Law will controlitandadj- •ulge such act to be void."(1 )

7. ''Cases which concern the life or inheritance, or goods-or forcur.es of subjects ..... are not to be decided by natural reason, but by artificia{ reason and judgmentof!aw, \Vhich

law is an act \Vhich requires !ong study and experience before that a man can attain to thecognizance(:/:_t." (')

5. Parliament is a creature of the Con ... stitution. It cannot rise above its creator i.e., the Constitution. So it cana"ot dAmage or destroy the core of the fundamental rights.

6. Amending power in Art. 368 is limited by the principle! of Natural Law and an amendment in violation

lfthee principles will be voiq.

7. The inherent and implied limitations

ro rhe amend; ng po...., er in Art. 36R wilt be determined by judge!' posse-·

ssing a trained and perceptive judicial mir:d.

-·---··------------- ---- ·-----------

Of the three contenders for primacy in the Stuart period-King, Parliament, Common Law-Parliament came out victorious.(') The King and the Common Law accepted its supremacy. Stuart England

( 1) Captain Clarke Gough, supra, p. 115.

( 2) Quaker William Penn, Ibid., p. 155.

( 8) Coke in Dr. Bonham's case, quoted in the Revival of Natural Law concepts by C. G. Heines, 1930 Edn. pages 33-34.

(') Coke as quoted in the English Constitutional Conflicts of the Seventeenth Centure 1603-1689 by J. R. Tanner; 1961 Student Edn. p. 37.

(") F. W. Maitland, Constitutional History of England (Paper back reprint

(1963) pages 300-301.

888 SUPREME COUJIT REPORTS [1973] Supp. s.c.It.

was passing through an age of transition. So is Jndia today. "We arc passing through the great age of transition. . when we arc passing through' the great age of transition the various systemr-even systems of law-have to undergo changes. Conceptions which had appeared to ru hasic undergo changes."(') (emphasis added). At bottom the controversy in these cases is as to whether the meaning of the Constitution ccmsists in its being or in its becoming. The Court is called upon to decide whether it is a prison.Jiouse or a freeland, whether it speaks fur

the few or for the many. These issues can hardly be resolved with the aid of foreign legal know-how. Decisions of foreign courts and treatises

nd articles written on various constitutions by foreign writers would not be safe guide in construing our constitution. "(I)n the last analysis the decision must depend upon the words of the Constitution. . and since no two constituions are in identical terms, it is extremely unsafe to assume that a decision on one of them can be applied without quali- £cation to another. This may be so even where the words or expressions used are same in both cases, for a word or phr:!Se may take a -colour from its context and bear dif!erent senses accordingly." (In Re.

c.P: & Berar Sales of Motor Spirz't Lubricants Taxation Act, 1938).(1) For instance, law-makiing and constitution-amending are both called •Jaw' in Canada and Ceylon because a constitutional amendment there is really a subordinate enactment passed under a statute of the British Parliament or under an Order-in-Council which is delegated legislation.

Our Constitution "is something fresh and in that sense uniqut . . . It seems to me therefore that it is useless to try and look at this through the eyes of another country or of their courts." (In re. The Delhi Laws

Act, 1912).(') .

"A Constitution is the expression in national life of the genius of a people. It reflects the tendencies of the age and the articles have to be interpreted, without doing violence to the language, in the light of the pervailing phase of sentiments in the country in which the constitution is intended to operate." (Motilal v. State of U.P.) (') Constitutions which grew up in the 17th, 18rlh and 19th centuries reflected the hopes and aspirations of men of those times ; the Constitution ol India reflects the hopes and aspirations of the people of India emerging from colonial economy in the second half of the 20th century. Constitutions :framed in the past for organising political democracy cannot serve as a

(1) Jawaharlal Nehru : C.A.D. Vol. 9 page 1194.

( 2 ) [1939] F.C.R. 18 at page 38 per Gwyer C.J. (') [1951] S.C.R. 747 at page 1112 per Bose J. (') A.I.R. 1911 All. 251 at page 297 per Sapru J.

KESAVANANDA ti. IWw.A (Dwivedi, J.) 889

safe guide in construing the Constitution of India framed for ushering in social and economic democracy.

Constitutions which grew up in the preceding three centuries were understood to sanctify the Supremacy of Property. Said Tocqueville :

"The French Revolution has allowed one exclusive right to remain, the Tight of property, and the main problerus of politics will deal with the alterations to be brought about in the right of property-holders."(') Our Constitution is conceived in a radically different tradition. Otir forbears did not believe in the acquisition of things of pleasure (Preya) ; theystood for the good and the whoelsome (Shrey). They addressed th_eir king as Rajan because it was his duty to secure the welfare of his people.(') Their rule of law (Dharma) was intended to help the power-minus keep the power-plus 'in check. Their rule of law (rita) was a stream, not a puddle. It recognised the inevitability of change.

They believed in the moral precept : distribute and enjoy the residue of wealth.(')

The Constitution bears the imprint of the philosophy of our National Movement for Swaraj. That philosophy was shaped by two pre-eminent leaders of the - Movement--:-Mahatma Gandhi and Jawaharlal Nehru. Mahatma Gandhi gave to the Movement the philosophy of Ahimsa.

Two essential elements of his Ahimsa are:

(1) equality; and (2) absence of the desire of self-acquisition (Apri grah). He declared that "to live above the means befitting a poor country is to live on stolen food.''(') And he also said : "I consider it a sin_and injustice to use machinery for the purpose of concentration of power and riches in the hands of the few. Today the machinery is used in this way."(')

While Mahatma Gandhi laid stress on the ethics of the Movement, Jawaharla! Nehru enriched its economic content. In his presidential address to the Lahore Congress Session of 1929 he said : "The philosoph y of socialism has gradually permeated the entire structure of the society the world over and almost the only point in dispute is the phase and methods of advance to its full realisa'.tion. India will have to go that way too if she seeks to end her poverty and inequality though she

( 1) As quoted in French Political Thought in the 19th Century by Roget Henry Soltau, p. 55.

( 2) Mah.ablmrata, Shanti Prava, 57: II.

( 8) Mah.abhuata, Shanti Prava, 60 : 11.

(') Dr. P. Sitaramaya, "The History of the Indian Congress, Vol. I, page 386. (') JawaharW Nehru : Discovery of India, Signet Press, 1956, page 432.

890 SUPREME COURT REPORTS [1973] Supp. s.c.R.

may evove her own methods and may adopt the ideal to the genius of her race."(')

Emphasising the intimate and inseverable connection between national liberation and social liberation, he said : "(l)f an indigenoils Government took place. of the foreign government and kept all the vested interests in tact, this would not be even the shadow of freedom ..

India's immediate goal can only be considered in terms of the ending of the exploitation of her people. Politically it must mean independence and cession of the British connection ; economically and socially it must mean the ending of all special class privileges and vested interests.(')

The philosophy of Mahatma Gandhi was rooted in our ancient tradition; the philosophy of Jawaharlal Nehru was influenced by modern progressive thinking. But the common denominator in their philosophies was humanism. The humanism of the Western Enlightenment comprehended mere poltical equality ; the humanism . of Mahatama Gandhi and Jawaharlal Nehru was instinct with social and , economic equality. The former made man a political citizen ; the latter aims to make him a 'perfect' citizen. This new humanist philosophy became the catalyst of the National Movement for Swaraj.

In 1929 the All India Congress Committee resolved that the great poverty and misery of the Jndian people was due also "to the economic structure of the society."(') The KaracHi Congress resolution. on fundamental rights and economic programme revised in the All India Congress Session of Bombay in 1931 declare that in order to end the exploitation of the masses political freedom must include economic freedom of the starving millions.(') It provided that "property was. not to be seque.1, tered or confiscated "save in accordance wit.h la11J"(')

(emphasis added). It also provided that the State shall own or control the key industries and se, i-vices, mining resources, railways waterways,' shipping and other means of public transport." (6) According to the Congress Electipn Manifesto of 1945, "the most vital and urgent of India's problems is how to remove the curse of poverty and raise the

( 1) R. D. Agarwala, Economic Aspect of a Welfare State in India, po.ge 32.

( 2) Jawaharlal Nehru Whither India, 1933. (') Indian National Congress Resolutions on Economic Policy, Programme and Allied Matters, 1924-1969, p. 3.

(') Resolutions, supra pp. 6-9.

(') Ibid.

(6) Ibid.

KESAVANANDA "· KERALA (Dwivedi, J.) 891

standard of masses.(') It declared that for that purpose it was "necessary, ..... to prevent the concentration of wealth and power in the hands of individuals and groups, and to prevent vested interests foimical to s, ociety from growing."<') It proposed acquisition of the land of iptermediaries on payment of equitable compcnsat'ion.(1) In November 1947 the All India Congress Committee Session at Delhi passed a resolution tcf the effect that the object of the Congress should be to secure "an economic structure which would yield maximum production without the creation of private monopolies and the concentration of wealth."(') It was thought that such "social structure can provide an alternative to the acquisition of economic and political equality."(") ·

In sum, the National Movement was committeed : (1) to work for social, economic and political equality of the weaker sections ofthe people ; (2) to disperse concentration of wealth in any form in a few hapds ; and (3) to acquire property in accordance with law. Payment of compensation would be. determined by equitable , considerations and n-01: by market value. The men who took the leading part in framing the Constitution were animated, by these noble ideals. They embodied them in the Preamble to the Constitution ; they proliferated them in the Directive Principles of the State Policy ; they gave them ascendancy over the rights in Part III of the Constitution. (See Articles 15(3), 16(4), 17, 19(2) to (6), 24, 25(a) and (b), 31(41., (5) and (6)). They made them 'fundamental' in the governance of the country. Pandit

Govind Ballabh Pant called them 'vital principles'.(') And indeed so they arr. for when translated into life, they will multiply the number of owners of fundamental rights and transform liberty and equality from a privilege into a universal human right.

However, pleasing its name-plate or its trumpet, every form of focussed power was suspect in the eyes of the Constitution-makers. They apprehended that concentration of the ownership of the means of production and material resources and the resultant incarceration of wealth in a few profit-seeking hand may bring into being an economic power as all-assimilating and omnicomperent as the Hegelian State.

It may manipulate a fall in the prices of raw-materials ; it may inflate the prices of manufactures by low production and hoarding ; it may increase unemployment and bring down wages ; it may shrink invest-

( 1) Ibid p. 14

( 2) Ibid. p. 14.

( 8) Ibid. pp. 15-16.

(4) Ibid. pp. 18-19. (') Ibid. pp. 18-19.

(6) C.A.D. Vol 9 p. 1288.

892 SUPREME COURT REPORTS [1973] Supp. s.c.R.

ments and control the industrial progress of the nation.(1) It may seek to influence politics and public opinion.(') It may try to threaten,

rstrain and change governments in self-interest.(8 ) It may endanger

liberty, the rule of law and peace.(') It may retard national unity, the growth of culture and education.(•) To prevent these manifold abuses of the econoic power, the Constitution-makers enacted Articles 39(b) and (c). It will be legitimate to bear in mind the preemptive significance of Part IV in understanding the Constitution.

It is now necessary to consider whether the majority decision in Golaknath(8) is correct.

Residence of Amending Power

In Golaknath Wanchoo J. and two other Judges who associated with him and Hidayatullah, Bachawat and Ramaswami JJ. took the view that the power to amend the Constitution is located in Art. 368.

Subba Rao C.J. and four other learned Judges who associated with him, on the contrary, held that Art. 368 does not grant the power of amending the Constitution. It merely provides for the procedure for amendment of the Constitution. I respectfully agree with the view that the amending power resides in the original Art. 368.

Despite the marginal note to Art. 368, which indicates that Art. 368 is prescribing the pr81:edure for amendment, several considerations clearly show that the amending power is located in Art. 368. Article. 368 provides specifically for a procedure for amending the Constitution: When the prescribed procedure is strictly followed, "the Constitution shall stand amended in accordance with the terms of the Bill." Parliament can bring about this result by strictly following. the prescribed procedure. Who can bring about a certain result may truly be said to have the power to produce that result. Power to amend the Constitution is accordingly necessarily implied in Art. 368.

Article 368 finds place in Part XX of the Constitution. It is the solitary Article in that part. If provision was being made in Art. 368

(1) J. K. Gailbraith : American Capitalism, pp. 21, 40 and 64; Jfeport of the Monopolies Inquiry Commission (1965) Vol. 1 pp. 125, 128, 132 and 134.

(") J. K. Gailbraith, Ibid, p. 123; Bertrand Russel ,....Power (Unwin Books) p. 85; Monopolies Inquiry Commission Report p. 136. (') B. Russel, Ibid. pp. 86, 88 and 124; Monopolies Inquiry Commission Report pp. !, 135 and 193. (') J. K. Gailbraith, Ibid, pp. 67 and 70; W. Friedmann. An Introduction to World Polities : London Maemillan and Co. Ltd. 1962, p. 4. (') Monopolies Inquiry Commission Report, p. 136.

(•) (1967) 2 S.C.R. 762.

XESAVANANJ>A fl. XEllALA (Dwivcdi, J.) 893

merely for procedure for amending the Constitution by Parliament, the Constitution-makers would have placed it logically under the heading "Legislative procedure" in Part V of the Constitution. Including the solitary Art. 368 in a separate part suggests that it was intended to confer the amending power as well as to provide for the amending procedure. The heading of Part XX is "amendment of the Constitution" and not "procedure for amendment of the Constitution".

The heading will include both power as well as procedure. The proviso to Art. 368 also shows that the amending power is lodged therein.

Power to amend the Constitution cannot reasonably be located in Entry 97 of List I of Schedule VII read with Art. 248 of the Constitution.

The idea of a provision for amending the Constitution was indisputably present in the minds of the Constitution-makers. If they had considered that the power to amend the Constitution was in its nature legislative, they would have surely included in express words .this power in a specific entry in List I. Article 248 and Entry 97 of List I confer residuary power on Parliament. Article 246 and List I confer certain specific powers on Parliament. Residuary power is intended to comprehend matters which could not be foreseen by the Constitution-makers at the time of the framing of the Constitution. As the topic of amending the Constitution was foreseen by them, it could not have been put in the residuary power. Article 245(1) confers power on Parliament "subject to the provisions of this Constitution." Articles 246 and 248 are subject to Art. 245. Accordingly, a law made under Art. 348 and Entry 97 of List I cannot be inconsistent with any provision of the Constitution. But a law made under Entry 97 foe amending any provision of the Constitution would be inconsistent with that provision.

Accordingly it would be invalid. But on following the prescribed procedure in Art. 368 there ensues a valid amendment of the Constitution. So Art. 248 and Entry 97 cannot includo the power to amend the Constitution. The history of residuary power in our country also indicates that the power to amend the Constitution cannot be subsumed in the residuary power. Section 104 of the Government of India Act, 1935 provided for .residuary power. The Governor-General could by public notification empower either the Federal Legislature or a Provincial Legislature to enact a law with respect to any matter not enumerated in any of the Lists in Schedule VII.

Acting under s. 104, the Governor-General could not empower either Legislature to make a law for. amending the Government of India Act. The power to amend the said Act vested exclusively in the British Parliament. While the Constitution was on the anvil, residuary power was proposed to be vested in the States. If that power had been vested in the States, it could not have been possible to argue that the Oiinstitution could be amended by resort to residuary power because the amending bill is to be.initiated in Parliament and not in the Sta!es. It was only at a later stage that

57-36 s. c. Jndla/73

894 SUPREME COURT REPORTS [1973} Supp. s.c.R.-

t?e residuary power was inluded in List I. The foregoing considerat10ns show that the amending power does not reside in Art. 248 and Entry 97 of List I. As already stated, it is located in Art. 368 of the Constitution. Article 304(1) of the Draft Constitution was similar to Art. 368. Article 304(2) enabled States to amend the Constitution as regards the method of choosing a Governor or the number of Houses of the State Legislature. In clause 18 of his letter dated Februarv 21 1948 to the President of the Constituent Assembly, Dr. B. R. Ambedkar:

;-vhle .forwardir; g the Draft, Constitution, sai~ that a pi; ovision giving a hmaed constituent power to the State Legislature has been inserted in Art. 304.

The procedure prescribed in Art. 368 is the exclusive procedure for amendment of the Constitution. The word 'only' in Art. 368 rules out all other procedures for amendment. So no law can be made for a referendum or a constituent assembly.

A referendum or a constituent assemb)y will reduce Art. 368 to redundance. Referendum was not accepted by the framers of the Constitution. Dr. B. R. Ambedkar said : "The Draft Constitution has eliminated the elaborate and difficult procedure such as a decision by a convention or a referendum.

The powers of amendment are left with the Legislatures, Central and Provincial".(')

Nature of Amending Power

With respect I find 'it difficult to share the view of Hidayatullah J. that the amending power in Art. 368 is a legislative power.' (Golakl)ath, Supra at page 900).

During the British period neither the people of this cotJntry nor their elected representatives were endowed with the power to make or amend their Constitution Act. The Constitution Act by which they were governed until August 14, 1947 was enacted by the British Parliament. The power to amend that Act was vested in that Parliament.

The elected representatives of the people could until that date make only legislative laws under the Constitution Act, The Constitution Act endowed them with a legislative power. Under s~. 99 and 100 of .the Government of India Act, 1935, the Union and Provincial Legislatures made legislative laws. Under sections 42, 43 and 44 and s. 72 of Schedule IX the Governor General made ordinances. The Governor made ordinances and Acts under sections 88, 89 and 90. The headings of all those provisions describe the law-making power as 'legislative power'. The framers of the Constitution were 'familiar with the hist<>,

rical meaning of the expression 'legislative power' in this country. The> were also aware of the meaning of 'constituent power'. Acoordingly, it is reasonable to believe that they have made a distinction between

( 1) CA.D. Vol. 7, page 43.

KESAVANANDA 11. XEllALA (Dwivedi, J.) 895

'legislative power' and 'constituent power'. Indeed they have described the power of making legislative laws as a 'legislative power'.

The heading of Part XI is 'Distribution of Legislative Powers' ; the heading of Art. 123 is 'legislative power of the President' ; the heading of Art. 213.is 'legislative power of the Governor'. It may be observed that the fralllers did not include Art. 368 under the heading iegislative power' or in Part XI or in tlte company of the provisions dealing with the legislative procedure in Part V of the Constitution. They placed I it in a separate part. This omission is explained by the fact that they were making a distinction between 'legislative power' and 'constituent power', Broadly speaking, 'constituent power' determines the frame of primary organs of Government and establishes authoritative standards for their behaviour. In its ordinary sense, legislative power means power tomake laws in accordance with those authoritative standards. Legislative power may determine the form of secondary organs of Government and establish subordinate standards for social behaviour.

The subordinate standards are derived from the authoritative standards established by the 'constituent power. Discussing the concept of 'legislative power', Bose J. said : "We have to try and discover from

t~ Constitution itself what the concept of legislative power looked like in the eyes of the Constituent Assembly which conferred it. When that body created an Indian Parliament for the first time and endowed it with life, what did they think they were doing ? What concept of legislative power had they in mind ? .... First and foremost, they had the British model in view where Parliament is supreme in the sense that it can do what it pleases and no Court of law can sit in juc!gment over its Acts. That model it rejected by introducing a federation and dividing the ambit of legislative authority. It rejected by drawing a distinction hetween the exercise of constituent powers and ordinary legislative activity ........ " (In re. The Delhi Laws Act 1912 (Supra) at page 1112).

Parliament's additi1mal power to amend certain provisions ot the Constitution by ordinary law would not obliterate the distinction between constituent power and legislative power. Constitutions may be uncontrolled like the British Constitution, or controlled like the Constitution of the United States of America. There may be a hybrid class of constitutions, partly controlled and partly uncontrolled. In an uncontrolled constitution the distinction between constituent power and

legislativ~ power disappears, because the legislature can amend by the law-makmg procedure any part of the constitution as if it were a statute. In a controlled constitution the procedure for making laws and for aeding the constitution are distinct and discrete. No part of the conshtut1on can be amended by the law-making procedure. This distindion between constituent power and legislative power in a control-

896 SUPllEME COtJaT llEP<mTS ( 1973 j Supp. s.cJ1.

led constitution proceeds from the distinction between the law-making procedure and the consutution..amendmg prvcedure. Our Constitution

is of a hybrid pattern. It is partly controJJed and partly uncontrolled. It is unctlntrolled with respect to those provisions of the Constitution

whicli may be amended by an ordinary law through the legislative procedun: ; .it is controled with respect to the remaining provisions which may be amended only by following the prqcedure prescribed in Art. 308.

When. any part of the Constitution is amended by following the leg, slative p1,:>cedure, the amendment is the result of'the exercise of the legislative power ; when it is amended through the prdure prescribed by Art. 368, the amendment is the result of the exercise of theconstituem power. The amending power conferred by Art. 368 is a constituent power and not a legislative power.

Dominion of Amending Power The phrase "amendment of this Constitution" is the nerve-centre of Art. 368. It is determinative of the dominion as well as the magnitude of the amending power. The words "this Constitution" in the phrase embra~ the entire Constitution, as according to Art. 393 "this

Constitution" is called "the Constitution of India". These words are also used in Arts. 133(2) and 367(1), (2) and (3). In those provisions these words would envelop each and every provision of the Constitution.

They shot)-ld convey the same meaning in Art. 368. Accordingly each and every provision of the Constitution including Part In falls within the sway of the ai:gending power.

In re: Barubari Union and Exchange of Enclaves(') it is said that' "the preamble is not a part of the Constitution". This remark cannot assist the argument that a Preamble is not liable to amendment.

It seems to me that the Court really intended to say that the Preamble is not enacting part of the Constitution. On October 17, 1949 the Constituent Assembly passed a resolution to the effect that "the Preamble stand part of the Constitution."(')

According to Art. 394 that article and articles 5 to 9, articles 60, 324, 366, 367, 379, 380, 388 and 391 to 393 came into force on November 26 1949, while "the remaining provisions of this Constitution" were to co:Ue into force on January 26, 1950. It is dear from the phrase "the remaining provisions of this Constitution" that the Preamble also came into force on January 26, 1950. Replying to Sri K. Santhanam's question in regard to the date of thecoming into force of the Pr=ble, Shri Alladi Krishnaswami Ayyar said : "The Preamble will come into force in all its plentitude when the Constitution comes into force."(')

(') [ 1960] 3 S.C.R. 250 at page 282. (') C.A.D. Vol. X, p. 456.

(') C.A.D. Vol. X, p. 418.

JU!SAVANANDA 11. KEl\ALA (Dwivedi, J.) 897

A statute has four parts-title, preamble, enacting clause and purview or body.(') The Preamble to the Constitution of the United States of America is regarded as a part of the Constitution.(') The heading "the Constitution of India" above the Preamble shows that the Preamble is a part of it.

As the Preamble is a part of the Constitution, it is liable to amendment under Art. 368. Those parts of the Preamble which operate on the past such as "this 26th day of November, 1949" may perhaps not be capable of nlodification. 'Even Jove hath not power on the past'.

But there is little doubt that such parts can be deleted by the exertion of the amending power.

In sum, no provision of the Constitution can claim immunity from the sway of the amending power. The amending power can amend each and every provision of the Constitution including the Preamble and Part lll.

Magnitude of Amending Power

The magnitude of amending power is measurable by the broadshouldere<l word "amendment" in Art. 368. According to Wanchoo J., the word "amendment" should be given its full meaning as used in law and that means that by amendment an existing constitution .. 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." ( Golaknath, supra at page 834). Hidayatullah J. said: "I do not take a narrow view of the word "amendment" as including only minor changes within the general frame-work. By amendment new matter may be added, old matter removed or altered." (Ibid, p. 862) Bachawat and Ramaswami jJ. gave the same extensive meaning to the word "amendment". Thus according to six out of eleven judges in Golaknath, the word "amendment" means amending by addition, alteration or repeal.

According to the Shorter Oxford English Dictionary "amendment" means "removal of faults or errors ; reformation esp. (law) in a writ or process 1607." According to Webster's Third New International Dictionary, it means "act of amending esp. for the better, correction of a fault or faults, the process of amending as a motion, bill, act or constitution that will provide for its own amendment ; an alteration

( 1 ) Crawford : Starutory Construction (1948 &In.) p. 123 : Sutherland : Statutory Construction (1943 &In.) Vol. 2, pp. 348-349; Haloburg's: Laws of England, Vol. 36, p. 370, Craics on Statute Law (1963 Edn.i) pp. 190 and 201.

( 2 ) Willoughby, Constitutional Law of the United States (1929 &In.), Vol.

T, p. 62.

S98 SUPREME coUIT REPOllTS [ 1973 ]" Supp. s.c.a.

proposed or effected by such process." According to the ltandom House Dictionary of the English Language (Unabridged Edn.) "amendment"· means "to alter, modify, rephrase or add to, substract from (a motion, bill, constitution etc.) by formal procedure, to change for the better, improve, to remove or correct faults." According to Crawford .

(tatutory Construction (1940 Edn.) page 170) there "arc many diife. rent definitions of the term amendment, as it applies to legislation. Generally, it may be defined as an alteration or change of something, proposed in a bill or established as law. We are not, however, here . concerned with the amendment of the proposed bills, but with the amendment of existing laws. Thus limited, a definition as suitable as any, defines an amendment as a change in )IOme of the existing provisions of a statute. Or• stated in more detail, a law is amended wl:ien it is in whole or in part permitted to remain and something i& added to or tan from it or it is in some way changed or altered in order to make it more complete 6r perfect or effective." According to these definitions the power to amend means the power to make an addition to or alteration in or subtraction from the text. The purpose of addition, alteration or subtraction may vary; it may be to make the text or some part of it more oomplete or perfect or effective. It also appears that the whole text of a law cannot be repealed or abrogated in one step ; some part of it must remain while the other is repealed.

The Constitution docs not define the word "amendment". Article 367(1) applies the General Clauses Act to the interpretation of the Constitutiol\. The Ai:t also docs not define "amenctment". However, section 6A p, rovides that where any Central Act repeals any enactment by which, the text of any Central Act was "amended hy express omission, insertion or suhstitution of any matter" the repeal unless different intention appears, shall not affect the. continuance of "any tuch amend- -nt made by the enatment so repealed" and in operation at the time <lf such repeal. Section 6A shows that. "amendment" includes addition, substitution and omission. There is no reason why this definition which was known to the Constitution-makers sliould not apply to "amendment" in Art. 368.

According to the petitioners, "amendment" in Art. 368 is used in the narrow sense of making improvements. Now, an improvement may be made not only by an addition, but also by ossion or. repeal. us the curing of an error in the text undoubtedly improves 1t. Accordmg ro Hidayatullah J. it "was an error to include (the right of property) Jn (Part III)". (Golaknath, supra at page 887). The removal of this error by an amendment under Art. 368. will surey improve the. text of the Constitution. It will remove the roadblock m the way of implementing Part IV of. the Constitution. Further, every mover of an

.KESAV,\.NANDA "· KFJIALA (Dwiuedi, J.) 899

amendment considers his proposal as an improvement in tlfe existing text and the Court should not substitute its own evaluation for that of the mover of the amendment.

The grants of legislative power arc ordinarily accorded the widest amplitude. A fortiori, the constituent power in Art. 368 should receive the same hospitable construction. The word "amendment'' should be so construed as to fructify the purpose underlying Art. 368. The framers of the Constitution have enacted- Art. '368 for several reasons. First, the working of the Constitution may reveal errors and omissions which could not be foreseen by them. Article 368 was designed to repair those errors and omissions. Second, the Court's construction the Constitution may not correspond with the Constitution-makers' intention or may make the process of orderly government difficult.

The first Amendment to the Constitution became necessary on account of the decision of this Court in the State of Madras v. Srimathi

Champakam Dorairajan(') and the decision of the Patna High Court in Kameshwar Singh v. State of Bihar('). Third, the Consti!Uent Assembly which framed the Constitution was not elected on adult franchise and was in fact not fully representative of the entire people. On January 22, 1947 Jawaharlal Nehru said: "We shall frame the Constitlllion, and I hope it will be a -good constitution, but docs anyone in this House imagine that when a free India emerges it will be bound -down by anything that even this House might lay down for it ? A free India will sec the bursting forth of the energy of a mighty nation. What it will do and what it will not, I do not know, but I do know th:i.t it will not consent to be bound down by anything . . . . . . It may be that the Constitution, this House may frame may not satisfy an India, that free India. This House cannot bind down the next generation or people who will duly succeed us in this task."(') On November 8, 1948 he reiterated : "While we who arc assembled in this House undoubtedly represent the people of India, nevertheless, I think it can be said and truthfully that when a new House, by whatever name it goes, is elected in terms of this Constitution a11d every adult in India has the right to vote, the House that emerges then will certainly be fully representative of every section of the Indian people. It is right that that House elected so ...... should have an easy opporturiity to make such changes as it wants to ...... "('). The Constitution-makers conferred very wide amending power on Parliament because it was believed that Parliament

(') [1951] S:C.R. 525.

( 2) A.I.R. 1951, Patna p. 91.

( 8) C.A.D. Vol. 2, pap 322-323. (') C.A.D. Vol. V, pp. 322-323.

900 SVPREME COIJP.T JtEPOllTS [ 1973] Supp. s.c.11.

elected on adult franchise would be fully representative of the entire people and that such a Parliament should receive a right to have a fresh look at the Constitution and to make such changes therein as the entire people whom it represents desire. Fourth, at the apex of all human rights is the right of self-preservation. People collectively have a similar right of self-preservation. Self-preservation implies mutation, that is adaptation ro the changing environment. It is in the nature of man to adjust himself to the changing social, econoll'.ilc and political conditions in the country. Without such adaptation the people decays and there can be no progress. Kant said : "One age cannot enter into an alliance on oath to put the next age in a position when it would be impossible for it to extend and oorrect its knowledge ; or to makic any progress whatsoever 'in enlightenment. This would be a crime against human nature whose original destiny lies precisely in such progress. Later generations are thus perfectly entitled to dismiss these agreements as unauthorised and criminal." (1) ·

Speaking in the same vein, Jawaharlal Nehru said : "In any event we should not make a Constitution such as some other great countrie> have, which are so rigid that they do not and cannot be adapted to changing conditions.

Todayspecially, when the world is in turmoil and we are passing through a very swift period of transition, wJiat. we

1 may do today may not be wholly applicable tomorrow.

Therefore, while we make a constitution which is sound and as basic as we can, it should also be flexible.(')"

Article 368 is shaped by the philosophy that every generation should be free to adapt the Constitution to the social, economic and political conditions of its time. Most of the Constitution-makers were freedom-fighters. It is difficult to believe that those who had fought for freedom to change the social and political organisation of their tin; ie wo; tld deny the identical freedom to their descendents to change the social, economic and p0litical organisation of their times.

The denial of power to make radical changes in the Constitution to the future generation would invite the danger of extra constitutional changes of the Constitution. "The State without the means of some change is without means of its conservation. 'Nithout such means it might even risk the loss of that part of the Constitution which it wished the most religiously to preserve."(')

(') Kant's Political Writings, Edited by Hans Reiss, Cambridge University Press, 1970, p. 57. (') C.A.D. Vol. 7, p. 3.22.

(B) Burke : Recollections on the Revolution in France and other \vritings Oxford University Preas, 1958 Reprint, p. 23.

XESAVANANDA II. JtEJW.A (Dwi11~Jj, J.) 901

The context also rc; nforces the widest meaning of the word "amendment''. The proviso to Art. 368 states that if an amendment of the Constitution seeks to make any "change" in the provisions specified therein, such amendment shall also require the ratification by at least half of the State Legislatures. Thus the proviso contemplates an amendment by way of a 'change' in certain provisions of the Constitution. According to the Shorter Oxford English Dictionary (3rd Edition Vol. 1, page 291) "change" means "substitution, or succession of anything in place of another ; alteration in the State or quality of anything; variation, mutation, that which is or may be substituted for another of the same kind." The power to amend accordingly includes the power to substitute one provision for another. For instance, it will be open to Parliament to remove List II in the Seventh Schedule and 6ubstitute another List therefor by strictly following the procedure prescribed in Art. 368 and its proviso. The words "amendment" and "amend" have been used in Arts. 107(2), 108(1) and (4), .190(3), 110(1) (b), proviso to Art. Ill, Arts. 147, 196(2), 197(1)(c) and (2)(c), 198(3), 199(1) (b), 200, 201and395. In all these provisions those words include the power of repeal or abrogation. Article 110(1) (b) provides that a Bill shall be deemed to be a Money Bill if it contains a provision dealing with "the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of

India." Without doubt, the word "amendment" would also include repeal or abrogation of a law with respect to any financial 9bligation undertaken or to be undertaken by the Government of IndiJ.

