Kesavananda Bharati v. State of Kerala

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Kesavananda Bharati v. State of Kerala | Judgment | Law on Tips

96\. After the plan of June 3, 1947, which led to the decision to partition 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 Status, would be conferred on India as from August 15, 1947. After examining the implications of partition the sub-committee thought that the question of making changes in the Objectives Resolution could appropriately be considered only when effect had actually been given to the June 3 Plan.(Special Sub-Committee minutes June 9, 1947. Later on July 12, 1947, the special sub-committee again postponed consideration of the matter. Select Documents II, 20(ii), p. 617. (Shiva Rao's-Framing of India's Constitution-A study-(p. 127 footnote). 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 consider the draft of the Preamble since the Assembly stood by the basic principles laid down in the Objectives Resolution and these could be incorporated in the Preamble in the light of the changed situation(Shiva Rao's-Framing of India's Constitution-A study- pp. 127-128 (also see footnote 1 p. 128). The suggestion was accepted by the Assembly and further consideration of the Preamble was held over.

172\. 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 these classes. [Article 331](/doc/144135/) enables the President to nominate not more than two members of the Anglo-Indian community if it is not adequately represented in the House of the People. [Article 332](/doc/688355/) deals with the reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States. In [Article 334](/doc/1649954/) it is 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](/doc/1113850/) deals with claims of scheduled castles and scheduled tribes to services and posts. [Article 336](/doc/1800831/) makes special provisions for Anglo-Indian community in certain services, and [Article 337](/doc/1282987/) makes special provisions in respect of educational grants for the benefit of Anglo- Indian community. [Article 338](/doc/626485/) 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](/doc/1559958/) enables the President to appoint a Commission to investigate the conditions of socially and educationally backward classes within the territory of India which shall present a report and make recommendations on steps that should be taken to remove difficulties and improve their condition. [Article 341](/doc/68762/) enables the President to specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State. Similarly, [Article 342](/doc/768139/) provides that the President 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.

438\. In this connection it must be borne in mind that [Article 31(2)](/doc/108209556/) 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 brick 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 [Article 31(2)](/doc/108209556/) 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 exceded its amending power under [Article 368](/doc/594125/) of the Constitution. The substance of the fundamental right to property, under [Article 31](/doc/354224/), consists of three things : one, the property shall be acquired by or under a valid law; secondly, it shall be acquired only for a public purpose; 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 of mankind. I have already held that Parliament has no power under [Article 368](/doc/594125/) 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 considerations 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. 10 per year or Rs. 10 per month.

515\. For our purposes it is not necessary to go prior to the year 1934. It was in that year that the Indian National Congress made the demand for a Constituent Assembly as part of its policy. This demand was repeated in the Central Legislative Assembly in 1937 by the represetatives of the Congress. By what is known as the Simla Conference 1945 the Congress repeated its stand that India could only accept the Constitution drawn by the people. After the end of World War II the demand was put forward very strongly by the Indian leaders including Mahatma Gandhi. Sir Stratford Cripps representing Britain had also accepted the idea that an elected body of Indians should frame the Indian Constitution.(The facts have been taken mainly from the Indian Constitution, Cornerstone of a Nation, by Granville Austin). In September 1945 the newly elected British Labour Government announced that it favoured the creation of a constituent body in India. Elections were to be held so that the newly elected provincial legislatures could act as electoral bodies for the Constituent Assembly. A parliamentary delegation was sent to India in January 1946 and this was followed by what is known as the Cabinet Mission. There were a great deal of difficulties owing to the differences between the approach of the Indian 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 elected 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 the Congress and the Muslim League having failed, the partition of the country came as a consequence of the declaration of the British Government on June 3, 1947. As a mult 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 provinces. 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 Section 8 of the Indian Independence Act 1947 that the Constituent Assembly was vested with the legal authority to frame a Constitution for India.

533\. 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](/doc/594125/) 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 5th and 6th Schedules respectively can be amended. The latter group of articles contain a limited power because those Articles are subordinate to [Article 368.](/doc/594125/) 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.](/doc/594125/) 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 by 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 5 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 Constitution itself out of which mention may be made of [Articles 320(5)](/doc/1217487/) and [392(1)](/doc/179779/) 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 "amendment of this Constitution" has acquired substantive meaning over the 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.

534\. 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 (Constituent Assembly Debates Vol. 9, page 1661) that the articles of the Constitution were divided into different categories; the first category was the one which consisted of articles which could be amended by the Parliament by a bare majority; the second set of articles were such which required the two-third majority. This obviously had reference to the group of articles consisting of [Articles 4](/doc/1015123/)[, 169](/doc/1295106/) and paras 7 and 21 of the two Schedules and [Article 368](/doc/594125/) 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.](/doc/594125/) 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 [Article 368](/doc/594125/) was of a purely subordinate nature. In one sense the power contained in the first group of Articles can be said to be subordinate in those Articles themselves could be amended by the procedure prescribed by [Article 368.](/doc/594125/) 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 Constitution. It appears that the statement in the articles and provisions containing the amending power other than [Article 368](/doc/594125/) that any amendment made under those articles would not amount to an amendment under [Article 368](/doc/594125/) 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.](/doc/594125/) Although prima facie it would appear that the Constitution makers did not employ the composite expression in [Article 368](/doc/594125/) 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 conclusive for the purpose of determining the meaning of the word "amendment" in [Article 368.](/doc/594125/)

368\. We propose to refer to the decision from other countries 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 in view apart from that of Japan. The whole scheme and language of [Article 368](/doc/594125/) 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 similar institutions in the countries mentioned above and yet there is a provision for ratification by convention or referendum or submission of the proposed law to electors directly. Another way of discovering the meaning on which both sides relied on is to refer to the various speeches in the Constituent Assembly by the late Prime Minister Pandit 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 amendable one and much rigidity was not intended. Pandit Nehru time and again emphasised that while the Constitution was meant to be as solid and as permanent a structure as it could be, nevertheless there was no permanence in the Constitution and there should be certain flexibility; otherwise it would stop a nation's growth. Dr. Ambedkar, while dealing with draft [Article 25](/doc/631708/) corresponding to the present [Article 32](/doc/981147/), 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 be 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".

566\. 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 Parties 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 Resolution 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 of the German Constitutions did not provide for judicial 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 from amendment or abrogation. This was done in the Constitution of the Federal Republic of Germany. The atrocities committed during Second World War and the world wide agitation for human rights ultimately embodied in the U.N. Declaration of Human Rights on, which a number of the provisions in Parts III and IV of our Constitution are fashioned must not be forgotten while considering these matters. Even in Great Britain, where the doctrine of the legal sovereignty of Parliament has prevailed since the days of Erskinc, 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. This follows from the decisions in Moore v. The Attorney General for the Irish Free State (1935) A.C. 484; Attorney General for New South Wales v. Trethowan (1932) A.C. 526. 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 stated:

572\. 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 of 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 [Article 5](/doc/1937835/) 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. through 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 true distinction between a controlled and an uncontrolled Constitution lies not merely 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-stone 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 adopts 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 negates the equation of that body with the people.

573\. Before concluding the topic on the interpretation or construction of the words "amendment of this Constitution" in [Article 368](/doc/594125/), it is necessary to deal with some American decisions relating to [Article 5](/doc/1937835/) of the American Constitution on which a great deal of reliance was 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 State of Rhode Island v. A. Mitchel Palmer 64 L. Ed. 946. In that case and other cases heard with it, elaborate arguments were addressed involving the validity of the 18th amendment and of certain features of the National Prohibition Law, known as Volstead Act, which was adopted to enforce the amendment. The relief sought in each case was an injunction against the execution of that Act. The Court merely stated its conclusions and did not give any reasons-a matter which was profoundly regretted by Chief Justice White. From, the conclusions stated and the opinion of the Chief Justice it appears that a good deal of controversy centered on [Section 2](/doc/1456610/) of the amendment which read "Congress and the several States shall have concurrent power to enforce this Article by appropriate legislation". 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 matters 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 Island case gives no reasons, yet it is permissible to look at the elaborate briefs filed by the counsel in several cases and their oral arguments in order to understand what was argued and what was decided. One of the main contentions raised was that the 18th amendment was not in fact an amendment, for an amendment is an alteration or improvement 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 rejected 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 "amendment". It is not possible to derive much assistance from this judgment.

584\. Before we go to cases decided by the courts in other countries it may be useful to refer to some of the Constitutional provisions which are illustrative of the concept of implications that can be raised from the language and context thereof. The first provision in point is [Article 368](/doc/594125/) 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., [Articles 52](/doc/1205651/) and [53](/doc/1597349/) must be so read as to impliedly include the power to amend [Articles 54](/doc/887242/) and [55](/doc/1164414/) 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 R.S. Ram Jawaya Kapur and Ors. v. The State of Punjab](/doc/1318432/) \[1955\] 2 S.C.R. 225. [Article 53](/doc/1597349/) declares that the executive power of the Union shall be vested in the President; [Article 74](/doc/127060/) provides for a council of ministers headed by the Prime Minister to aid and advise the President in exercise of his functions. [Article 75](/doc/1324537/) 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.

586\. 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 (1878) 3 A.C. 889 at pp. 904-5, 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 any court of justice 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 express restriction on the power are used only to repel the contention that conditional legislation was barred by implication. It is significant that if Queen v. Burah (1878) 3 A.C. 889 at pp. 904-5 is to be treated as laying down the principle that the powers in a Constitution must be conferred only in affirmative words the argument of the respondents itself will suffer from the infirmity that it is only by necessary implication from the language of [Article 368 (before the 24th Amendment)](/doc/594125/) that the source of the 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 (1967) 2 S.C.R. 762 case there was a sharp divergence of opinion on this point. Subba Rao C.J. with whom four other judges agreed held that the source of the amending power was to be found in the provisions conferring residuary provisions, namely, [Article 248](/doc/1270258/) read with Entry 97 in the Seventh Schedule. The other six judges including Hidayatullah J. were of the view that the power was to be found in [Article 368](/doc/594125/) itself.