The word "amendment" cannot be confined to mere minor changes. To the same effect is Art. 199(1)(b) in relation to the States. Article 147 provides that in Chapter IV of Part V and in Chapter V of Part VI references to any substantial question of law as to the interpretation of the Constitution shall be construed as including reference to any substantial question of law as to the interpretation of the Government of India Act, 1935 (including any enactment "amending or supplementing that Act"). Herc also the word "amending" would take in any

enactmt which has repealed any provision of the Government of India Act, 1935.

Article 395 provides that the "Indian Independence Act, 1947 and the Government of India Act, 1935, together with all other enactmcnts amending or supplemcnting the law. . . . are hcreby

repealed." Herc again, the word "amending" includes an enactment which has repealed any provision of thc Governmcnt of India Act, 1935.

It cannot be said that thc framers of the Constitution intended to con tinue an enactment which has repcalcd an essential provision of the Government of India Act, 1935.

Paragraph 7 of Schedule V to the Constitution reads: "(!) Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule

902 SUPREME COURT REPOllTS tl973] Supp, S, CJt.

is so amended, any reference to this Schedule in this Constitution shaU be canst.rued as .reference to such Schcc;!ule as "° amended : (2) No ruch law as 1s mentioned in sub-paragraph (!) of this paragraph shall be deemed to be an amendment of tills Constitution for the purpose of Art. 368."

In paragraph 7 (I) the words, "addition, variation, or repeal" do not enlarge the meaning of 'amend'; they are cxpositive of it. If the word "amendment" in Art. 368 did not include the power of repealing a provision of the Constitution, sub-paragraph (2) could not have been enacted. It has been held by this Court that Parliament may change the boundaries of a State by a law enacted under Art. 3 or by an amendment of the Constitution under Art. 368. (Berubari Union, supra).

It would follow from this decision that Parliament may repeal any provision of Schedule V by an ordinry law enacted under paragraph 7 of Schedule V or by an amendment under Art. 368. The amending power under Art. 368 which provides for amendment of the Constitution by a more difficult p!IOCedure than the one by which any provision of Schedule V may be repealed under paragraph 7 cannot surely be narrower than the power under paragraph 7 of Schedule V. The same consideration equally applies to paragraph 21 of Schedule VI to the Constitution.

According" to Art. 33 Parliament may by law determine to what extent any of the rights conferred by Part III shall in their application to the members of the Armed forces or forces charged with the maintenance of public order be restricted or abrogated so as to ensure better discharge of their duties and the maintenance of discipline amongst them. It is open to Parliament to make a law abrogating the fundamental rights of the citizens for the time being employed in the Army and the forces charged with the maintenance of public order. For instance, it is open to it to make a law ab•ogating the freedom of speech of persons employed in the Army. For the reasons already discussed in relation to paragraph 7 of Schedule V, it cannot be disputed that Parliament may abrogate the fundamental rights of the citizens employed in the Army or forces charged with the maintenance of public order in the exercise of the amending power under Art. 368.

The power of a Constituent Assembly, which is a representative body, to frame a constitution is unlimited and unconfined. Its absolute power is explained by the fact that it is called upon to chart a process of government of a coutry. Ii; t carrying ?ut its_ task. it has to take decisions on matters of high policy. The high £0wer is made to. match the high purpose. The nature of the powe.r conferred on Parhment bv Art. 368 is similar to the power exercisable by .• Constent Assembly. Therefore the amending power in Art. 368 is as unlimited

KESAVANANDA "· KERALA (Dwivedi, J.) 903

and unconfined as the power of a Constituent Assembly. Indeed, it may truly be said that Parliament acts as a Continual Constituent Assembly.

The history of Article 368 supports the broadest construction of the word "amendment". Article 368 is similar to Art. 304 of the Draft Constitution. Article 305 of the Draft Constitution is material for our purpose. It relevantly read : "Notwithstanding anything contained in Art. 304, the provisions of this Constitution relating to the reservation of seats for the Muslims, the Scheduled Castes, the Scheduled Tribes or the Indian Christians either in Parliament or in the legislature of any State ...... shall not be amended during a period of 10 years from the commencement of this Constitution."

Part XIV of the Draft Constitution made reservation of cats in Parliament and State Legislatures for Muslims, Scheduled Castes, Scheduled Tribes and Indian Christians. The word "amended" in Art 305 unmistakably include the repeal of the provisions prescribing the reservations. As Art. 305 was an exception to Art. 304, the word "amendment" in Art. 304 would include the power of abrogating the reservations. As in Art. 304, so in Art. 368 "amendment" should include the sense of repeal and abrogation.

According to Sri Palkhiwala, whenever the Constitution-makers intended to confer the power of repeal on any authority, they have expressly said so as in Arts. 35(b), 252(2), the proviso to Art. 254(2) and Art. 372(1) and (2). In all these provisions the words "alter, repeal or amend" are used with reference to a law. As "amend" would not authorise repeal simpliciter of the entire law, the framers of the Constitution have expressly conceded the power of repealing the entire law. So these provisions do not help the argument of Sri Palkhiwala that "amendment" in Art. 368 should be given a narrow meaning.

To sum up, the nature, object and history of the amending power and the context of Art. 368 leave little room for doubt that the word "amendment" includes the power of repealing or abrop; ating each and every provision of the Constitution. It may be that Parliament may not be able to annhilate the entire Constitution by one stroke of pen.

But it can surely repeal or abrogate all provisions in Part III. Article 368 permits Parliament to apply not only the physician's needle but also the surgeon's saw. It may amputate any part of the Constitution if and when it becomes necessary so to do for the good health and survival of the other parts of the Constitution.

Meanjng of 'Law' in Art. 13(2)

There is a distinction between 'constituiion' and 'law'. (Ordinarily a 'constitution' signifies a politico-legal document. President Wilson

904 SUPREM!! ootm JU!P01TS [ 1973] Supp. s.c.Il.

once said that the U.S. Constitution has been, to a considaable extent,

a political document and not a mac 'lawyers document'.(') Ort the otha hand, in its ordinary sense 'law' signifies a statute or a legislative

enactment. Again, a 'constitution' prescribes the paramount norm or norms ; a law prescribes derivative norms. They .are derived f!Om the paramount norms. The reckoning of a constitutional amendment in the eye of law is the same as that of a constitution. Therefore ordinaril y a constitutional amendment is not law. Significantly, there is not a whisper of the word 'law' in Art. 368.

The context of the word 'law' in Art. 13(2) does not show that it includes an amendment ~£ the constitution made under Art. 368. The word 'law' in Art. 13(1) obviously does not include a constitution. No constitution existing at the time of the commencement of our Constitution and taking away or abridging the fundamental rights of the

peopk: confared by Part III of the Constitution has been brought to our notice in spite of the assiduous research of Sri Palkhiwala. Article 13(3)(a) provides for an extensive definition of the word 'law' by including things which are not ordinarily regarded as included in it.

It mentions an ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law. But it does not include the Constitution which in the ordinary sense does not mean 'law'.

• A di.!tinction between 'constitution' and 'law' is made in the Constitution itself. According to Art. 60 the President of India has to

tke the oath that he will preserve, protect and defend "the Constitution and the law". Article 159 requires the Goveroor of a State to take the

same oath. A Minister of the Union and a State, the Judges of the Supreme Court and High Courts and the Comptroller and Auditor General also take the same kind of oath. U the framers of the Constitution had regarded the Constitution as 'law', they would oot have

separately mentioned the Constitution in various oatlis. ·

various provisions of the Constitution indicate that e product which comes into being by following the legislative proceilure prescri bed" in Arts. 107 to 111 is .called 'law'. The heading over Arts. 107 and 196 reads as "Legislative Procedure", When the prescrij)ed legislative procedure is followed, the end-product is law. But when the procedure prescribed in Art. 368 is strictly followed, it results in the amendment of the Constitution.· The Constitution-makers clid pot call it 'law'.

Ordinarily fundamental rights avail against the State organs, that is, the Legislature, the Executive and the Judiciary and other apcies .. 0f the State. While making an amendment under Art. 368, Parliament acts as a constituent authority and not as a State organ.

The body

(') C. G. Hains: Role of the Supreme Court in American Goverruru:nt and. l'olitics, 1944 Edn., p. 44.

IWAVANANDA "· ltl!llALA (Dwivedi, J.) 905

making a law in accordance with the procedure prescribed under Arts. 107 to 111 and an amendment according to the procedure prescribed in Art. 368 may be the same, but the two functions arc fundamentally different in character. It is common knowledge that often there is a polarisation of various functions in one and the same body.

For instance, the House of Lords in Great Britain exercises legislative functions as well as judicial functions. It may pass a Bill by a bare majority of the Lords assembled in a particular session. But all the Lords minus the Lord Chancellor, the Law Lords and such other Lords as have held or arc holding high judicial offices cannDt decide a civil appeal. On the other hand, three Lords selected from any one of the last three categories of Lords may decide a civil appeal. The functional difference accounts for this apparent paradox of numbers. The members of the Dominion Parliament of India could not, by their unanimous vote, make the Constirution of India. But the same membersacting as the Constituent Assembly could, by a bare majority, make the Constitution. The functional difference in making a legislative law and an amendment of the constitution likewise explains the basic difference in the procedures prescribed in Arts. 107 to 111 and Art. 368. In case of difference on a Bill between the House of the People and the Council of States, the two Houses may meet unicamerally and pass a legislative measure. The President cannot refuse his assent to a Bill passed by both Houses bicamcrally or unicamerally. But an amendmenr of the Constitution under Art. 368 cannot be made by a vote in a joint sitting of the twp Houses. The two Houses must meet separately and pass the amending bill by the requisite majority. The President may withhold his assent to the Constitution amending biJI. It is on account of the functional difference between law making and constitution amending that a law passed by the unanimous vote of Parliament according to the procedure in Arts. 107 to 111 cannot override any fundamental right. A Bill passed by more than half of the members of each House assembled separately and by two third of the members present and voting will, however, result in the amending of the fundamental rights.

Legislative power in Art. 245 is made 'subject to the provisions of this Constitution'. But Art. 368 is not made 'subject to the provisions of this Constitution'. Article 368 places only one-express fetter on the amending power, that is, the procedural fetter. A substantive fetter on the amending power is accordingly not contemplated by Art. 368. The framers of the Constitution were aware of the fact that certain foreign constitutions have expressly put the amend; ng power in substantive fetters. Indeed Art. 305 sought to place such a fetter on the Draft Art. 304 (corresponding to Art. 368). In the' absence of clear textual evidence, I am unable to expand the meaning of 'law' in Art. 13(2), for an expansive construction would permanently rule out the lawful

906 SUPlllME COUil.T REPOll.TS [1973] Supp, S.C.ll.

making of stnu:tura1 reforms in the social, economic and political frame of the country. Speaking on the First amendmene to the Constitution following the decision of this Court in State of Madr111 vs. Srimathi Champak,.an Dorairaian,(') on May 29, 1951 Jawaharlal Nehru said: "We have to give them (the weaker sections of the society) opportunities-economic opportunities, educational opprtunities and the like.

Now in doing that we have been told that we come lip against some provisions in the Constitution which rather lay down some principles of equality or some principles of non-discrimination etc. So we arrive at a peculiar tangle. We cannot have equality because in trying to attain equality we come up. against some principles of equality. That is a very peculiar position; We cannot have equality because we cannot have non-discrimination because if you think in terms of giving a lift to those who are down, you are somehow affecting the present status qua undoubtedly. Therefore, if this argument is correct, then we cannot make any major change in the status qua, whether economic or in any sphere of public or private activity." (2)

The word 'compensation' in the unamended Art. 31 (2) has been constnred by this Court to mean full market value of the acquired property. This construction creates a direct conflict between Art. 31(2) .and Art. 39(c). Article 39(c) enjoins the St!te to direct its policy towards securing "that the operation of the economic system does. not result in the concentration of wealth and means of production to the common detriment.'' This object can never be achieved if full market value of the acquired properly is to be paid to its owner, The payment of full market value to the owner will change the form of the concentration of wealth from property to cash .. The concentration would remain. The history of our National Movement clearly shows that the

Constitution-makers were committed to the accomplishment of the objects specified in Part IV of the Constitution. They have expressly declared that those objects are 'fundamental' in the governance of the country. It is accordingly reasonable to think that they have provided for the means of resolving the conflict between Arts. 31(2) and 39(c) or between Arts. 29 and 46. They must have intended that when a conflict arises between the rights in Part III and the obligations of the State in the Part IV, that conflict may be resolved by an amendment of the Constitution under Art. 368. "My concept of a fundamental right is something which Parliament cannot touch tave by an amendment of the Canstitutian." (emphasis added) (S. Krishnan versus State of Madras)(').

( 1 ) (1951) S.C.R. 525. (') Parliamentary Debates Vols, XJl-Xlll, Part 11-1951, pages 9616-9617. (') (1~51] S.C.R. 621 at page 652 per Boac J.

KESAVANANDA "· llEllALA (Dwivtdi, J.) 907

The phrase 'notwithstanding anything in the Constitution' is used in a provision granting power for e!11ancipating the grant from any restrictive provision in the Constitution. As the word 'law' in the Art. 13(2) is not intended to include an amendment of the Constitution, Art. 368 does not open with the non-obstantt clause.

No unmistaking conclusion can be drawn from the history of Art. 13(2) as to the meaning of the word 'law'. The Draft Report of the Sub- Committee on Fundamental Rights, dated April 3, 1947, contained an annexure dealing with Fundamental Rights.(') Clause 2 of the annexure releva .. tly-provided that "any law which may hereafter be made by the

State inconsistent with the provisions of this Chapter/Constitution shall be void to the extent of such inconsistency." By a letter of April 16, 1947, the Chairman of the Fundamental Rights u\>.Committee forwarded an annexure on Fundamental Rights to the Chairman, Advisory Committee on Fundamental Rights. Clause 2 of the annexure materially read: "All existing laws or usages in force ........ inconsistent with the rights guaranteed under this Constitution shall stand abrogated to the extent of such inconsistency : nor shall the Union or any unit make any law taking away or abridging any such right."(') On April 23, 1947, the Advisory Committee on Fundamental Rights presented an interim report to the President of the Constituent Assembly. The Report contained an annexure providing for fundamental rights. Clause

(2) of the annexure materially read : "All existing laws, notifications, regulations, customi or usages in force ...... inconsistent with the rights guaranteed under this Part of the Constitution shall stand abrogated to the extent of such inconsistency, nor shall the Union or any unit make any law taking away or abliidging any such right."(8) Shri K. Santha nam proposed an amendment substituting for the last words in cl. (2) the words "Nor shall any such right be taken away or abridged except by an amendment of the Constitution." In his speech he explained that "if the clause stands as fr is even by an amendmen~ of the Constitution we shall not be able to change any of these rights if found unsatisfactory or inconvenient ........ In order to avoid any such doubts I have moved this amendment."(') So according to him the amendment was by way of abundant caution.

Sardar Vallabh Bhai Patel accepted the amendment. It was put to vote and adopted.(') The Constituent Assembly thus accepted the position that fundamental rights could be abrogated by a constitutional amendment.

( 1 ) Shiva Rao, Framing of India's Constitution, Vol. II, p. 137.

( 2) Ibid, p. 171.

( 8) Ibid, p. 290. (') C.A.D. Vol. 3, pp. 415-416. (') Ibid, p. 415.

908 SUPREME COURT 11.EPOJ.TS [1973] Supp. s.~.

In October, 1947, a Draft Constitution was prepared by the Constitutional Adviser.(') Section 9(2) of his Draft Constituti<!ll materially read : "Nothing in this Constitution shall be taken to empower the State to make any law which curtai~ or takes away any of the rights conferred by Chapter II of this Constitution except by way of amendment of this Constitution under section 232 and any law made in contravention of this section shall to the extent of such contravention be void." Although the Constituent Assembly had expressly accepted the amendment of Sri K. Santhanam, the Drafting Committee omitted the words "except by way of amendment of this Constitution." The relevant portion of Art 8(2) of the Draft Constitution read : "The State shall not make any law which takes away or abridges the rights confei:red by this Part and any law made in contravention of this Part shall to the extent of the contravention be void." No explanation for excluding the words "except by way of amendment of this Constitution", which were approved by the Constituent Assembly, is to be found in the records. It is, however, important to observe that when the words "except by way of amendment of the Constitution" are omitted from Sri K. Santhanam's amendment, the remaining words "nor shall any such rights be taken away or abridged" are quite wide to proluoit the abrogation or abridgment of fundamental rights even by a constitutional amendment. The same effect seems to be produced by the words "nothing in this Constitution" in s. 9(2) of the Draft Constitution prepared by the Constitutional Adviser. But the Drafting Committee substituted section 9(2) by Art. 8(2) of the Draft Constitution.

Article 8(2) of the Draft Constitution does not enmesh in plain words all the provisions of the Constitution including Art. 304. This may perhaps explain the omission of the words "except by way of amendment of this Constitution." from Art. 8(2) of the Draft Constitution. In any case, this history of Art. 13(2) does not prove that the Drafting Commitee .intended t(> gi'.ve supremacy to fundamental rights over the Constitution amending power. In this connection 'it is important to refer to a note from the Constitutional Adviser's office that 'law' in s. 9(2) did not include an amendment of the Constitution.(')

A careful reading of Dr. B. R. Ambedkar's speeches would show that the constitution amending power can be used to abrogate or abridge the fundamental rights. On November 4, 1948 he said :

"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 State,

(b) the representation d the States in Parliament; and ( c) the ·

( 1) Shiva Rao, supra, p. 7.

( 2) Shiva Rao, Vol. IV, p. 26.

KJISAVANANDA I/. KERALA (Dwivedi, J..)

powers of th.e Courts, All other Articles are placed in another group• Articles placed in the second group cove~ a very large part of te Constitution and can be amended by Parliament by a double maJ<>" rity namely a majority et not kss 'llian two third oi the members of. ach present and voting and by a majority of i; he t<>t:il membership of. each. HOU5C. The amendments. of these arttcles did not require ratification by the States:'(') (emphasis added).

Ho reiterated :

"It is only for amendments of specific matters-and they are only few-that the ratifications of the State legislatures is required. All other articles of the Constitution are. left to be amended by Par/ia. ment."(') (emphasis a:clded).

On another occasion he repeated :

''Now, what is it we do ? We divide the articles of the Constitution under three eategOiies. The first category is 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 Parliamen.t wishes to amend any particular article which is not mentioned in Part Ill or article 304, all that is necessary is to have two-thirds majority. Then, they can amend it.

Mr. President : Of members present.

The Honourable Dr. B. R. Ambedkar : Yes, Now, we have no doubt put certain. artkles iri a third category where for the purpose of amendment the mechanism is somewhat different or double. It requires two-thirds majority plus ratification by the State$."("}

_ It would appear from these speeches that for the purpose of amend ment Dr. Ambedkar has classified all the Articles of the Constitution in three categories. The Articles must fit in one or the other of the three categories; for according to him there is no fourth category. Articles in Part Ill of the Constitution should accordingly fit into one of these categories. It seems to me that having regard to his threefold classification of the Articles it is not fair to interpret his speeches as showing that the Articles in Part III are not at all amendable. The word "not" in

( 1) C.A.D. Vol. VII, p. 36.

( 2) C.A.D. Vol. VII, p. 43.

( 8) C.A.D. Vol. IX, pp. 660-663.

58-36 S. C. lndia/7)

910 SUPREME COURT REPORTS [ 1973] Supp. s.c.R.

th~ sentene "if the future Parliament wishes to amend any particular a; ticie wh1h is not mentioned in Part Ill or article 304" is presumably either a slip of tongue or a printer's devil. When Jawaharlal Nehru said that the fundamental rightswere intended to be "permanent in the Constitution", he did not really mean that they are not amendable:, His speeches, already quoted by me, would clearly show that he regarded the entire Constitution to be subject tlO amendment by any future Parliament.

Sri Karnath had moved an amendment to Art. 304 which expressly provided for amendment in the provisions of Part Ill, but that amendment was rejected by the Constituent Assembly. No inference of unamendability of those provisions can be drawn from the rejection of his motion, for the members of the Constituent Assembly might have thought that the language of Art. 304 of the Draft Constitution was sufficiently spacious to include an amendment of the provisions of Part JII and that accordingly Sri Kamath's motion was unnecessary.

The phrase "Constitution as by Jaw established" in the President's oath would not establish that the Constitution is a law in the ordinary sense of the term. The word 'law' in the phrase, in my view, means lawful. The phrase would mean "Constitution established in a lawful manner, that is, by the people through their representatives."

The oath of the President to defend "the Constitution and the law" does not bind him to the Constitution as it stood on the day he took the oath. The word 'law' undoubtedly means tlie law for the time being in force. A variation or repeal of a part of a law would not compro)]lise the oath. In the context of law, the 'Constitution' would mean the Constitution as varied or repealed from time to time.

Sri Palkhiwala has contended vigorously that people have reserved to themselves the fundamental rights and that those rights are sacred and immutable natural rights. Jc seems to me that it is an error to consecrate the rights enumerated in Part Ill of the Constitution as "Sacrosanct' 1 or "transcendental" or to romanticise them as "natural rights" or "primordial rights" or to embalm them in the shell of "inalienable and inviolable" and "immutable."

To regard them as sacrosanct does not seem to comport with the secular virtue of our Constitution. To regard them as "natural rights" or "primordial rights" overlooks the fact that the rights specified in Arts. 15, 16, 17, 18, 21, 22, 23, 24, 25, 27, 28. 29, 30 and 32 were begotten by our specific national experience. They did not exist in India before the Constitution.

KESAVANANDA v. KERALA (Dwivedi, J.) 911

The Constitution-makers did not regard the rights mentioned in Part III as 'sacrosanct' or as 'inalienable' and 'inviolable' or as 'immutable'. Jawaharlal Nehru said : "So, if you wish to kill tills Constitution make it sacred and sacrosanct certainly. But if you want it to be a dead thing, not a growing thing, a static, unwieldy, unchanging thing, then by all means do so, realising that that is the way of stabbing it in the front and in the back. Because .whatever the ideas of the 18th century philosophers or the philosophers of the early 19th century. . . . . . . . nevertheless the world has changed within a hundred years-changed mightily" ( 1).

Articles 15(3), 16(4) and (5), 19(2) to (6), 21, 22(3), 4(b) and 7(a) and (b), 23(2), 25(1) and (2), 26, 28(2), 31(4), (5), and (6) encumber the rights with manifold unpredictable limitations. Article 19(2) has invented a completely new restrictian to free speech, namely, 'friendly relations with foreign states' Article 33 expressly empowers Parliament to restrict or abrogate the rights in their application to the Army and forces responsible for the maintenance of public order. For a period of five years from May 14, 1954, the 'reasonableness' of restrictions on the rights specified in Art. 19 was made unjusti.ciable in tbe State of Jammu and Kashmir. Clause (7) added to Art. 19 by the President provided that 'reasonable restrictions' in clauses (2), (3), ( 4) and (5) shall be construed as meaning such restrictions as the appropriate legislature in Jammu and Kashmir "deems reasonable". Article 35A applied to that State by the President made inroads into the rights of employment under the State, the right to acquire property the right to settlement and the right to scholarships and other aids in the State.

Article 303(2) empowers Parliament to make law giving preferences and making discrimination in the matter of inter., State trade if it is necessary to do so for dealing with a situation arising from scarcity of goods in any part of the country. Article 358 suspends rights under Art. 19 during the operation of the Proclamation of Emergency under Art. 352. Article 359 empowers the President to. suspend the rights under Art. 32 during Emergency, so that all fundamental rights may be made quiescent. All these provisions prove that the fundamental rights may be taken away or abridged for the good of the people. (Basheshar Nath vs. The Commissioner of Income Tax (2) ).

Rights in Part III are downright man made.

According to Dr. B. R. Ambedkar, they are the 'gift of law'('). Article 13(2) and 32(1) and (2) and 359 expressly speak of the fundamental rights as

( 1) Parliamentary Debates Vols. XII-XIII, Part II, pp. 9624-9625.

( 2) [1959] Supp. I S.C.R. 528 at pages 604-605 p<r S. K. Das j. (') C.A.D. Vol. VII, p. 40.

912 SUPllEME COURT REPORTS [1973] Supp. s.c.R.

"conferred by Part III". They arc thus the creatures of the Constitution. They are called fundamental rights not because they arc reserved: by the l>t?PI~ to themselves but because they are made in. destructible by legislatl ve Jaws and executive action. There is no analogue .in the C0ns!ltution. to the X Amendment.of the U.S. Constitution which expressly speaks of the .reservation of p0wers 'by the people. It. is welf o rmember that the l Amendment takin& away or abrogating certam nghts was passed by the Constituent Assembly acting. as the Provisional- Parliament. lt reflects the Constitution~ makers' intention that' the rights can be abrogated.

The prescription of a. more rigid procedure for changing the provisions specified in the provisio to Article 368 underscores the fact that the framers of the COOstituti.on regarded them as more valuable than the provisions of Part IIL They attached more value to fsm than . to the fundamental righl; s; '

Inherent and implied limtta#1Jns on amending power

Wanchoo J. and two other karned Judges who associated with him have held that there are no inherent and implied limitations on the amending power in Art. 368 ( Golaknath, Supra at page 836). Bhachawat and Ramaswami JJ. shared their opinion. (ibid, pages 910 and 933). It seems to me that Hidayatullah J. also did not fiavour the argument of inherent and implied limitations. on the amending power, for he has said : ''The whole Constitution .is open to amendment;

Only two dozen articles are outside the reach of Art. 368. That too . because the Constitution has made them fundamental." (ibid, p. 878) •.

Sri Palkhiwala's argument of i.nherCllt and implied limitations may be reduced to the form of a syllogL\m thus. All legislative powers arc subject to inherent and implied limitations.

The constitiient power in Art. 368 is a legislative . power.

The constituent power is subject to inherent :!Pd implied : limitations.

• . If .the major and 111inor pre.mi~ in the syllogism are. valid, the conclusion alro must be va)id. Bµt both premises are fallacious. ~'- . legislative powers are not subject to any inhernt and implied limitations. Take the case of the War Pq:wcr, Dunne,~ coiu:s11 oi arau ments I had .sk!; d :sri Pa!)dllwala to point 9ut .· .=!llY mlm:cnt and implied limitation on the War Power, but he. c<ll!l.d .poiilt Q~ none.

KESAVANANDA fl, XllRALA (Dwffiedi, }.) 9il.3

When the President has issued a Proclamation of Emergency under Art. 352, the cardinal principle of federalism i; s in eclipse. Parliament may make laws for the whole or any part of the territory of India with respect to any of the matlters enumerated in the State List. (See Art. 250(1)). The cxorut:ive power of the Union shalt extend to the giving Of directions to any Sliate as to the manner in which the executive power thereof is to be exercised. Parliament may confer powers and impose duties or authorise the conferring of powers and the imposition af duties upon the Union officers and authorities in respect of a matter not en, umerated in !!he Union List. (Sile Alt. 353).

The teeth. of Art. 19 become blunted. (Sec Art. 358). The President may suspend the right to move any Court for the enforcement of. fundamental rights. (See Art. 359) it would virtually swpcnd the fundamental rights during Emergency. Article 83(2) provides that the House of the People shall continue for five years from the date appointed for its first meeting. According to its proviso, the period of five years may, while a Proclamation of Emergency is in operation,

be extended by Parliament by law for a period oot exceeding one year at a time. Evidently during Emergency the War Power of Parliament and the President is at its apogee, uncribbed and uncabined. It has already been shown earlier that the constituent power in Art. 368 is not a legislative power. As both premises of the syllogism are fallicious, the conclusion cannot be valid.

According to Sri Palkhiwala, an inherent limitation is one which inheres in the structure of Parliament. Parliament consists of two Houses and the President. The House of the People its elected by adult franchise. It is argued that Parliament cannot make any amendment doing away with its structure. Its structure limits its amending potency. It is a big assflmption and should not be accepted widlout proof from the text of the Constitution. The Constitution does not embody any abstract philosophy. It is still seriously debated whether 'birds fly because they have wings' or 'birds have wings becau5e they fly'. Many maintain that function works change in structure. Proviso to Art. 83(2), Arts. 250, 353, 358 and 359 demonstrate that the structure of our polity and of Parliament suffer change from the tasks of Emergency. Article 368 itself can be amended to enlarge the amending power. The magnitude of the amending power is to be measured by the purposes which it is designed to achieve than by the structure of Parliament.

Implied limitations cannot be spelt out "i the vague emotive generalities of the Preamble: 'People', 'Sovereign', 'Democratic', 'Republic', 'Justice', 'Liberty', 'Equality' and '., Fraternity' arc plastic words, and different people have impressed different meanings on

914 SUPREME COUllT REPORTS [1973] Supp. s.c.R.

them. Slavery had coexisted with democracy and republic. Liberty and religious persecution have walked hand in hand. It was once 'believed that equality was not compromised by denying vote to the propertyless. Preamble is neither the source of powers nor of limitations on power. (In re. Barubari Union, Supra, p. 282).

 According to Sri Palkhiwala, an implied limitation is one which is implicit in the scheme of various provisions of the Constitution.

The scheme of various provisions is to create primary organs of State arid to define, demarcate and limit their powers and functions. The scheme of Art. 368, on the 0th.er hand, is to re-create the primary organs of State and to re-define, re-demarcate and re-limit their powers and functions if and when it becomes imperative to do so for the good of the people. Accordingly jt must plainly have been the intention of the Constitution-makers that Art. 368 should control and condition rather than be controlled and conditioned by other provisions of the Constitution. Article 368 is the master, not the slave of the other provisions. Acting under Art. 368, Parliament is the creator, not the creature of the Constitution. In one word, it is supreme. A.s Lord Halifax has srud : The "reverence that is given to a fundamental. ... would be much bette.r applied to that supremacy or power, which is set up 'in every nation in differing shapes, that altereth the Constitution as often as the good of the people requireth it .. .I lay down, then, as a fr'ldamental first, that in every constitution there is some power yvhich neither will nor ought to be bounded.(')" Jawaharlal Nehru also said: "(U)l\imately the whole Constitution is a creature of Parliament."(2 )

It is said that Art. 368 cannot be used to abrogate any basic, fundamental or essential feature of the Constitution or to damage or destroy the core of any fundamental right. But no accurate test for ascertaining a basic. fundamental or essential feature or the. core of-a fundamental right has been suggested by Sri Palkhiwala. An <1fpeal is made to the trained and perceptive judicial mjnd to discover the essential features of the Constitution and their core.

During the Stuart period in England the King as well as th~ Parliaerit were both clruming to defend the fundamentals of English pohty. Charles I declared that he had taken up arms only "to defend the fundamental laws of this Kingdom." (1) On the other hand, Parliamentarians maintained that the right of the people was more truly fundamental

(') Gough, Supra, at page 170.

( 2) C.A.D. Vol. IX, p. 1195. (') Gough, supra, p. 78.

KESAVANANOA v. KERALA (Dwivedi, J.) 915

than anything based merely on tradition or prescription.(') Commenting on the remark of Sir John Finch C. J. (quoted in the opening of this judgment) Maitland said : (W)ho is to decide what is an ornastitution above both king and Parliament, limiting to royal acts a ment and what a substantial part of the crown. The notion of a Conproper sphere, limiting to statutes a proper sphere, was nowhere to

be found expressed in any accurate terms, and would satisfy neither k'ing nor nation.(')

At the end of the 17th century Lord Halifax derisively remarked : "Fundamental is a pedestal that men set everything upon that they would not have broken. It is a nail everbody would use to fix that which is good for them ; for all men would have that principle to be immutable that serves their use at the time.

Fundamental is a word used by the laity as the word sacred is by the clergy, to fix everything to themselves they have a mind .to keep, that nobody else may.touch it."(')

The Constitution-makers who were familiar with the English constitutional history could not conceivably have left undetermined the test of distinguishing the essential features from the non-essential features or their core. The test is writ large in Art. 368 itself. Every provision of the Constitution which may be amended only by the procedure prescribed in Art. 368 is an essential feature of the Constitution, for it is more set than legislative laws. The test is the rigid procedure. The more rigid the procedure, the more essential the provision amendable thereby. Thus the provisions specified in the proviso to Art. 368 are more essential than the rights in Part III. It has already been shown earlier that the fundamental rights, even though an essential feature of the Constitution, are within the sway of the amending power in Art. 368. On a parity of reasoning, judicial review of legislation is also amendable. The Constitution creates, enlarges, restricts and excludes judlcial review of legislation. (See Arts. 32(2), 138, 139, 143, 77(2), 166(2) and 31(4), (5) and (6)). Article 32(2) is as amendable as any fundamental right in Part Ill. The word "guaranteed" in Art. 32(1) does not testify to its unamendable character. The guarantee is good against the Government organs and not a11; ain<> the Mmtituent pnwer. It mav be recalled that on December 9, 1948, Dr. B. R. Ambcdkar, while speaking on Art. 25 of the Draft Constitution (present Art. 32) said : "The Constitution has invested

(1) Ibid, p. 99.

( 2) Constitutional History of England, Supra, p. 300.

( 3 ) Gough, supra, pp. 169-170.

'.9 lf> SUPREME COUR'l' RUORTS [1973j Supp. ~.It •

• the Swreme Court with these wms and the5C writs ooulcl not be tllkm away Unless and until the Constitution itself is amended 'by •means 1dt open to the Legislature."(') And this he said in spite of his :tion rhat Art. 25 the "very soul" and the "very heart" of the ConsMll- ~.

Article 368 places , no express liniits on t'he amending p0wcr.

Indeed, it expressly provides for its own amendment. Parliament and more than half of the States may jointly repeal Art. 368 and thus make fundamental rights immutable if they to de$ire. it is not permissible to enlarge constructively the limitations on the amending pciWcr.

Courts are not free to declare an amendment void because in their opinion it is opposed to the spirit supposed to pervade the Constitution but not expressed in words. {A. K. Gdpalan 'V. T'he Unioll uf Inditi<:''; Raja Suriya Pal Singh v. State of U.P.<8) ). In Babu LttJ Pavate versus State of Bombay(') the constitutionality Of du: States Reorganisation Act, 1956 was questioned by this Court. The Act provided for the formation of two separate units out of fue former State of Bombay:

(1) The State of Maharashtra and (2) The State of Gujarat. It also provided for transfer of certain territories from one State to another.

The Act was passed under Art. 3 of the Constitution. Article 3 , has a proviso to the effect that no Bill under the main part of Art. 3 shal:l he. introduced in either of the Houses unlcS&, where the proposal contained in the Bill affects the area, boundary or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon. The Bill carved out three units . out of the State of Bombay, but die Act carved out only two ilnits. It was urged that the word "State" in Art. 3 -should be given a. larger connotation so as to mean not merely the State but its people as well •.

This according to the argument was the "democratic process" incorporated in Art. 3. According to this "democratic process" the representatives of the people of the State of Bombay assembled. in the State Lcgiilature should have been given an opportunity of expressing their views not merely on the proposal contained in the Bill but on any subscCifUC11t modification thereof. Rejecting this argument, S. K. Das, J. said : ·

"(I)t will be improper to import into the question of construction doctrines of democratic theory and practice obtaining in other countries, unrelated to the tenor, scheme and words of the provisions which we have to construe ... It docs not appear to us that

( 1) C.A.D. Vol. VII, p. 953. (') [1950] S.C.R. 88 at p. 120 per Kania C. j. and p •. 220 per Mahajan J.

( 8 ) [1952] S.C.R. 1056 at page -1068 per Mahajan J,


• , ..

Kl!SAVANANDA ti. KERALA (Dwivedi, J.) 917

any special or recondite doctrine of "democratic process" is involved therein."

In the South India Corporation (P) Ltd. v. The Secretary, Board

of Revenue, Trivandrum('), Subba Rao J., while construing Art. 372 observed: ·

"Whatever it may be, the inconsistency must be spelled out from the other provisions of the Constitution and cannot be built up on the mpposed political philosophy underlying. the Constitution."

Counsel for the petitioners has reiied on Mangal Singh v. Union of lndia('). The Punjab Reorganisation Act, 1966 was naed ith the object of reorganising the State of Punjab. Its const1tut10nality was questioned in this Court. The argument of the respondent that a law made under Arts. 2, 3 and 4 may also make supplemental, incidental and consequential provisions which shall include provisions relating to the set-up of the legislative, executive and judicial organs of the State was countered by the appellant with the. argument that such a wide power Parliament might conceivably exercise to abolish the legislative and judicial organs of the state altogether. Rejecting the counter-argument Shah J. said :

"We do not think that any such power is contemplated by Art. '4.

Power with which the Parliament 1s invested by Arts. 2 and 3 is power to admit, establish or form new States which conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise by law is supplemental, incidental or consequential to the admission, cstablishmel\t or formation of a State as contemplated by the Constitution and is not power to override the constitutional scheme. No State can therefore be formed, admitted or set up by law under Art. 4 by the Parliament which has no effective legislative, executive and judicial organs."

Under Arts. 2 and 3 Parliament may by law form a new State increase or diminish the area of any State, and alter the boundary o; name of any State. The power is thus exercisable with reference to a State. The observation of Shah J. is to be read in the context of Chapters IJ~ III and IV of Part VI.

Chpter II of Part VI provides for the executive structure of a State. Article 155 states that there shall be a 'Governor for each State. Chapter III of Part VI deals with the structme Of the State Legislature. Article 168 provides that for every State

( 1) (1964) 4 S.C.R. 280 at P"ge 295.

( 1) (1967) 2 S.C.R. 109.

918 SUPREME COURT REPORTS [1973) Supp. S.C.R.

there shall be a Legislature. The composition of the Legislature, its powers and functions are laid down in this Chapter. Chapter V provides for the structure of the State Judiciary. Article 214 provides that there shall be a High Court for each State. The provisions in these Chapters are mandatory. Parliament, while making a law under Arts, 2, 3 and 4, cannot make radical changes in the legislative, execu tive and judicial administration of a State, for its law-making power is subject to Chapter II, III and V of Part VI. 1

Sri Palkhiwala has invoked natural law as the higher law conditioning the constituent power in Art. 368. Natural Law has been a sort of religion with many political and constitutional thinkers. Bun it has never believed in a single Godhead. It has a perpetually growing pantheon. Look at the pantheon, and you will observe there : 'State of Nature', 'Nature of Man', 'Reason', 'God', 'Equality', 'Liberty', 'Property', 'Laissez Faire', 'Sovereignty', 'Democracy', 'Civilised Decency', 'Fundamental Conceptions of Justice' and even 'War'(').

The religion of Natural Law has its illustrious Priestly Heads such as Chrysippus, Cicero, Seneca, St. Thomas Acquinas, Grotius, Hobbes, Locke, Paine, Hamilton, Jefferson and, Trietschke. The pantheon is not a heaven of peace. Its gods are locked in constant internecine conflict.

Natural Law has been a highly subjective and fighting faith. Its bewildering variety of mutually warring gods has provoked Kelson to remark: "(O)utstanding representatives of the natural law doctrine have proclaimed in the name of Justice or Natural Law principles which not only contradict one another, but are in direct oppooition t() many positive legal orders. There is no positive law that is not in conflict with one or the other of these principles; and it is not possible to a>eertain which of them has a better claim to be recognised than any other. All these principles represent the highly subjective value judgmerits of their various authors about what they consider to be just 01 natural(')".

Article 368 shouid be read without any preconceived notions. The framers of the Constitution discarded the concept of "due process of law" and adopted the concept iaf "procedure established by law" in Art. 21. It is therefore reasonable to believe that they have discarded

( 1) "In justifying and extolling war as an institutio~ Trcitschke appcale&! "to the laws of human thought and of human nature" which forbid anr alternative." H. Lautcrpacht : International Law and Human Rights, (1950 Edn.j p. 108.

( 2) What is Justice ? University of California Press, 1960, page 259.

' .

KESAVANANDA v. KERALA (Dwit•edi, J.) 919

the vague standard of due process of law for testing the legitimacy of a constitutional amendment. Due Process of Law is another name of natural law. The Constitution-makers could have easily imposed any express limitation on the content of the amending power. The absence of any express limitation makes me think that they did not surround the amending power with the amorphic penumbra of any inherent and implied limitations.

Judicial Review of Constitutional amendments

The history of this Court from Gopalan (Supra) to Golaknatk (Supra) brings out four variant judicial attitudes. In Gopal11n the majority of the Court expressly or tacitly acknowledged "the 011I1nipo-· tence of the sovereign legislative power." The Court displayed humility and self-wtraint. But two years later in 1952 the Court assumed the posture of a sentinel. In the State of Madras v. V. G., Row(') "' a unanimous Court spoke thus: "(A)s regards the 'fundamental rights

.... this Court has been assigned the role of a sentinel on the qui vive." Whik the Court took care to assure that it has no 'desire to tilt at legislative authority in a crusader's spirit', it added by way of warning that "it cannot desert its own duty to determine finally the cons- • titutionality of an impugned statute." The Court moved away from its Gopalan attitude of humility and self-restraint to the sentinel's role, compounded of self-restraint and 1elf-consciousness.

In 1954 the Court moved away a step further. In Virendra Singh and others v.

State of Uttar Pradesh(') the Court, making the people its mouth-. piece, asserted : "(W)e do not found on the will of the Government, we have upon us the whole armour of the Constitution wearing the breastplate of its protecting provisions and flashing the sword of its inspirations." Perhaps this passage is a faithful drawing of a crusader. But the picture is of a crusader getting ready to set out on a new path. This is the Third attitude of the Court. It displays more of self-assertion than of self-suppression.

By 1967 Gopalan attitude of humilitv and self-restraint had lost its appeal. With the banner of "natural", "sacrosanct", and "transcedental" rights in one hand and 'the flaming sword of (the Constitution's) inspiration' in the other, the Court announced in Golaknath that Parliament cannot take away or abridge the fundamental riR; hts in Part IJI. This is the fourth attitude of the Court towards iudicial review. From Gopalan to G<ilaknath, the Court has shifted from one end to the other end of the diagonal, from Parliament's supremacy to its own supremacy.

( 1) (1952) S.C.R. 597.

( 2 ) [1955] I S.C.R. 415.

920 SUPREME COURT REPORTS (1973) Supp. S.C.ll.

At the centre of the Court's legal philosophy, there is the rational free-will of the individual. The Court's claitn to the guardiartship over fundamental rights is reminiscent of the Platonic guardians, the philosopher kings who were to rule over the Republic. The Courts's elevation of the fundamental rights recalls Locke, 'whOiSc notion of liberty involves nothing more spiritual than the security of. property and is consistent with slavery and persccutjoo'(').

Wn the Court surrounds the fundamental rights with the nimbus of 'sacred' and 'sacrosanct', we are reminded of the theories of Grotius and Pufendorf with their theological strains. When the Court declares that the fundamental rights are 'primordial', 'immutable' and 'inalienable' it is presumably banking on Blackstone with the difference that unlike him it is negating the omnipotence of Parliament, When it is claimed that fundamental rights are accorded a "transcendental position" in the Constitution, it is seeking to read Kant's transcendental idealism into the Constitution.

. This philosophy has entailed the subservience of the Directive Principles of State Policy to the fundamental rights. January 26, 1950 became the great divide : on one side of. it were t\hosc who became endowed with the fundamental rights and enjoyed their blessings; on the other side were those who were formally granted fundamental rights but had no means and capacity to enjoy their blessings. This great divide is to remain for all time to come. But the Constitutionmakers had a contrary intention. Said Jawaharlal Nc'hru : "These

(the Directive Principles of Sta.tc Policy) arc, as the Constitution says, the fundamentals in the governance of the country. Now, I should like the House to consider how you can give effect to the5e principles if the argument which is often being used .... is adhered to, you can't, You may say you must accept the Supreme Court's interpretation of the Constitution. But, I say, then if that is correct, there is an inherent contr.adiction in the Constitution between the fundamental rights and the Directive Principles of State Policy. Therefore, again, it is upto this Parliament to remove that contradiction and make the fundamental rights subserve the Directive Principles of. State Policy(')".

Article 31(4), (5) and (6) establish beyond doubt that the Cqnstitution-makers intended to give ascendency to the Directive Principles of State Policy over fundamentar rights. "It iis futile ti> cling to our notions of absolute sanctity of individual liberty or private property and to wishfully think that our Constitution-makers have enshrined in our Constitution the notions of individual liberty and private property that prevailed in the 16th century when Hugo Grotius

( 1) Acton: The History of Freedom and Power, p. 104. (') Lok Sabha Dcba"s, 1955-Vol. II, p. 1955.

KESAVANANDA "· KERALA (Dwivedi, J.) 921

flourished or in the 18th century when Blackstone wrotr.. his Commentaries and when the Federal Constitution of the United States of America was framed. We must reconcile ourselves to the plain truth that emphasis has now unmistakbly shifted from the individual to the community.

We cannot overlook that the avowed purpose of our Constitution is to set up a welfare State by subordi_nating the social interest in the rights of the community .... Social mterests are ever expanding and are too numerous to enumerate or even to anticipate and therefore, it is not possible io circumscribe the limits of social control to be exercised by the State ... .If must be left to the State to decide when and how and to what extent it should exercise this social control" (1).

The Constitution does not recognise tbe supremacy of this Court over Parliament.

We may test legislative laws only on the touchstone of authoritative norms established by the Constilhtion. Its procedural I.imitations aside, neither Art. 368 nor any other part of the Constitution has established in 'explicit language any authoritative norms for testing the substance of a constitutional amendment.

I conceive that it not for us to make ultimate value choices for the people. The O:mstitution has not set up a government of judges, in this country. It has confided the duty of determining paramount norms to Parliament alone.

Courts are permitted to make limited value choices within the parameters of the Constitutional value choices. The Court cannot gauge the urgency of an amendment and the danger to the State for want of it, because all evidence cannot come before it. Parliament, on the other hand, is aware of all factors, 10cial, economic, political, financial, national and international pressing for an amendment and is therefore in a better position to decide upon the wisdom and expediency of it.

Reason is a fickle guide in the quest for structural socio-political values. In the trilogy II' Sankari Prasad Singh v. Union of India('), Saijan Singh v. State of Rajasthan(') and Golaknath (Supra) the opinion of seven judges prevailed over the opinion of thirteen judges.

The reason of the author of the Nicomachean Ethics found reason

in slavery. The reason. of the impassioned advocate of. Unlicensed Printing saw reason in denying freedom of speech to the Catholics.

So Schanupenhaur has said : "We do not want a thing because we have sound reasons for it; we find a reason for it because we want

(1) State of West BmgaJ •· SuboJn Gopal (1954) S.C.R. 587 at page 655 per Das J.

( 2) [1952] S.C.R. 89.


922 SUPREME COURT REPORTS [1973] Supp. s.c.R.

it"('). Pure reason is a myth. Structuring reason i's also calculating expediency, computing the plus and minus of clashing values as a particular time, in a particular place and in particular conditions, striking difficult balances.

Structural socio-political value choices imolve a complex and complicated political process. This Court is hardly fitted for perform ing that function. In the absence of any explicit constitutional norms and for want of complete evidence, the Court's structural value choices will be largely subjective. Our personae predilections will unavoidably enter into the scale and give colour to our judgment.

Subjectivism is calculated. to undermine legal certainty, an essential element of the rule of law.

Judicial review of Constitutional amendments will blunt the people's vigilance, art¥:ulateness an.cl effectiveness. True democracy and true republicanism postulate the settlement of social, economic and political issues by public discussion and by the vote of the people's elected representatives, and not by judicial opinion. The Constitu tion is not intended to be the arena of legal quibbling for men with long purses. It is made for nhc common people. It should generally be so construed that they can understand and appreciate it. The more they understand it, the more they love it and the more they prize it.

I do not believe that unhedged amending power would endanger the interests of the religious, linguistic and cultural minorities in the country. As long as they are prepared to enter into the political process and make combinations and permutations with others, they will not remain permanently and completely ignored or out of power. As an.'instance, while the Hindu Law of Succession has been amended by :, Parliament, no legislature from 1950 to this day has taken courage to amend the Muslim Law of Succession. A minority party has been sharing power in one State for several years.

Judicial review will isolate the minorities from the main stream of the democratic process.

They will lose the . flexibility to form and re-form alliances with others. Their self-confidence will disappear, and they will become as dependent on the Court's protection as they were once dependent ou ?ie Goerent'~ pro!ection. It seems to me that a two-third majority m Parliament will give them better security than the close vote of this Court on an issue vitally affecting them.

Great powers may be used for the good as well as to the detriment of the people. An apprehended abuse of power would not be

( 1) As quoted in the Story of Philosophy hy Will Durant at p. 339.

Xl!SVANANDA v. KERALA (Dwivedi, J.) 923

a legitimate reason for denying unrestricted amending power to Parliament, if the language of Art. 368 so permits without stretch or strain. While construing the Constitution, it should be presumed that power will not be abused. (A. K. Gopalan v. State(') at pages 320.21 per Das J.; Dr. N. B. Khare v. The State of Delhi('); In

Re, Delhi Laws Act(')), There is a general presumption in favour of an honest and reasonable exercise of power. (State of West Bengal '!/.Anwar Ali Sarkar(')). We should have faith in Parliament. It is responsib!C to the people; it cannot ignore any section of them for all time.

Repelling the abust of power argument, Das J. observed :

"(W)hat, I ask, is our protection against the legislature in the matter of deprivation of property by the exercise of the power of taxation? None whateyer. By exercising its power of taxation by law, the State may deprive us of almost sixteen annas in the rupee of our income. What, I ask, is the protection which our Constitution gives to any person against the legislature in the matter of deprivation even of life or personal liberty. None, except the requirement of article 21, namely, a procedure to be established by the legislature itself and skeleton procedure prescribed in Art. 22 ...

What is abnormal if our Constitution has trusted the legislature as the people of Great Britain have trusted their Parliament ? Right to life and personal liberty and the right to prjvate property still exist in Great Britain in spite of the supremacy of Parliament. Why should we assume or apprehend that our Parliament ... should act . like. mad man and deprive us of our property without any rhyme or reason? After all our executive government is responsible to the legislature and the legislature is answerable to the people. Even If the legislature indulges in occasional vagaries, we have to put up with it for the time being. That is the price we must pay for democracy. But the apprehension of such vagaries can be no justification for. stretching the language of the Constitution to bring it into line with our notion of what an ideal Constitution should be. To do so is not to interpret the Constitution but to . make new Cotitution by unmaking the me which the people of India have gtven '° themselves. That, I apprehend is not the function of the Court."(') '

( 1) [1950] S.C.R. 88 at pp. 320·21.

( 2) [1950] S.C.R. 519 at page 526 per Kania C. J.

( 8 ) [1951] S.C.R. 747 at p. 1079 per Das J. (') [1952] S.C.R. 284 at page 301 per Patanjali Sastri J.

(') (1954) S.C.R. 587.

924 SUPll!Ml! COURT IEPOJ.TS ( 1973} Supp, S.C.R.

The argument of fear therefore is not a valid argument. Parlia mcnt as a legislature is armed with at least two very vast powers in respect of war and currency. Any imprudent exercise of these two powers may blow the whole nation into smithereens in seconds, but no court has so far sought to restrict those powers for apprehended abuse of power. Democracy is founded on the faith in self-criticism and self-correction by the people. There is 'nothing to fear from a critical and cathartic democracy.

The conllicts of the mediaeval Pope and the Emperor put on the wane their power as well as their moral authority. Conditions.in India today are not propitious for this Court to act as a Hildebrand. Unlike the Pope and the Emperor, the' House of the People, the real repository of power, is chosen by the people. It is responsible to the people and they. have confidence in it.

The Coµrt is not chosen by the people and is not responsible to them in the sense in which the House of the People is. However, it will win for itself a permanent place in the hearts of the people and thereby augment its moral authority if it can shift the focus of judicial review from the numerical concept of minority protection to the humanitarian concept of protettion of the weaker sections of the people.

It is really the poor, starved and mindless millions who need the Court's protection for securing to themselves the enj()yment of human rights. In the absence of an explicit mandate, the Court should abstain from striking down a Constitutional amendment wliich makes ail endeavour to 'wipe out every tear from every eye'. In so doing the Court will not be departing from but will be upl\.olding the national tradition. The Brihadaranyaka Upanishad says : "Then was born the Law (Dharma), the doer of good. By the law the weak could control the strong." (I. IV, 14). Look at the national emblem, the chakra and satyameva jayate.

The chakra is motion; satyam is sacrifice. The chakra signifies that the Constitution is a becoming, a moving equilibrium; satyam is symbolic of tthe Coastitution's ideal of sacrifice and humanism. The Court will be doing its duty and fulfilling its oath of loyality to the Constitution in the measure judi cial review reflects these twin ideals of the Constitution.

T wentyfourth Amendment

It consists of two relevant sections, sections 2 and 3. These sections have been drawn in the light of various judgments in Golaknath (supra). Section 2 adds clause (4) to Art. 13. As the majority decision in Golaknath had taken the view that Art. B(2) is a limi tation off the amending power to take away or abridge the funda-

KESAVANANDA 11. 1WALA (Dwiwdi, J.)

mental right3, cl. ( 4) removes that limitation. Section 3 consists of four clauses.

Clause (a) substitutes the marginal note to the un amended Art. 368. The substituted marginal note reads as "Power of Parliament to amend the Constitution and procedure there for". Clause (b) renumbers the unamended Art. !368 as cl. (2) and adds cl. (I) to it. !he new clause (1) calls the amending power as 'constituent power'. It empowers Parliament to amend 'by way of addition, variation or repeaY any provision of the Constitution in accordance with the prescribed procedure. It opens with the wellknown phrase "Notwithstanding anything in this Constitution".. In the renumbered clause (2) also, that is, the unamended Art. 368, there is an amendment. It says that the President 5hall give his assent to the Bill. Clause (d) adds cl. (3) IP Art. 368. It provides that nothing in Art. 13 shall apply to any amendment made under An: 368.

It may be observed that except as regards the assent of the President to the Bill, everything else.. in the 24th Amendment was already

there in the unamended Art. 368. I have already held to-that effect earlier in this judgment.

Acco!dingly, the amendment is really declaraoory in nature. It removes doubts cast on the amending power by the majority judgment in Golaknath (supra) I am of opinion that the 24th Amendment is valid. ' The unamended Art. 368 imposed a procedural limit to the amending power. The amending Bill could not become a part of the Constitution until it had received the assent of the President. I have held earlier that the President could withhold his. assent. After the amendment the President cannot withhold assent.

The procedural restrictions are a part of Art. 368. The unamended article 368 provided for its own amendment. It was accordingly open to Parliament to amend the procedure. So I find no difficulty in upholding the amendment that the President "shall give his assenn to the Bill"

One thing more. Let us assume for the sake of argument that the amending power in the unamended Art. 368 was subject to certain inbent and implied liicil)ations. Let us also assume that it was restricted by the provisions of Art. 13(2). The unamended Art. 368 would impliedly read as "subject to Art. 13(2) and any inherent and implied limitations." So the restrictions imposed by Art. 13(2) and inherent and implied limitacions were a part of the body of Art. 368. As Article 368 is itself liable to amendment these restrictions are now removed by Parliament for they will fall ivithin the ambit of the word "amendment". The phrase "notwithstanding .anything in this ConstitutiGn" in the newly added cl. (1) of Art. 59-36 S. c. Jndia/73

926 SUPREME COURT REPORTS ( 1973] Supp. S.C.R.

368 is apt to . sweep away all those restrktions. In the result, the amending power is now free of the incubus of Art. 13(2) and in- . hercnt and implied limitations, if any.

In my opinion, the whole of the 24th amendment is perfectly valid.

Secti<m 2 of the 25th Amendment

ction 2 amends Art. 31(2). The unamended Art. 31(2) obligated the State to pay 'compensation' for any property acquired or requisitioned by it. Section 2 substitutes the word 'compensation" by the words ... an amount". It also provides that the amount fixed by law or determined in accordance with the principles prescribed by law may be "given in such a manner as may be specified in such law."

The last part of the main part of the amended Art. 31(2) also states that "No such law shall be cafied in question in any Court on the ground tha~ the amount so fixed or determined is not adequate or that the whole or any, part of such amount is to be given otherw<se than in cash." ·

A pro<Jiso has also been added to Art. 31 (2). Accordlug to the proviso, .while making any law providing for the compulsory acquisitiOn of any property of educational institution, established and administered by a minority referred to in cl. ( 1) of Art. 30, the State shall ensure that the amount fixed by or determined under the law is such as would not restrict or abrogate the rights guaranteed under that clause.

Section 2 adds cl. (2B) to Art. 31. Clause (~B) states that the provisions of Art. 19(1)(f) shall not affect any law referred to in the amended Art. 31 (2).

The birth of s. 2 is dictated \ly the history of Art 31(2). Article 24 of the Draft Constitution became Art. 31 (2).

Article. 24 was moved by Jawaharlal Nehru in the Constituent Assembly on September, 10, 1949. Then he said that compensation, could not be questioned "except where it is thought that there has been a gross abuse of law,

where in fact there has been a fraud on the Constitution(')". His . construction of Art. 24 received support from Sri Alladi Krishnaswami Ayyar and Sri K. M. Munshi. Sri K: M. Munshi narrated his personal experience. In 1938 Bombay Government acquired the Bardoli

\ 1).C.A.D. Vol. IX, p. 1193.

ltESAVANA!Vl>A' II. K!RALA (Dwivedi, J.) 927

lands. In one case the propmy acquired was worth over rupees five lacs. It was sold during the Non-cooperation Movemenn to an old Diwan of a native State for something like Rs. 6000.

The income frotn the property. was about Rs. 80,000.00 a year. The Diw~ had received that income for about 10 years. The l!ombay Legislature -acquired the proper!i)' by paying compensation equal to the amount

invested by the Diwan in the property plus 6%. In direct opposition to the manifest intention of the Constitution-makers, this Court held that, llhe word "compensation" in Art 31 (2) means "full cash equivalent" (The State of West Bengal v. M111, Bela Banerjee)(').

To give effect to the intention of the Constitution-makers, Art. 31 (Z) was amended by the 24th ;\mendment to nhe Constitution in

1955. The 4th Amendment added to Art. 31(2) these words : "and no such Jaw shall be called in question in any court on the ground that the compensation provided by law i.s not adequate." The effect

of the 4th amendment was considered by this Court.in J?. Vajravelu v.

Special, Deputy Collector, Madras('). Subba Rao J. said :

"The fact that Parliament used the same expressions, namely, 'compensation' and 'principles' as were found in Art. 31 before the amendment is a clear indication that it accepted the meaning given by this Court to those expressions in Mrs. Bela Banerjee's case.

It follows nhat a Legislature in making a law of acquisition or requlsition shall provide for a just equivalent .of what the owner has . been deprived. of or specify the principles for the purpose of ascertaining the 'just eqttivalent' of what the owner has been deprived of. If Parliament intended to enable a Legislature , to make such a law without providing for compensation so defined, it would have used other expressions like 'price', 'consideration' etc."(1).

Regarding the amendment he said :

"(A) more reasonable interpretation is that neither the principles

pring the 'just cquwalent' nor . the 'just equivalent' can be qudtloned. by the Court ?n the groond of the inadequacy of the compensation fixed o~ amved at by working of the principles. !o illustrate, a la~ !s made to aCGjtnre a hoose; its value at the

time of he acquisition has to be fixed'; there are many modes of valuation, namely, . esmte by an engineer, value reflected by comparable sales, cap1tahsation of rent and similar others. The

( 1) (1954) S.C.R. 558.

( 2) f1965] I S.C.R. 614.

( 1) Ibid. at page 626. .

928 SUPREME COUJ.'1'. REPOITS (1973] Supp. s.c.a.

applicatioo of different principles may lead to "different resulta, The adoption of one principle may give a higher value and the adoption of another principle may give a lesser value. But ne the less they are principles on which and the manner in which compensation is determined. The Court cannot obviously say that the law should have adopted one principle and not the other, for it relates only to the quescion of adequacy. .On the other hand, if a law lays down principles which are not relevant to the property acquired or .to the value of the property at or about the time it is acquired it may be said that they are not principles contemplated by Art. 31(2)"(1).

In Uhion v. Metal Corporati<Jn(') Subba Rao J. spoke again on the implications of the Fourth Amendment. He said :

"The law to justify itself bas to provide for the payment of a 'just equivalent' to the land acquired or lay down principles which will lead to that result. If the principles laid down are relevant to the fixacion of compensation and are not arbitrary, the adequacy of the resultant product cannot be questioned in a coilrt of law. The validity of the principles judged by the above tests falls within judicial scrutiny, and if they stand the tests, the adequacy of the product falls outside its jurisdiction."

These two decisions neutralised the object of the 4th Amendment. In State of. Gujarat v. Shantt1al Mangaldas(') this Court overruled the Metal Corporation. Shah J. said at page 363 of the Report :

"Right to compensation in the view of this Coun was. intended by the Constitution to be a right to a just equivalent of the property of. which a person was deprived. But the just equivalent was not capable of precise determination by the application of any recognised principles. The decisions of this Coun in the two cases-Mrs. Bela Banerjee's and Subodh Gopal Bose's case were therefore likely to give rise to formidable problems, when the principles specified by the Legislature as well as the amounts determined by the application of those principles were declared justiciable. By qualifying 'equival~ by the adjective 'just' the

quiry was made mqre -controversial; and apart from the• praotical difficulties .tlze law declared by this Court also placed serious obstacles in giving effect to the t!lrective principles of State policy incorporated in Art; 39." (emphasis added).

( 1) [1965] I S.C.R. Supra, at pogc 627.


KESAVANANDA V, KERALA (Dwidi, J.) 929

He added:

"If the quantum of compensation fixed by the Legislature is: nt liable to be canvassed before the Court on the ground that 1t 1s not a just equivalent, the principles specified for determination of compensation will also not be open to challenge on the pica that the compensation determined by the application of those principles is not a just equivalent .... (I)t does not mean however that something fixed or determined by the application of specified principles which is illusory or can in no sense be regarded as compensation must be held by the Courts, for, to do so would be to grant a charter of arbitrariness, and permit a -device to defeat the constitutional guarantee. A challenge to a statute that the principles specified by it do not award a just equivalent will be in clear violation of the constitilltional declaration that adequacy of compensation provided is not justiciable."(')

Shanti/al Man galdas transfused blood in the 4th .Amendment inade anaemic by Vairavdu and Metal Corporation. But soon there-- after came the majority decision in R. C. Cooper v. Union of India(').

Cooper in substance overruled Shanti/al Mangaldas and restored the old position. More, it also added the test of Art. 19(1) (f) to valid acquisition of property. These decisions of the Court constrained Parliament to enact section 2 of :the 25th Amendment.

Having regard to this history, it will not be proper to import the concept of compensation in Art. 31(2), s. 2 has substituted the word 'compensation' by the word 'amount' at every relevant place in Art. 31 (2). 1'he Oma should not minimize or neutralize its operation by introducing notions taken from or inspired by the old Art. 31(2) which the words of s. 2 are intended to abrogate and do 11bra.. gate.