598\. The learned Advocate General of Maharashtra has referred to the arguments in Ranasinghe's case and has endeavoured to explain the observations made about the entrenched provisions being unalterable by saying that the same were obiter. According to him it was not the respondent's case that any provision was unamendable. The references to the solemn compact etc. were also obiter because the appeal did not raise any question about the rights of religion protected by Sub-section (2) or [Section 29](/doc/1888152/) 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 only the form and manner which is material in a controlled Constitution and that the above decision is an authority for the proposition that in exercise of the amending power a controlled Constitution can be converted into an uncontrolled one. Any implied limitations on Parliament's amending power here can be abrogated by an amendment of [Article 368](/doc/594125/) itself and the amending power can be enlarged by an exercise of that very power. According to Mr. Palkhivala this argument is wholly fallacious. Firstly, the observations of the Privy Council Ibid p. 198 is merely on the form and manner of amendment and has nothing to do with substantive 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. Ibid portions D to E Secondly, the Ceylon Constitution authorised the Parliament to amend or repeal the Constitution, which power is far wider than the power of amendment simpliciter conferred by [Article 368.](/doc/594125/) It is suggested that Ranasinghe's case is a direct authority against the respondents 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 exercise of its power to amend the Constitution by following the prescribed form and manner in Sub-section (4) of Section 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 Maharashtra) with some parts of our Constitution, particularly those which relate to fundamental rights.

601\. Mohamed Samsudden Kariapper v. S.S. Wijesinha and Anr. \[1968\] Appeal Cases 717 has been cited on behalf of the State 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](/doc/1788561/) about certain allegations of bribery having been proved against some members of the Parliament of whom the appellant was one. Under a certain Act civil disabilities on persons to whom the Act applied were imposed. It also contained a provision that in the event 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 with the proviso to [Section 29(4)](/doc/1888152/) of the Constitution of Ceylon, endorsed a certificate under his hand on the bill for imposition of civic disabilities (Special Provisions) Act. The Privy Council held that the said Act was an exercise of legislative power and not the usurpation of judicial power. The Constitution of Ceylon was a controlled [Constitution and the Act](/doc/237570/) 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 [Section 29(4)](/doc/1888152/) of the Constitution 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](/doc/237570/), 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 [Section 29(4)](/doc/1888152/), both assume judicial power and exercise it in the one law.

> 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 Ranasinghe's case. The judicial review provided expressly in our Constitution by means of [Article 226](/doc/1712542/) and [32](/doc/981147/) 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 Constitution (per Haldane, L.C. in Att. Gen. for the Commonwealth of Australia v. Colonial Sugar Refining Co. \[1914\] A.C. 237 and Ex parte Walsh and Johnson, In re Yates. (1925) 37 C.L.R. 36 at p. 58. The function 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 of interpretation of the Constitution. It may be added that at no stage the respondents have contested the proposition that the validity of a Constitutional amendment can be the subject of review by this Court. The Advocate General of Maharasthra has characterised judicial review as undemocratic. That cannot, however, be so in our Constitution because of the provisions relating to the appointment of judges, the specific restriction to which the fundamental rights are made subject, the deliberate exclusion of the due process clause in [Article 21](/doc/1199182/) and the affirmation in [Article 141](/doc/882644/) that judges declare but not make law. To this may be added the none two rigid amendatory process which authorises amendment by means oft 2/3 majority and the additional requirement of ratification.

634\. 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 directive 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 are the basic elements of those freedoms without which there can be no dignity of individual. Our Constitution makers did not contemplate any disharmony between the fundamental rights and the directive principles. They were meant to supplement one another. It can well be said that the directive principles prescribed the goal to be attained and the fundamental rights laid down the means by which that goal was to be achieved. While on behalf of the petitioners greater emphasis has been laid on the fundametal rights, counsel for the respondents say that the fundamental 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 that a stage has been reached where it has become necessary to abrogate some of the basic freedoms and rights provided the end justifies the means. At an earlier stage in the development of 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 Kerala 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.

(a) to (d) of [Article 19](/doc/1218090/) as also the right of equality under [Article 14](/doc/367586/) 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 31(C)](/doc/354224/) 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)](/doc/1378441/) will not apply and [Article 21](/doc/1199182/) permits deprivation of personal liberty according to procedure established by law. The case in the [State of Bombay and Anr. v. F.N. Balsara](/doc/334293/) \[1951\] S.C.R. 682 is in point. Commending the use of an intoxicant had been made an offence. It was struck down by this Court as violative of [Article 19(1)(a).](/doc/1378441/) If [Article 31(C)](/doc/354224/) is Constitutional, such a provision made in a law enacted under it relating to matters falling within [Article 39(a)](/doc/1331994/) 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](/doc/1218090/) and for the abrogation of the prized right of equality under [Article 14](/doc/367586/) of which has been described as the basic principle of republicanism. [State of West Bengal v. Anwar Ali Sarkar](/doc/184660633/) (per Patanjali Sastri C.J.) \[1952\] S.C.R. 284 at pp. 293, (Ibid p. 313 Mahajan J.). This Article combines the English doctrine of the rule of law and the equal protection clause of the 14th Amendment to the American Constitution. [Basheshar Nath v. The Commissioner of Income Tax, Delhi and Rajasthan](/doc/761967/) (per Das C.J.) \[1959\] Supp. 1 S.C.R. 528 at 551. It follows, therefore, that [Article 31(C)](/doc/354224/) impinges with full force or several fundamental rights which are enabled to be abrogated by the Parliament and the State Legislatures.

651\. We shall first take up the question whether by the exercise of the power of amendment conferred by [Article 368](/doc/594125/), as it originally stood, Parliament could have taken away any of the Fundamental Rights conferred by Part III. According to Mr. Palkhivala, [Article 368](/doc/594125/) as it stood before its amendment merely laid down the procedure for amendment; the power to amend the Constitution must be found somewhere else in the Constitution; the power to be exercised by Parliament under [Article 368](/doc/594125/) in legislative in character and the resulting product is 'law', hence such a law, in view of [Article 13(2)](/doc/772605/) which says "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", cannot validly take away or abridge any of the Fundamental Rights. He further contended that the word 'law' in [Article 13(1)](/doc/1010805/) 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 [Article 13(2).](/doc/772605/) A more important argument of his was that the power to amend the Constitution, even if, it is assumed to be contained in [Article 368](/doc/594125/), is by no means an exclusive power because in certain 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](/doc/1015123/)[, 169](/doc/1295106/), Paragraph 7 of the Vth Schedule and Paragraph 21 of the VIth Schedule. Counsel urged that if the amendment of the provisions of the Constitution referred to therein is considered as the exercise of constituent power and consequently such an amendment is not a "law" within the meaning of that expression in [Article 13](/doc/134715/), then Parliament by a simple majority of the members present and voting if the rule regarding the quorum is satisfied, can take away or abridge any of the Fundamental Rights of certain sections of the public in this country.

652\. On the other hand, the learned Attorney General, the learned Advocate General for 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](/doc/594125/) shows that the power to amend the Constitution as well as the procedure of amendment are both contained in that Article; once the form and the manner [laid down in](/doc/1681028/) that Article have been complied with, the result is the amendment of the Constitution. According to them, the expression "an amendment of this Constitution" in [Article 368](/doc/594125/) means an amendment of each and every provision or part of the Constitution; once the form and manner provided in [Article 368](/doc/594125/) 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 validity of the amended Article also cannot be challenged. They further contended that 'law' in [Article 13](/doc/134715/) means only legislative enactments or ordinances, or orders or bye-laws or rules or regulations or notifications or customs or usages having the force of law in the territory of India and that expression does not include a Constitutional law, though in a comprehensive sense, a Constitutional law is also a law. They further contended that the word 'law' in [Article 13](/doc/134715/) must be harmoniously construed with [Article 368](/doc/594125/) and, if 'it is so construed, there is no room for doubt that the expression 'law' in [Article 13](/doc/134715/) does not include a Constitutional law. They repudiated the contention of Mr. Palkhivala that there was any Constitutional law as such in force when the Constitution came into force. Hence according to them the expression 'law' in [Article 13(2)](/doc/772605/) does not take in the amendment of the Constitution. According to them, laws enacted under [Article 4](/doc/1015123/), [Article 169](/doc/1295106/), Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI are not to be deemed as amendments to the Constitution as is [laid down in](/doc/1681028/) those provisions, though in fact they do amend the Constitution in certain respects and they are no different from the other legislative measures enacted by Parliament; hence the laws enacted under those provisions cannot take away or abridge any of the Fundamental Rights. We have now to see which one of those lines of reasoning is acceptable.

658\. Now corning back to [Article 368](/doc/594125/), it may be noted that it has three components; firstly, it deals with the amendment of the Constitution; secondly, it designates the body or bodies which can amend the Constitution, and lastly, it prescibes the form and the manner in which the amendment of the Constitution can be effected. The Article does not expressly confer power to amend; the power is necessarily implied in the Article. The Article makes it clear that the amendment of the Constitution can only be made by Parliament but in cases falling under the proviso, ratification by legislatures of not less than one-half of the States is also necessary. That Article 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 mentioned in the proviso, it must be ratified by not less than one-half of the State Legislatures. Thereafter, it should be presented to the President for his assent It further says that upon such assent being given to the Bill "the Constitution shall stand amended in accordance with the terms of the Bill". To restate the position, [Article 368](/doc/594125/) 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 note 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](/doc/594125/) to our mind is plain and unambiguous. Hence we need not call into aid any of the rules of construction 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 marginal note does not negative the existence of the power implied in the Article.

660\. Having ascertained the true scope of [Article 368](/doc/594125/), let us now turn to [Article 13.](/doc/134715/) A great deal of reliance was placed by the learned Counsel for the petitioners on the expression 'law' found in [Article 13(1)](/doc/1010805/) and [(2).](/doc/1456610/) As seen earlier, the two judges in Sajjan Singh's case as well as the majority of judges in [Golak Nath](/doc/21266288/)'s case opined that 'law' in [Article 13(2)](/doc/772605/) also includes Constitutional law i.e. law which amends the Constitution and we see 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 only a law but the paramount law of the country. An amendment of that law must necessarily be a law. The fact that the word 'law' is not used in [Article 368](/doc/594125/) is of little significance. For that matter [Article 110](/doc/72095/) 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 it goes through the procedure [laid down in](/doc/21266288/) [Article 368](/doc/594125/), supplemented wherever necessary by the procedure prescribed in [Article 107;](/doc/1143713/) see [Sankari Prasad](/doc/1706770/)'s case. The Bill when passed by both the Houses of Parliament and, in matters coming under the proviso to [Article 368](/doc/594125/), after securing the necessary ratification by the State Legislatures, is presented to the President for his assent The procedure adopted is the same as that adopted in enacting an ordinary statute except to the extent provided in [Article 368.](/doc/594125/) Even if it had been different, there can be hardly any doubt that the amendment of a Constitution is 'law'. In [Sankari Prasad](/doc/1706770/)'s case, Patanjali Sastri J. (as he then was) speaking for the Court had no doubt in ruling that the expression 'law' must ordinarily include 'Constitutional law'. The same view was taken by all the judges in Sajjan Singh's case and also by most of the judges in [Golak Nath](/doc/21266288/)'s case.

664\. Mr. Palkhivala contended that the term 'law' in [Article 13(1)](/doc/1010805/) includes Constitutional law also. Wanchoo J. speaking for himself and on behalf of two other judges in [Golaknath](/doc/120358/)'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)](/doc/1010805/) 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](/doc/493040/), the Indian Independence Act, 1947 as well as the [Government of India Act, 1935](/doc/93056159/), were repealed. The laws which were continued under [Article 372](/doc/74529/) after the Constitution came into force did not operate on their own strength. For their validity they had to depend on [Article 372](/doc/74529/) 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)](/doc/1010805/) does not refer to 'laws' as such. It refers 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)](/doc/1010805/) does not bear on the interpretation of the expression 'law' in [Article 13(2).](/doc/772605/)

679\. 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 limits-see [Articles 4](/doc/1015123/)[, 107(2)](/doc/846895/)[, 111](/doc/158646/)[, 169(2)](/doc/844977/)[, 196(2)](/doc/1786573/)[, 197(2)](/doc/1887022/) and [200.](/doc/1580975/) 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 repeal". Similar is the position under the repealed [Article 243(2)](/doc/452231/), [Article 252(2)](/doc/1294039/) and [350(5).](/doc/785969/) It is true that the power to amend conferred under the Fifth and Sixth Schedules is merely a power to amend those 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 purpose in mentioning in those Articles or parts "amend by way of addition, variation or repeal". In this connection it may also be remembered that the Constituent Assembly amended [Section 291](/doc/43788249/) of the Government of India Act, 1935 on August 21, 1949 just a few days before it approved [Article 368](/doc/594125/) i.e. on September 17, 1949. The amended [Section 291](/doc/1955809/) 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 are used in the same statute, it is reasonable to assume that, unless the context otherwise indicates, the legislature intended to convey different meanings by those words. This rule of interpretation is applicable in construing a Constitution as well.

685\. The atrocities committed during the Second World War and the world wide agitation for human rights, the liberties guaranteed in 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 Constitution. 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 Constitution wherein "shall be guaranteed 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, vocation, association and action subject to law and public morality 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 declaration 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 employment for its citizens. In evolving the Fundamental Rights and the Directive Principles, our founding fathers, in addition to the experience gathered by them from the events that took place in other parts of the world, also drew largely on their experience in the past. The Directive Principles and the Fundamental Rights mainly proceed on the basis of Human Rights. Representative democracies will have no meaning without economic and social justice to the common man. This is a universal experience. Freedom from foreign rule can be looked upon only as an opportunity to bring 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.

946\. 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](/doc/1937835/) because of implied limitations on that power, held that the Amendment was valid. The Supreme Court, however, did not discuss the question of implied limitations on the 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 amending 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 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 will not be justified in expounding our Constitution on the basis of the controversies relating to those issues. [Article 5](/doc/1937835/) of the U.S. Constitution is not similar to [Article 368](/doc/594125/) 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](/doc/1937835/) 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. Whether 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 Constitution. 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 ourselves to 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 Counsel on either side spared no efforts to place before us various opinions expressed by various writers as well as the decisions rendered by several courts including the State Courts in United States of America.

700\. 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 limitations on the amending power of Parliament under [Article 368](/doc/594125/), 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 contention that there are implied or inherent limitations on the amending power under [Article 368.](/doc/594125/) We are unable to accept this contention. The broad contours of the basic elements or fundamental features of our Constitution are clearly delineated in the preamble. Unlike in most of the other Constitutions, it is comparatively easy in the case of our Constitution to discern and determine the basic elements 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 Constitutional validity of a statute will also apply to Constitutional amendments. 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 are 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)](/doc/493243/) to 19(6) and yet by and large the legislations made by Parliament or the State legislatures 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 difficult than the difficulty of the legislatures to determine before hand the Constitutionality of legislations made under various other heads. Arguments based on the difficulties likely to be faced by the legislatures are of very little importance and they are essentially arguments against judicial review.

702\. It was contended on behalf of the Union and the States that, the Constitution should not be treated as something sacred. It should be regarded just in the same way as we regard other human institutions. It should be possible to 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 the recreation of a Constituent Assembly, under [Article 368](/doc/594125/) in order to so shape the Constitution as to meet the demands of the time. However, attractive these theories may sound in the abstract, on a closer examination, it will be seen that they are fallacious, more particularly in a Constitutionals set up like ours. We have earlier noticed chat under our electoral system, it is possible for a party 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 election. That apart, when a party goes to election, it presents to the electorate 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 are placed before the electorate as was done 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 particular manner is unjustified. Further a Parliamentary Democracy like ours functions on the basis of the party system. The mechanics of operation of the party 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 the 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 leisure, 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 effected." (Laski : A Grammar of Politics; Fifth Edn. pp. 313-314).

705\. 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 elements 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 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 limitations are only illustrative and not exhaustive. Despite these limitations, however, there can be no question that the 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 obligations 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 Welfare 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 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 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 lost is hardly ever regained except by revolution. Every encroachment on freedoms sets a pattern for further encroachments. Our Constitutional plan is to eradicate poverty without destruction of individual freedoms.

741\. 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)](/doc/108209556/) 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 legal 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)](/doc/108209556/) is also clear 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 or determined is not adequate. What is an adequate amount ? An amount can be said to be adequate only when the owner of the property is 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.

> Legally Defined Vol. 2, p. 258 (1969). This being the meaning of the word 'fix' it would be necessary for the legislature 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)](/doc/108209556/) 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)](/doc/108209556/) 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)](/doc/108209556/) says that it is not open to the court to examine whether the "amount" fixed or determined is adequate or not, it necessarily 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.

In the very nature of things, 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 members of the legislature behind it. Therefore, the members of the opposition party need not know the basis of fixation of 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 Minister concerned or to reject the proposal and face the consequences. If this is the true position, it is, in our opinion, a negation of parliamentary democracy. Our democracy like all true parliamentary democracies is based on the principles of debate and discussion. As far as possible, decisions in the legislatures are arrived at on the basis of consensus. Our Constitution does not provide for one party rule where there is no room for opposition. Opposition parties have an important role to play under our Constitution. 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)](/doc/108209556/) 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 degenerate 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.

750\. 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 undoubtedly 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 amount 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 still open to the court to consider whether "amount" in question has been aribtrarily determined or whether the same is an illusory return for the property taken. It is 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 judicial review under the amended [Article 31(2)](/doc/108209556/) 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.

754\. This takes us to [Section 3](/doc/1659104/) of the 25th Amendment Act which now stands as [Article 31C](/doc/198382/) of the Constitution. This Article empowers the Parliament as well as the Local Legislatures to enact laws giving effect to, the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of [Article 39](/doc/555882/), completely ignoring in the process, [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31.](/doc/354224/) Further it lays down that if the law in question contains a declaration that it is for giving effect to such policy, that Jaw 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 31C](/doc/198382/) 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](/doc/555882/) 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](/doc/367586/)[, 19](/doc/1218090/) and [31](/doc/354224/) notwithstanding anything contained in [Article 13](/doc/134715/) and the second part provides that no law containing a declaration that 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. Clauses (b) and (c) of [Article 39](/doc/555882/) 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](/doc/555882/) 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.

762\. [Article 368](/doc/594125/) specifically provides that amendment of the Constitution can be done only in the manner provided therein. It is true that there are provisions in the Constitution under which the Parliament can amend some parts of the Constitution by ordinary law- see [Article 2](/doc/1456610/) to 4, [Article 169](/doc/1295106/), 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 to the Constitution for the purpose of [Article 368".](/doc/594125/) There are also some transitional provisions in the Constitution which can be changed by the Parliament by law. Leaving aside for separate consideration [Article 31-A](/doc/660119/), which was first introduced by the 1st Amendment Act, 1951, there is no provision in the Constitution apart from [Article 31(4)](/doc/49756294/) which permitted the State Legislatures to enact laws contravening one or more of the provisions in Part III. [Article 31(4)](/doc/49756294/) relates to legislations pending before the State Legislatures at the time the Constitution came into force. Their scope was known to the Constitution-makers. 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 [Article 368.](/doc/594125/) That Article is as much a creature of the Constitution as the other Articles are. The form and manner prescribed in [Article 368](/doc/594125/) did not govern the procedure of the Constituent Assembly. The mandates contained in [Article 368](/doc/594125/) are applicable only to the amendments made to the Constitution. The power to amend the Constitution was exclusively given to the Parliament and to no other body. The manner of exercising that power is clearly prescribed. [Article 31C](/doc/198382/) 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](/doc/198382/) 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.

764\. The learned Advocate-General of Maharashtra contended that [Article 31C](/doc/198382/) lifts the ban placed on the State Legislatures and Parliament under [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31.](/doc/354224/) 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)](/doc/251667/)[, 16(3)](/doc/386518/)[, 16(4)](/doc/68038/)[, 16(5)](/doc/1746393/)[, 19(2)](/doc/493243/) 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.](/doc/134715/) 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.](/doc/134715/) The laws made under the 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](/doc/198382/) proceeds on the basis that the laws enacted under that Article are in conflict with [Article 13](/doc/134715/) and are prima facie void. Otherwise there was no purpose in providing in that Article "Notwithstanding anything contained in [Article 13](/doc/134715/), no law giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of [Article 39](/doc/555882/) 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](/doc/367586/), [Article 19](/doc/1218090/) or [Article 31...."](/doc/354224/) Hence the contention that limitations imposed by [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31](/doc/354224/) on the legislative power of the Union and the States are lifted to the extent provided in [Article 31C](/doc/198382/) cannot be accepted.

> 769\. As far back as in 1951 this Court ruled in [State of Bombay and Anr. v. F.N. Balsara](/doc/334293/) \[1951\] S.C.R. 682 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 Padhan](/doc/1258563/)'s case would be equally applicable in respect of the laws made under [Article 31A](/doc/660119/) which speaks of the "law providing for the" topics mentioned therein. But that ratio cannot be effectively applied when we come to laws made under [Article 31C.](/doc/198382/) The reach of [Article 31C](/doc/198382/) 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)](/doc/1200546/) 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 under [Article 31C](/doc/198382/) and [Article 39(b)](/doc/1200546/) 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)](/doc/1200546/) and (c). At any rate, most laws may be given the appearance of aiming to achieve the objectives mentioned in [Article 39(b)](/doc/1200546/) 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. \[1931\] A.C. 311 at 317.