According to Webster's Dictionary on Synonyms (1st Edn. page

47) the word 'amount' means 'sum, total, quantity, number, aggregate, whole'. According to the Shortler- Oxford English Dictionary, the word 'principle' means 'that from which something takes its rise originates or derives'. The word 'adequate', according to the same Dictionary, means 'equal in magnitude or eJ<tent, commensurate in fitness, sufficient, suitable'. According to the Words and Phrases

(Permanent Ed. Vol. II, p. 363) the word "adequate" some time means that which is equal to the value; but in its primary and more

(1) [1969] 3 s.c.it pagos 365-366. (') r1970] 3 S.C.R. 530.

930 SUPREME COUB, T l\EpOllTS [1973) Supp. S.C.R.

properly significance nothing can be said to be adequate which is not equal to what is required suitable to the case or occasion, wholly sufficient, proportionate and satisfactory."

Unlike 'compensation' the word 'amount' is not a term of art.

It bears no specific legal meaning. The amount fixed by law or de11ermined in accordance with the principles specified by law may be paid partly in cash and partly in kind. In sch a ca•e it may often be difficult to quantify the aggregate value of the cash and the thing gi'ven. Again, the amount may be paid in such a manlier as may be specified in th, law. Thus the law may provide for payment of the amount over a long period of years. Article 19(1)(f) shall now have no impact on Art. 31(2). Having regard to all these circumstances, it is, I think, not permissible to import the notion of reasonableness in Art. 31 (2) as amended by s. 2. The phrase 'principle on which and the manner in which the compensation is to be determined and given' in the old Art. 31 (2) is now substinuted by the phrase 'a.mount which may be determined in accordance with such principles and given in such a manner as may be specified in such law?

As the word 'compensation' found place in the former phrase, the Court has held that the princiiples should be relevant to 'compensation', that is, to the 'just equivalent' of the property acquired. That phrase is no more there now in Art. 31(2). The notion of 'the relevancy of prinCiples to compensation' is jettisoned by s. 2.

Obviously, where the law fixes the amount, it cannot be questioned in any court on the ground that it is not adequate, that is, not equal to the value of the property acquired ar requisitioned. The legislative choice is conclusive. It would accordingly follow that the amount determined by the principles specified in the law is equally unquestionable in courts.

The newly added proviso to Art. 31 (2) appears to me to fortify this construction. According to the proviso, the law providing for compulsory acquisition of any property of an educational institution whi:ch would receive the protection of cl. ( 1) of Art. 30, • should ensure that th; amount fixed by or determined under it for the acquired property would not restrict or 'abrogate' the right guaranteed under that clause. Now, the objeot of a proviso .is to take oun something which is included in the main part of a provision.

So the amount payable under the main parq of the amended Art. 31(2) may be such as would 'abrogate' the right of property of all and >Undry. Accordingly it is not permissible to import in the amended Art 31 (2) the notions of 'arbitrary amount' or 'illusory amount' or 'fraudulent amount'. As .some amount must be paid, the law may be virtually confiscatory, but not literally confiscatory. The position now is akin to the legal position in ~. 25 of the Contract Act. Under

KESAVANANDA v. KEllALA (Dwivedi, J.) 931

that provision the adequacy of consideration negotiated by the contracting parti~ cannot be questioned in court. Most trifling benefit or detriment is sufficient. There is however this difference between

S. 25 and Art. 31(2). While the consideration is settled by the contracting parties, the amount payable for the acquisition or requisitioning of property is settled by the legislature. Like the former, the latter is also not to be questioned in courts.

Article 31(2) is distinguishable from Arts. 31A, 31B and 31C.

While some amount is payable under a law protected by Art. 31(2), no amount whatsoever may be paid under a law protected by Arts. 31A, 31B' and 31C. The former may be virtually confiscatory, the latter may be wholly confiscatory. The amount fixed by law or determined in accordance with the principles in such a law is now not justiciable even though it may seem to be an 'arbitrary amount' or 'illusory amount' or 'fraudulent amount' by the measure of compensation._ The ouster of judicial oversight docs not imply that t~

legislature would act whimsically. The value of the property acquired or requisitioned, the nature of the property acquired or requisitioned, t!ie circumstances in which the property is being acquired or requisitioned and the object of acquisition or requisition will be the guiding principles for legislative det1ermination of amount. The second principle may involve, inter alia, consi.dcration of the income already received by the owner of the property and the social conttibution, to the value of the property by way of public loans at lower rates of inr.erest, cheap state mpply of energy and raw materials subsidies and various kinds of protection, tax holidays, etc. It should be remembered that the value of a property is the resultant of the owner's indutry and social COilltribution. The owner ought not tll receive any amount for the value contributed by society. He is entitled to payment for his own contribution. The third principle will include the element of social justice.

It is thus wrong to say that on my interpretation of Art. 31(2) the legislatures will act arbitrarily in determining the amount. The amended Art. 31(2) does not remove the bar of Art. 14.. If the amount paid to the owner of property is in violation of

th~ principles of Art. '14, the law may even now be struck down. Although tlie amended Art. 31(2), according to my construction of it, will abrogate the right of property, it is constitutional as 'it falls within the scope of the 24th Amendment which I have held to be constitutional.

Section 3 of the 25th Amendment

Section 3 adds Art. 31C to Part III of the Constitlltion. It reads : "Notwithstanding anything contained in Art. 13, no law giving effect

932 SUPJlEME COUJ.T llEPC>aTS [1973] Supp. s.c.a.

to the policy of the State towards securing the principles specified in clause. (b) and ( c) of Art. 39, 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; and no . law containing a declaration that it is for giving effa.t to such policy shall be called in question in any court on the ground that .it docs not give effec to such policy.

/ Provided that where such law is made by the Legislatur~ of a Stare, the provisions of this articl< shall not apply thereto unless suh law, having been reserved for the consideration of the President, has received his assent.'' ·

Section 3, like section 2, is made under Art. 368 as amended by .the 24th Amendment. The provisions of Art. 31C fall within the

scope of the amended Art. 368, and its validity, too, cannot be assail ed.

It is pointd out by Sri Palkhiwala that Art. 31C authorises State Legislatures and Parliament as a legislative body to make laws con- travening the rights conferred by arts .. 14, 19 and 31 and that it, in effect, delegates the power of making amendments in those articles.

Pointedly, the argument is that che Parliament as the constituent power has delegated the constituent power to the Parliament as a .

legislative body and the State Legislatures.

It is al10 stressed that the second part ot s. 3 arms the legi.!latures with the absolute power of sheltering laws .which violate Arts. 14, 19 and 31 and have no relation to the principles speciiicd. in Art. 39(b) and (c). ·

The second part prohibits any court from inquirying whetl:icr the law protected by Art. 31C has relevancy to Art. 39(b) and (c) if it contains a declaration that i.t gives effect to the policy specified in that provision. Howsoever shocking it may seem, it is not an inno- . vation. You will find several articles havin.g a close rc:scri)blancc to it. Article 77(2) provides that the validity of an order or fustrumci:t~ which is authenticated' as provided therein 'shall not ; be called ill question on the ground that it is not ah order or instruinufmade .or executed by the President'. A similar provisit>Jl is madcf iri , Art.

166(2) in relation to the Governor. Article 103(1) provides that if any question arises to whether a member oi either House of Parliament has become subject to any of the qualifications mentioned in Art. 102(1 ), the question shall be decided by the President "and 'his decision shall be final.' A similar provision is "> be .found in Art. 192(1) as regards the members of the State Legislature wjth respect

DS,\VANAND.\ ~. U1ALA (Dwil/M, J.) 933

to the decision of the Governor. Article 311(2) gives a right of 1iwing to an employee sought to be dismissed or removed or reduced in rank. Clause (b) of the proviso to ihe article enacts that where the appointing authority' is satisfied that for some reason it is not reason ably practicable to hold such inquiry, the. pre-requisite of hell!"ing may be dispensed wit; h. Clause (3) of Art. 311 then enacts that if a question arises whether it is reasonably practicble to hold an inquiry, 'the decision thereon of the authority .... shall be final'.

Article 329(a) enacts that notwithstanding anything in the Constitution the validity of any law relating to the delimitation of constituencici Of.. aH0tment of seats to such constituencies made or purporting to be made under Art. 327 or Art. 328 shall not be called in question in any court.

Like these articles, the .second part of s. 3 excludes judicial review to a limited extent.

The main part of Art. 31C consists of two parts. The first part provides that no law giving ctfect to the policy of the State towards securing the principles specified iii Art. 39(b) and ( c) shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the righis conferred by Arts. 14, 19 and 31. The first part may be split up into two: (a) giving etfect to the policy of the State towards securing (b) the principles specified in Art. 39(b) and (c). Under the first part the Court has to sec two things before a particular law can receive protection of Art. 31C. Firstly, the law must have relevancy Ill the principles specified in Art. 39(b) and (c); secondly, the law should give ctfect to tho•e principles.

Article 39(b) provides that the State shall strive to secure that the ownership and control of the material resources of the community arc so distributtd as best to subserve the common good. Article 39(c) urges the State to strive to secure that the operation of the economic 11ystcm does not result in the concentration of wealth and means of .production to the common detriment, It may be observed that 'subserve the common good' in cl. (b) and 'common detriment' in cl. ( c) raise questions of fact!. Now, it is possible to imagine a state of atfairs where a law having relevancy to the principles specified in Art. 39(b) and ( c) may not appear to the Court to subserve the common .good or . to prevent common detriment. Such a law will not prevail over .Arts. 14, 19 and 31. Thus the first part retains the Court's power to decide the legal question of the law's relevancy to the principles specified in Art. 39(b) and ( c) as well as the factual question of the law'~ efficacy to subserve the common good or to prevent common detriment. It can test the ends as well as the mean 'Of the law. s

Coming to the second part, it excludes judicial review 'on th ground that (the law) docs not give etfect to such policy'. So th:

934 SUPREME COUllT REPORTS .[1973] Supp. s.c.R.

law ctnh<>l be challenged on the ground that the means adopted by the law are not sufficient to subserve. the common good and prevent common detriment. In other woirds, the sufficiency of the law's cflicacr

alone is made non-justiciable. The Court still retlains power to determine whether the law has r.elevancy to the distribution of the ownership and control of the material resources of the community and to the operation of the economic system and concentration of wealth and means of production. If the Court finds that the law has n<> such relevancy, it will declare the law void if it offends the provisions of Arts. 14, 19 and 31.

The fate of a provjsion included in a law containing the requisite declaration but having no relevancy as discussed wLll be no better •.

It will also be void if it offends against Arts. 14, 19 and 31 unless itis subordinate, ancillary or consequential to any provision having such. relevancy or forms an integral part of the scheme of such provision.

Delegation of Amending Power

As Art. 368(2) as now amended provides that 'only' Parliament mayamend the Constitution by the prescribed procedure, it is said that Parliament may not delegate the constituent power to any extranci>us authority. It is not necessar.y to decide this question. Assuming that Parliament may not delegate the constituent power, the question still remains whether Art. 31C auth<;>rise the State Legislatures and Parliament as a legislative body' to amend any part of the Constitution.

The power of the Parliament and State Legislatures to make a law with respect to the principles specified in Arts. 39(b) and (c) is derived from Art. 246 read with Lists I, II and III of the Scventb Schedule. Their legislative power is howe\er not absolute. It is restricted by various fundamental rights including those in Arts. 14, 1!> and 31, for Art. 13(2) e)(prcssly prohibits the legislatures from making a law which will be violative of those rights.

What does Art. 31C seek to dol One, the non-obstante clause in.

Art. 31C removes the bar of Art. 13(2) against law making with respect to the principles specified in Art. 39(b) and (c). The bar, howe¥er, is not removed in respect of all the funtlamental rights. It is .removed in respect of the rights in Arts. 14, 19 and 31 only. Second, .Arts. 14, 19• and 31 remain operative as a bar against law-making with respect toall matters other than the principles specified in Art. 39(b) and ( c).

They are in partial eclipse as regards laws having relevancy to the principles specified in Art. 39(b) and { c). his is the tru~ nature and character of Art. 31C. We should be gmded by what it really

Kl!SAVANANllA "· KEllALA (Dwivedi, J.) 935

docs and not by how it seems, by its effect and not by its semantic garb. Looked at in this manner, An. 31C is in the nat:uie of a saving clause to Arts. 14, 19 and 31. Instead of being placed at the end of each of these articles, it is placed at one place for the sake of drafting elegance and economy. As a saving clause, Art. 31C saves certain kinds of laws from destruction at the hands of Arts. 14, 19 and 31.

This effect is brought about directly and immediately by the choice of the constituent power expressed in Art. 31C itself and not by the laws which claim its protection. Those laws do not expressly or impliedLy take away or abridge the rights in Arts. 14, 19 and 31. The consti tucnt power itself has brought about that effect through Art. 31C.

There is therefore no delegation of the constituent power. In Harishtmft.tll' Bagla v. The StaU of Madhya Pradesh(') this Court has considered the question of. delegation of legislative power. Section 3 of. the Essential Supplies- (T'1llporary Powrn) Act, 1946 enabled the Central Government to make orders for maintaining or increasing supplies of any essential commodity or for securing for their equitable distribution and availability at fair prices and for regulating or prohibiting the production, supply and distribvtion thereof and trade and commerce therein. Section 6 provided that any order made under s, 3: would have effect notwithstanding anything inconsitent therewith contained in any enactment other than the Act or any instrument hav- . lag et by virtue of any enactment other than the Act. It was argued before the High em.rt that s. 6 delegated kgislative power to the Central Government because an order made under s. 3 had the effect of repealing an existing law. The High Court accepted the argument.

But on appeal. this Court reveed the judgment of the High Court and held_ that s. 6 did not. delegate legislative power. The Court said :

"The effect of s. 6 certainly is not to repeal any one of t1, ,, e laws or abrogate them. Its object is simply to by-pass them where they are inconsistent with the provisions of the Essential Supplies (Temporary Powers) Act, 1946 o~ the orders made thereunder. In other words, the orders made under s. 3 would be operative in regard to the essential commodity covered by the Textile Control Order wherever there is rcpugnancy in this Order with the existing laws and to that extent the existing laws with regard to those commodities will not operate.

By-passing a certain law docs not necessarily amount to repeal or abrogation of that law.

That law remains unrepealed but during the coptinuance of the order made under s. 3 it docs not operate in that field for the time being. The ambit of its opration is just limited without there being any repeal of any one of its provisions. Conceding, however.

( 1) [1955] I S.C.R. 380.

I'

936 SUPllME COUllT RE!'OllTS [1973) Supp. S.c.it.

for the sake of argument that to the extent of a repugnancy between an order made under s, 3, and the provisions of an existing law .. the existing law stands repealed by implication, it seems to us that the repeal is not by any Act of the Parliament itself. By enacting section 6 Parliament itself has declared that an order made under section 3 shall have e!Iect notwithstanding any inconsistency in this order with any enactment other than that Act. This is not a declaration made by the delegate but the Legislature itself has declared its will that way in s. 6. The abrogation or the implied repeal by force of the order made by the delegate under section 3. The power of the delegate is only to make an order under secllil!n 3. Once the delegate has made that order its power is exhaust.td.

Section 6 then steps in wherein the Parliament has declared that as soon as such an order comes into being that will have effect notwithstanding any inconsistency therewith contained in any enactment other than this Act .... There is no delegation involved in the provisions of section 6 at all ...... "(')

, . These observations squ:u; cly apply to the provisions of Art. 31C. I accordil\gly hold that there is no delegation of the constituent power.

Since the laws claiming protection of Art. 31C themselves do not work an amendment in Arts. 14, 19 and 31, it is not necessary that they mould pass through the procedure prescribed in Art. 368.

The meaning of 'distributed' in Art. 39(b)

Sri Palkhiwala has submitted that the nationalisation of property is not contemplated by the word 'distributed' in Art. 39(b). But the 11uestion docs not directly arise at this stage. It will be considered al depth when the constitutionality of various Acts which claim the protection of Art. 31C is examined by this Court. I will accordingly not fipress any final opinion on the meaning of the word 'distributed'. It will be sufficient at rhis stage to refer to certain aspects briefly. The State is the representative and trustee of the people. A nationalised property is vested in the State. Through the Sfate, the entire people collectively may be said to own property. It may be said that in this way the ownership of the nationalised prorerty is distributed amongst the people represented by the State. (See Essays in Fabian Socialism, Constable & Co. Ltd. 1949 .Edn; p. 40; C. E. M. Joad, Introduction to Modern Political Theory, Oxford University Press .• 1959, pp. 49-50; W. A. Robson, Nationalised Industry and Public Ownership, George Allen and Lenwin • Ltd. 1960, pages 461, 462, 476, 477 and 485). ·


llSAVANANDA "· ltEllALA (Dwivedi, J.) 937

The draft Art. 3l(ii) became Art. 39(b). Prof. K. T. Shah moved an amendment to the draft article to this effect: "that the ownership, control and management of the natural resources of the country in the shape of mines and minerals, wealth, forests, rivers and Bowing waters as well as in the shape of the SC3S along the coast of the country shall be vested in and belong to the country collectively and shall be CX• ploited and developed on behalf of the community by the State as represented by the Central or Provincial Governments or local governing authority or statutory corporation as may be provided for in eac.h

case by Act of Parliament."(')

Replying to Prof. K. T. Shah. Dr. B. R. Ambcdkar said : "with regard to his other amendmenl!, viz, substitution of his own clause for

sub-clause (ii) of Art. 31, all I want to say is this that I would have been quite prepared to consider the amendment of Prof. Shah if he had shown that what he intended to do by substitution of his own clause was not possible 1lo be done under the language as it stands. So far as I am able to see, I think the language that has been used in the Draft is much more extensive language which iftludes. the propositions which have been moved by Prof. Shah, and I aerefore do not see the

neces,!dty." (')

In Dr. Arnbedkar's view the nationalisation of property is inclu. ded in the word 'distnbutcd' in Art. 39(b ).

'19th. Amendment Thil amendment has added to the Ninth Schedule the Kerala Land Reforms (Amendment) Act, 1969 (Kerala .Act 35 of 1969) and the Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971). The effect of the inclusion of these Acts in the Ninth Schedule is that the Acis get the protection of Art. 31B. The argument of Sri Palkhiwala is twofold. First Art. 31B is inextricably :dovetailed with Art. 31A and that accordingly any law which is included in the Ninth Schedule should be connected with agrarian reforms whkh is the object of Art. 31A. If a law included in the Ninth Schedule is not related to agrarian reforms, it cannot by-pass Arts. 14, 19 and 31. It is not possible to. accept this argument. In State of Bihar v. Maharajadh.irtrja Sir Kamesh.war Singh(8 ), Pa:111njali Sastri C.J. rejected this limited meaning of Art. 31B. The learned Chief Justice observed :

"There is nothing in article 31B to indicate that the specific mention of certain stanites was only 'irttcnded til'illustrate tho application of the genetal words of article 31A. The opening words of

( 1) C.A.D. Vol. VII, p. 506.

(') (C.A.D. Vol. VII, p. 518).

( 8) (1952] S.CA 889'

gJg SUPllMJ! COURT P.OPORTS ( 1973} SU1'\. 9.<:.R.

article 31B are not only intended to make clear that article 31A should not be restricted in its application by reason of anything contained in Article 31B and arc ill no way calculated to ttstrict the application Of the latter article or of the cr.actmcnts tcfemd to therein to acquisition oi estata.''(1) ·

In W isheshwar Rll9 v. State of Madhya lradesh.f:}, Mi.btju J. said:

"ln my .opinion, the observation farfrom sUpportlJig th~ ntcntioo, raised negatives it; Article 31B specillcally validatet c~ Act~ mentioned in the Schedule despite the provis1oliS of' A'.r't. 31A and la not illustrative of article 31A, but stands'i.oilepaden~ cl. itl'

(S~ also N. B. /eajeabhoy v. Assistant COllei:tor, Th11fllj('})

The next argument is that the two Kcxala Acts which.abrpgatc the funadamental rights of property are void because the amcndinj power

in Art. 368 cannot be used for that purpose. I have already rtjectcd this argument in connection with the 24th and 25th Amcndincnts. Sis nothing more need be said about it. I hold that: the 29th Amc11dment is valid.

Let me summarise the discussion :

(1) The majority decision in Golal{1111th is not correct and should be overruled.

(2) The wm; d 'amendment' in Art. 368 is broad cni>ugh. to autho.

rise the varying, repealing or abrogati11g of each and every provision in the Constitution including Pan ID.

(3) There arc no inherent and implied limitations on the amending power in Art. 368.

(4) The 24th, 25th and 29th Amendments arc valid in their

entirety.

(5) According to Art. 31(2) the amount fixed by law or determined 'in accordance with the principles prescn1>td by sudt law for the acquired or requisitioned property cannot be questioned in any court.

(6) The last part of Art. 31C docs not oust the jurisdiction of courts

to examine whether the impugned law has relevancy to the.

(') Ibid, at pages 914-915. \ (") [19521 I S.C.R. 1020 at page 1037.

( 8) [1965] 1 S.c.R. 636 at page 648 per Sub1ltao 1.

distribution of the owntrship and control of the material resources of the community or to the operation of the economic system and the concentration of wealth and means of production.

The Constitution Be!!ch will now decide the case according to law.

CHANDRACHUD /.-I wanted to avoid writing a separate judgment of my own but such a choice seems no longer open. We sat in full strength of 13 to hear the case and I hoped that after a free and frank exchange of thoughts, I will be able to share the views of someone or the other of my esteemed Brothers. But, we were overtaken by advcn. titious circumstances. Counsel all round consumed so much time to explain their respective points of view that very little time was left for us to elucidate ours. And the time factor threatened at one stage to assume proportion as grave as the issues arising in the case. The Court, very soon will be poorer by the retirement of the learned Chief Justice and that has set a date-line for the judgment. There has not been enough time, after the conclusion of the arguments, for an exchange of draft judgment amongst us all and I have had the benefit of knO'w

ing fully the views of only fuur of us. I deeply regret my inability to share the views of the learned Chief Justice and of Hegde J ., on some of the crucial points involved in the case. The views of Ray J. and Palekar J. arc fairly near my own but I would prefer to state my

reasons a little differently. It is tall to think that after so much ha• been said by so many of us, I could still present a novel point of view but that is not the aim of this judgment. The importance of.the matter under consideration would justify a personal reBcction and it is so much more satisfactory in a matter ridden, albict' wrongly, with political over-tones, to state one's opinion firmly and frankly so that one can stand one's ground without fear or favour.

I do not propose to pin-point every now and then what the various counsel have urged before us, for I apprehend that a faithful rep!'(). duction of all that has been said will add to the length, not ncces.

sarily to the weight, of this judgment. However, lest I may be mis- ; undcrstood, particul:lrly after the earlier reference to the counsel con-

11lllling so much time, let me in fairness say that I acknowledge with gratitude the immense contribution of the learned counsel to the solu. tion of the intricate problems which arise for decision. Such brilliance, industry, scholarship and precision as characterised the arguments of Mr. Palkhivala, the learned Attorney-General, the learned Advocate.

General of Maharashtra and the learned Solicitor-General arc rarely

to be surpassed. What my judgment contains is truly theirs-if this the least be good, the praise be theirs, not mine.

Lester Barnhardt Orficld, an extreme exponent of the sovereignty of amending power under Article V of the American Constitution, ha•

940 SUPUMB couu lll'OBTS [1973] Supp. it.c.a.

described that power as 'tui generil. I will borrow that expression to say that the whole matter before us is truly sm generis. The largest Bench sat for the longest time to decide issues described as being of grave moment not merely to the future of this country but to the future of democracy itself. For a proper understanding of the meaning and scope of the amending provisions contained in Article 368 of our Constitution. We were invited to consider parallel clauses in the Constitutions of 71 countries of the world spread far and wide, with conflicting social and political philosophies. We travelled thus to new lands like Bolivia, Costa Rica, El Salvador, Gautemala, Honduros, Liberia,

Nicarague, Paraguay, Uruguay and Venezuela. Constitutional sojourns to Australia, Canada, Ceylon, France, Germany, Ireland, Switzerland, U.S.S.R. and U.S.A. were of course of frequent occurrence. These excursions were interesting bµt not proportlioned tKJ their utility, for I believe there is no international yardstick with which to measure the width of an amending power.

W c were then taken .through the writings of scores of. scholars, some of whom have expressed their beliefs with a domatism not open to a Judge. There was a faith cQlltroversy regarding the credentials of sotne of them, but I will mention the more-often quoted amongst them, in order to show what a wide and clashing variety of views was fed to us. They arc : Granville Austiin, James Bryce, Charles Bumdick, John W. Burgess, A. P. Canaway, Dr. D. Conrad, Thomas M. Ch>l.cy, Edward S. Crowin, S. A. DeSmith, de Tocqueville, A. V. Dicey, Herman Finer, W. Friedmann, Carl J. Friedrich, James, W. Garner, Sir Ivor J cnnings, Arthur Berriedale Keith, Leo Kohn, Harold J .. Laski, Bora Laskin, A.H.F. Lefroy, William S. Livingston, William Marbury, C.

M. Mcllwain, Charles E. Merriam, William B. Munro, Lester B. Orfield, Henry Rottschaeffcr, George Skinner, Joseph Story, . C. F. Strong, Andre Tune, Samuel P. 1Wcaver, K. C. Whearc, E. Willis, Westcl W.

Willou.gby,· Woodrow Willson, W. Anstay Wynes. and Arnold Zurcher.

At one end is the view propounded by writers like James Garner ('Political Science and Government~) . and William ll. Ml!llro ('The Government of the United States') that an unamendable constimtion ls the worst tyranny of time or rather the very tyranny of tim~ apd; that such a constitution constitutes government by the. graveyard. , AJ. the other end is the view expressed with equal faith and . :vigour bi writers like Dr. Conrad ('Limitation of Amendment Pr"edures and' the Constituent Power'), . William, Marbury ('The Limitations. ixui, the Amending Power'-Han-ard Law Review, Vol. XXXIIl). and George Skinner ('Intrinsic Limitations on the Power of Constitutio!131 Amendment'-Michigan Law Review, Vol. 18 that any amending

KESAVANANDA v. KERALA (Chandrachud, J.) 941

body organised within the statutory scheme, however verbali¥ unlimited its power, cannot by its very structure change the fundamental pillers

supporting its constitutional authority; that the constituent assembly cannot create a second perpetual pouvoir constitueant above the nation; that it may be safely premised that the power to amend the constitu tion cannot includ~ the power to destroy it; that the greatest delusion of the modern political world is the delusion of popular sovereigntya fiction under which all the dictators have sprung up and thrived; and that men should be afraid that any Judge complaint enough to read into a constitution a beneficial power patently not there, might at another time be complient enough to read within it any or all of the guarantees of their liberty for, a Judge willing to take orders from a benevolent despot might be equally subservient to a malevolent one.

Someone has said in a lighter vein that Law comes from the west and Light from the east, but brushing asid'e such considerations, the conflicting views of these writers, distinguished though they be, cannot conclude the controversy before us, which must be decided on the terms of our Constitution and the genius of our Nation. The learning of these scholars has lighted my path and their views must be given due weight and consideration. But the danger of relying implicitly on everyone of the standpoints of everyone of these authors is apparent from what Andre Tune said in answer to a question put to him at the end of his lecture on 'Government under Law : A Civilian View'.

He confessed that the picture drawn by him at one time, of the French Law was too rosy and, on a misconception, it was too gloomy of American law and American life; and that, Frenchmen had by and large rectified to some extent their first impression that it could be extremely dangerous to have a 'Government of Judges', according to the famous slogan. That reminds me of what Sir Ivor Jennings has said in hit book 'Some Characteristics of the Indian Constitution' that "It is a usefnl principle that one should never trust politicians; but it is equally true that in the context of the future one shQuld never trust constitutional lawyers. On the whole the politician of tomorrow is more likely to be right than the constitutional lawyer of today." I will therefore make a spare and studied use of the views of some of these men of earning; But I cannot restrain the reflection, in the strain of Dr. Conrad, that afte-r going through all this erudition, one may well conclude this tour d' horizon with the opening quotation of Walter Bagehot's famous treatise: 'On all gteat subjects, says Mr, Mill, much remains to be said."

Theories of political science, sociology, economics and philosophy were copiously quoted before us. Some of these contain a valiant defence of the right of property without which, it is said, all other fundamental freedoms arc as writ in water. Others propound the view that of all fundamental rights, the right to property is the weakest, from which the conclusion is said to follow that iit was an error to include it in

60-36 S. C. lndia/73

942 SUPREME COURT REPORTS [1973] Supp. s.c.R.

. t!ie chapter on Fundamental Rights. Our dicision of this vexed ques-

, tmn must depend upon the postulate of our Constitution which aims at bringing about a synthesis between 'Fundamental Rights' and the 'Directive Principles of State Policy', by giving to the former a pride of place and to the latter a plac~ of permanence. Together, not individually, they form the core of the Constitution. Together, not individually, they constitute il$J true conscience.

The charter of United Nations, the Universal Declaration of Human Rights and the European Convention of 1950 were cited to show the significant change in the world thinking towards the rights of individuals which, by these documents have been accorded recognition on an international plane. Will India, the largest demQCracy in the world, do mere lip service to these. precious freedoms and shall it . not accord to them r rightful place in the lives of men and in the life of the nation 1 Such is the dialectical query. Apart from whether so-called intellectuals-the 'classe non classe' -believe in the communistic millennium of Marx or the individualistic Utopia of Bastiat, the answer to this question must depend upon the stark urgency for striking a balance between the rights of individuals and the general good nf the society.

We were also invited to have a glimpse of the social and political philosophies of Grotius (1583-1645), Hobbes (1588-1679), Locke (1632-

1704), Wolff (1679-1784), Rousseau (1712-1778), Blackstone (1723-1780), Kant (1724-1804), Bentham (1748-1832) and Hegel (1770.1831). These acknowledged giants of the past-their opinions have a high persuasive value-have (Xp()Ulldcd with care and deliberation the controversial theory of 'Natural Law' and 'Natural Rights'. Each has his own individualistic approach to question but. arising out of their writings is a .far-reaching argument that there arc rights which inhere in every man as a rational and moral being; that these rights arc inalienable and inviDlable; and that the core of such of these rights as are guaranteed by the Constitution cannot be damaged or destroyed. The an&Wer

11:> this contention would consist in the inquiry,. fintly as regards the validity of the core and hence the consequences of natural law thinking; and secondly, on whether our organic document supports the inference that natural rights were either recognised by it-explicitly or implicitlyand if so, w hethcr any of such rights were permitted to be reserved by the people without any qualification, so that an individual would be entitled to protect and nurse a minimal core of such rights, uninfluenced by social considerations.

The debates of the Constituent Assembly and of the first Provisional Parliament on which none declined to rely furnished a lively experience. The speeches of Pandit Jawah:irlal Nehru, Sardar Vallabhbhai Patel, Dr~ Rajendra Prasad, Dr. S. Radhakrishnan, Dr. Ambedkar,

:U:SAVANANDA v. KERALA ( Chandrachud, J .) 943

Govind Ballabh Pant, Dr. K. M. Munsi, Alladi Krishnaswamy Ayyar, Dr. Shyama Prasad Mookherjee, Acharya Kripalani, Rev. Jerome D'Souza, K. Santhanam, Dr. Punjabrao Deshmukh, H. V. Karnath and others were read out to us in support of the rival stands mainly touching the question of 'inalienability' of fundamental rights and what in those days was freely referred to as the power of 'Eminent Domain'.

Some of the speakers were . acknowledged national leaders of high stature, some were lawyers of eminence and some had attained distinction m the undefined field of politics and sociaL reform. Their speeches are inspiring and reflect the temper of the times but we cannot pass on the amplitude of the power of amendment of the Constitution by considering what amendments were moved to the corresponding Article 13 of the Constitution and why those proposals for amendment were dropped or not pursued. Similarly; the fact that the First Amendment to the Constitution was passed in 1951 by members of the Constituent Assembly sitting as the Provisional Parliament cannot relieve us of the task of judicially interpreting the validity of the contention that the Fundamental Rights cannot be abridged or taken away or that the core of the essential features of the Constitution cannot be damaged or destroyed. Jawaharlal Nehru undoubtedly said in the Constituent Assembly that "Hundreds of millions. of our own people look to us and hundreds of millions of others also looki to us; 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 Constitution. There should be a certain flexibility. If you make anything rigid and permanent you stop a Nation's growth, the growth of a living vital organic people,"; and again in the Provisional Parliament that "A Comtitution which is unchanging and static, it dos not matter how good it is, how perfect it is, is a Constitution that has past it1 use. It is in its old age already and gradually approachffig its death.