817\. The foundation of the majority view in [Golak Nath](/doc/21266288/) case that [Article 13(2)](/doc/772605/) takes in Constitutional law within its purview is that an amendment is a legislative process and is an exercise of legislative power. The majority relied on the decision in McCawley v. The King (1920) A.C. 691 and the Bribery Commissioner v. Pedrick Ranasinghe 1965 A.C. 172 in support of the view that there is no distinction between ordinary legislation and Constitutional amendment. The basis of the unanimous decision in [Shankari Prasad](/doc/1706770/) case was on the distinction between legislative power and the constituent power. Therefore, the majority view in [Golak Nath](/doc/21266288/) case overruled the view in [Shankari Prasad](/doc/1706770/) case. [Article 13(2)](/doc/772605/) expressly declares that law taking away or abridging the rights conferred by Part III 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](/doc/1857950/) 1950 S.C.R. 88 that [Article 13(2)](/doc/772605/) was introduced ex majore cautela because even if [Article 13](/doc/134715/) were not there any law abridging or taking away fundamental rights would be void to the extent of contravention or repugnancy with fundamental rights in Part III refers to the doctrine of ultra vires which is a necessary implication of our Constitution. Therefore, there is no distinction between [Article 13(2)](/doc/772605/) which expressly affirms the doctrine of ultra vires and the necessary implication of the doctrine of ultra vires 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 of other parts of the Constitution contrary to their terms would be prevented by the implied doctrine of ultra vires. The result would be that an amendment of the Constitution which contravened the terms of the existing Constitution would be void. This would result in absurdity. That is why [Article 368](/doc/594125/) expressly provides for the amendment of the Constitution.

824\. In a broad sense law may include the Constitution and the law enacted by the legislature. There is however a clear 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 make 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 constituent power in a flexible or uncontrolled Constitution is conceptual depending upon the subject matter. A Dog Act 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 Constitutional arrangement But this conceptual difference does not produce different legal consequences, since the provisions 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 controlled Constitution it is not correct to say that legislative power is the genus of which constituent power is the species. The question 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 legislative power and constituent power are the species. The differentia is found in the different procedure prescribed for the exercise of constituent power as distinguished from that prescribed for making ordinary laws. The distinction between legislative power and constituent power is vital in a rigid or controlled Constitution, because it is that distinction which brings in the doctrine that a law ultra vires the Constitution is void, since the Constitution is the touchstone of validity and that no provision of the Constitution can be ultra vires.

826\. The procedure that Bill for amendment of the Constitution has to be introduced in either House of Parliament and passed by both Houses does not alter the status 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](/doc/1706770/) 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 Constituent 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 Constituent 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](/doc/594125/) it requires that the amendment must be ratified by at least one half of the State legislatures and the process is radically 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](/doc/594125/) Parliament does not act as a Union legislature. The feature that in the passage of the bill for amendment of the Constitution the House 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.

> 877\. The conclusions on the question as to whether [Article 13(2)](/doc/772605/) overrides [Article 368](/doc/594125/) are these. [Article 13(2)](/doc/772605/) relates to laws under the Constitution. Laws under the Constitution are governed by [Article 13 (2).](/doc/772605/) [Article 368](/doc/594125/) 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 executing. [Article 13(2)](/doc/772605/) does not override [Article 368.](/doc/594125/) [Article 13(2)](/doc/772605/) is not a fundamental right. The Constitution is the touchstone. The constituent power is sui generis. The majority view in [Golak Nath](/doc/21266288/) case that [Article 13(2)](/doc/772605/) prevails over [Article 368](/doc/594125/) 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](/doc/574894/) which in its turn attracted the provisions of [Article 13(2).](/doc/772605/) Parliament took notice of the two conflicting views which had been taken of the unamended [Article 368](/doc/594125/), took notice of the fact that the preponderating judicial opinion, namely, the decisions in [Shankari Prasad](/doc/1706770/) case Sajjan Singh case and the minority views of five learned Judges in [Golak Nath](/doc/21266288/) case were in favour of the view that [Article 368](/doc/594125/) contained the power of amendment and that power was the constituent power belonging to Parliament Wanchoo, J. rightly said in [Golak Nath](/doc/21266288/) case that the power under [Article 368](/doc/594125/) is a constituent power to change the fundamental law, that is to say, the Constitution and is distinct from ordinary legislative power. So long as this distinction is kept in mind Parliament will have power under [Article 368](/doc/594125/) to amend the Constitution and what Parliament does under [Article 368](/doc/594125/) is not ordinary law making which is subject to [Article 13(2)](/doc/772605/) or any other Article of the Constitution. This view of Wanchoo, J. was adopted by Parliament in the Constitution 24th Amendment Act which made explicit that under [Article 368](/doc/594125/) Parliament has the constituent power to amend this Constitution.

887\. Fourth, reference was made to Section 9(1)(c) of the India Independence Act 1947 which empowered the Governor General to make omissions from, additions to and adaptations and modification to the [Government of India Act, 1935](/doc/93056159/). The Government of India Third Amendment Act 1949 amended [Section 291](/doc/1955809/) of the 1935 Act and empowered the Governor General to make such amendments as he considers necessary whether by way of addition, modification or repeal. It was, therefore, said that when our Constitution did not use the expression "by way of addition, modification or repeal" the word "amendment" in [Article 368](/doc/594125/) will have a narrower meaning. The expression "amendment" has been used in several Articles of the Constitution. These are [Articles 4(1)](/doc/989492/) and [(2)](/doc/1456610/)[, 108(4)](/doc/1267880/)[, 109(3)](/doc/431429/), and [4](/doc/1015123/)[, 111](/doc/158646/)[, 114(2)](/doc/380520/)[, 169(2)](/doc/844977/)[, 196(2)](/doc/1786573/)[, 198(3)](/doc/1671824/) and [(4)](/doc/1015123/)[, 200](/doc/1580975/)[, 201](/doc/1776802/)[, 204(2)](/doc/1927854/)[, 207(1)](/doc/1835641/)[, (2)](/doc/1456610/)[, 240(2)](/doc/466661/)[, 274(1)](/doc/636593/)[, 304(b)](/doc/191273/) and [349.](/doc/896717/) In every case amendment is to be by way of variation, addition or repeal. Again, different expression have been used in other Articles. In [Article 35(b)](/doc/1015583/) the words are alter, repeal. In [Article 243(1)](/doc/452231/) the words are repeal or amend. In [Article 252(2)](/doc/1294039/), the expression is amend or repeal. In [Article 254(2)](/doc/665535/) proviso the words are add to, amending, variation or repeal. In [Article 320(4)](/doc/1781148/) the words are such modifications whether by way of repeal or amendment. In [Article 372(1)](/doc/74529/) the words are altered or repealed or amended. In [Article 372(2)](/doc/74529/) the words are such adaptations and modifications by way of repeal or amendment. In [Article 392(1)](/doc/179779/) the expression is such adaptations by way of modification, addition or commission. Again, in [Article 241(2)](/doc/548820/) the words are modification or exceptions. In [Article 364](/doc/539354/) the words used are exceptions or modifications. In [Article 370(1)(d)](/doc/589802/) and [(3)](/doc/1659104/) the words are modifications and exceptions. Again, in Schedule 5 paragraph 5(1) and Schedule 6 paragraphs 12(a), (b), 19(1)(a) the word used are exceptions or modifications. Modifications in [Article 370(1)(d)](/doc/589802/) must be given the widest meaning in the context of a Constitution and in that sense it includes an amendment and it cannot be limited to such modifications as do not make any radical transformation.

898\. 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-parte Dillon Federal Reporter No. 262 p. 563. The legislature is a mere agency for ratification of a proposed 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 limitations 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 authority 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 Constitution has fixed. Ratification is not an act of legislation. It derives its authority from the Constitution. Hawke v. Smith 253 U.[S. 221](/doc/88674/); Dillon v. Gloss 256 U.[S. 358](/doc/147929/), Leser v. Garnett 258 U.[S. 130](/doc/1822128/). Fifth, the power of amendment extends to every part of the Constitution. In amending the Constitution the General Assembly acts in the character and capacity of a convention expressing the supreme will or the sovereign people and 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 is clear there is no room for construction. Rhode Island v. Palmer 253 U.[S. 350](/doc/785969/); U.S. v. Sprague 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](/doc/1670439/). 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. Whitehall v. Elkins 389 U.[S. 54](/doc/887242/).

953\. 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 to 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](/doc/594125/) speaks of changes in the provisions of the Constitution as are 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 federal features, and from that point of view "Essential features" could be amended. In the face of these express provisions it is impossible to hold that the Constitution does not contemplate 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. It need be hardly said that amendment not only means alteration, addition or repeal of provision but also deletion of some part, partial repeal and addition of a new part.

956\. The other change as a result of the 24th Amendment is that "Parliament may in the exercise of its constituent power amend" 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](/doc/1706770/) case which in considering the validity of 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)](/doc/772605/) applied to the exercise of legislative power and did not apply to an amendment of the Constitution. In Sajjan Singh case the same distinction was upheld by the majority of this Court. In [Golak Nath](/doc/21266288/) case the majority and the concurring judgment denied the distinction between legislative and constituent power and held that [Article 13(2)](/doc/772605/) applied to an amendment of the Constitution under [Article 368](/doc/594125/) because there was no distinction between legislative and constituent power. As a consequence the leading majority judgment in [Golak Nath](/doc/21266288/) case held that Parliament could not amend fundamental rights. The dissenting judgments in [Golak Nath](/doc/21266288/) case upheld the vital distinction between legislative and constituent powers and held that the decision in [Shankari Prasad](/doc/1706770/) 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).](/doc/772605/) 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.](/doc/594125/) Parliament took notice of the preponderating judicial opinion in favour of the view that [Article 368](/doc/594125/) contained the power of amendment and that power was a constituent power. Wanchoo, J. held that the power under [Article 368](/doc/594125/) 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 Prasad](/doc/1706770/) case and the majority judgment in Sajjan Singh case and the dissenting judgment in [Golak Nath](/doc/21266288/) case said, namely that Parliament has the constituent power to amend the Constitution.