A Comtitution to be living must be growing; must be adaptable; must be flexible; must be changeable. And if there is one thing which the history of political developments has pointed out, I say with great force, i.t is this that the great strength of the British Nation and the British people has laid in their flexible Constitution. They have known how to adapt themselves to changes, to the biggest changes, con.s.titutloinally. Sometimes they went through the process of fire and revolution". But he also said when the Constitution (First Amendment) Bill, 1951, was on the anvil that "-so far as this House is concerned, it can proceed in the manner provided by t11c Constitution to atJlend

it, if this House so choose.

"Now there is no doubt that this House has that authority. There is no doubt about that, and here, I am talking not of the legal or constitutional authority, but of moral authority, because it is, roughly speaking, this House that made the Constitution." Our task is not to

944 SUPREME COURT REPOll.TS (1973] Supp. S.C.11..

pass on the ''moral authority" of the Parliament to amend the Constition but to determine whether it has "legal or constitutional authority"

to do so. Applying the same test, the speech which the other of the two chief architects of the Constitution-Dr. Ambedkar-made in the Constituent Assembly can raise no estoppel and decide no Constitutional issue. He said : ''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 tw<>-thirds majority. If the future Parliament wishes to amend any particular article which is not mentioned in part III or article 304, (corresponding to, present article 368), all that -is necessary for them is to have tw<>-thirds majority. Then they can amend it." Perhaps, there is a slip in the reference to Part III''-even Homer nods. Perhaps, there is an error on the part of the typist-they often nod. But even granting that the eminent cannot ever err, what was

said by Dr. Ambedkar and others in the Constituent Assembly and the Parliament was at best their opinion of law. The true legal position is for us and none el5e to decide, though within the limits set by the Constitution.

During the course of arguments, a catena of decisions d several courts were cited before us. I thought when the arguments beganyea, I remember it because the commencement of the case is not that lOSll in antiquity-that the judgments of this Court will form the focus of discussion, foreign decisions making a brief appearance. But

retrospect, I think I was wrong. Learning, like language, is no one's monopoly and coun.s, el were entitled to invite us to consider how heroically courts -all over the world had waged battles in defence cf fundamental freedoms and on the other hand how, on ":casions, the letter of law was permitted to prevail in disregard of evil consequences.

Between such extremes, the choice is always diflicult and delicate but it has to be made for, in a matter involving the cherished freedoms' of the subject and the powers of the Parliament, I do not want to project my freedom to say, as Justice McReynolds of tlie American Supreme Court didin the National Prohibition Cases involving the validity of the Eighteenth Amendment to the American Constitution, that I am unable to come to any conclusion. But I am quite clear that I have no use for the advice of Walter Berns ('Freedom, Virtue & The First Amendment' 1957), that since there can be no freedom to end freedom even if the people desire to enslave thcmsclvs, "the Suprme Court must act undemocratically in order to preserve dcm<>- cracy". Nor indeed shall I walk down the garden-path laid by Dale, Gibson ('Constitution Amendment and the implied Bill of Rights', McGill Law Journal, Volume 12), that "where an issue as vital as

KESAVANANDA "· KEllALA ( Chandrachud, J.) 945

the protection of civil liberties .is concerned, ; ind where the legislators have demonstrated their inability to provide adequate safeguards, the courts arc entirely justified (perhaps even morally obliged) in employing all the ingenuity and imagination at their command to prescrvc:individual rights". Such exhortations have a spartan air which lcnd1 colourfulness to arid texts but they overlook the fundamental premise. that judges, unlike Manu, arc not law-givers. Besides, it cannot ever be .too strongly stressed that the power of substantive 'Jue process of law' available under the Fourteenth Amendment to the American Constitution was considered and rejected by our Constituent Assemoly which contained a galaxy of lewil talent. In America, under the due process clause, there was a time when the Supreme Court used to invalidate laws because they were thought to be unwise or incompatible with some particular economic or social philosophy. Thus, in Lochner v. New York,(') the law restricting em ployment in baker to 10 hours per day and 60 hours per week wa& regarded as an unconstitutional interference with the right of adult labourers, sui iuris, to contract with respect to their means of livcli hood. It was decades later that the Court recognised the value and the validity of the dissenting opinion recorded by Justice Holmes :

"This case is decided upon an economic theory which a large part of the country docs not entertain. If it were a question whether agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that fo be

my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this Court that State constitutions and State laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrarucal as this, and which equally with this interfere with the liberty to contract.• • • The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Static!. • • • But a Constitution ....... is made for people of fundamentally differing views and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon . the question whether statutes embodying them conflict with the Constitution."

In course of time such shining dissents became the majority view and the due process clause came to be construed as permitting enactment of laws limiting the hours of labour in mines, prohibiting employment of children in hazardous occupations, regulating payment of wages, preserving minimum wages for women and children, the 'Blue

( 1) 49 L. ed. 937.

946 SUPRIME COUllT RE POil TS ( 1973] Supp. S.C.ll.

ky Jaws' and the 'Man's Best Friend (Dog) laws'. Even laws like the Kentuk/y Statutes requiring Banks to turn over to the protective custody of that State deposits that were inactive for 10 or 25 years were upheld, as not involving taking over the property of the banks('). With this American history before them, the Drafting Committee of the Constituent Assembly chose in Article 21 of our Constitution a phrase of certain import, 'procedure established by law' in place of the vague and uncertain expression 'due process of law'.

We were taken through an array of cases decided by the Privy Council, the Supreme Court of the United States of America, the Supreme Courts of American States, the High Court of Australia, .the Supreme Court of Ireland, the High Court of Ireland, the Supreme Court of South Africa and of course our own Supreme Court, the Federal Court and the High Courts. Why, consistently with American practice, we were even referred to briefs which counsd had filed before the Supreme Court in the Rhode Island case. We also spent a little time on the judgment of the District Court of New Jersey in the Sprague case, judgment which though reversed in appeal by the Supreme Court, was thought to have a cenain relevanc~.

We began, speaking chronologically, with the decision rendered in 1803 by the American Supreme Court in William Marbury s. James

Madison(') in which the opinion of the Court was delivered by Chief Justice John Marshall in wards whose significance custom has still not staled: "Certainly all those who have fr.amed written constitutions con: template 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."

We ended with some of the very recent decisions of this Court like the Bank Nationalisation Case(') in which a Bench of 11 Judges held by a majority of 10 to 1 that the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969 violated the guarantee of compensation under Article 31(2) in that, it provided for giving certain amounts determined according to principles which were not relevant in the determination of compensation of the undertaking of the named Banks and by the method prescribed, the amounts so declared could not be regarded as compensation. In between come seeral ~cisios, prominent amongst which are: (1) The Pnvy Council decmon m

( 1) Anderson National Bank os. Luckett 321 U.S. 233,

(2) 2 L. ed. 69.


:USAVANANDA f/, DRALA ( Chandrachud, J.) 947

Burah's case (1878, Attorney-General of Ontario case (1911), Vacher & Son's case (1912), McCawley's case (1919), In Re the Initiative and Referendum Act case (1919), Trethowan's case (1932), Moore's case (1935), Ibralabee's case (1964), Ranasinghe's case (1965), Don John Liyanagc's case <1965) and Kariapper's case (1967); (2) The decisions of the Federal Court in the C. P. & Berar Reference (1938), Subramaniam Chettiyar's case (1940) and Suraj Narain Ai:iand's case (1941); (3) The decisions of the American Supreme Court in Lochner's case (1904), Hawke vs. Smith (1920), the Rhode Island Case (1920), Dillon vs. loss (1920), Lesser vs. Garnett (1922), Ex parte Grossman (1925), Sprague's case (1931); Schneiderman's case

(1943) and Skrupa's case (1963); (4) The decisions of the American State Supreme Courts in Livermore vs. Waite (1894), Edwards .vs. Lesseur (1896), Ex parte Dillon (1920) and Geigenspan vs. Boding (1920); (5) The decision of the Irish Supreme Court in Ryan's case ( 1935); ( 6) The decisions of the Appellate Division of the Supreme Court of South Africa in Hartis' case (1952) and in the 'High Court of Parliament Case' (1952); (7) The desicions of the Canadian Supreme Court .in the Alberta Press Case (1938), the case of Attorney-

General of Nova Scotia (1950), Samur's case (1953) and Switzman's case (1957); and (8) The decisions of the Hight Court of Australia in Eug; neer's case (1920), West vs. Commonwealth of Australia in (1937), South Australia vs. Commonwealth (1942) and State of Victoria vs. Commonwealth (1970).

Most of the decisions of the Privy Council noticed above have an important bearing on the issues arising before us and some of these decisions present a near parallel to our constitutional provisions which require interpretation. They will help a clearer perception of the distinction between 'controlled' and 'uncontrolled' constitutions, which in turn has an important bearing on the patent distinction between laws made in the exercise of constituent power and those made in the exerdse of ordinary legislative power conferred by the constitution. In this distinction would seem to lie an answer to some of the basic contentions of the petitioner in regard to the interpretation of Articles 13 and 368 of the Constitution.

The decisions of American courts may bear examination, but in their application to the probkms arising under our constitution it would be necessary to keep in constant sight some of the crucial differences between the circumstances attendant .on the birth of the two constitutfons, the purposed vagueness of theirs and the finical content of ours and the significant disparity in the structure of their Article 5 and our Article 368. In America, an. important principle of constitutional liberty is that the sovereignty resides in the peop!e and as they could not in their collective character exercise governmental

9 48 SUPRl!MI! COUllT REPORTS [1973] Supp. s.c.P..

powers, a written document wa's by common consensus agreed upon in each of the States. The American constitution, thus, is covenant of the sovereign people with tile individuals who compose the nation. Then, the Supreme Court of America, as said by Sir Henry Main, is not only a most interesting but a unique creation of the fathers of the c01J1stitution. "The success of the experiment has blinded men to its novelty. There is no exact. precedent for it, either in the ancient or modern world." In fact, it is said that the history of the United States has been written not meerly in the halls 0£ Congress or on the fields of battle but to a great extent in the Chambers of the Supreme Court. The peculiar role played by that court in the development of the nation is rooted, apart from the implications arising out of the due process clause, in the use of a few skeleton phtases. in the Constitution. We have drawn our constitution differently. It is, however, relevant that American courts were time and again asked to pass on the existence of inherent limitations on the amending power aqd their attitude to that question requires examination of the claim of writers like Edward Corwin that such arguments were brushed aside by the court as unworthy of serious attention. Another aspect of American decisions which has relevance in this matter is the explication of the concept of amendment in cases like Livermore's (California, 1894), McCleary's (Indiana, 1917) and Ex Parte Dillon's (California, 1920).

Decisions of the Australian High Court like th.e Engineers' case, the State of Victoria case and ihe Melbourne Corporation case bear on the central them~ of the petitioner's argument that the Parliament which is a creature of the constitution cannot in exercise of its powers act in derogation of the implications to be derived, say, from the federal nature of the constitution. That is, some implications must arise from the structure of the constitution itself.

The two decisions of the South African Supreme Court (Harris' case and the High Court of Parliament case) may serve to throw some light on the concept that the sovereignty of a legislature is not incompatible with its obligation to comply with the requirements of form and inanner prescribed by the instrument which regulates its power to make law, for a legislature has no power to ignore the conditions of law-making.

The Canadian cases really bear on the legislative c<;>mpetence of provincial legislatures in regard to individual . freeoms or _in regard to criminal matters. Jn Canada, as many as six different views have been propounded on civil liberties and it would appear that though different judges have voiced their opinion in favour of one or the other of such views, none has pronounced finallv in favour of any particular view.

KESAVANANDA v. KERALA (Chandra;:hud, J.) 949

A special word must be said of Ryan's case which was decided by the Irish Supreme Court. It was read out in extento to us and I am free to confess that it evoked in me a quick response. In that case, the three Judges of the Irish High Court and two of the 3 Judges of their Supreme Court rejected contentions similar to thc of the petitioner herein but Chief Justice Kennedy, though he did not deal directly with the meaning of the word 'amendment', read limitations on tl1c meaning of that word as a result of various implications derived from the Irish constitution. Petitioner relies on the lone voice of the Chief Justice. That it is lone is immaterial for our plll'pQSC for, after all, the decision has but a pesuasive value. Respondents not only distinguished the judgment of the learned Chief Justice but contended that the ratio of the decision is clearly in their favour. Ryan's case became for both sides an 'Iri<h Golak Nath'.

I have made this compact ummary of the decisions to indicate, in . the first place, that these perhaps are the only decisions whicli require close consideration out of the vast multitude of those that were canvassed before us and secondly, to show the broad trend of judicial thinking on the points pressed upon. us. It is impossible, in what I consider to be the true scope of this judgment and unnecessary for what I feel is its real purpose, to deal at length with everyone of these decisions. That task, I think, may well be left to receive a scholarly treatment at the hands oE a constitutional writer. As Judges, we are confronted and therefore concerned with practical problems and it is well to remind ourselves that ow principal task is to construe the Constitution and not to construe judgments. Those judgments arc without doubt, like lamp-posts on the road to freedom and judges wl10 have shed on that road the light of their learning and the impress of their indepedence, have carved for themselves a niche in the history of civil liberties. Sec what Frankfurter J. said in Joint Anti-Fatcist Ref. Comm. v. McGraths(') "Man being what he is, cannot safely be trusted with complete immunity from outward responsibility in depriving others of their rights"; or, what Jackson J. said in 4merican Comm. Assoc. v. Doudds(') "Our protection against all kinds of fanatics and extremistes, none of whom can be trusted with unlimited power over others, lies not in their forbearance but in the limitations of our Constitution"; or, what Patterson J, said in his famous cliarge to the Jury in Van Horne's lessee v.

Dorrance('): "The Constitution ... is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events .... One encroachment leads to another; precedent gives birth to precedent; what has been done may be done again; thus

( 1) 341, U.S. 123, 171. (') 339, us. 382, 439.

( 1) I L. ed. 391.

950 SUPREME COURT REPORTS (1973) Supp. S.C.R.

radical principles are generally broken in upon, and the constitution eventually destroyed.'' These arc sonorous words and they will resound through the corridor of Times. But these landmarks in the development of law cannot be permitted to be transformed into weapons for defeating the hopes and aspirations of our teeming millions,-halfclad, half-starved, half-educated. These hopes and aspirations represent ing the will of the people can only become articulate through the voice of their elected representatives. If they fail the people, the nation must face death and destruction. Then, neither Court nor constitution will save the country. In those momems of peril and disaster, rights and wrongs are decided not before the blind eyes of justice, not under the watchful eyes of the Speaker with a Marshal standing by but, alas,. on streets and in by-lanes, Let us, therefore, give to the Parliament the freedom, within the framework of the Constitution, to ensure that the blessings of liberty will be shared by all. It is necessary, towards that end, that the Constitution should not be construed in a "narrow and pedantic sense(')" Rules of interpretation which govern other statutes. . also govern a constitutional enactment but those "very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting,- to remember that it is a Constitution, a mechanism under which laws are to be made and not a mere 1 Act which declares what the law is to be.(')" To put it in the langua~ of Sir Maurice Gwyer C. J., "a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they arc free to stretch or pervert the language of the enact• ment in the interests of any legal or constitutional theory, or even. for the purpose of supplying omissions or of correcting supposed

errors. A Federal Court will not strengthen, but only derogate from, its position, if it seeks to do anything but declare the law; but it mayrightly reflect that a Constitution of government is a living and organic thing, which of all instruments has the greatest claim to be construed

ut res magis val.eat quam pereat.(8)" In the exercise of our powers of judicial review, let us therefore not act as a check of the past on the present and the future~ " .... it is the present that. represents the will of the people and it is that will that must ulimately be given effect in a democracy(')" The core of social commitment is the quintessence of our C'..onstitution and we must approach it in the spirit in

(') Per Lord Wright in James v. Commonwealth of Australia, (1936) A.C. 578, 614.

(') Per Higgins J. in Att.-Ocnl. for New South Wales v. Brewery Employees Union, (1908) 6 Commonwealth L.R. 469, 611-12.

(') In re. The Central Provinces and Berar Act No. XIV of 1939. (1938)1 F.C.R. p. 18, 37.

(') Schwartz : A Basic History of the U.S. Supreme Court.

' r

USAVANANDA v. Kl!RALA ( Chandrachud, J.) 951

which it was conceived. We erected the edifice of our Constitution in the hope that it will last, unlike the French who, on the establishment of the Third Republic in 1875, framed a constitution in the hope that it will fail, since the majority of the constitution-makers were not .Republicans but Royalists: In the peculiar conditions in which the French Republic found itself, there was only one throne but three claimanu for a scat on it. The social philosophy of our Constitution defines expressly the condition; under which liberty has to be enjoyed and justice is to be administered in our country; and shall I say of our country what Justice Fitzgibbon said of his in Ryan's case : "this other Ederi demi-Paradise, this precious stone, set in the silver sea, thi.s blessed plot, this earth, this, realm, this" India. If it is not that to-day, let us strive to make it so by using law as a flexible instrument. of social order. Law is not, in the phrase of Justice Holmes, a "brooding Ollllllipotence in the sky."

All through the hearing of the case, there was hardly a point on which Dictionaries and Law Lexicons were not cited. Sec this long list: The Shorter Oxford English Dictionary on historical Principles, 3rd Ed.; Shorter Oxfocd English Dictionary; Websticr's Third New International Dictionary of the English Language; Webster's English Dictionary, 1952; The Random House Dictionary of the English Language; The Reader's Digest Great EncyclDpacdic Dictionary; The Dictionary of English Law, Eal Jowitt; The Cyclopaedic Law Dictionary by Frank D. Moore; Prcm's Judicial Dictionary-Words & Phrases judicially defined in India England, U.S.A. & Australia; Bouvier's Law Dictionary; Universal English Dictionary; Chamber's 20th Century Dictionary; Imperial Dictionary by Ogilvie; Standard Dictionary by Funk & Wagnalls; Stroud's Judicial Dictionary; Judicial and Statutory Definitions of Words and Phrases, Second Series; Words and Phrases legally defined, John B. Saunders; Wharton's Law Lexicon; Vcnkataramaiya's Law Lexicon; Law Lexicon of British Indiacompiled and edited by P. Ramanatha Aiyer; Words and Phrases, Permanent Edition; The Construction of Statutes by Earl T. Crawford; Corpus Juris Secundum and American Jurisprudence. These citations were made in order to explain the meaning, mainly, of the words 'Amendment', 'Constituent', 'Constitution', 'Constitutional law', 'Distribute' and 'law'. This is of course in addition to several decis!ons which have dealt with these words and phrases in some context or the other. It is useful to have a dictionary by one's side and experience has it that a timely reference to a dictionary helps avert many an embarrassing situation by correcting one's inveterate misconception of the meaning of some words. But I do not think that mere dictionaries will help one understand the .true meaning and scope of words like 'amendment' in Article 368 or 'law' in Article 13(2). These arc not words occurring in a school text-book so that one can find their

952 SUPREME COUllT J!EPOl\TS [1973] Supp. s.c.:a.

meaning with a dictionary on one's right and a book of grammar on one's lt. These are words occurring in a Constitution and one must look at them not in a school-masterly fashion, not with the cold eye of a lexicographer, but with the realization that they occur in "a single complex instrument, in which one part may thro~ light on another", so that "the construction must hold a balance between all its parts(').

Such words, having so significant an impact on a power as important as the power to amend the Constitution cannot be read in vacuo. The implication of the social philosophy of the instrument in which they occur and the general scheme of that instrument under which the very object of the conferment of freedoms entrenched in Part III is the attainment of ideals set out in Part IV, must play an important role in the construction af such words. "A word. is not a crystal, transparent and unchanged; it is the skin of living thought and may vary greatly in colour and content according to circumstances and the time in which it is used{")".

'Sui generil, I called this case. I hope I have not exaggerated its uniqueness. It 'is manifest that the case has a peculiar delicacy. And now through the cobwebs of 71 Constitutions, dozens of dictionaries, scores of texts and a multitude of cases, I must find a specific answer to the questions raised before us and state it as briefly as I may.

The main argument was made in Writ Petition No. 135 of 1970.

The Kerala Land Reforms Amendment Act (35 of 1969) came into force in the State of Kcrala on January 1. 1970. The Kerala Land Reforms Amendment Act (25 of 1971) came into orce on August 7,

1971. The High Court' of Kerala struck down some of the provisions of the Act of 1969 and that judgment was upheld by this Court on April 26, 1972 in Kunjukutty Sahib, etc. vs. The State of Kerala and Another(').

Writ Petition No. 135 of 1970 was filed in this Court under Article 32 of the Constitution on March 21, 1970. During the pendency of this Petition, the Constitution; 24th 25'th, 26th. and 29th Amendment Acts were passed by the Amending body, that is, the Parliament. The 24th Amendment Act received the President's assent on November 5, 1971. In a House of 518 members af the Lok Sabha, 384 members voted in favour of the 24th Amendment and 23 against .it. In a House of 243 members of the Rajya Sabha, 177 members voted' in favour 'and 8 against it. As regards 25th Amendment, 355 voted in favour and 20

(') Per Lord Wright in James v1. Commonwealth of Australia (1936) A.C. 578, 613. (') Per Holmes J. in Towne v1. Eisner 62 L. ed. 372, 376. (') [1972] 2 s.c.c. 364.

KESAVANANDA v. KERALA (Chandrachud, J.) 953

agaimt it in the Lok Sabha; while in the Rajya Sabha, 166 voted in favour and 20 against it. The voting on the 29th Amendment in the Lok Sabha was 286 in favour and 4 against. In the Rajya Sabha, 170 voted in favour and none against it.

In August, 1972, the Petitioner was permitted by an ameudment to challenge the validity of the 24th, 25th and 29th Amendments to the Constitution. These Amendments, after receiving the President's assent, came into force on November 5; 1971, April, 20, 1972 and June 9, 1972.

The Constitution (Twenty-Fourth Amendment) Act, 1971 has by Section 2 thereof added a new clause (4) to Article 13 of the Consti-·

tution providing that nothing in that article "shall apply to any amendment of this Constitution made under Article 368". Section 3(a)

of the Amending Act substitutes a new marginal heading to Article 368 in place of the old. The marginal heading of the unamended article 368 was : "Procedure for amendment of the Constitution.'' The new heading is: "Power of Parliament to amend the Constitution anrl'

procedure therefor." Section 3(b) of the Amending Act inserts a new sub-section (1) in Article 368: "Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.'' Section 3(c) makes it obligatory for the President to give his assent to the Amendment Bill. Section 3(d) adds a rrew clause (3) to article 368 stating that "Nothing in article 13 shall apply to any amendment

The Constitution (Twenty-Fifth Amendment) Act, 1971 brings about significant changes in article 31 and introduces a new article 31C.

By Section 2(a) of the Amendment Act, 1971, clause (2) of Article 31 is substituted by a new clause which permits compulsory acquisition or requisitioning of the property for a public purpose by authority of law, which provids for acquisition or requisitioning of the property "for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may he specified in such

law." No such law can he called in question on the ground that the amount is not adequate or that the whole or any part of it is to he given otherwise than in cash. The newly added proviso to article 31 (2) makes an exception in regard to properties of educational ins ti-· tutions of minorities. If such properties are compulsorily acquired, the State has to ensure that the amount fixed for acquisition is such as would not restrict or abrogate the right auaranteed under article

954 SUPREME COUll.T REPORTS [ 1973] Supp. s.c.R.

30(1) of the Constitution. Section 2(b) of the Amendment Act, 1971 adds a new clause 2(b) to artjcle 31 which provides that nothing in ' article 19(1)(f) shall affect any such law as is referred to in article \ 31 (2) as substituted. Section .3 of the Amendment Act, 1971, introduces a new article 31C, which provides that notwithstanding anything contained in article 79, no law giving effect to the policy of the State towards securing the pdnciples mentioned in artide 39(b) 01

(c) shall be deemed to be void on the ground that it takes away or abridges the rights conferred by articles 14, 19 and 31. No law containing a declaration that it is for giving effect to such policy can be called in question in any court on the ground hat it does not give effect to such policy. If such a law is made by the Legislature of a State, the provisions of article 31C can apply only if the law rceived the assent of the President.

By the Constitution (Twenty-Ninth Amendment) Act, 1972, the two Kerala Acts - Act 35 of 1%9 and Act 25 of 1971 - were included in the Ninth Schedule thereby giving them the protection of article 31R By such inclusion, the challenge made by the petitioner to these two Acts by his Writ Petition filed in March, 1970 became infrm; tuous depending upon the validity of the 29th Amendment Act.

Shorn of refinements, the main questions which arise for decision are: (1) What is the trne ratio and effect of the decision in the Golak Nath case? (2) Should that ratio be upheld?

(3) If the majority decision in the Golak Nath case be incorrect, what is the extent ot the inherent or implied limjtations, if any, on the power of the Parliament to amend the Constitution by virtue of its power under Article 368? and ( 4) Are the 24th, 25th and 29th Constitution Amendment Acts valid?

The Constitution of India came into force on January 26, 1950 and on June 18, 1951 the Constitution (First Amendment) Act, 1951 was passed by the Parliament. Sectio.ns 2, 3, 4 and 5 of the Amending

Act made significant amendments resulting to a large extent in the abridgement of Fundamental Righrs conferred by Part III of the Constitution. By Sectron 4, a new Article 31A was inserted and by section 5 was inserted Article 31B for the validation of certain Acts and Regulations. These Acts and Regulations were enumerated in the Ninth Schedule to the Constitution, which itself was added by section 14 of the Amendment Act.

The validity of the Amendment Act, 1951 was challenged in this Court in Sri Shankar Prasad Singh Deo vs. Union of India and State of Bihar('). It was urged in that caiC that the Amendment. Act in

( 1 ) (1952) I S.C.R. 89.

KESAVANANDA v. KERALA ( Chandrachud, J.) 955

so far as it purported to take away ar abridge the rights conferred by Part III felt within the prohibition of Article 13(2) and was therefore unconstitutional. Patanjali Sastri J. who spoke for the unanimous court rejected this argument by holding 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 exercise of constituent power; and therefore, in the absence of a clear indication to the contrary, Fundamental Rights were not immune from constitutional amendment. The challenge to the Amendment Act, 1951 was on these grounds rejected.

The Constitution (Fourth Amendment) Act, 1955 abridging the Fundamental Rights guaranteed by Aritcle 31 was passed on April 27, 1955. Section 2 of this Act introduced a radical change by providing that no law to which article 31 (2) was applicable shall be called in question in any court on the ground that the compensation provided by that law was not adequate. By section 3 of the Amending Act a new and extensive clause (1) was substituted for the old dame (1) of article 31A, with retrospective effect. The newly added provision opens with a non-obstante clause : "Notwithstanding anything contained in article 13" and privides that no law providing for matters mentioned in new clauses (a) to (s) article 31A(l), 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. No challenge was ever made to these amendments.

The Constitution (Seventeenth Amendment) Act, 1964 came into force on June 20, 1964. This Act, by section 2(ii) inserted a new definition of "estate" in article 31A(2) (a) with retrospective effect and added as many as 44 Acts in the Ninth Schedule, thus extending the protection of the Schedule to 64 Acts in all.

The validity of the Seventeenth Amendment Act was challenged before this Court in Saiian Singh v. State of Rajasthan('). Out of the the several arguments which were urged in that case the only one which is relevant for the present purpose is that the Amendment Act was void in view of the provisions of Article 13(2), in so far as the Act purported to abridge the Fundamental Rights guaranteed by Part III. Delivering the majority judgment, Gajendragadkar C. J. took the view on behalf of himself, Wanchoo and Raghubar Dayal JJ. that the expression 'amendment of the Constitution' plainly and unambiguously means amendment of all the pro\lisions of the Constituion and therefore the amending power conferred by Article 368 extended to all the provisions of the Constitution •. The majority judgment rejected .

( 1) [1965] l S.C.R. 933.

956 SVPIEME COVRT REPORTS [1973] Supp. s.c.R.

the contention that the word 'law' in Article 13(2) would take in Constitution Amendment Acts passed under Article 368, as there was a clear distinction between the constituent power conferred by Article 368 and the ordinary legislative power and Article 13(2) would takr in laws made in the exercise of the latter power only. Hidayatullah J. and Mudholkar J. concurred in the final conclusion but by separate judgments they doubted the majority view and observed that it was possible that Article 368 merely laid down the procedure for amending the Constitution but did not confer the power to amend the Constitution. Both the learned Judges however stated expressely that they should not be taken to have expressed a final opinion on that question. The seeds of the controversial decision in I. C. Golak Nath & Others v. State of Punjab & Another(') were sown by the doubt thus expressed by Hidayatullah J. and Mudholkar J.

The decision in the Golak Nath case was rendered by a Bench of II Judges of this Court on February 27, 1967. The petitioners therein had challenged the validity of Punjab Act 10 of 1953 and the Mysore Act 10 of 1962 as amended by Act 14 of 1965, on the ground that these Acts violated their Fundamental Rights, alleging rhat though the impugned acts were included in the Ninth Schedule, they did not receive the protection of the 1st, 4th and 17th Amendment Acts. It was common case that if the 17th Amendment which included the impugned Acts in the Ninth Schedule was valid, the Acts would not be open to challenge on any ground.

Chief Justice Subba Rao delivered the leading majority judgment for himself and for Justices Shah, Sikri, Shelat and Vaidilingam.

Hidayatullah J. concurred with their conclusion but delivered a separate judgment. Wanchoo J. delivered the leading minority judgment on behalf of himself and1 Justices Bhargava and Mitter. Justice Bachawat and Justice Ramswami concurred by their separate judgments with the view expressed in the leading minority judgment.

The leading majority judgment recorded the following conclusions:

I. That Fundamental Rights are the primordial rights necessary for the development of human personal; ty and as such they are rights of the people preserved by the Constitution.

2. 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


XESAVANANDA v. KERALA ( Chandrachud, J.) 957

freedoms t0 themselves. 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.

3. Article 368 assumes the power to amend found elsewhere. In other words, Article 368 does not confer power on Parliament

to amend the Constitution but merely prescribes the procedure for the exercise of such power to amend.

4. The power to amend is to be. found in Articles 245 and 24!<

read with Entry 97 in List I of the Seventh Schedule to the Constitution.

5. In the exercise of the power of amendment, Parliament could not destroy the structure of the Constitution but it could only modify the provisions thereof within the framework of original instrument for its better effectuation. In other words, the provisions of the Constitution could undoubtedly be amended but not so as to take away or abridge the Fundamental Rights.

6. There is no distinction between the power to amend the Constitution and the ordinary power to make laws.

7. Article 13(2) which contains an inclusive definition, prima facie takes in constitutional law.

8. The residuary power of Parliament could be relied upon to call for a Constituent Assembly for making the new Constitution or radically changing it (This opmion however was tentative and not final).

9. The Seventeenth Amendment Act impugned before the court as also the First, Fourth and Sixteenth Amendments were constitutionally invalid. Declaring these amendments invalid was, however, likely to lead to confusion and chaos and therefore these amendments would be deemed to be valid except for {uture purposes, by application of the principle of 'prospective invalidation'.

10. In future, Parliament will have no power to amend Part III of the Chnstitution so as to take away or abridge the Fundamental Rights.

Hidayatullah J. agreed with the final decision expressed in the leading majority judgment and his views can be suminarised as follows:

1. The power of amendment must be possessed by the State.

One could not take a narrow view of the word 'amendment' as

61-36 s.c. India/73

958 SUPREME COURT REPORTS [1973) Supp. s.c.R.

including only minor changes within the general framework.

By an amendment, new matter may be added, old matter removed or altered.

2. Article 368 outlines a process which if followed strictly results in tl1e amendment of the Constitution. The article gives power to no particular person or persons.

3. The procedure of amendment, if it can be called a power at all is a legislative power but it is mi generis and outside the three Lists of Schedule Seven of the Constitution.

4. There is no distinction in our Constitution between laws made ordinarily and laws made occasionally for the amendment of the Constitution. Therefore, constitutional amendments must fall within the scope of Article 13(2).

5. The whole Constitution is open to amendment, only two dozen articles being outside the reach of Article 368; that too, be.cause the Constitution has made them fundamental.

6. Fundamental Rights cannot be abridged or taken away by the ordinary amending process._ Parliament must amend Article 368 to convoke another Constituent Assembly, pass a law under Item 7 of List I to call a Constituent Assembly and then that Assembly may be able to abridge or take away the Fundamental Rights. The Parliament was constituted with powers of legislatation which included amendments of the Constitution but only so far as Article 13(2) allowed.

7. Parliament had no power to amend Article 368 so as to confer on itself oonstituent powers over the Fundamental Rights, This would be wrong and against Article 13{2).

8. The conclusion recorded by the leading majority judgment was correct, not on the ground of prospective invalidatioo of laws but on . the ground of acquiescence. The First, Fourth and Seventh Amendments were part of the Constitution by acquiescence for a long time and could not there fore be challenged. They also contained authority fur the Seventeenth Amendment.

Wanchoo J. who delivered the leading minority judgment .tame to the following conclusions :

1. Both the procedure and the power to amend the Constitution are to be found in Article 368 and not in Entry <;/ ef List I.

KESAVANANDA 11. KERALA ( Chandrachud, J.) 959

1. The word 'amendment' must be given its full meaning, that is, that the power was not restricted to improvement of details but extended to the addition to or substitution or deletion of existing provisions.

3. In exercise of the power conferred by Article 368 it was competent to the Parliament by observing the procedure prescribed therein to amend any provision of the Constitution.

4. The word 'law' in Article 13(2) could only take in laws made by Parliament and State Legislatures in the exercise of their ordinary legislative power but not amendments made under Article 368.

5, The power to amend being a constituent power cannot be held to be subject to any implied limitations on the supposed ground that the basic features of the Constitution could not be amended.

'Bachawat J. agreed with Wanchoo J. and stated:

1. No limitation on the amending power could be gathered from the language of Article 368. Each and every part of the

Constitution could therefore be amended under that Article.

2. The distinction between the Constitution and the laws is so fundamental that the Constitution cannot be regarded as a law or a legislative act.

3. Article 368 indicates that the term 'amend' means 'change'.

A change is not necessarily an improvement.

4. It was unnecessary to decide the contention whether the baaic features of the Constinition, as for example, the republic form . ci aovernment or the federal structure thereof could be amended, as the question did not arise for decision.

llamannmi J. adopted a similar line of reasoning and held :

1 '.fhat the definition of 'law' in Article 13(3) did not include

m llmlls 'costional 31!!'C!!dhnt'. Had it been intended by the comtitutton.-malccrs that the Fundamental Rights guaran.tecd by .P3?J III shoald be completely outside the scope of Article 368 1t 1s rcasonaf, R to U!IJllle that th..,, would h made an: express provisimt ID diat dfcct. -, aye

960 StJPREME COURT REpORTS [1973] Supp. s.c.R.

2. The Preamble to the Constitution which declared India as a sovereign democratic rpblic was i:iot beyond _the scope of the amending power; smularly certam other basic features f the Constitution like those relating to distribution of legislative power, the parliamentary power of Goverent and the establishment of the Supreme Court and the High Courts were also not beyond the power of amendment.

3. Every one of the articles of the Constitution is .ame~1da?Ie under Article 368 and there was no room for anv rmplicatton in the construction of that article.

It is thus clear that the majority of Judges in the Golak Nath case consisting of Justices Wanchoo, Hidayatullah, Bhargava, Mitter, Bachawat and Ramaswami rejected the argument that Article 368 merely prescribes the procedure to be followed in amending the Constitution. They held that Article 368 also conferred the power to amend the Constitution. They rejected the argument that the power to amend could be found in Entry 97 of List I. The majority of Judges consisting of Subba Rao, C.J. and his 4 colleagues as well as Hidayatullali J. held that there was no distinction between constituent power and legislative power and that the word 'law' used in Article 13(2) includes a law passed by Parliament to amend the Constitution. Subba Rao C. J. and his 4 colleagues suggested that if a Constitution had to be radically altered the residuary power could be relied upon to call for a Constituent .Assembly. Hidayatullah J. took a difierent view and held that for making radical alterations so as to abridge, Fundamental Rights Article 368 shoulll be suitably amended and the Constituent Assembly should be called after passing a law under Entry 97 in the light of the amended provisions of Arti cle 368. It .is important to mention that all the eleven Judges who constituted the Bench were agreed that even Fundamental Rights could be taken away but they suggested difierent methods for achieving that purpose. Subba Rao C.J. and his 4 colleagues suggested calling of a Constituent Assembly; Hidayatullali J. suggested an amendment of Article 368 for calling a Constituent Assembly after passing a law under Entry 97; the remaining 5 Judges held that the Parlirunent itself had the power to amend the Constitution so as to abridge or take away the. Fundamental Rights.

The leading majority judgment did not decide whether Article 368 itself could be amended so. as to confer a power to amend every provision of the Constitution. The reason for this was that the Golak Nath case was decided on the .baSts of the uiiam.cnded Article 368.

The question whether. Fundao:icntal Rights. eould be taken away by

KESAVANANDA v. KEllALA ( Chandrachud, J.) 961

amending Article 368 was not before the Cou:t.

Th~ question also whether in future Parliament could by amendmg Arl!cle . 36l! assume the power to amend every part and provision of the Const1:u1101,1 was not in issue before the Court. Such a question could anse ?irectlr,

as it arises now, only after an amendment was in fact made m Arll de 368, and the terms of that amendment were known. The observa tion in the leading majority judgment putting restraints n the future power of the Parliament to take away Fundamental Rights cannot therefore constitute the ratio of the majority judgment. The learned Judges did not evidently consider that in future the chapter on Fundamental Rights could be made subject to an amendment by first amending Article 368 as is now done under the Twenty-Fourth Amendment.

It shall have been seen that the petitioners in the Golak Nath case won but a Pyrrhic victory. They came to the Court, not for the decision of an academic issue, but ro obtain a declaration that laws which

ffected their fundamental rights were unconstitutional. Those laws were upheld by the court but I suppose that the petitioners left the oourt with the consolation that posterity will enjoy the fruits of the walnut tree planted by them. But it looks as if a storm is brewing threatening the very existence of the tree.

As stated above, 6 out of the 11 learned Judges held in the Golak Nath case that article 368 prescribed not merely the l?rocedure for amendment but conferred the power to amend the Constitution and that the amending power cannot be traced to the Residuary Entry 97 of List I, Schedule VII read with articles 245, 246 and 248 of the Constitution. I respectfully adopt this view taken by the majority of Judges.

Part XX of the Constitution is entitled "Amendment of the Constitution", not "Procedure for Amendment of the Constitution". Article 368, which is the only article in Part XX must therefore be held to deal both with the procedure and the product of that procedure. The marginal note to article 368: "Procedure for Amendment of the Constitution" was orily a catchword and was in fact partially correct. It did not describe the consequence of the adoption of the procedure because the title of the part described it clearly. The justification of the somewhat inadequate marginal note to article 368 can be sought in the fact that the article does not confer power on any named authority but prescribes a self-executing procedure which if strictly followed results in this : "the Constitution shall stand amended". The history of the residuary power since the days of the Government of India Act, 1935, and the scheme of distribution of legislative power show that if

962 SDPIU!MI! COUllT JIEPOl.TS [ 1973] Supp. s.c.R.

a subject of legislative power was prominently present to the minds of the framers of the Constitution, ic would not have been relegated to a Residuary Entry, but would have been included exprssly in th~ legislative list-more probably in List I. That the question of constitutional amendment was prominently present to the minds of the Constitution-makers is clear from the allocation of a separate Part- Part XX-to "Amendment of the Constitution". Then, the legislative power under Entry 97, List I, belongs cxclusivcl')' to the Parlia mcnt. The power to amend the Constitutio~ cann?t .be located . in that Entry because in regard to matters falling w1thm the proviso to article 368, Parliament docs not possess exclusive power to amend the Constitution. The Draft Constitution of India also points in the direction that the power of amendment cannot be located in the Residuary Entry. Draft Article 304, which corresponds to article 368, conferred by sub-article (2) a limited power of amendment on the State Legislatures also and those Legislatures neither possessed the residuary power of legislation nor did the State List, List II, include 'Amendment of the Constitution' as a subject of legislative power.

Finally, the power to legislate under article 245 is "subject to the provisions of this Constitution", so that under the resiiduary power, no amendment could be made to any part of the Constitution, as any amendment is bound, to some exuent, to be inconsistent with the article to be amended.

Having located the amcndipg power in Art. 368 and having ex eluded the argument tha~ it can be traced to Entry 97 of List I, it becomes necessary to determine the width and scope of that power. Is the power unfettered and absolute or arc there any limitations-express, implied or inherent on its exercise I

' .

Counsel for the petitioner urges : (1) That the word 'amendment' is not a t; erm of art and has no precise and definite, or primaryand fundamental, meaning; (2) That Article 368 carries vital implications by its very terms and there is inherent evidence in that Article to show that in the context thereof the word 'amencment' cannot cover alterations in, damage to, or destruction of anv v£ the essential fares of the Constitution; (3) That Article 13(2) by taking in const1tut10nal amendments constitutes an express limitations on the per of amendment; (4) That there are implit!d and inherent limitations on the amending power which disentitle Parliament to damage of destroy any of the essential features, basic elements or fundamental principles of te Constitution; and (5) That in construing the ambit of the amending power, the consequences on the power being held to be absolute and unfettered must be taken into account. Counsel says that Article 368 should not be read as expressing the

IWAVANANDA "· KERALA (Chandrachud, J.) 963

death-wish of the Constitution or as being a provision for its legal suicide. Parliament, he says, cannot arrogate to itself, under Article .368, the role of an Official Liquidator of the Constitution. Each of these propositions is disputed by the Respondents as stoutly as they were asserted.

'Amendment' is undoubtedly not a term of art and the various dictionaries, texts and law lexicons cited before us show that the word has several shades of meaning. (Sec for example the meanings given in The She>rter Oxford English Dictie>nary e>n historical Principles,. 3rd Ed.; Webster's Third New International Dictionary of the Eng lish Language; The Random House Dictie>nary e>f the English Langu age; The Dictionary of English Law, Earl Jowitt; Judicial and Statu

tory Definitions of Words and Phrases, Second Series; Words and Phrases legally defined, John B. Saunders; Wharton's Law Lexicon,. 14 Ed.; Words and Phrases Permanent Edition; and The Construction of Statutes by Earl T. Crawford.)

Some of the American State Supreme Courts have taken the view that the term 'amendment' implies such an addition or change within the lines of the original instrument as will effect an improvement, cir better carry out the purpo•e for which it was framed. (See Livermore

'" Waite, (1894) 102 Cal. 113; McFadden v.

Jordan, 32, Cal. Zd. 330; Foster v. Evatt, 144, Ohio St. 65). Another line of dccisiOJls, again of the American State Supreme Court, has accepted a "wider meaning of the word 'amendment' so as to include within it even a 'revision' of a constitutional document. (Sec Edwards.

11. Lcsscur, Southwestern Reporter, Vol. 33, p. 1120; EK Parte Dillon,.

Federal Reporter No. 262, p. 563; Staples 11. Gilmer, Amctican Law Reports Annotated, Vol. 158, p. 495).

In brief, it would be corree1; to say that at least three different meanings have been generally given to the word 'amendment' :

(a) to improve or better; to remove an error;

(b) to niakc changes which may not improve the instrument but which do not alter, damage or destroy the basic features, essential elements or fundamental principles of the instrument sought to be amended; and

( c) to make any changes whatsoever.

These texts and authorities arc useful in that they bring a sense of awareness of the constructional difficulties involved in the interpretation of a seemingly simple word like 'amendment'. But enriched

964 SUPBEMl! COURT BEPORTS [1973] Supp. s.c.a.

by such awareness, we must in the last analysis go to our own organic document for determining whether the word 'amendment' in Article 368 is of an ambiguous and uncertain import.

The various shades of meaning of the word 'amendment' may apply differently in different contexts, buu it seems to me that in the context in which that word occurs in Article 368, it is neither ambiguous nor amorphous, but has a definite import.

The proviso to Article 368 furnishes intrinsic evidence to show that the word 'amendment' is used in that article not in a narrow and insular sense but is intended to have the widest amplitude. Article 368 provides that "An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament'', and after the Bill is passed by the prescribed majority, "the Constitution shall stand amended in accordance with the terms of the Bill''. The proviso says that the amendment shall also require to be ratified by the State legislatures of not less than one-half of the States if "such amendment seeks to niake any change in" the matters mentioned in clauses (a) to (e) of the proviso. "Such amendment" obviously means 'amendment' referred to in the main body of Article 368 and thus the article itself envisages that the amendment may take the form of 'change'. There is in this case a dictionary at every comer for every word and we were referred to various meanings of 'change' also. It is enough to cite the meaning of the word from the Oxford English Dictionary (Vol. I, p. 291): "Change: substitution ... of one thing for another. Alteration in the state or quality of any thing".

Webster's 3rd New International Dictionary Vol. III pp. 373-4, gives the same meaning. It is clear beyond doubt that 'change' docs not mean only 'such an addition ... within the lines of the original instrument as will effect an improvement or better carry out the purpose for which it was framed'.

Paragraph 7 cl Part D of the Fifth Schedule and paragraph 21 of the Sixth Schedule also furnish similar proof of the meaning of the word 'amendment'. These two paragraphs provide for amendment of the respective Schedules in identical terms :

"Amendment of the Schedule.-(!) Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shall be construed as a reference to such Schedule as so amended.

(2) No such law as is mentioned in sub-paragraph (1) of this paragraph shall be deemed to be an amendment of this Constitution for the purposes of article 368."

KESAVANANDA v. KERALA (Chandrachud, J.) 965

Two things emerge from these provisions of Paragraphs 7 and-21 of the Fifth and Sixth Schedules. Firstly, that tlie concept of "amendment" as shown by clause (1) takes in "addition, variation or repeal" and secondly, that an amendment even by way of "addition, variation -or repeal" would fall within the terms of article 368. It is expressly excepted from the scope of that article so that it may not fall within .it, which it otherwise would.·

The expression 'amendment' was used in a large number of articles of the Constitution as originally enacted: Articles 4(1)(2), 108(4),

109(3)(4), 111, 114(2), 169(2), 196(2), 1~8(3) and (4), 200, 201, 204(2), 207(1)(2)(3), 240(2), 274(1), 304(b) and 349. A reference to the content and the subject matter of these articles would show that in almost every one of the cases covered by these articles, 'amendment'. would be by way of addition, variation or repeal.

In several provisions of the .original Constituti!on, different expressions were used to indicate conferment of the amending power. Article 35(b) called it "altered, repealed, amended"; Article 243(1) described it as "repeal or amend". The proviso to Article 254(2) describ•d it as "adding to, amending, varytng or repealing"; and Article 392(1) used the expression "such adaptations, whenher by way of modification, addition or omission". The English language has a rich vocabulary and there are such nice and subtle diffqenccs in the shades of meaning of different words that it is saik:I that there arc, in that language, no synonyms. But I find it impossible to believe that the -various expressions enumerated above have behind them aily calculated purpose or design. Their use may easily, though with a little generosity, be attributed to a common failing to attain elegance of language. Reading more than meets tlie eye tends to visit the writing with the fate reserved for the poems of Sir Robert Browning. When he wrote them, two persons knew what they meant - he and the God. After hearing the critics, God alone knew what the poet intended :

Constitutions of several countries of the world show the words 'amendment', 'alteration', 'revision' .and 'change' are. sed promiscuously. The Constitutions of Liberia,- Trinidad and Tobago show that there is no difference in meaning between 'amendment' and 'alteration'.

Those of Somalia, Jordan, Kuwait, Lebanon, and the Vietnam Democratic Republic show that there is no difference between 'amendment' and 'revision'. The Constitution of Belgium shows that the words 'revision' and 'alteration' are used in. the same sense. The Constitution of Barundi shows that 'amendment' denotes 'change'. The Constitutions of Monaco, Costa Rica, Cuba and Nicaragua show that 'amendment' can be total or partial.

966 SUPREME COURT llEPORTS [ 1973] Supp. s.c.a.

Dr. D. Conrad says of article 368, in "Limitatiop. of Amendment Procedures and the Constituent Power" that "it is hardly possible to restrict the legal meaning of amendment to 'improvement', nor can it be denied that by amendment complete articles may be removed or replaced". The author is justified in this view. The Indian Constitution is neither the first written constitution of the world nor of course the last. Since tihe time that the first written Constitution, namely the American Constitution was framed in 1787 until today, the expres sion 'amendment' is known to occur at least in 57 Constitutions out of 71. It is inconceivable that the power of changing a written ins-. trument of fundamental importance would be so expressed for so long and in the constitutions of so many countries, if the word 'amendment'' was of doubtful import.

On August 21, 1946, the Go.nstit:uent Assembly passed the Government of India (Third Amendment) Act, 1949, which substituted a new section 291 in the Government of India Act, 1935 giving to the Governor-General the power to make such amendments as he considered necessary, whether by way of "addition, modification or repeal" in certain provisions. Shortly thereafter, that is, on September 17, 1949, the Constituent Assembly debaned Article 304 corresponding to present Article 368, using the word 'amendment' simpliciter.

In the deba_te on Article 304 amendment No. 3239 moved by Shri H. V.

Karnath which sought to introduce in that article the words "whether

by way of variation, addition or. repeal" was rejected.

I am unable to read in this legislative history an inference that the word 'amendment' was used in Article 304 in order to curtail the scope -of the amending power. It is significant that the Government of India (Third Amendment) Act, 1939 was described in its title as an ''Act to further amend the G.I. Act 1935" and the Preamble stated that it was expedient to amend the Government of India Act, 1935.

By Setion 4 the old Section 291 was "repealed" totally and the new section 291 was "substituted".

By section 3 a new sub-section was "inserted". By section 5 a new item was "substituted" and totally new itmes Nos. 31B and 31C were "inserted". The Act of 1949 therefore leaves no room for doubt that the word 'amend' included the power of addition, alteration and repeal. Apart from this it is well recognized that the use of different words docs not necessarily produce a change in the meaning. (See Maxwell 'Interpretation of Statutes' .12th Ed., pp. 286 to 289; State of Bombay V!, Heman Alreja, A.I.R. 1952 Born. 16, 20 per Chagla C.J. and Gajendragadkar J.).

Finally, it is importann that 5 out of the 11 fudges in the Golak Nath case took the view that the word 'amendment' must be given a wide meaning. Te leading majority judgment did not consider that

l:JISAVANANDA v. KERALA ( Charniruchud, J.) 967

question on the ground that so far as Fundamental Rights were con ccrned, the question could be answered on a narrower basis. Rama. swami J. also did not consider the meaning of the word 'amendment'.

However, Wanchoo J. who delivered the leading minority judgment, Hidayatullah J, and Bachawat J. took the view that the word must be girven a wide meaning.

According to Hidayatullah J., "By an amendment new matter may be added, old matter removed or alter

cd'~.

Thus the word 'amendment' in Article 368 has a clear and definite import and it connotes a power of the widest amplitude to make additions, alterations or variations. The power contained in Article 368 to amend the Constitution is indeed so wide that it expressly confers a power by clause ( e) of the proviso to amend the amending power itself. No exprc.ss restraint having been imposed on the power to amend the amending power, it is unnecessary to seek better evidence of the width of the power of amendment under our Constitution.

Article 368, manifestly, docs not impose any express limitations.

The rcasdn for this is obvious. The power of amendment is in substance and reality a power to clarify the original intention obscured, for example, by limkations of language and experience, so as to adjust the intention as originally expressed to meet new challenges. As a nation works out its destiny, new horizons unfold themselves, new challenges arise and therefore new answers have to be found. It is impossible to meet the new and unforeseen demands on the encrvat; cd strength of a document ev.olved in a context which may have largely lost its relevance. The power of amendment is a safety valve and. having regard to its true nature and purpose, it must be construed as being equal to the need for amendment. The power must rise to the occasion. According to Friedrich('), ·"The constituent power bears an intimate relation to revolution. When the amending provisions fail to work in adjusting the constitutional document to altered needs, revolution may result." That is why, the rule of strict construction which applies to a penal or taxing statute is out of place in a Constitutional Act and a 'construction most beneficial to the widest possible amplitude" of its powers must be adopted(').

If, on the terms of Article 368 the power of amendment is wide and unfettered, docs Art. 13(2) impose any restraint on that power ( Hereby hangs a talc. A majority of Judges held in the Golak Nath

( 1) Constitutional Government & Democracy, 4th Ed. p. 139.

( 2) British Coal Corporation v. Rex, 1935 (A.C.) 500, 518.

968 SUPREME COURT REPORTS [1973) Supp. s.c.a.

case that the power of amendment was to be traced to Article 368.

But a majority, differently composed, held that amendment of the Constitution was 'law' within the meaning of Article 13(2) and, therofore, the Parliament had no power to take away or abrldge the rights conferred by Part III of the Constitution. This finding contained in the judgment of the leading majority and of Hidayatullah J. is the nerve of t:he decision in the Golak Nath case. It is therefore necessary to consider that question closely.

I will set out in juxtaposition Articles 13(2), 245 .and 368 in order to highlight their inter-relation :-

.Article 13(2)

The State shall not make atry law which takes

way or abridges the rights conferred by this part.

'Article 245

Subject to the Provisions of this Consti .. tution Parliament may make laws !Or the whole or any part of the territor}- of India.

Emphasis supplied)

Article 368

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 each House by .a majority of the total membership of that House and by a majority of not less than two thirds of the "'embers of that House present and voting, it shall be presented to the Presidentfor hil assent and upan such assent being given to the Bill, the Constitution shall stand amended in accordance with the ter; ms of the Bill.

Article 13(2) clearly echoes the language _of Article _245.

Artie~ ~45 gives the power to 'make laws', while Article 13(2) imposes a hm1tation on the exercise of the power to 'make laws'. As be.tween c two articles, Article 13(2) is the paramount law fo~, _Aruc!e 245. 1s -expressly subject ta all the provisions of the Consutuuon mcludmg Article 13(2).

KESAVANANDA ti. llRAW\. (Chandrachud, J.) 969

Article 368 avoids with scrupulous care the use of the word 'law', because there is a fundamental distinction between constitutional law and ordinary law. The term 'constitutional law' is never used in the sense of including the laws made under the Con.s.titution. (See Jennings-The Law and the Constitution, 5th Ed., pp. 62-65). Constitutional law is the fundamental, superior or paramount law. Its authority and sanction are higher than those. of ordinary laws. (Encycl0o paedia Britannica, Vol. VI, Constitution and Consnitutional Law, p. 314). As stated by Dicey in his 'Introduction to the study of the Law oc the Constitution' (10th Ed.,) pp. 149-151). the legislature in a federal constitution is a sub9rdinate law-making body whose laws are in the nature .of bye-laws within the authority conferred by the Constitution.

Articles 3, 4, 169, Paragraph 7 of the Fifth Schedule and Paragraph 21 of the Sixth Schedule emphasises an important aspect of the distinction between constitutional law and ordinary law. What is authorised to be done by these provisions would normally fall within the scope of Article 368. In order however to take out such matters from the scope of that article and to place those matters within the ordinary legislative sphere, special provisions are made in these articles that any laws passed thereunder shall not be deemed to be an amendment of the Constitution for the purposes of Article 368.

Article 13 (I) provides :

"Laws inconsistent with or in derogation of the fundamental rights.-(!) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are in consistent with the provisions of this Part shall, to the extent of such inconsistency, be void."

This article deals with the effect of inconsistency between the provisions of Part III and the pre-Constitution laws and provides that to the extent of such inconsistency the pre-Constitution laws shall be void.

Article 13(2) pursues the same strain of thought by making void posl-

Constitution laws to the extent of their inconsistency with the provisions of Part HI. The pre-Constitution and the po.st-Constitution laws dealt with by the two clauses of Article 13 are in nature and character identical. They are ordinary laws as distinguished from constitutional laws.

Counsel for the petitioner urged that Article 395 of the Constitution repealed only the Indian Independence Act, 1947 and the Government of India Act of 1935 and under Article 372, notwithstanding the repeal of. these two enactments, all the laws in force in the territory

970 SUPREME COURT llEPORTS [ 1973] Supp. s.c.R.

of India immediately before the commencement of the Constitution continued in force until altered, repealed or amended. It is urged that several constitutional laws of the then Indian States were in force on the 26th January, 1950 and the object of Article 13(1) was partly to save those laws also. There is no substance in this contention. It is in the first place a proposition of doubtful authority that the Indian States had a constitution properly so-called. But even assuming that such constitutions were at one time fa force, they would cease to be in operation as Constitutional Laws on the integration of the States with the Indian Union. Article 13(1) therefore does not include any constitutional Jaws.

Article 13(3)(a) contains an inclusive \lefinition of 'law' as inclu,. cling any Ordinance, order bye-law, rule regulation, notification, custom or usage having in the territory of India. the force of law.

It is surprising that the necessity to include amendments of the Constitution within the inclusive definition of 'law' should have been overlooked if indeed Article 13(2) was intended to take in . constitutional amendments. There is high and consistent authority for the view that -Constitution is the fundamental or basic law, and that it is a Jaw of superior obligation to which the ordinary law must conform. (Corpus Juris Secundum, Vol. 16, pp. 22-25 ; Weaver-Constitutional Law and its Administration (1946) p. 3 ; Burgess-Political Science and Constitutional Law, Vol. 1, pp. 145-146). Unless, therefore, canstitutional Jaw was expressly included in Anicle 13(3)(a), it would fall outside the purview of Article 13(2).

In America, there is a large volume of authority that the legisla tures of the various States, in initiating constitutional amendments do not exercise ordinary legislative power. This distinction is brought out clearly by saying that in relation to the federal constitution of America, a State constitutional provision or amendment is 'law' within the meaning of the federal constitution. Again, when und'er Article V of the Constitution the Congress makes a proposal for amendment and the States ratify it, nei'ther the Congress nor the States are. leg& la ting. (Corpus Juris Secundum, Vol. 16, pp. 48, 'l9 ; Charles . .II..

Burdick-The Law of the American Constitution, pp; 40.42).

The fundamental distinction between . constitutional 1aw an& ordinary Jaw lies in the criterion of validity. In the case of °'1Jstifll0. tional law, its validity is inherent w hcreas in the case of an ordinary law its validity has to he decided on the touchstone of the constitution, With great respect, the majority view in Golak Nath case, did not on the construction of Article 13(2), accord due importance to this essential distinction between lcgislati•e power and the constituent

KESAVANANDA ti. KERALA (Chandrachud, J.) 971

power. In a controlled constitution like ours, ordinary powers of legislatures do not include the power to amend the constitution because the Body which enacts and amends the constitution functions in its capacity as the Constituent Assembly. The Parliament performing its functions under Article 368 discharges those functions not as a Parliament but in a constituent capacity.

There is a fundamental distinction between the procedure for passing ordinary laws and the procedure prescribed by Article 368 for affecting amendments to the Constitution. Under Article 368, a bill has to be initiated for the express purpose of amending the Constitution, it has to be passed by each House by not less than two-thirds members present and voting and in cases falling under the proviso, the amendment has to be ratified by tlie legislatures of not less than half the States. A bill initiating an ordinary law can be passed by a simple majority of the members present and voting at the sitting of each House or at a joint sitting of the two Houses. Article 368 does not provide for a joint sitting of the two Houses. The process of ratification by the States under the Proviso cannot possibly .be called an ordinary legislative process for, the ratification is required to be made by "resolutions" to that effect. Ordinary bills are not passed hy resolutions.

The distinction between constituent power and ordinary legislative power can best be appreciated in the context of the nature of the Constitution which the court has to interpret in regard to the amending power. In Mccawley vs. The King('), Lord Birkenhead used the words 'controlled' and 'uncontrolled' for bringing about the same distinction which was made between 'rigid' and 'flexible' constitution first by Bryce and then by Dicey. In a 'controlled' or 'rigid' constitution, a different procedure is prescribed for amendming the constitution than the procedure prescribed for making ordinary laws.

In an 'uncontrolled' or 'flexible' constitution the procedure for amending the constitution is same as that for making ordinary laws.

fo such a constitution, the distinction between constitutional laws and ordinary "laws tends to become blurred because any law repugnant to the constitution repeals the constitution pro tanto [McCawley vs. The King(')].

Thus, the true ground of division, by virtue of the nature ot the constitution, is whether it is flexible or rigid. That depends upon whether the process of constitutional law-making is or is not identi-

( 1) [1920] .A.C:. 691.

972 suPllEME COURT Rl!PORTS [1973] Supp. s.c.R.

cal with the process of ordinary law-making. A typical instance of a flexible constitution is that of the United Kingdom. The Constitution of the former Kingdom of Italy was also flexible, so flexible indeed, that Mussolini was able profundly to violate the spirit of the constitution without having to denounce it. The Constitution of the United States is rigid, as it cannot be amended without the special machinery being set in motion for that purpose. "In short, then, we may say that the constitution which cannot be bent without being broken is a rigid constitution." (See Modern Political Constitutions: an Introduction to the Comparatiivc Study of Their History and Existing Form by C. F.

Strong, 1970 Reprint). The Indian Constitution, considered as a whole is a 'controlled' or 'rigirl' constitutiX>n, because, broadly, none of the articles of that constitution can be amended otherwise than by the special procedure prescribed by article 368. Certain provisions thereof like articles 4 read with article 2 and 3, article 169, para 7 of the Fifth Schedule and para 21 of the Sixth Schedule confer power to amend the provisions of the Constitution by the ordinary law-making process but these amendments are expressly excepted by the respective provisions from the purview of article 368. Schedules V and VI of the Constitution are in fact a constitution within a constitution.

The distinction between 'flexible' and 'rigid' constitutions brings into sharp focus the true distinction between legislative and constituent power. This is the distinction which, with respect, was not given it• due importance by the majority in the Golak Nath case. In a rigid constitution, the power to make laws is the genus, of which the legiS:. lative and constituent powers are species, the differentia being the procedure for amendment. If the procedure is ordinary, the power is legislative ; if it is special, the power is constituent.

This discu,,.;, ion wilL show that in a rigid' or 'uncontrolled' constitution-like ours-a law amending the constitution is made in exercise of a constituent power and partakes fully of the character of constitutional law. Laws passed under the constitution, of which the validity is to be tested on the anvil of the constitution are the only laws which fall within the terms of article 13(2).

The importance of this discussion consists in the injunction contained in Article 13(2) that the State shall not make any 'law' which takes away or abridges the rights conferred by Part III. An Amendment of Constitution within the terms of article 368 not being law within the meaning of article 13(2), it cannot become void on the ground that ii: takes away or abridges the rights conferred by Part III.

Fundamental Rights undoubtedly occupy a unique place in civiliz.. ed societies, whether you call them "transcendental", "inalienable", . or as Lieber called them, "Primordial". There is no magic in these words for, the strength and importance of these rights is implicit

KESAVANANDA v. KERALA ( Chandrachllll, J.) 973

in their very description in the Constitution as "fundamental", But the special place of importance which they occupy in the scheme of the constitution, cannot by itself justify the conclusion that they arc beyond the reach of the amending JM?WCr. Article 13(2) clearly docs not take in the amencling power and article 368 docs not except the Fundamental Rights from its scope.

But they cannot be tinkered with and the Constitution haS taken care to ensure that they do not become a mere 'plaything' of a special majority. Members of the tok Sabha arc elected on adult universal suffrage by people of the States. Whereas, ordinary laws can be passed by a bare majority of those present, constitutional amendments arc required to be passed under article 368 by a majority of the total membership of each House and by a majority of not less than two. thirds of the members of each House separately present and voting.