977\. Subba Rao, C.J. in [Golak Nath](/doc/21266288/) case equated fundamental rights with natural rights or promodial rights. The concurring majority view in [Golak Nath](/doc/21266288/) 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 Constitution, 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](/doc/21266288/) 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](/doc/1987997/) deals with abolition of untouchability. [Article 18](/doc/1163710/) speaks of abolition of titles. [Article 20](/doc/655638/) deals with protection in respect of conviction for offences. [Article 23](/doc/1071750/) refers to prohibition of traffic in human beings and forced labour. [Article 24](/doc/1540780/) deals with prohibition of employment of children in factories, etc. [Article 27](/doc/211413/) speaks of freedom as to liability for taxes levied for promotion of any particular religion. [Article 28](/doc/1734560/) contemplates freedom as to attendance at religious instruction or religious worship in certain educational institutions. [Article 29](/doc/1888152/) deals with protection of interests of minorities. [Article 31(2)](/doc/108209556/) prior to the Constitution 25th Amendment Act spoke of payment of just equivalent for acquisition or requisition of property. [Article 31(4)](/doc/49756294/) deals with legislation pending at the commencement of the Constitution. [Articles 31(5)](/doc/55690818/) and [(6)](/doc/19636/) save certain types of laws. [Article 31A](/doc/660119/) saves laws providing for acquisition of estates etc. [Article 32](/doc/981147/) confers right to move the Supreme Court.

1032\. 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 does not extend to authorise the elimination of the representative 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" in 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 that 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. 1033. The decision in Taylor case was to the effect that the Acts did not alter the representative character of the legislature as defined in Section 1 of the Colonial Laws Validity Act, 1865, nor did they affect the position of the Crown. The first two propositions on which Mr. Palkhivala 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 be that the legislature must always remain a representative legislature as defined by the statute, but it is unnecessary in the present case to determine whether that is so or not". 1034. Issacs, J. held in that case that the word "legislature" did not include the Crown because Section 7 of the Colonial Laws Validity Act used the expression "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 Colonial legislature to alter the Constitution 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 of the provisions of the Colonial Laws Validity Act where a "colony" as 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.

1040\. In Rayan case 1935 Irish Report 170 the validity of amendment of [Article 50](/doc/192717/) of the Irish Constitution which came into existence in 1922 fell for consideration. [Article 50](/doc/192717/) 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 referendum. The other provision in [Article 50](/doc/192717/) was that amendment "shall be subject to the provisions of [Article 47"](/doc/1551554/) of the Constitution. [Article 47](/doc/1551554/) made provisions 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](/doc/1551554/) was repealed. In 1929 before the expiry of 8 years there was an amendment of the Constitution 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 Constitution are so fundamental as to be-incapable of alteration. Second, [Article 50](/doc/192717/) does not authorise any change in these fundamental Articles. 1041. The decision of the Judicial Committee in Moore and Ors. v. Attorney General for the Irish Free State and Ors. 1935 A.C. 484 throws a flood of light 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 United Kingdom. The first clause of the Treaty provided that Ireland shall have the same Constitutional status in the community of nations known as the British Empire as the Dominion of Canada, Commonwealth of Australia, the Dominion 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 shall be styled and known as the Irish Free State. The second clause 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](/doc/609139/) created a legislature known as the Oireachtas and the sole and exclusive power of making laws for the peace, order and good government of the Irish Free State was vested in the Oireachtas.

1044\. 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 Ireland. 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](/doc/237570/) and in repealing or amending of parts of an imperial Statute, namely, the Irish Free State Constitution Act, 1922 what the Oireachtas 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. 1045. The decision in Liyanage v. Queen (1967) 1 A.C. 259 was also relied on by Mr. Palkhivala for the theory of implied and inherent limitations. [The Criminal Law Amendment Act](/doc/1732853/) passed by the Parliament of Ceylon in 1962 contained substantial modifications of the [Criminal Procedure Code](/doc/445276/). 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 class 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](/doc/237570/) also provided for the admission in evidence of certain confessions and statements to the police inadmissible under the Evidence Code. [The Act](/doc/237570/) was expressed to be retrospective to cover an abortive coup d'etat on 27 January, 1962 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 [Criminal Law Amendment Act](/doc/1732853/) of 1962 (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.

1049\. Again in Kariappar case 1968 A.C. 717 the Judicial Committee considered a Ceylon Act which was inconsistent with the Ceylon Constitution. [The Act](/doc/237570/) imposed civic disabilities for 7 years on person to whom the Act applied and provided for the vacation of the scat as a Member of Parliament. The words amend or repeal in [Section 29(4)](/doc/1888152/) 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 admit ambiguity. 1050. To introduce into our Constitution the doctrine of implied and inherent limitations on the meaning of the word "amendment" by upholding 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 1968 A.C. 717 are authorities for two propositions. First, that in the exercise of the pouter of amendment a controlled Constitution can be converted into an uncontrolled one. Second, the word "amendment" means alteration. In Ibralebbe 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. 1051. The decision in [Mangal Singh v. Union of India](/doc/1672729/) (1967) 2 S.C.R. 109 has been relied on by Mr. Palkhivala in support of the proposition that the power of amendment is subject to implied limitation. [Article 4](/doc/1015123/) of the Constitution which was interpreted in Mangal Singh case has to be read with [Articles 2](/doc/1456610/) and [3.](/doc/1659104/) [Article 4](/doc/1015123/) contains a limited power of amendment, limited to amend Schedules 1 and 4 as may be necessary to give effect to a law mentioned in [Articles 2](/doc/1456610/) and [3](/doc/1659104/) and of making supplemental, incidental and consequential provisions. Shah, J. in Mangal Singh case said that power with which Parliament is invested by [Articles 2](/doc/1456610/) and [3](/doc/1659104/) is a power to admit, establish or form new States or to admit, establish or admit new States which conform to the democratic pattern envisaged by the Constitution and is not a power to override the Constitutional scheme. It is manifest that when a new State is created in accordance with [Articles 2](/doc/1456610/) and [3](/doc/1659104/) the amendment under [Article 4](/doc/1015123/) will be followed up as necessary to give effect to the same. Such an amendment does not override the Constitutional scheme. 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. 1052. The petitioner challenges the legality and the validity of the Constitution (25th) Amendment Act.

1062\. After the substitution of the neutral expression "amount" for "compensation" in [Article 31(2)](/doc/108209556/) 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)](/doc/108209556/) was that the law was bound to provide for the payment of compensation in the sense of equivalent in value of the property acquired. This was the interpretation given in the Bank Nationalisation case even after the Constitution 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 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 the 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 considerations of social justice as against the equivalent in value of the property acquired. Considerations of social justice will include the relevant Directive Principles particularly in [Article 39(b)](/doc/1200546/) and (c). These principles are to subserve the common good and to prevent common detriment. The question of adequacy has been excluded from [Article 31(2)](/doc/108209556/) by the [Constitution Fourth Amendment Act](/doc/70678966/). 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 Constitution does not allow judicial review of a law on the ground of adequacy of the amount and the manner as to how such amount is to be given otherwise than in cash.

32\. The Directive Principles are not enforceable by reason of [Article 37.](/doc/76375/) Yet it is said that while giving effect to Directive Principles fundamental 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 within [Article 31C](/doc/198382/) 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](/doc/198382/) purports to take away a large number of those fundamental rights. Fifthly, the Court is precluded from considering whether law under [Article 31C](/doc/198382/) is such that it can possibly secure Directive Principles in question. Sixthly, no State legislature can amend the fundamental rights or any other part of the Constitution but [Article 31C](/doc/198382/) empowers the State legislaure to pass laws which virtually involve repeal of the fundamental rights. Power of amending the Constitution is delegated to State legislatures. 1071. Finally, it is said that the fundamental rights under [Article 14](/doc/367586/)[, 19](/doc/1218090/) and [31](/doc/354224/) which are sought to be superseded by [Article 31C](/doc/198382/) are necessary to make meaningful specific rights of the minorities which are guaranteed by [Articles 25](/doc/631708/) to 30. The proviso to [Article 31(2)](/doc/108209556/) 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 minorities under [Article 31.](/doc/354224/) 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](/doc/631708/) to 30 such a law would be no law. Therefore, deprivation of property under such law would violate [Article 31(1).](/doc/27622490/) But the 25th Amendment by [Article 31C](/doc/198382/) abrogates [Article 31(1)](/doc/27622490/) and minorities can be deprived of their properties held privately or upon public, charitable or religious trusts by law which violates [Articles 25](/doc/631708/) to 30.

1072\. The pre-eminent feature of [Article 31C](/doc/198382/) is that it protects only law. Therefore, any question of violation of [Article 31(1)](/doc/27622490/) does not arise. Law referred to in [Article 31C](/doc/198382/) 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](/doc/1987997/)[, 19(2)](/doc/493243/) to (6), 21, 22, 23(1), 26, 31, 33, 34 and 35. These Articles indicate that the expression "law" there means law made by the legislature in accordance with its ordinary legislative procedure. The expression "law" does not include within itself ordinance, order, bye-law; rule, regulation, notification, custom or usage having the force of law nor an amendment of the Constitution in accordance with the procedure prescribed in [Article 368.](/doc/594125/) In [Article 13](/doc/134715/) the term "law" has been used in a wide sense. For this a definition was given in [Article 13(3)](/doc/654960/) to include certain other categories. The definition in [Article 13(3)](/doc/654960/) is expressly limited for [Article 13.](/doc/134715/) Law in [Article 31C](/doc/198382/) must have the same meaning as it has in other Articles generally, namely, a statute passed by the legislature. 1073. It is true that such law may need details to be filled up by other agencies but the essential elements of [Article 31C](/doc/198382/) must be supplied directly by that enactment. A question arose with reference to [Article 254](/doc/1930681/) as to whether a clause of the Sugar Control Order 1955 made under the [Essential Commodities Act](/doc/774360/) 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 and Ors. Etc. v. The State of Uttar Pradesh and Ors. 1956 S.C.R. 393).

1082\. [Article 31C](/doc/198382/) substantially operates in the same manner in the industrial sphere as [Article 31A](/doc/660119/) operates in the agrarian sphere. The problems are 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 31C](/doc/198382/) as an application of the principles underlying [Articles 31(4)](/doc/49756294/) and [31(6)](/doc/64339869/) and [Article 31A](/doc/660119/) to the sphere of industry. 1083. A class of legislation can be identified 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)](/doc/49756294/) and [31(6)](/doc/64339869/) identify the laws with reference to the period during which they were made. [Article 31(4)](/doc/49756294/) 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 assent of the President to be not called in question on the ground that it contravenes [Article 31(2).](/doc/108209556/) [Article 31(6)](/doc/64339869/) relates to law of the State enacted not more than 18 months from the commencement of the Constitution to he submitted to the President for his certification and upon certification by the President not to be called in question on the ground of contravention of [Article 31(2).](/doc/108209556/) [Articles 31(2)](/doc/108209556/) and [31A](/doc/660119/) identify the legislative field with reference to the subject matter of law. [Articles 15(4)](/doc/251667/) and [33](/doc/829916/) and [Article 31(5)(b)(ii)](/doc/170199134/) identify laws with reference to the objective of the legislature. The exceptions to some part or some Articles of Part III of the Constitution is created by the Constitution and any law which is made pursuant to such power conferred by the Constitution does not amend the operation or application of these Articles in Part III of the Constitution. The crux of the matter is that modification or exception regarding the application of some of the Articles in Part III is achieved by the mandate of the Constitution and not by the law which is to be made by Parliament or State under [Article 31C.](/doc/198382/) Therefore, there is no delegation of amending powers. There is no amendment of any Constitutional provision by such law.

1103\. Again, in Jeejibhoy v. Assistant Collector (1965) 1 S.C.R. 616 it was contended that [Articles 31A](/doc/660119/) and [31B](/doc/282612/) should be read together and if so read [Article 31B](/doc/282612/) would only illustrate the cases that would otherwise fall under. [Article 31B](/doc/282612/), and, therefore, the same construction as put upon [Article 31B](/doc/282612/) should apply to [Article 31A.](/doc/660119/) This Court did not accept the argument It was said that the words "without prejudice to the generality of the provisions contained in [Article 31A"](/doc/660119/) indicate that the Acts and Regulations specified in the Ninth Schedule would have the same immunity even if did not attract [Article 31A](/doc/660119/) of the Constitution. If every Act in the Ninth Schedule would be covered by [Article 31A](/doc/660119/), [Article 31B](/doc/282612/) would be redundant Some of the Acts mentioned in the Ninth Schedule, namely, 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)](/doc/15174205/) of the Constitution. It was, therefore, held in Jeejibhoy case that [Article 31B](/doc/282612/) was a Constitutional device to place the specific statute beyond any attack on the ground that they infringe Part III of the Constitution. 1104. The words "without prejudice to the generality of the provisions contained in [Article 31A"](/doc/660119/) occurring in [Article 31B](/doc/282612/) indicate that [Article 31B](/doc/282612/) stands independent of [Article 31A.](/doc/660119/) [Article 31B](/doc/282612/) and the Schedule are placed beyond any attack on the ground that they infringe Part III of the Constitution. [Article 31B](/doc/282612/) need not relate to any particular type of legislation. [Article 31B](/doc/282612/) gives a mandate and complete protection from the challenge of fundamental rights to the Scheduled Acts and the Regulations. [Article 31A](/doc/660119/) protects laws in respect of five subject matters from the challenge of [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31](/doc/354224/), but not retrospectively. [Article 31B](/doc/282612/) protects Scheduled Acts and the Regulations and none of the Scheduled Acts are deemed to be void or even to have become void on the ground of contravention of any fundamental right.

1107\. First, the power to amend the Constitution is located in [Article 368.](/doc/594125/) Second, neither the Constitution nor an amendment of the Constitution can be or is law within the meaning of [Article 13.](/doc/134715/) Law in [Article 13](/doc/134715/) means laws enacted by the legislature subject to the provision of the Constitution. Law in [Article 13(2)](/doc/772605/) does not mean the Constitution. The Constitution is the supreme law. Third, an amendment of the Constitution is an exercise of the constituent power. The majority view in [Golak Nath](/doc/21266288/) 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)](/doc/772605/) 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-essential features of the Constitution 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](/doc/594125/) 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 Constitution. 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 cannot 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".

1116\. 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 97 of List I, but in [Article 368.](/doc/594125/) In view of the conclusion of Hidayatullah, J., that the power of amendment as well as procedure therefor was contained in [Article 368](/doc/594125/) 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 [Article 368.](/doc/594125/) 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](/doc/120358/) wherever the power may have been found, whether in [Article 368](/doc/594125/) or in the residuary entry 97 of List I of Schedule VII, the controversy was whether an amendment made under [Article 368](/doc/594125/) is a 'law' within the meaning of [Article 13(2)](/doc/772605/), and if it is so, a State cannot make a law taking away or abridging fundamental rights conferred by Part III of the Constitution. That question being answered in the affirmative by the majority, the ratio of Golaknath's decision is that an amendment under [Article 368](/doc/594125/) is a 'law' within the meaning of [Article 13(2).](/doc/772605/) What the leading majority judgment [in that case](/doc/120358/) did not decide, however, is whether [Article 368](/doc/594125/) 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 view we have taken on the scope of [Article 368](/doc/594125/) vis-a-vis the fundamental rights, it is also unnecessary to express our opinion on the question whether the amendment of the fundamental rights is covered by the proviso to [Article 368."](/doc/594125/) 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, [Article 368](/doc/594125/), Hidayatullah, J., held that by amending. [Article 368](/doc/594125/), Parliament could not do indirectly what it could not do directly, namely, amend [Article 13(2)](/doc/772605/) 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 [Article 368.](/doc/594125/) That too because the Constitution has made them fundamental." (See p.

1119\. The first question which would arise for decision is what does 'law' in [Article 13(2)](/doc/772605/) signify, and is there any internal evidence which would indicate that that word has been used to include an amendment under [Article 368](/doc/594125/), and if it does, whether it is subject to any limitations, and if so, what ? It is contended that the word 'law' in [Article 13(2)](/doc/772605/) not only includes ordinary legislative law, but also Constitutional law. 1120. It may not, in my view, be necessary to examine the submission, that an amendment under [Article 368](/doc/594125/) is not made in exercise of the constituent power but has been made by a constituent body, if on examination of the provisions of Part III, there is intrinsic evidence therein which points to the irresistible conclusion that [Article 13(2)](/doc/772605/) was meant only to place an embargo on a law made by a Legislature so-called in contradistinction to an amendment of the Constitution under [Article 368](/doc/594125/) which no doubt is also a law in its generic sense, as indeed was the view taken in [Sankari Prasad Singh Deo v. Union of India and State of Bihar](/doc/1706770/) \[1952\] S.C.R. 89, Sajjan Singh v. State of Rajasthan \[1965\] 1 S.C.R. 933 and Golaknath's case by some of the learned Judges. The framers of the Constitution have defined "law" in Sub-clause (a) of Clause (3) of [Article 13](/doc/134715/) 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 Sub-clause (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 [Article 372](/doc/74529/) would, by virtue of Sub-clause (a) of Clause (3), equally apply to Clause (1) of [Article 13.](/doc/134715/)

1124\. Even where reasonable restrictions are permitted as in Clauses (2) to (6) of [Article 19](/doc/1218090/) 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 [Article 33](/doc/829916/), 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 re-regard. [Article 35](/doc/448465/), it may be noticed, begins with a non obstante clause, "Notwithstanding anything in this Constitution - (a) Parliament shall have, and the Legislature of a State shall not have, power to make laws...." This non obstante clause has 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 the State Legislatures. Hidyatullah, J., however, thought that the opening words in [Article 35](/doc/448465/) were more than the non obstante clause and excluded Article 368 - a conclusion based on comparison of that Article with Article 105-A of the Australian Constitution in respect of which New South Wales v. The Commonwealth 36 C.L.R. 155 had held that it was an exception to [Section 128](/doc/908489/) (See [Golaknath](/doc/120358/)'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 is unsafe to rely on cases which arise under other Constitutions. Apart from this, [Article 35](/doc/448465/) is not in pari materia with Article 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 [Article 35](/doc/448465/) to safeguard it from being amended under [Article 368.](/doc/594125/) On the other hand, this article empowers Parliament to give effect to fundamental rights and gives no indication to delimit the power of amendment under [Article 368.](/doc/594125/)

> 1129\. 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 the Constitution distinguished the 'Constitution' from 'law' or 'laws', by making evident their intention by using the word 'law' in contradistinction to the 'Constitution' indicating thereby that the word 'law' wherever referred to, means only an ordinary legislative law, while the 'Constitution' as something distinct from it. In [Article 60](/doc/1102405/) the President, and in [Article 159](/doc/586056/) the Governor, is required to take oath when assuming office, to preserve, protect and defend the Constitution and the law. Under [Article 61](/doc/594857/) the President can only be impeached for the violation of the Constitution. While specifying the extent of the executive power in Sub-clauses (a) and (b) of Clause (1) of [Article 73](/doc/883495/) it is provided by the proviso that the power referred to in Sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power 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)](/doc/1532170/) is set out in Schedule 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 Constitution and the laws : see [Articles 124(6)](/doc/6596384/) and [219](/doc/1258876/) each read with Schedule III. It is provided in [Article 76(2)](/doc/385309/) 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)](/doc/1064654/) 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'.

1133\. 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 [Article 8(3)(a) (corresponding to Article 13](/doc/1646301/)(3)(a) would apply to [Article 8(2)](/doc/1444915/), but the State does not make a 'usage or custom'. Dr. Ambedkar pointed out that that will apply to [Article 8(1)](/doc/1266611/) which deals with 'laws in force', but Naziruddin Ahmed insisted that it does not, and that he was no wiser after the explanation given by Dr. Ambedkar that the definition of law is distributive. Dr. Ambedkar then said that the amendment of Naziruddin Ahmed creates some difficulty which it is necessary to clear up and ultimately to avoid any difficulty he moved an amendment to Clause (3) of [Article 8](/doc/691208/) to read "unless the context otherwise requires" which governed Clauses (a) and (b). This was adopted. (See C.A.D. Vol. VII, p. 644). It was after this that the proviso was deleted. 1134. It would appear from the proviso before it was deleted, if read with Clause (2) of draft [Article 8](/doc/691208/), as also the note showing the pupose 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 [Article 304](/doc/1392920/), because the proviso was making the restriction in Clause (2) of [Article 8](/doc/691208/) inapplicable to the State from making any law for the removal of any inequality, disparity, disadvantage or discrimination arising out of any existing law. If the 'State' and the 'law' 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 the key to the interpretation of the word 'law' in Clause (2) of draft [Article 8](/doc/691208/) that it is also a legislative law that is therein referred.