In matters falling within the proviso, amendments arc also required to be ratified by the Legislatures of not less than half of the States.

Rajya Sabha, unlike the Lok Sabha, is a perpetual body, which changes one-third of its membership every two years. Members of the Rajya Sabha are elected by Legislative Assemblies of the States, that is, by those who arc directly elected by the people themselves. 'The mode of election to Rajya Sabha constitutes to some extent an insurance against gusts and waves of public opinion.

I will now procc; cd ua consider an important branch oi the petitioner's argument which, frankly, seemed to me at first sight plausible.

On closer scrutiny, however, I am inclined to reject the argument. It is urged by the learned counsel that it is immaterial whether the amending power can be f!>Ulld in Article 368 or in Entry '17 of List I, because wherever that power lies, its exercise is subject to inherent and implied limitations.

The argument takes this form : Constitutions must of necessity be general rather than detaiiled and prolix, and implication must therefore play an important parli in constitutional construction. Implied limitations are those which arc implicit in the scheme of the constitu. tion while inherent limitations are those which inhere in an authority from its very nature, character and composition. Implied limitations arise from the circumstances and historical events which led to the enactment of our constitution, which represents the solemn balance of rights between citizens from various States of India and between various sections of the people. Most of the essential features of the Constitu. tion are basic Human Rights, sometimes described as "Natural Rights", which correspond to the rights enumerated in the "U nivcrsal Declaration of Human Rights", to which India is a signatory. The ultimate 90\'Cldgnty resides in the people and the power to alter or dcstory

62-36 S Q. India/73

974 SUPREME couar REPORTS [1973] Supp. S.C.R.

the essential features of a Constitution is an attribute of that sovereignty. In Article 368, the people are not associated at all with the amending process. The Constitution gives the power of amendment to the Parliament which is only a creature of the Constitution.

If the Parliament has the power to destroy the essential features it would cease to be a creature of the Constitution, the Constitution would cease to be supreme and the Parliament would become supreme over the Constitution. The power given by the Constitution cannot be construed as authorising the destruction of other powers conferred by the same instrument. If there are no inherent limitations on the

amending power of the Parliament, that power could be used to destroy the judicial power, the executive power and even the ordinary legislative power of the Parliament and the State legislatures. The Preamble to our Constitution which is most meaningful and evocative, is beyond the reach of the amending power and therefore no amendments can be introduced into the Constitution which are inconsistent with the Preamble. The Preamble walks before the Constitution and is it• identity card.

Counsel has made an alternative submission that assuming for purposes of argument that the power of amendment is wide enough to reach the Fundamental Rights, it cannot be exercised so as to damage the core of those rights or so as to damage or destory the essential features and the fundamental principles of the Constitution.

Counsel finally urges that the history of implied and inherent limitations has been accepted by the highest courts of countries like U.S.A., Canada, Australia and Ireland. The theory is also said to have been recognised by this Court, the Federal Court and the Privy Council.

In answer to these contentions, it was urged on behalf of the respondents that there is no scope for reading implied or inherent limitations on the amending power, that great uncertainty would arise in regard to the validity of constitutional amendment if such limitations were read on the amending power, that the Preamble is a part of the Cqnstitution and can be amended by Parliament, tha~ there is in our Constitution no recognition of basic human or natural rights and that the consensus of world opinion is against the recognition of inherent limitations on the amending power.

Before dealing with these rival contentions, I may indicate how the argument of inherent limitations was dealt wi'.h in he. C?ol.ik Nath case. Subba Rao C.J. who delivered the leadmg maionty iud~ ment said that there was considerable force in the argument but it was unnecessary to decide it (p. 805). Ac-cording to Hidayatullah J. "the whole Constitution is open to amendment. Only two dozen

KESAVANANDA 11; KEJIALA ( Chandrachud, J.) 975

articles arc outside the reach of Article 368. That too because the Constitution has made them fundamental." (p. 878). Wanchoo J. who delivered the leading minority judgment rejected the argument by observing : "The power to amend being a constituent power cannot in our opinion .... be 'held subject to any implied limitations thereon on the ground that certain basic features of the Constitution cannot be amended." (p. 836). Bachawat J. observed that it was unnecessary to decide the question, as it was sufficient for the disposal of the asc to say that Fundamental Rights were within the reach of the amending power (p. 906). Ramaswami J. considered and rejected the argument by observing that there was no room for an implication in the construction of Article 368 and it was unlikely that if certain basic features were intended to be unamendablc, the Constitution makers would not have expressly said so in Article 368 (p. 933).

It is difficult to accept the argument that inherent limitations should be read into the amending power on the ground that Fundamental Rights arc natural rights which inhere in every man. There is instrinsic evidence in Part III of the Constitution to show that the theory of natural rights was not recognised by our Constitutionmakers. Article 13(2) speaks of rights "conferred" by Part III and enjoins the States not to make laws inconsistent therewith. Article 32 of the Constitution says that the right to move the Supreme Court for the enforcement of rights 'conferred' by Part III is guaranteed. Before the Fundamental Rights were thus conferred by the Constitution, there is no tangible evidence that these rights belonged to the Indian people.

Article 19 of the Constitution restricts the grant of the seven freedoms to the citizens of India. Non-citizens were denied those rights because the conferment of some of the rights on the Indian citizens was not in recognition of the pre-existing natural rights. Article 33 confers upon the Parliament the power to determine to what extent the rights conferred by Part III should be restricted w abrogated in their application to the members of the Armed Forces. Article 359(1) empowers the President to suspend the rights "conferred" by Part III during the proclamation of an emergency. Articles 25 and 26 by their opening words show that the right to freedom of religion is not a natural right but is subject to the paramount interest of society and that there is no part of that right, however important, which cannot and in many cases has not been regulated in civilised societies. Denial to a section of the community, the right of entry to a place of worship, may be a .

part of religion but such denials, it is well-known, have been abrogated by the Constitution. (1958 S.C.R. 895 at 919, per Venkatarama Aiyar J. ;(') see also Bourne v. Keane 1919 A.C. 815 at 861 per Lord Birken-

11) Sri Venkataramana Devaru and Ors. vs. The State of Mysore and Ors.

976 SUPREME couaT llPOJtTS [1973] Supp. s.c.Jt.

head L C. ). Thus, in India, citiacns and non-citizens possess and are entitled to exercise certain rights of high significance for the sole reason that they are conferred upon them by the Constitution.

The 'natural right' theory stands, by and large repudiated today.

The notion that societies and governments find their sanction on a supposed contract between independent individuals and that such a contract is . the sole source of political obligation is now regarded as untenable. Calhoun and his followers have discarded this doctrine, while theorists like Story have modified it extensively. The belief is now widely held that natural rights have no other than political value.

According to Burgess, "there never was, and there never can be any liberty upon this earth ampng human beings, outside of State organisation." According to Willoughby, natural rights do not even have a moral value in the supposed "state of nature" ; they would really be equivalent to force and hence have no political significance.

Thus, Natural Right thinkers had once "discovered the lost titl.e-deeds of the human race" but it would appear that the deeds are lost oru:e over again, perhaps never to be resurrected.

The argument in regard t.o the Preamble is that it may be a part ol the Constitution but is not a provision of the Constitution and therefore, you cannot amend the Constitution so as to destroy the Preamble. The Pceamble reqords like a sun-beam certain glowing thoughts and concepts of history and the argument is that in its very

natur~ it is unamendable because no present or future, however mighty, can assume the power to amend the true facts of past history.

Counsel relics for a part of this submission on the decision in Beru Bari case.(1) Our attention was also drawn to certain passages from the chapter on "preamble" in "commentaries on the Constitution of the United States" by Joseph Story.

I find it impossible to accept the contention that the Preamble is not a provision of .the Constitution. The record of the Constituent Assembly leaves no scope for this contention. It is transparent from the proceedings that the Preamble was put to vote and was actually voted upon to form a part of the Constitution. (Constituent Assembly

Debates, Vol. X, pp. 429, 456). As a part and provision d the Constitution, the Preamble came into force on January 26, 1950. The view is widely accepted that the Preamble is a part of the enactment. (Craies on Statute Law, 7th Ed? p. 201 ; Halsbury, Vol. 36, 3rd. Ed., p. 370).

(') [1960] 3 S.c.R. 250, 282.

Kl!SAVANANDA v. KElALA (Chantlrachud, J.) 977

In considering the petitioner's argument on inherent limitations, it is well to bear in mimd some of the basic principles of interpretation.

Absence of an express prohibition still leaves scope for the argument that there are implied or inherent limitations on a power, but absence of an express prolllbition is lllghly rcleva11t for inferring that there is no implied prolllbition. Tills is clear from the decision of the Privy Council in The Queen v. Burah.(') Tills decision was followed by this Court in State of Bombay v. Nauratan Das faitha Bai(2) and in Sardar lnder Singh v. State of l?Jziasthan.(') In saying tills, I am not unmindful of the fact that Burah's case and the two cases which followed it, bear primarily on conditional legislation.

Another principle of interpretation is that it is not open to the courts to declare an Act void on the ground that it 'is opposed to a 'spirit' supposed to pervade the . constitution but not manifested in words. &, observed by Kania C.J. in Gopalan's case,(') a wide assumption of power to construction .is apt to place in the hands of judiciary too great and to indefinite a power, either for its own security or the protection of private rights.

The argument of 'spirit' is always attractive and quite some eloquence can be infused into it.

But one should remember what S. R. Das J. said in Keshav Madhav Menon's case(') that one must gather the spirit from the words or the language used in the Constitution. I have held that the language of Article 368 is clear and explicit. In that view, it must be given its full effect even if mischievous consequences arc likely to ensue : for,

judges are not concerned with the policy of law-making and ''you cannot pass a coven censure against the legislature." (Vacher & Sons, Limited v. London Society of Compositors).(') The importance of the circumstance that the language of Article 368 admits of no doubt or ambiguity is that such a language leaves no scope for implications, unless in the context of the entire instrument in which it occurs, such implications become compulsive. I am tempted to say that 'context' does not merely mean the position of a word to be construed, in the collocation of words in wlllch it appears, but it also means the context of the times in which a fundamental instrument falls to be construed.

An important rule of interpretation wlllch, I think, has a direct bearing on the submissions of the petitioner on inherent limitations is that if the text is explicit, it is conclusive alike in what it directs and

( 1) 5 I.A. 178, 195.

(2) 1951 (2) S.C.R. 51, 81.

(') 1957 S, C.R. 605, 616-17.

(') 1950 S.C.R. 88, 121.

(') 1951 S.C.R. 228, 231. (') 1913 (A.C.) 107 at 112, 117, 121.

978 SUPRl!ME a>mT UPOATS [ 1973] Supp. s.c.a.

what it forbids. The consequences of a particular construction, i£ the text be explicit, can have no impact on the comtruction oE a constitu tional provision (Attorney-Gen"al, Ontario v. AttDrntyGetl(r'ir/, Canada)(1). As observed by Chief Justice Marshall in Providence Bank v. Alpluus Billi11g1,(') a power may be capable of being abwCd but the constitution is not intended to furnish a corrective for every abuse of power which may be committed by the government. I see no warrant for the assumption that the Parliament will be disposed to out a perverse construction on the powers plainly conferred on it by the Constitution. And talking of abuse of powers, is there not the widest scope for doing so under several provisions of the constitution ?

The powers of war and peace, the powers of finance and the powers of preventive detention, arc capable of the widest abuse and yet the Founding Fathers did confer those powers on the Parliament. When I look at a provision like the one contained in Article 22 of the Constitution, I feel a revolt rising within myself, but then personal predi-. lcctions arc out of place in the construction of a constitutional provision. Clause (7) of Article 22 permits the Parliament to enact a law under which a person may be detained for a period longer than three months without obtaining the opinion of an Advisory Board. While enacting certain laws of Preventive Detention, the Government has shown some grace in specifying the outer limits, however, uncertain, . of the period of detention though, so it seems, it is under no oblig-tiol).

to do so. Thus, even when the original constitution was passed, powers capable of the gravest abuse were conferred on the Parliament, which as the petitioner's counsel says, is but a creature of the constitution. ln assessing the argument that the gravity of consequences is relevant on the interpretation of a constitutional provision, I am reminded of the powerful dissent of Justice Holmes in Lochner vs. New York(') regarding a labour statute. The test according to the learned Judge was not whether he considered the law to be reasonable but whether other reasonable persons considered it unreamable. In Bank of Toranto vs. Lambe,(') Lord Hobhousobservcd: "People who are trusted with the great power of makling laws for property and civil rights may well be trusted to levy taxes.'' Trust in the elected representatives is the corner stone of a democracy. When that trust fails, everything fails. As observed by Justice Learned Hand in "the spirit of liberty" :

"I often wonder whether we do not rest our hopes too much upon constitution, upo~ laws and upon courts. These are false hopes, believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save

( 1) [1892] A.C. 571. (') L. ed. 939, 957. (') 49 L. ed. 937.

( •) [I 887] A.C. 575, 586.

KESAVANANDA "· KERALA (ChandrachuJ, J.) 979

it ; no Constitution, no law, no coun can even do much to help it.

While it lies there it needs no constitution, no law, no court to save."

Established text books on Interpretation also take the view that "where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the stature speak the intention of the legislature."(')

It is thus clear that part from constitutional limitationi, no law can be struck down on the ground that it is unreasonable or unjust.

That is the view which was taken by this Court in the Sllltt of Bihar v.

Kameshwar Singh.(') Mahajan J. Described the Bihar Land Reforms Act, which was under consideration in that case, as repugnant to the

sense of justice of the court. In fact, the learned Judge says in hisj!Jdgment that it was not seriously disputed by the Attorney-General, that the law was highly unjust and inequitous and the compensation provided therein in some cases was purely illusory. The Court, however, found itself powerless to rectify an "unjusticc" perpetrated by the Constitution itself. No provision incorporated in a Constitution at the time of its original enactment can ever be struck down as unconstitutional. The same test must apply to what becomes a part of that constitution by a subsequent amendment, provided that the conditions on which alone such amendments can be made arc strictly complied with. Amendments, in this sense, pulpate with the vitality of the Constitution itself.

The true justification of this principle is, as stated by Subba Rao J. in the Collector of Customs, Baroda v . .Digvijaysinhji Spinning & Weaving Mills Ltd.,(") that a construction which will introduce uncertainty into "the law must be avoided. It is conceded by the petitioner that the power to amend the constitution is a necessary attribute of every constitution. In fact, atb.Jndments which were made by the Consti tution (First Amendment) Act, 1951 to articles 15 and 19 were never assailed and have been conceded before us to have been properly made.

It was urged by the learned counsel that the substitution . of new clause (2) in Article 19 did not abrogate the Fundame_mal Ri_ghts, but on the other hand enabled the citizens at large to enJOY their fundamental freedoms more fully. This, I think, is the crux o~ the matter.

What counsel concedes in regard to Article 19 (2) as sbst1tuted by the First Amendment Act can be said to be equally true m regard to th.e amendments now under challenge. Their true object and purpose is

to confer upon the community at large the blessings of liberty. The

(1) Craics on "Statute Law", 6th Ed., p. 66.

( 2 ) 1952 S.C.R. 889, 936-937.

( 3) [1962] I S.C.R. 896, 899.

980 SUPREME COURT REPGRTS ( J973J Supp, S.C.R,

argument is that the Parliament may amend the provisions of Part III, but not so as to damage or destroy the core of those rights or the core of the essential principles of the Constitution. I see formidable difficultiies in evolving an objective standard to determine what would constitute< the core and what the peripheral layer of the essential principles of the Constitution. I consider the two to be inseparable.

Qounsel painted a lurid picture of the consequences which will ensue if a wide and untrammelled power is con10eded to the Parliament to amend the Constitution. These consequences do not scare me. It is true that our confidence in the men of our choice cannot completely silence our fears for the safety of our rights. But in a democratic policy, people have the right to decide what they want and they can only express their will through their elected representatives in the hope and belief that the trust will not be abused. Trustees are not unknown to have committ<:d breaches of trust but no one for that reason has abolished the institution of Trusts. Can we adopt a presidential system of government in place of the parliamentary system?

Can we become. a monarchial or theocratic State ? Shall we permit the Parliament to first destroy the essential features of the constitution and then amend the amending power itself so .to as provide that 'in future no amendment shall be made except by a 99 per cent majority? Can the Parliament extend its term from 5 to 50 years and create a legislative monopoly '.in its favour ? These are the questions which counsel has asked. My answer is simple. History records that in times of stress, such extreme steps have been taken both by the people and by the Parliament. In 1640, when England was invaded by Scots, Charles the I was obliged to recall Parliament to raise money for the war. The 'Short' ParliamCl)t insisted on airing its grievances before voting the money and was dismissed. Charles had to summon a new Parliament immediately, and this 'Long' Parliament lasting until 1660, set out to make per_sonal government by a monarch impossible. The true sanction agaiast such political crimes lies in the hearts and minds of men.

It is .there that the liberty is insured. I therefore say to myself not in a mood of desperation, not in a mood of helplessness, not 'cynically but in the true spirit of a democrat : If the people acting through the Parliament want to put the Crown of a King on a head they like, or if you please, on a head they dislike, (for uneasy lies the head that wears a Crown), let them have that liberty. If and when they realise the disaster brought by them upon themselves, they will snatch the Crown and scatter its jewels to the winds. As I say this, I am remindr.d of a famous saying of Justice Holmes: "About seventy-five years ago, I learnt that I was not God. And so, when the people .... want to do something I can't find anything in the Constitution expressly forbidding them to do, I say, whether I like it or not : 'God-dammit, let 'cm do it l"

'' '

' ffe

. '

. ('

KESAVANANDA v. KERALA (Chandrachud, J.) 981

No name is mentioned with greater honour in the history of American democracy than that of Thomas Jefferson., He was the -central figure ; n the early development of American dernocracy, and -on his death he was politically canonized. Jefferson said in regard to the necessity of a wide amending power that. 'The earth belongs in usufruct to the living ; the dead have neither powers nor rights over

it." '!If one generation could hind another, the dead and not the living would rule ... Since conditions change and men change, there must be opportunity for corresponding change in political institutions, and also for a renewal of the principle of government by consent of the governed.'' According to President Wilson, "a constitution must -of necessity be a vehicle of life ; that its substance is the thought and habit of the nation and as such it must grow and develop as the life of the nation changes.'' ·

In support of his argument on implied limitations, learned Counsel for the petitioner drew our attention to certain decisions on the theory of immunity' of instrumentalities : The means and insttumentalities of the State Governments should be left free. and unimpaired. Our Court rejected this theory in State of West Bengal v. Union of India('). Sinha C.J. observed that the argument presented before the Court was : "a resucitation of the new exploded doctrine of the immunity of instrumentalities which originating from the observations of Marshall C.J. in Mc. Culloch vs. Maryland has been decisively rejected by the Privy Council... and has been practically g'iven up even in the United States.'' The doctrine originally arose out of supposed existence of an implied prohibition that the Federal and State Governments being sovereign and independent must each be free from the control of the other. Dr. Wynes observes in his book : "Legislative, Executive and Judicial Powers in Australia (4th Edition)" that the doctrine has undergone considerable change in the United States and it.s progressive retreat is traced by Dixon J. in the Essendon Corporation case.(2) In that case, after tracing the !ustory of the doctrine since its enunciation by Chief Justice Marshall, Dixon J. says1: "I thinh that the abandonment by the Supreme Court of the United States of the old doctrine may be fairly said to be now complete.'' .

A large number of cases bearing on inherent or implied limitations were cited to us from U.S.A. Canada, Australia, South-Africa and Ceylon. Having considered those cases carefully, I find it difficult to say that the theory of implied or inherent limitations has received a wide recognition. In McCawley v. R.( 3 ) the dissenting

(') [1964) 1 S.C.R. 394, 407.

e) [1947) 74 C.L.R. l, p. 19 .

.(') [1920) A.C. 691, 28 CL.R. 105.

982 SUPREME COURT REPORTS [1973] Supp. s.C.R.

judgment of Isaacs and Rich JJ. in the Australian High Court wa$ upheld by the Privy Council, except ill regard to a matter which is here not relevant. The judgment of the two learned Judges which received high praise from the Privy Council (p. 112 of Commonwealth Law Reports), shows that implications in limitation of power ought not to be imported from general concepts but only from express or necessarily implied limitations. It also shows that in granting powers to colonial legislatures, the British Parliament, as far back as 1865, refused to place on such powers limitations of vague character. '1'.he decision of the Privy Council in Bribery Commissioner v. Ranasinghr:-

(1965 A.C. 172) was .discussed before us in great details by both the sides. The matter arose under the Constitution of Ceylon, of which the material provisions bear a near parallel to our Constitution, a fact which, with respect, was not noticed in the judgment of the leading majority in the Golak Nath case. It was not argued by the respondents; in Ranasinghe's case that any provision of the Ceylonese Constitution was unamendable. It is also necessary to remember that the appeal did not raise any question regarding the religious rights protected by section 29(2) and (3) of the Ceylonese Constitution. It is clear that counsel for the respondents theJe stated (p. 187), that there was n" limitation on the power of amendment except the procedure prescri• bed by section 29(4), and that even that limitation could be removed by an amendment complying with section 29( 4). The Privy Council affirmed this position (page 198) and took the widest view of the amending power. A narrower view was in fact not argued.

From out of the decisions of the American Supreme Court, ft would be sufficient to notice three : Rhode Island v. Palmer('); U .r.

v. Sprague(') and Schneiderman v. U.S.A.(')

In the Rhode Island case, the leading majority judgment gave no reasons but only a summary statement of its conclusions. The learned Advocate-General of Maharashtra has, however, supplied to us the full briefs filed by the various counsel therein. The briefs show that the 18th amendment regarding "Prohibition of Intoxicating Liquors"

(which was repealed subsequently by the 21st Amendment) was challenged on the ground, inter alia, that there were implied and inherent limitations on the power of amendment under article .V of the American Constitution. These arguments were not accepted by the Supreme Court, as .is implicit in its decision. The court upheld the Amendment.

(') 64 L. ed. 946.

( 2) 75 L. ed. 640.

( 8) 87 L. ed. 1796.

KESAVANANDA "· KERALA ( Chandrachud, J.) 9-83

We were supplied with a copy of the judgment of the District Court of New Jersey in Sprague's case. The District Coun declared the 18th Amendment void on the ground that there were inhercnr limitations qn the amending power in that, the power had to conform to "theories of political science, sociology, economics etc."· The judgment of the Supreme Coun shows that not even an attempt was made to suppon the judgment of the District Court on the ground of inherent limitations. The appeal was fought and lost by Sprague on entirely different grounds, namely : whether 'amendment' means 'improvement'; whether the 10th Amendment had an impact on article 5 of the U.S. Constitution and whether the alternative of ratification by Convention or Legislatures showed that the method of Convention was essential for valid ratification when the amendment affected the rights of the people. Obviously, the Supreme Court saw no merit in the theoretical limitations which the District Coun had accepted for, in a matter of such grave irnportance, it would not have reversed the District Court judgment if it could be upheld on the ground on which it was founded.

In Schneiderman's case, action was taken by the Government tcr cancel the appellant's naturalisation certificate crn the ground that at ihe time crf applying for. naturalisation, he was and still continued tcr be a cmnmunist and thereby he had misrepresented that he was

"attached to the principles of the .Constitution of the United Statrs".

Schneiderman won his appeal in the Supreme Ccrurt, the main foundation of the judgment being that the fundamental principles of Constitution were open to amendment by a lawful process.

Leading Ccrnstituti<>/131 writers have ta!, en the view that the American Supreme Coun has not ever accepted the , rgument that there are implied or inherent limitations on the anending power contained in article 5. Edward S. Corwin, who was : vited by the Legislative Reference Service, Library of Congress, U.S.A., to write on the American Constitution, says after considering thr challenges made to the 18th and 19th Amendments on the ground of inherent limitations : ".brushing aside these arguments as unworthy of serious attention, the Supreme Court held both amendments valid(')". According tcr Thomas M. Cooley, there is no limit to the power of amendment beyond the one contained in article 5, that no State shall be deprived of its equal suffrage in the Senate without its consent. The author says that this, at any rate, is the result of the decision of the so-called National Prohibition Cases (which include the Rhode Island case). The decision, according tcr Cooley, totally negatived the con-

(1) Constitution of the United States of America prepared by Edward S.

Corwin, 1953, p. 712.

984 SUPREME COURT REPORTS [1973] Supp. s.c.R.

tention 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 to the :State those which already have been granted to 1t('). According to Henry Rottschaefer, it was contended on several occasions that the power of amending the Federal Constitution was subject to express or implied limitations, "but the Supreme Court has thus far rejected .cvery such claim(')".

In regard to the Candian cases, it would, I think, be enough to -say that none of the cases cited by the petitioner concerns the exer- <ise of the power to amend the Constitution.

They are cases on the legislative .competence of the provincial legislatures in regard to indi- -vidual freedoms or in regard to criminal matters. The issue in most of these cases was whether the provincial legislature had transgressed on the Dominion field in exercise of its. powers under Section 92 of the British North America Act, 1867. The Canadian Bill of Rights, 1960, makes the rights incorporated in the Bill defeasible by an -express declaration that an Act of Parliament shall operate notwithstanding the Bill of Rights. At least SL'< different views have been propounded in Canada on the fundamental importance of these rights . . According to Schmeiser, the Supreme Court of Canada has not given judicial approval to any of these views. "It should also be noted that the fundamental problem is not whether Parliament or the Legislatures may give us our basic freedoms but rather which one may interfere with them or take they away(')". I do not think therefore, that any useful purpose will be served by spending time on Hess's case (4, D.L.R. 199); Saumur's case (4, D.L.R. 641) ; Switzman's case

(7, D.L.R. (2nd) 337) ; or Chabot's case (12, D.L.R. (2nd) 796), which were cited before us.

The view that there are implied limitations found from Sections Ii' and 50 of the British North America Act was invoked bv Duff C.J. m the Albcrt,1 Pre,; s C:isc(') and by three !corned Judges in the Saumur

Cae. It i::, ho"ever, iinportant th:-tt \vhile denying legisl:.ltiYe cornpe~ tence to the province of Alherta Duff C.). was willing to grant the jurisdiction to the Parli:imcnt ro kgislote for the protection of thi• right.

( 1) The Gener:il Principles of ConstitutiC1n:tl L:t\V in the lT.S.:\. by Thomas M. Cooley, 4th Edn., pp. 46-4i.

(2) Handbook of American Constitutio1~.:il La\\" by Henry Rottschaefer, pp. 8-10.

(3) Civil Liberties in Canada by Schmeiser, p. 13. (') (1938] S.C.R. 100, 146 (Canada).

Xl!SAVANANDA v. Kl!RALA ( Chandrachud, J.)

98S

The pctitioincr has relied strongly upon the decision Wi Attomey- General of Nova Scotia v. Attorney-General of Canada,(') but the

true ratio of that decision is that neither the federal nor the provincial bodies possess any portion of the powers respectively vested in the other and they cannot receive those powers by delegation. The decision in Chabot v. School Commissioners(') is of the Quebec Court of Appeal, in which Casey J. observed that the religious rights find their existence in the very nature ot man ; they cannot be taken away. Ttus view has not been shared by any judge of the Supreme Court and would appear to be in conflict with the decision in Henry Briks &- Sons v. Montreal.(")

I do not think, that any useful purpose will be served by discussing: the large number of decisions of other foreign courts cited before us.

As it is often said, a constitution is a living organism and there can be no doubt that a constitution is evolved to suit the history and genius of the nation. Therefore, I will only make a brief reference to a few important decisions.

Ryan's(') case created a near sensation and was thought to co, er the imprtant points arising before us. The High Court of Ireland upheld the amendment made by the Oireachtas, by deleting article 47 of the Constitution which contained the provision for referendum, and which also inrorporated an amendment in article 50. This latter article conferred power on the Oireachtas to make amendments to the Constitution within the terms of the Scheduled Treaty. An amendment made after the expiration of a period of 8 years from the promulgation of: the constitution was required to be submitted to a referendum of the people. The period of 8 years was enlarged by the amendment into 16 years. The High Court of Ireland upheld the amendment and so did the Supreme Court, by a majority of 2 to 1. Kennedy C.J. delivered a dissenting judgment striking down the amendment on the , ground that there were implied limitations on the power of amendment. An important point of distinction between our Constitution and the Irish Constitution is that whereas article 50 did not contain any power to amend that article itself, Article 368 of our Constitution confers an express power by clause ( e) of the Proviso to amend that article. The reasoning of the learned Chief Justice therefore loses relevance in the present case. I might mention that in Moore v.

Attorney General for the Irish State(") in wliich a constitutional

(') [ 1951] S.C.R. 31 (Canada).

(2) [1947] 12 D.LR. (No. 2) 796. (•) [1955] s.c.R. 799 (Canada). (') [1935] Irish Rcporu 170.

(•) [1935] A.C. 4t4.

.986 RlPllMB !lOU•T uPOan [ 1973] Supp. s.c.a.

amendment made in 1933 was challenged, it was conceded before the Privy Council that the amendment which was under lire in Ryan's asc was validly made. The Privy Council added to the concession the weight of its own opinion by saying that the concession was made 'rightly'.

Several Australian decisions were relied upon by the' petitioner . but I will refer to the one which was cited by the petitioner's counsel <luring the course of his reply ; Taylor v. Attorney General of Queens Jllflll.(') The observations of Isaacs J. on which the karned counsel relics seem to me to have been made in the context of the provisions of the Colonial Laws Validity Act. The real meaning of those observations is that when power is granted to a colonial legislature to alter the constitution, it must be assumed that the power did no comprehend the right to eliminate the Crown as a part of the colonial legislature. Ir may be mentioned that well-known constitutional writers(")

have expressed the view that all the provisions of the Australian constitution, including article 128 itself which confers power to amend the Constitution, are within the power of amendment. Tills view has been taken even though article 128 does not confer express power to amend that article itself.

While winding up this discussion of authorities, it is necessary to refer to the decision of the Privy Council in Livange v. the Queen(') in which it was held that the powers of the Ceylon legislature could not be cut down by reference to vague and uncertain expressions like 'fundamental principles of British law'.

It must follow from what precedes that The Constitution (Twentyfourth Amendment) Act, 1971 is valid. I have taken the view that constitutional amendments made under Artkle 368 fell outside the purview of Article 13(2). SeGtion 2 of the 24th Amendment Act reiterates this position by adding new clause ( 4) in Article 13 : ''.( 4) Nothing in this article shall apply ro any amendment of this Constitution made under article 368." I have also taken the view that the old article 368 not only prescribed the procedure for amendment of the Constitution but conferred the power of amendment. That position is made clear by section 3 of the 24th Amendment which substitutes by clause (a) a '

( 1) 23 C.L.R. 457.

( 2) A. P. Canaway, K. C.: ''The Safety Valve of the Common\vealth Constitution", Australian Law Journal, Vol. 12, (1938-39), p. 108 at 109; W.

Anstey Wynes: "Legislative, Executive and Judicial Powers .in Australia", 4th Edn,, Chapter XVII, p. 507.

( 1) (1967) I A.C. 259.

KESAVANANDA v. KERALA ( Chantlrachud, J.) 987

fully expressive marginal heading to Article 368. I have held that the power of amendment conferred by Article 368 was wide and untrammelled.

Further, that constitutional amendments arc made in the exercise of constituent power and not in the exercise of ordinary law-making power. That position is reiterated by clause (b) of section 3. Clause (c) of section 3 makes it obligatory for the President to give his assent to the bill for a constitutional amendment. Rightly no arguments have been addressed on this innovation. Finally, clause

(d) of section 3 of the 24th Amendment excludes the application of Article 13' to an amendment made under Article 368. As indicated in this judgment that was the correct interpretation of Articles 13 and 368.

The Constitution (Twenty-fourth Amendment) Act, 1971, thus, merely clarifies what was the true law and must therefore be held valid.