> This amendment after Dr. Ambedkar's speech regarding the scope of the amendment under [Article 304](/doc/1392920/) was, by leave, withdrawn. (See C.A.D. Vol. IX p. 1665). 1136. 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 [Article 304](/doc/1392920/), but it was pointed out by the Constitutional Adviser that that amendment involved a question of policy. The Drafting Committee did not adopt this amendment. If this amendment had been accepted, the amendment of the fundamental rights could 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 III could not be amended under [Article 368](/doc/594125/) or that 'law' in [Article 13(2)](/doc/772605/) is not the ordinary legislative law, but would include an amendment under [Article 368.](/doc/594125/) An attempt was made to show that on September 17, 1949, Dr. Ambedkar while speaking on draft [Article 304](/doc/1392920/) had said that Part III was not amendable. While adverting to the fact that they had divided the articles into three categories, 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](/doc/1392920/), all that was necessary for them is to have two-thirds majority." The third category for the purposes of amendment he explained required two-thirds majority plus ratification. It is submitted on behalf of the first respondent that what was stated about Part III being excepted from the second category was a mistake and that he must be thinking that, alonfi with [Article 304](/doc/1392920/), Part III was also included in the third category. The Advocate-General of Nagaland said Part III was a mistake 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 relevant, 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.

> Before the Amendment After the Amendment Procedure 368. An amendment of this Power of 368.(1) Notwithstanding for amendment Constitution may be initiated only Parliament anything in this of the by the introduction of a Bill to amend Constitution Parliament Constitution. for the purpose in either House the may in exercise of its of Parliament, and when Constitution constituent power amend the Bill is passed in each House and procedure by way of addition, by a majority of the total therefor. variation or repeal any membership of the House provision of this and by a majority of not less Constitution in accordance than two-thirds of the members with the procedure laid of that House present and voting down in this article. it shall be presented to the President for his assent and upon such assent being given to (2) An Amendment of the bill, the Constitution shall this Constitution may be stand amended in accordance initiated only by the with the terms of the Bill. introduction of a Bill for the purpose in Provided that if such amendment either House of Parliament, seeks to make any change in- and when the Bill is passed in each House by a ... majority of the total membership of that House and the amendment shall also require by a majority of not less to be ratified by the Legislatures than two-thirds of the of not less than one-half members of that House of the States by resolutions to present and voting, it that effect passed by those shall be presented to Legislatures before the Bill the President who shall making provision for such give his assent to the amendment is presented to Bill and thereupon the the President for assent. 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 effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. (3) Nothing in [Article 13](/doc/134715/) shall apply to any amendment made under this article. 13(4) Nothing in this article shall apply to any amendment of this Constitution made under [Article 368.](/doc/594125/)

> 1143\. It may be mentioned that arguments similar to those which were addressed before us were advanced in [Golaknath](/doc/120358/)'s case, namely, (i) that the expression 'amendment' in [Article 368](/doc/594125/) 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 short, the sovereign democratic republic can be converted into a totalitarian 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 to 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". 1144. Hidayatullah, J., on the other hand, dealing with implied limitations by reference to Article 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 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 of its sovereignty. It is submitted that it 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.](/doc/594125/) 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".

1165\. 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 our own where the Central and the State Legislatures are 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 or uncontrolled, but without going into these concepts it is clear that' if the State is considered as a society, "to which certain indefinite but not unlimited powers are 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 it is believed that the Queen in Parliament is supreme, Professor A.L. Goodhart in the book [referred to above](/doc/1857950/) 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 conclusion 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 Constitution there are certain established principles which limit the scope of Parliament. It is true 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 less 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 :

1169\. 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 earlier 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 are wider than amendment, could Parliament in exercise of its amending power in [Article 368](/doc/594125/) enlarge that power? This aspect has been seriously contested and cannot on a superficial view be brushed aside as not worthy of merit. There 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-sovereign and thereafter 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 Wendall 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 priori assumption and the speculation inherent in drawing upon such writings, and secondly, because the interpretation placed by these learned writers on Constitutions which are 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 postulates. 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 Government 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., are 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.

1171\. The learned Attorney-General further submits, relying again on the decisions of the American Courts that revision and amendment have been held as synonymous terms and that if you give the power to amend the amending power, the amending power will become very wide. 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-makers 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 Constitution, 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 to associate the State Legislatures in the process of amending the Consitution." 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).

1207\. 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 in his book "The Indian Constitution" at 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 the social revolution or attempt to foster this revolution by 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 hope and expectation that one day the tree of true liberty would bloom in India The Rights and Principles thus connect India's future, present, and past, adding greatly to the significance of their inclusion in the Constitution, and giving strength to the pursuit of the social revolution in India. 1208. 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 rime, 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 of fundamental rights, but Moti Lal Nehru Committee drafted a Swaraj Constitution for India incorporating therein the declaration of rights. In respect of these rights, the report said:

1213\. It has been contended that Parliament or the Legislature can either fix an amount without setting out any principles for determining the amount or set out the principles for determining the amount. In the former case, the respondents contend that it will not be open to the Court to examine on what principles the amount has been fixed. If the Legislature merely names an amount in the law for acquisition or requisition, it may be an arbitrary amount, 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 question 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 even 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 been fixed, lest if this was disclosed the Courts 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 Court, and yet it is said that if an amount is fixed without reference to any principles and arbitrarily, the Court cannot examine it. Such a view has no rational or logical basis. The Legislature, even in cases where it fixes an amount for the acquisition or requisition of a property, must be presumed to have fixed it on some basis, or applied some criteria or principles to determine 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 State will have to meet the challenge, and the Court will have to go into these questions. This will be so even in respect to the manner of payment. Once it 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 was fixed were found to bear reasonable relationship to the value of the property acquired, the Court cannot go into the question of adequacy of the amount so fixed on the basis of such principles.

1224\. In so far as [Article 31A](/doc/660119/) was concerned, it authorised a law for the acquisition of an estate as defined in Clause (2). [Article 31B](/doc/282612/) as introduced by the First Amendment protected from challenge, on the ground of infringement of the rights in Part III, certain Acts enacted for agrarian reforms which, after very careful scrutiny that they pertain to agrarian 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 the 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 [Article 31](/doc/354224/) 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 [Article 31](/doc/354224/) not to extend to the acquisition of land for giving effect to agrarian reforms. This compromise resulted in the inclusion of Clauses (4) and (6) giving protection to laws made thereunder 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 and 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 to the President for his certification had 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 of the character above mentioned, but the Patna High Court had held [Article 14](/doc/367586/) was applicable and even when the appeals were pending in this [Court, the Constitution (First Amendment) Act, 1950](/doc/136460171/), was passed and [Article 31A](/doc/660119/) and [Article 31B](/doc/282612/) 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 not to do so. He said:

1237\. In so far as the abridgement of the right conferred by [Article 14](/doc/367586/) is concerned, it would be ultra 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 [Article 31A](/doc/660119/) because the Courts had held invalid under [Article 14](/doc/367586/), the provisions of certain land reform legislations relating to compensation for the acquisition etc., of the estates. The necessity for the exclusion of [Article 14](/doc/367586/) from being applied to laws under [Article 31C](/doc/198382/) is not apparent or easy to comprehend. No law under [Article 31C](/doc/198382/) could possibly be challenged under [Article 14](/doc/367586/) by the owners or 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 [Article 39(b)](/doc/1200546/) & (c). Any rational principles of classification devised for giving effect to the policies adumberated in [Article 39(b)](/doc/1200546/) & (c) will not be difficult to pass the test of equal protection of the laws under [Article 14.](/doc/367586/) The exclusion of [Article 14](/doc/367586/) in [Article 31A](/doc/660119/) was confined to the aspect of acquisition and compensation in respect of land reforms laws, but, however, the laws under [Article 31A](/doc/660119/) were not immune from attack under [Article 14](/doc/367586/), 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 [Article 31A](/doc/660119/), it was raised in [Balmadies Plantations Ltd. and Ors. v. State of Tamil Nadu](/doc/1126088/) (1972) 2 S.C.R. 133, where the appellants contended that it would not be open to the Government under [Section 17](/doc/67950863/) of the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969, to terminate by notice the right of the lessee as that would be violative of the rights under [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31](/doc/354224/) 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 [Section 17](/doc/34416384/) 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:

1253\. The doctrine that the general words in a statute ought to be construed with reference to the powers of the Legislature which enacts it, and that the general presumption is that the Legislature does not intend to exceed its jurisdiction, is well established. In in Re. The Hindu Women's Rights to Property Act, \[1941\] F.C.R. 12 and in [Daulat Singh](/doc/208970/)'s case it has been held that on the 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 to. 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 provisions of [Section 13A](/doc/198758822/) of the Punjab Alienation of Land Act, 1900, which were added by Section 5 of the Punjab Alienation of Land (Second Amendment) Act No. X of 1933, providing for the avoidcnce of banami transactions as therein specified which were entered into either before or after the commencement of the Act of 1938, and for recovery of possession by the alienor would have been ultra vires the Provincial Legislature as contravening Sub-section (1) of [Section 281](/doc/10621077/) of the Government of India Act, 1935, in that in some cases Section 13A would operate as a prohibition on the ground of descent alone, but it was authorised and protected from invalidity as regards future transactions by Sub-[section 2(a)](/doc/176529644/) of [Section 298](/doc/139186887/) of the Act of 1935 as amended by Section 4 of the India & Burma (Temporary and Miscellaneous Provisions) Act, 1942. As the provisions of Section 13A would have been ultra vires and void in so far as they purported to operate retrospectively, the Privy Council severed the retrospective element by the deletion of the words "either before or"

1270\. 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 (Rajasthan) Ltd. v. The State of Rajasthan and Ors.](/doc/304499/) \[1963\] 1 S.C.R. 491 at p. 539, 540 thoroughly acquainted with the Constitutions and Constitutional problems of the more important countries 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 regarded as "Flexible" Constitutions and what Constitutions were regarded as "rigid" Constitutions. They further knew that in all modern written Constitutions special provision is made for the amendment of the Constitution. Besides, after the [Government of India Act, 1935](/doc/93056159/) this country had become better acquainted at first hand, both with the Parliamentary system of Government and the frame of a 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 Parliamentary System of Government based on adult franchise both at the centre and in the States. 1271. The two words mentioned above 'flexible' and 'rigid' 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 one of the greatest expositors 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 edition, 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 \[1920\] A.C. 691 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 between Constitutions the terms of which may be modified 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 Constitution. Their special qualities may perhaps be exhibited as clearly by oiling the one a 'controlled' and the other an 'uncontrolled' Constitution as by any other nomenclature'. Perhaps this was an apology for not using the words 'rigid' and 'flexible' which were current when he delivered the judgment. In fact, sic John Simon in the course 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-book on Modern Political Constitution, Seventh revised edition, 1968 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 directions, explicitly leave the Legislature a free hand, then the Constitution is 'flexible'.