The Twenty-Fifth Amendment

The Constitution (Twenty-Fifth Amendment) Act, 1971, which came into force on April 20, 1972 consists of two effective sections : sections 2 and 3. Section 2(a) substitutes a new clause (2) for the original clause (2) of Article 31 of the Constitution. Under the original Article 31(2), no property could be acquired for a public purpose under any law unless it provided for compensation for the property taken possession of or acquired and either fixed the amount of the compensation, or specified the principles on which, and the manner in which, the compensation was to be determined and give!h In the State of West Bengal v. Bela Banerjee('), a unanimQUs Bench presided over by Patanjali Sastri C.J. held that the principles of compensation must ensure the payment of a just equivalent of what the owner was deprived of. The Constitution (Fourth Amendment) Act was passed on April 27, 1955 in order tp meet that decision. By the Fourth Amendment, an addition was made to Article 31(2) providing that " .... no such law shall be called in question in any court on the ground that the compensation provided by the law is not adequate." The effect of the amendment was considered by this Court in P.

Vajravelu Mitdaliar v. Deputy Collector('). The Madras Legislature had passed an Act providing for the acquisition of lands for housing schemes and had laid down principles for fixing compensation different from those prescribed in the Land Acquisition" Act, 1894. Delivering the judgment of the Court, Subba Rao J. held that the fact that Parliament used the same expressions, 'compensation' and 'princi pies' as were found in article 31 before its Amendment, was a

( 1)

[ 1954] S.C.R. 558.


988 suPuME couu ltEPOP.TS [ 1973] Supp. s.c.P..

clear indication that it accepted the meaning given by this Court to those expressions in Bela Banerjee' s case. The Legislature, tlicrefore, had to provide for a just equivalent of what the owner was deprived of or specify the principles for the purpose of ascertaining the just equivalent. The new clause added by the Fourth Amendment, excluding the jurisdiction of the Court to consider the adequacy of compensation, was interpreted to mean that neither the principles prescribing the 'just equivalent' nor the 'just equivalent' could be questioned by the court on the ground of the inadequacy of the compensation fixed or arrived at by the worlding of the principles. By applying this test, the Court upheld the principles of compensation fixed under the Madras Act as not contravening article 31(2). The Act, however, was struck down under article 14 on the ground that full compensation had still to be paid under a parallel Law : The Land Acquisition Act.

In Union v .. Meta/, Corporation,(') a Bench of two Judges consisting of Subba Rao C.J. and Shclat J. held that the law of acquisition in order to justify itself had to provide for the payment of a 'just equivalent' or lay down principles which will. lead to that result. It is only if the principles laid dOwn are relevant to the fixation of compensation and arc not arbitrary that the adequacy of the resultant product could not be questioned in a court of law. It is evident that this dccisiDn marked a departure from the judgment in Vajravclu's case.

In the State of Gujarat v. Shanti/al Mangaldas,(") Shah /. speaking for himself and three other learned Judges expressed his disagreement with the observations of Subba Rao C.J. in the Metal Corporation's case and expressly over-ruled that decision. It was held that if the quantum of compensation was not liable to be challenged on the ground that it was not a just equivalent, the principles specified for determination of compensation could also not be challenged on the plea that the compensation determined by the application of those principles was not a just equivalent. The learned Judge observed that this did not, however, mean that something fixed or determined by the application of specilied principles which is illusory or can in no sense be regarded as compensation must be upheld by the Courts, for, to do so, would be to grant a charter of arbitrarics, and permit a device to defeat the constitutional guarantee. Principles could, therefore, be challenged on the ground that they were irrelevant to the determination of compensation, hut not on the ground that what was awarded as a result of the application of those principles was not just or fair compensation.


• ( 1) (1969] 3 S.C.lt. 341.

KESAVANANDA v. KERALA ( Chandrachud, J.) 989

In R. C. Cooµi' v. Union('), (the Bank Nationalisation case), the judgment in Shantilal Mangaldas's case, was in substance overruled by 1 a Bench of II Judges by a majority of 10 to I. The majority referred to 'the meaning of compensation as an equivalent of the property expropriated. It was held that if the statute in providing for compensation devise<l a scheme for payment of compensation in the form of bonds and the present value of what was determined to be given was thereby substantially reduced, the statute impired the guarantee of compensation.

This chain of decisions on the construction of Articles 31 (2) introduced uncertainty in law and defeated to a large extent the clearly expressed intention of the amended Article 31(2) that a law providing for compensation shall not be called in question in any court on the ground that the compensation provided by it was not adequate.

Shah J. in Shanti/a/ Mangaldas(') case had observed with reference to the decision in Bela Baner'.ee's case and Subodh Gopal's(') cas~ that those decisions had raised more problems than they solved and that they placed serious obstacles in giving effect to the Directive Principles of State Policy incorporated in Article 39. Subba Rao J. had also observed in Vajravelu's(') case that if the intention of the Parliament was to enable the legislature to make a law without providing for compensation it would have used other expressions like, 'price', 'consideration', etc. This is what the Parliament has now done partially by substituting the word 'amount' for the word 'compensa~ tion' in the new Article 31 (2).

The provision in the newly added clause 2B of Article 31 that nothing in A_rticle 19(1)(£) shall affect any law referred to in Article 31(2) has been obviously incorporated because the Bank Nationalisation case overruled a long line of authorities which had consistently taken. th~ view that Article. ~~(l)(f) and Article 31(2) were mutually exclusive so far as acqms1t10n and requisition were concerned fSee f, or example Gopalan's case, 1950 S.C.R. 88; Chiranjit Lal Choudhury s case, 1950 S.C.R. 869 at 919; Sitabati Devi's case (1967) 2 S.C.R. 949; Shantilal Mangaldas's case, 1969 S.C.R. 341; ad H N Rao' s case, 1969(2) S.C.R. 392;. ·

Learned Counsel appearing for the petitioner mounted a attack on the Twenty-Fifth Amendment, particularly on the.


( 8 ) [1954] $.C.R. 587. (') (l9.65J l'S.C.R •. 614, ¢q, 63-16 s:c. India/73

severe pro vi-

990 SUPREME COURT REPORTS [1973] Supp. s.c.a.

slons of article 31C. He contends that article 31C subverts seven e5scntial features of the Constitution, and destroys ten Fundamental

· Rights, which arc vital for the survival of democracy, llhc rule of law and integrity and unity of the Republic. Seven of these Fundamental Rights, according to the counsel are unconnected with property rights. The argument continues that article 31C destroys the supremacy of the Constitution by giving a blank charter to Parliament and to all the State Legislatures to defy and ignore the CQnstitution; it subordinates the Fundamenal Rights to Directive Principles of Slllte Policy, destroying thereby one of the foundations of the C'..onstitutlon; it virtually abrogate the "manner and form" of amendment laid down in article 368 by empowering the State Legislatures and the Parliament to take away important Fundamental Rights by an ordinary law passed by a simple majority; that it destroys by conclusiveness of the declaration the salient safeguard of judidal review and

the right d enforcement of Fundamental Rights; and that, it enables the Legislatures, under the guise of giving effect to the Directive Principles, to take steps calculated to affect the position of religious, regional, linguistic, cultural and other minorities. Counsel complaints that the article abrogates not only the most cherished rights to personal liberty and freedom of speech but it also abrogates llhc right to equality before the law, which is the basic principle of Republicanism. By enacting article 31C, the Parliament has resorted to the strange procedure of maintaining the Fundamental Rights unamended, but authorising the enactment of laws which are void as offending those rights, by validating them by a legal fiction that they shall not be deemed to be void. Today, article 31 permits the enactment of laws in abrogation af articles 14, 19 nd 31, but what guarantee is there that tomorrow all •.he precious freedom will not be excepted from the range of laws passed under that article? Learned Counsel wound up his massive criticism against article 31C by saying that the article is a monstrous outrage on the Constitution and its whole object and purpose is to legalise Clespotism.

Having , given a most anxious consideration to these arguments, I have come to the conclusion that though article 31C is pregnant with possible mischief, it cannot, by the application of any of the . well. recognised judicial tests be declared unconstitutional.

For a proper understanding of the provisions of article 31C, one must in the first place appreciate the full meaning and significance of article 39(b) and (c) of the Constitution. Article 39 appears in Part IV of the Constitution, which lays down the Directive Principles of State }>olicy. The idea of Directive Principles was taken from Eire, which in turn. had borrowed it from the Constitution of Republican

lUlsAVANANl>A I), IO!MLA (Chandra&hud, J.) 991

Spain. These preceding examples, as said by Sir Ivor Jcncings(' ), arc significant because they came from countries whose peoples arc predominantly Roman Catholic, "and the Roman Catholics arc provided by their Church not only with a faith but also with a philosophy".

On matters of faith and philosophy-social or political-there always is a wide divergence of views and in fact Republican Spain witnessed a war on the heels of the enactment of its Constitution and in Eire, de Valera was openly accused of smuggling into the Constitution the pet policies of his awn party. Articles 38 and 39 of our Constitution arc principally based on article 45 of the Constitution of Eire, which derives iu authority from the Papal Bulls. Article 39 provides by clause (b) that the Stati: shall, in particular, direct its policy tow:.rds securing-"that the ownership and control of the material resources of the community are so distributed as best to subserve the common good". Clause ( c) of the article enjoins the State to direct its policy towards securing-"that the operation of the economic system docs not result in the concentration of wealth and means of production to common detriment." Article 31C has been introduced by the 25th Amendment in order to achieve the purpose set out in article 39(b) and (c).

I have stated in the earlier part of my judgmen~ that the Constitution accords a place of pride to Fundamental Rights and a place of permanence to the Directive Principles. I stand by what I have said, The Preamble of our Constitution recites that the aim of the Constitution is to constitute India into a Sovereign Democratic Republic and to secure to "all its citizens", Justice-social, econ<llDlic and poli,. tlical-liberty and equality. Fundamental Rights which are conferred and guaranteed by Part III of the Constitution undoubtedly constitute the ark of the constitution and without them a man's reach will not exceed his grasp. But it cannot be overstressed that, the Directive Principles of State Policy are fundamental in the governance of the country.

What is fundamental in the governance of the country cannot surely be less significant than what is fundamental in the life of an individual. That one is justiciable and the other not may show the intrinsic difficulties in making the latter enforceable through legal processes but that distinction docs not bear on their relative importance. An equal right of men anJ women to an adequate means of livelihood the right to obtain humane conditions of work ensuring a decen~ standard of life ad. full enjoyment of leisure; a?d raising the level of health and nulinllon are not matters for compliance with the Writ of a Court. As I look at the provisions of Parts III and IV I fed no doubt that the basic object of conferring freedoms on indiid~

( 1) Some Characteristics of the Indian Constitution, 1953, 30-32,

992 SUPREME COURT REPORTS [19731 Supp. s.c.R.

is the ultimate achievement of the ideals se~ out in Part IV.

A circumspect use of the freedoms guaranteed by Part Ill is bound to subserve the common good but voluntary submission to restraints is a philosopher's rlream.

Therefore, article 37 enjoins the State to apply the Directive Principles in 1]1aking laws. The freedom of a few have then to be abridged in order oo ensure the freedom of all.

It is in this sense that Parts III and IV, as said by Granwil!e Austin(1), together constitute "the conscience of the Consritution". The Nation stands to-day at the cross-roads of history and exchanging the timehonoured place of the phrase, may I say that the Directive Principles of State Policy should not be permitted to become "a mere rope of sand". If the State fails to create conditions in which the Fundamental freedoms could be enjoyed by all, the freedom of the few will be at the mercy of tire many an<l then all freedoms will vanish.

In order, therefore. to preserve their freedom, the privileged few must part with a portion of it.

Turning first to the new article 31(2), the substitution of the neutral expression "amount" for "compensation" still binds the Legislature to give to the owner a sum of money 111 cash or otherwise. The Legislature may either lay down principles for the determination of the an1ount or may .itself fix the amount. There is, however, intrinsic evidence in article 31 (2) that it does not empower the State to confiscate or expropriate property. Not only does articLe 31(2) not authorise the legislature to fix "such :11nount as it deems fit", "in accordance with such principl<:s as it. considers relevant", but it enjoins the legislature by express v.ords either to fix an "atnount" for being paid to the O\vncr or to lay down "principles" for determining the amount to be paid to him. If it was desired to authorise the legislature to pass cxpropriatory laws under article 31(2), nothing would have been easier

1for the Constituent Body than to provide that the Slate shall have the right to acquire property for a public purpose without payment of any kind or description. The obligation to pay an "amount" llocs not connote the power not to pay any amount at all.

The alternative obligation tu evolve principles for determining the amount also shows that there is no choice not tu pay. The choice open to the Legislature _is that the amount may directly be fixed by ancl under the law itself or alternatively, the law may fix principles in accordance with which the amount will be determined. The amount may, of course, be paid in cash or otherwise. \

The specific obligation to pay an '1amount" and in the alternative the use of the word "principles" for determination of that amount mus! mean that the amount fixed or determined to be paid cannot be

1. The Indian Constitution-Cornerstone of a Nation, Edn. 1966.

USAVANANDA v. !W.ALA ( Chandrachud, J.) 993

illusory. If the right to property still finds a place in the Constitution,. you cannot mock at the man and ridicule his right. You cannot tell him: "I will take your forliUne for a farthing".

But this is subject to an important, a very .important, qualification ..

The amount fixed for being paid to the owner is wholly beyond the pale of a challenge tha~ it is inadequate. The concept of adequacy is directly co-related to the market value of the property and therefore Auch value cannot constitute an e!emem of that challenge. By the same test and for similar reasons, the principles evolved for determining the amount cannot be questioned on tl1e ground that by application of thos, e principles the amount cktermined to be paid is inadequate, in the sense that it bears nQ reasonable relationship with the market value. of the property. Thus. the question whether the amount or the principles are within the permissible constiutional limits .must be. determined without regard to the consideration whether the~ beat a reasonable relationship with the market value of the property. They may not bear a reasonable relationship and yet they may be valid. But to say that an amount does not bear reasonable relationship with the market value is a different thing from saying that it bears no such relationship ai alt, none whatsoever. In the latter case the payment becomes illusory and may come within the ambit of permissible challenge.

ft is unnecessary to pursue this matter further because we are really concerned with the constitutionality of the Amendment and not with the validity o~ a law passed under Article 31(2). If and when suc)l a law comes before this Court it may become necessary to consider the matter crosely. As at present advised, I am inclined to the view which as I have said is unnecessary to discuss fully, that though it is not open to th~ court to question a law under Article 31 (2) on the ground that the amount fixed or determined is not adequate, courts would have the Power to question such a law if the amount fixed . thereunder is illusory; if the principles, if any are stated, for determining the amount are wholly irrelevant for fixation of the amount; if the power of compulsory acquisition or requisition is exercised for a collateral purpose; if the law offends constitutional safeguards other than the one contained in Article 19(!) (f); or, if the law is in the nature .of a fraud on the Constitution. I would only like to add, by way of explanation, that if the fixation of an amount is shown to depend upon prjndples bearing on social good it may not be possible to say that the principles are irrelevant.

As regards the new Article 31 (2B) I see no substance in the submission of the petitioner thni the exclusion of challenge under Article 19(1) (£) to a law passed under Article 31 (2) is bad as being in

994 su~IU!Mll couaT lll>OJ.n [ 1973] Supp. s.c.tt.

violation of the principles of natural justice. I have stated earlier that cQ!lstitutional amendments partake of the vitality of the constituti® itself, provided they are within the limits imposed by the constitution.

The exclusion of a challenge under Article l!l(l)(f) in regard t; o a law passed under Article 31(2) cannot therefore be deemea unconstitutional. Besides, there is no reason to suppose that the legislature will act so arbitrarily as t; o authorise the acquisition or requisitioning oi. property without so much as complying with the rules of natural iustice. Social good does not require that a man be condemned unheard.

Article 31C presents a gordian knot. King Gordius oi. Phrygia had tied a knot which a11 oracle said would be undone only by the future master of Asia. Alcxa11der the Great, failing to untie the knot, cut it with his sword. Such a quick and summary solutions of knotty problems is, alas, not open to a Judge. The article reads thus :

"31C. Notwithsta11ding anything contained in article 13, no law giving eJfect to the policy of the State towards securing the principles specified in clause (b) or clause ( c) of article 39 shall be deemed to be void on the ground that it is inconsistent witih, or takes away or abridgci any of the ights conferred by article 14, article 19 or article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy :

Provided that where such law is 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.''.

A misconception regarding the ambit of this article may first be removed. The article protects pnly "law" and not an executive action.

The term 'law' is used in arricle 13(3) in a wider sense, so as to include an Ordinance, order, bye-law, etc., but that definition is limited to the purposes Qf article J.3.

Article

31C ca11not therefore be said ro violate the provisipns of arti., Je 31(1) under which no person can be deprived of his propeny save by authority of law. It is, however, not to be denied that the word 'law' in article 31C may include all incidents and aspects of law-making.

In order properly to understand 1!he scope of article 31C, it would be necessary to refer to the history of the allied provisions of the Constitution. Prior to the 4th Constitutional Amendment which came into force cm April 27, 1915, articles 31A and 31B which were introduced by the First Amendment Act, 1951 excluded wholly the

KESAVANANDA v. KERALA (Chandrachud, J.) 995

provisions of Part III in regard to laws providing for the acquisition of any estate or of any rights therein. The reason of the rule was that the rights of society are paramount and must be placed above those of the individual.

The language of article 3!C makes it clear that only sue~ laws will receive its protection as are for giving effect to the pohcy of the State towards securing the principles specified in article 39(b) or (c). Under clause (b) the Snate has to direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subscrve the common good. Under clause (c)· the State has to take steps towards securing that the operation of the economic systems does not result in the concentration of wealth and means of production to the common detriment. Apart from the declaration contained in the latter part of article 3!B it seem1 to me transparent that the nexus between a law passed under article 31C and the objective set out in article 39(b) and ( c) is a condition precedent to the applicability of article 31C. The declaration cannot be utilised as a cloak to protect laws bearing no relationship with the objective mentioned in the two clauses of article 39.

The objectives set out in Part IV of the Constitution were not limited in their application to agrarian reform. The 4th and 17th Amendments extended the basic principle underlying the First Amendment by introducing changes in articles 31 and 31A and the Twenty-Fifth Amendment has taken one step further by extending the principle to a vaster field. Article 31C will operate substantially in the same way as article 3LA has operated in the agrarian sphere.

In fact article 3!C is a logical extention of the principles underlying article 31 ( 4) and (6) and article 31A.

I find it difficult to accept the argument, so strongly pressed upon us, that article 31 C delegates the amending power to State Legislatures and empowers them to make amendments to the Constitution without complving with the form and manner prescribed by article 368.

I am also unable to appreciate that the article empowers the Parliament likewise. The true nature and character of article 31 C is that it identifies a class of legislation and exempts it from the operarfon of articles 14, 19 and 31. Articles 31(4) and (6) identified laws in reference to the period of their enactment. Arlicles 31 (2) and 31A identified the legislative field with reference to the subject-matter of the law. Articles 15(4) and 33 identified laws with reference to the ob; ective of the legislation. In this process no delegation of amending power is involved. Thus, these various provisions, like article 3lC, create a field exempt from the operation of some of the Fundamental

996 SUPREME COURT REPORTS [1973] Supp. s.c.R.

Rights. The field of legislation is not create.cl by article 31C. The power to legislate exists apart from and indepedently of it. What the article achieves is to create an jmmnnity against he operation of the specified Fundamental Rights in . a pre-existing field of legislation.

In principle, I see no distinc.tion between itttide 31C on the one hand and articles 15(4), 31(4), 31(5)(b)(ii), arid 31 (6) on the other. I may also call attention to article 31A introduced by the First Amendment Act, 1951 under which "Notwithstanding anything contained in article 13", no law providing for matters mentioned in clauses (a) to ( e) "shall be deemed to be void on . the ground that it is inconsistent or takes away or abridges any of the rights conferred by articles 14, 19 or 31. The fact that the five clauses of article 31A referred to the

1 subject-matter of the legislation whereas article 31 C refers to laws in relation to their object does not, in my opinion, make any difference in principle. ·

The argument that article 31C permits a blatant violation of the form and manner prescribed by article 368 overlooks that the article took birth after a full and complete compliance with the form and manner spoken of in article 368.

Besides, implicit in the right to amend article 368 is the power, by complying with the form and manner of article 368, to authorise any other body to .make the desired amendments to constitutional provisions.

The leading majority judgment in Golak Nath case and Hidayatullah J. thought of a somewhat similar expedient .in suggesting that a Constituent Assembly could be convoked for abridging the Fundamental Rights. I do not see any distinction in principle between creating an authority like the Constituent Assembly with powers to amend the Constitution and authorising some other nomed authority or authorities to exercise the same power. This a<pect of the matter does not, however, arise for further consideration, because article 31C does not delegate the power to amend.

The latter part of article 31C presents to me no difficulty: "no law containing a declaration that it is for giving effect to mch policy shall be called in question in any court on the ground that it does not give effect to such policy." Clearly, this do.es .not exclude the jurisdiction of the court to determine whether the law is for giving effect to the policy of the State towards securing the. principles specified in article 39(b) or (c). Laws passed under article. 31C, can, in my opinion, be upheld only, and only if, there is i' direct and reasonable nexus between the law arid' the Directive Policy of the State expressed in article 39(b) or (c). The law cannot be called in questiOn on the ground that it does riot give effect to such policy but I suppose no court can ever take upon itself the task of finding out whet:her a law

USAVANANDA I/, KEllALA ( Chandrachud, J.) 997

in fact gives effect to its true policy. If such a latitude were open to the Judges, laws of Prohibition and Gamblirig should have lost their place on the statute booklong since.

In my opinion, therefore, Section 3 of the Twenty-Fifth Amendment, which introduces article 31C, is valid.

THE CONSTITUTION (TWENTY-NINTH AMENDMENT)

ACT, 1972.

Jn regard to the inclusion of the two Kerala Acts, (Act 33 of 1969 and Act 25 of 1971) in the Ninth Schedule by the Twenty-Ninth Amendment, it is urged by the petitioner's counsel that if the provisions of the two Acts do not fall within the terms of 31l)(a), the J\cts will not get the protection of Article 31B.

The validity of article 31B has been accepted in a series of decisions of this Court and I suppose it is too late in the day to re-open that question; nor indeed did the learned counsel for the petitioner challenge the validity of that article. In State bf Bihar v. Kameshwar Singh('), a similar contention was considered and rejected by Patan- . jali Sastri C.J., who spoke for the Court. The same view was reiterated in Visweshwar Rao v. The State of Madhya Pradesh(') by Mah"1jan /. The argument fell to be considered once again in N. B. /eejeebhoy v. Assistant Collector, Thana, Prant, Thana('), but Subba Rao J. confirmed the view taken in the earlier cases. These cases have consistently held that the opening words of article 31B: "without prejudice to the generality of the provisions contained in article 31A" only indicate that the Acts and Regulations specified in the Ninth Schedule would obtain immunity even if they did not attract Article 31A. If every Act in the Ninth Schedule has to be covered by article 31A, article 31B would become redundant. Article 31B was, therefore, held not to be governed by article 31A. The Twenty-Ninth Amendment must, accordingly be held to be valid.

Debates of the Constituent Assembly and of the First Provisional Parliament were extensively read out to us during the course of arguments. I read the speeches with interest, but in my opinion, the debates are not admissible as aids. to construction of constitutional provisions. In Gopalan's case('), Kania C.J., following the decisions

( 1) [1952] S.C.R. 88), (') [l952] S.C.R. 1020.

(') [ 19~5] I S.C.R. 636.


998 SUPREME COURT REPORTS [1973] Supp. s.c.it.

in The Municipal Council of Sydney v. The Commonwealth(') and

United States v. Wong Kim Ark(2), observed that while it is not proper to take into consideration the individual opinions of Members of Parliament to construe the meaning of a particular clause, a reference to the debates may be permitted when a question is raised whether a certain phrase or expression was up for consideration at all or not.

According to Mukherjea J. (p. 274), the debates of the Constituent Assembly are of doubtful value as an aid to discover the meaning of the words in a Constitution. .The learned Judge said that a resort can be had to the debates with great caution and only when latent ambiguities are to be resolved. A similar view was expressed by '.his Court in State of Travancore, Cochin and Another v. Bombay Company Limited('). In the Golak Golak Nath case, Sobba Rao C.J. clarified that he had not referred to t!.e speeches made in the Constituent Assembly for the purpose of interpreting the provisions of article 368. Bachawat J. also took the same view.

I It was urged by the learned Advocate-General of Maharashtra that there is a noticeable change in the attitude of this Court to par- liamentary debates since the decision in Gopalan's case and that the most prono11nced trend manifested itself first in Golak Nath's case and then dec'isively in the Privy Purse case('). The practice followed in the Privy Purse case is said to have been adopted both by the majority ancj the minority in Union of India v. H. S. Dillon(').

I am unable to agree that any reliance was placed in the Privy Purse case or in Dillon's case on parliamentary speeches, for the purpose of interpreting the legal provisions.

Shah J., in the Privy Purse case, referred to the speech of Sardar Vallabhbhai Patel in order to show the circumstances in which certain guarantees were given to the former Rulers.

The Advocate-General is right that Mitter J. made use of a speech for construing article 363, but that was done without discussing the questioo as regards the admis- 1ibility i:i. the speech. In Dillon's case, it is ckar from the judgment of the learned Chief Justice, that no use was made of the speeches in the Constituent Assembly for construing any legal provision. In fact, the learned Chief Justice observed that he was glad to find from the debares that the interpretation which he and two his colleagues had put on the legal provision accorded with what was inrended.

( 1 ) [1904) 1 Com. L.R. 208.

( 2) [169) U.S. 649, 699.

(•) [1952J S.C.R. 113.

(') [1971) 3 S.C.R. 9, 83.

(") [1971] Z S.C.R., 779, 78•,. 829-30.

KESAVANANDA v. KERALA ( Chandrachud, J.) 999

It is hazardous to rely upon parliamentary debates as aids to statutory construction. Different speakers have different motives. and the system of 'Party Whip' leaves no warrant for assuming that those who voted but did not speak were of identical persuasion. That assumption may be difficult to make even in regard to those who speak. The safest course is to gather the intention of the legislature from language it uses. Therefore, parliamentary proceedings can be used only for a limited purpose as explained in Gopalan's case.

Before summarising my conclusions, let me say that it is with the greatest deference and not w; thout hesitation that I have decided to differ from the eminent Judges who constituted the majority in the Golak Nath case. Two of them still adorn this Bench and to them as ro the other learned Brothers of this Bench with whom it has not been possible to agree, I say that it has been no pleasure to differ from them, after being with some of them for a patt of the time, on a part of the case. Their concern for common weal, I guess, is no less than mine and so let me express the hope that this long debate and these long opinions will serve to secure at ieast one blessing-the welfare of the common man. We are all conscious that this vast country has vast problems and it is not easy to realise the dream of the Father of the Nation lP wipe every tear from every eye.

But, if despite the large powers now conceded to the Parliament, the social objectives are going to be a dustbin of sentiments, then woe betide those in whom the country has placed such massive faith.

My conclusions are briefly these :

I. The decision of the leading majority in the Golak Nath case that the then Article 368 of the Constitution merely prescribed the procedure for amendment of the Constitution and that the power of amendment had to be traced to Entry 97 of List I, Schedule VII read with Articles 245, 246 and 248 is not correct.

2. The decision of the leading majority and of Hidayatullah J. that there is no distinction between an ordinary law and a law

amnding the Constitution is incorrect. Article 13(2) took in only ordmary laws, .not amendments to the Constitution effected urlder Article 368. ·

3. The decision of the leading majority and of Hidayatullah J. that Parliament had no power to amend the Constitution so as to abrogate or take away Fundamental Rights is incorrect.

1000 SUPBEME COURT BEPORTS ( 1973] Supp. S.C.R.

4. The power of amendment of the Constitution conferred by the then Article 368 was wide and unfettered. It rr.ached every part and provision of the Constitution.

5. Preamble is a part of the Constitution and is not outside the reach of the amending power under Article 368.

6. There are no inherent limitations on the amending power in the sense that the Amending Body lacks the power to make amendments so as to damage or destroy the essential features or the fundamental principles of the Constitution.

7. The 24th Amendment only declares the true legal position as it obtained before that Amendment and is valid.

8. Section 2(a) and section 2(b) of the 25th Amendment arc valid. Though courts have no power to question a law described in Article 31(2) substituted by section 2(a) of the Amendment Act,

OD che ground that the amount fixed or determined for compulsory acquisition or requisition is not adequate or that the whole or any part of such amount is to be given otherwise than in cash, courts have the power to question such a law if (i) the amount fixed is illusory; or

(ii) if the principles, if any are stated, for determining the amount arc wholly irrelevant for fixation of the amount; or (iii) if the power of compulsory acquisition or requisition is exercised for a collateral purpose; or (iv) if the law of compulsory acquisition or requisition offends the principles of Constitution other than the one which is expressly excepted under Article 31(2B) introduced by section 2(b) of the 25th Amendment Act - namely Article 19(1) (£); or (v) if the law is in the nature of a fraud on the Constitution.

9. Section 3 of the 25th Amendment which intruccd Article

lC into the Constitution is vafid. In spite, however, of the purport ed conclusiveness of the declaration therein mentioned, the Court has the power and the jurisdiction to ascertain whether the law is for giving effect to the policy of the State towards eecuring the principles specified in Article 39(b) or ( c). If there is no direct and reasonable nexus between such a law and the provisions of Article 39(b) or (c), the law will not, as stated in Article 31C, receive immunity from a challenge under Articles 14, 19 or 31.

10. The 29th Amendment Act is valid. The two Kerala Acts mentioned therein, having been included in the Ninth Schedule, are entitled to the protection of Article 31B of the Constitution.

1 would direct each party to bear its own costs.

As I am coming to the close of my judgment, drafts of judgments of several of my esteemed colleagues are trickling in.

As I look at them, I hear a faint whiser of Lord Dunedin. And then I thought : I began this judgment by saying that I wanted to avoi.d writing a separate judgment of my own. Are first thoughts best?

IN THE SUPREME COURT OF INDIA

ORIGINAL JURISDICTION

WRIT PETITIONS Nos. 135(70, 351-352, 373-374 and 400/72

His Holiness Kesavananda Bharati Sripadagalavaru etc. etc .......... Petitioner

Versus

State of Kerala and another etc. ......... Respondents

The view by the majority in these writ petitions is as follows :-

l. Golak Nath's case is over-ruled;

2. Art. 368 does not enable Parliament to alter the basic structure or framework of the Constitution;

3. The Constitution (Twenty-fourth Amendment) Act, 1971 is valid;

4. Section 2(a) and (b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid';

5. The first part of section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid. The second part, namely, "and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policv" is invalid; ·

6. The Constitution (Twenty-ninth Amendment) Act 1971 is valid. '

T?e . Constitution ench will determine the validity of the

nstJ!!Ut1on (Twenty-Sixth Amendment) Act, 1971 in accordance With Jaw.

The cases arc remitted .. to the Constitution Dench for disposal in accordance with law. There will be no order as to costs incurred up to this stage. ·

Dotetl April 24,. 1973.

ORDER

S. M. Sikri C.J.

J. M. Shclat J.

K. S. Hegdc J.

A. N. Grover J.

P. han Reddy J.

D. G. Pafekar J.

H. R. Khanna J.

A. K. Mukhcrjca J.

Y. V. Chandrachud J.

The Constitution Bench will determine the validity of the Constitution (Twenty-sixth Amendment) Act, 1971 in accordance. with law.

The cases arc remitted to the Constitution Dench for didposai in ; iccordance with law. There will be .no order as tx> costs incurred upto this stage •.

S. M. Sikri C. J.

J. M. Shclat J. K .. S. Hegdc J.

A. N. Grover J.

A. N. Ray J.

P. Jaganmohan Reddy J.

D. G. Palekar J.

J:I, R. Khanna J.

K. K. Mathew J.

M. H. Beg J.

S. N. Dwivcdi J.

A. K. Mukherjca J.

Y. V. Chandrachud J.