1287\. We have already shown that constituent power is qualitatively superior 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 \[1935\] A.C. 500 at p. 518 "Indeed, in interpreting a constituent or organic statute such as the Act (British North America Act) that construction most beneficial to the widest possible 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 Canada \[1930\] A.C. 124, 136. "Their Lordships do not conceive it to be the duty of this Board - it is certainly not their desire - to cut down the provisions 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 mistress 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. 1288. 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 modem 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 also 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 unamendable; 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 rigid-but the power is the same, namely, the amending power.

1289\. The raison d'etre for making 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 provision in a Constitution is to discourage such upheavals and provide for orderly change in 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 project into the future, 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 conditions. 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 extreme rigidity of a Constitution is triggered not by minor issues but by major issues. People revolt not because the so-called 'unessential' parts of a Constitution are not changed but because the 'essential' parts are not changed. The essential parts are regarded as a stumbling block in their progress to reform. It is, therefore, evident that if for any reason, whether it is the extreme rigidity of a Constitution or the disinclination of those who are in power to introduce change by amendment, the essential parts looked upon with distrust by the people are not amended, the Constitution has hardly a chance to survive against the will of the people. If the Constitution is to endure it must necessarily respond to the will of the people by incorporating changes sought by the people. The survival of the American Constitution is generally attributed not so much to the amending Article V of the Constitution but to its vagueness which was exploited by the great judges of the Supreme Court of America who by their rulings adapted the Constitution to the changing conditions. Legislative enactments, custom and usage also played a part. If the Constitution were to merely 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.

1290\. 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 subject 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 framing 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 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 rhetorical 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 changes made in an orderly manner. Declaring their faith in the Constitution they will express their confidence that the Constitution which they had framed with the 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 necessary 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 sufficient 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](/doc/594125/) we have also the uncomplicated word 'change' in that article and thus the intention of the framers of the Constitution is sufficiently known. 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 commonly accepted as standing for the alteration, variation or change in its provisions.

1291\. 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. 1292. We shall now see if there are express or implied limitations in [Article 368](/doc/594125/) itself. [Article 368](/doc/594125/) is found in Part XX of the Constitution which deals with only one subject, namely, the Amendment of the Constitution. The article provides that when the special procedure directed by it is successfully followed the Constitution stands amended in terms of the proposal 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](/doc/594125/) 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 necessary to exclude any part or provision of the Constitution from amendment, they would have done so in this part only as was done in the American Constitution. Article V of that Constitution, which was undoubtedly consulted before drafting [Article 368](/doc/594125/), made two specific exceptions. The language structure of Article V has a close resemblance to the language structure of our Article

(e) the provisions of this article, the amendment shall also require to be ratified by the legislatures etc. etc." The proviso, therefore, clearly implies that an amendment under [Article 368](/doc/594125/) seeks to make a change in the provisions of the Constitution. If the amendment seeks to make a change in the provisions referred to in Sub-clause (a) to (e) then only the amendment which makes such a change in these provisions requires ratification by the State legislatures. Otherwise, the amendment making a change in other provisions does not require ratification. We have already observed that the, meaning of the word 'change' is uncomplicated and can be easily felt and understood. The noun 'change' according to the Shorter Oxford English Dictionary means "substitution or succession of one thing in place of another; substitution of other conditions; variety." It also means "alteration in the state or quality of anything; variation, mutation." There can be no doubt, therefore, that, having regard to the importance of the amending clause in our Constitution, an amendment contemplates 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. As a matter of fact it is impossible to conceive of even the simplest form of amendment without adding, altering or repealing. If you add some words to a provision of the Constitution you thereby alter the provision. If you substitute a few words, you alter and repeal. Mr. Palkhivala admitted that he had no objection whatsoever to an amendment improving the Constitution so 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 of addition, variation or repeal of a provision of the Constitution which is just what the 24th amendment seeks to do. As a matter of fact any amendment to the Constitution 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 contrary, will ever agree that his proposal is retrogressive. Therefore, improvement or non-improvement 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 Constitution is made, will understand.

> instead of that "he would discharge the functions conferred by and under this Constitution or any other law for the time being in force". Similar is the case with the oaths prescribed in the IIIrd Schedule for the judges of the Supreme Court and the High Courts and the Comptroller and Auditor General. Indeed it is quite possible to urge that the Constitution has been specially mentioned in order to emphasize its importance. But that is the very point. Its importance lies in its supremacy over all kinds of others laws-a special position which the framers of the Constitution, thoroughly acquainted with federal and quasi- federal Constitutions of the more important countries in the world, must have always known. In any case they knew that the Constitution was distinct from other laws. On that footing it would be only reasonably expected that if an Amendment, not being of the nature of an ordinary law, was intended to be included in word 'law' in [Article 13(2)](/doc/772605/), it would have been specifically mentioned in the definition of the word 'law' given in Clause 3(1) of [Article 13.](/doc/134715/) 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 although 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 intended 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. Its omission is, therefore, very significant.

31\. In principle, there is no difference in [Article 31A](/doc/660119/) and the new [Article 31C](/doc/198382/) inserted by the 25th Amendment. In trying to support his arguments on the core principle of essential features, Mr. Palkhivala tried to play down the role of [Article 31(4)](/doc/49756294/) [& (6)](/doc/19636/) and [Article 31A](/doc/660119/) excusing them on the ground that they related to very necessary agrarian reforms to which the majority party in the Constituent Assembly was for years before the Constitution, committed. But that is not a legal argument. [Articles 31(4)(6)](/doc/49756294/) and [Article 31A](/doc/660119/) 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)](/doc/1200546/) & (c). (Compare the observations of 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 property 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 Vallabh Pant, the then Chief Minister of Uttar Pradesh. Speaking in the Constituent Assembly on [Article 31](/doc/354224/) and after justifying the provision of [Article 31(4)](/doc/49756294/) [& (6)](/doc/19636/) in relation to laws regarding Zamindaris and agricultural 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 to nationalise industry, and take control of it, whether it be all the industries 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 to 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 produced, is this, that it should he a fraud on the Constitution)." (See : Constituent Assembly Debates Vol. IX page 1289). It shows that [Article 31(4)(6)](/doc/49756294/) were the first step as applied to land legislation, in the direction of implementing the Directive Principles of [Article 39(b)](/doc/1200546/) &

1340\. 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 State Assemblies may be divested of the function by providing for a referendum plebiscite or a special convention. While, thus the power remains the same, the instrumentalities may differ from time to time in accordance with the procedure prescribed. 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 generated 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 Assembly had entrusted the power to any-body. If the authority which is required to follow the procedure is the Parliament for the time being, it may be convenient to describe Parliament as the authority to whom the power is granted or entrusted, but strictly that would be inaccurate, because there is no grant to any body. Whichever may be the instrumentality for the time being, the power remains unqualified. 1341. 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 fundamental rights-then these limitations must clog the power by whatever Agency it is exercised. The rest of the Constitution does not change merely because the procedure prescribed in [Article 368](/doc/594125/) is changed. Therefore, the implied limitations should continue to clog the power. Logically, if [Article 368](/doc/594125/) 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 referendum will not be bound by any limitations. The reason given is that the people directly take part in a referendum or, through their 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 Constituent Assembly.

1353\. The pre-eminent place in 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 are 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](/doc/1673816/), 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 mandate the content and ambit of the concepts of Liberty and Equality are bound to increase and expand. As Wade has pointed out in his introduction to Dicey's Law of the Constitution at page lxxxii "Liberty today involves the ordering of social and economic conditions by governmental authority, even in those countries where political, if not economic equality of its citizens, has been attained. Without expansion of that authority, which Federal States must find more difficult to achieve than a unitary State like the United Kingdom, there is inevitably a risk that the Constitution may break down before a force which is not limited by considerations of Constitutional niceties." Again he points out at pages xxiv and xxv that the modern House of Commons is a forum in which both parties put forward incessant demands for the remedying of some social or economic ill of 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 terms of our Constitution especially the Preamble and [Article 38](/doc/1673816/), the shift of emphasis is from individual liberty to Justice-social, economic and political.

1354\. 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 country whether they are described as fundamental rules or not. England developed these rules in its day to day Government under the rule of law and does 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, practically without change, under our Constitution. No body can deny that when Imperial interests were in jeopardy, these 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 our 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 Governments 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 Constitution imposed against laws which contravened these rights and the effective remedy supplied under [Article 32.](/doc/981147/) Indeed the framers of the Constitution took good care not to confer the fundamental rights in absolute terms because that was impractical. 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 fundamental rights i.e. rules of civilized government are liable to be altered, if necessary, for the common good and in the public interest.

1355\. And yet, as we have seen above, even in U.K. individual Liberty as it was understood a generation or two ago is no longer so sacrosanct, especially, in relation to ownership of property Several statutes in the economic and social field have been passed which while undoubtedly impinging upon the individual liberties of a few have expanded social and economic justice for the many; If U.K. had stood staunchly by its Victorian concept of laissez faire and individual liberty, the progress in social and economic justice 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 claim 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 their methods may be different. In a country like ours where we have, on the one hand, abject poverty on a very large scale and great concentration of wealth on the other, the advance towards social and economic justice is bound to be retarded if the old concept of individual 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, our Constitution does not sympathise with. If the normal rule is that all rules of civilized government are subject to public interest and the common weal, those rules will have to undergo new adjustments in the implementation of the Directive Principles. A blind adherence to the concept of freedom to own disproportionate wealth will not take us to the important goals of the Preamble, while a just and sympathetic implementation of the Directive 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. That 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)](/doc/1200546/) and (c), instead of being contrary to the Preamble, would be in conformity with it because while if may cut down individual liberty of a few, it widens its horizon for the many.

> [Secretary of State v. Maharajah of Bobbili](/doc/1405204/) 43 Madras 529 P.C. at 536. As a matter of fact if the enacting part is clear and unambiguous it does not call for construction. In Sprague's case the Supreme Court of America had been called upon to construe Article V, the amending clause, so as to cut down the amending power by implications arising out of certain other provisions of the Constitution itself. Replying to the argument the court observed, "the United 'State asserts that Article V is clear in statement and in meaning contains no ambiguity and calls for no resort to rules of construction. A mere reading demonstrates that this is true." These observations apply with greater force to our amending clause namely [Article 368](/doc/594125/), for in Article V of the American Constitution there was some room for play of argument on the basis of alternative methods permitted for the ratification of the proposed amendments. On the basis of the alternative methods provided in Article V-one by the State legislature and the other by the State convention-it was argued that, the State convention was the appropriate method Bo the exclusion of the State legislature, because the prohibition amendment (18th amendment) directly affected personal liberty. Where personal liberty was involved, it was submitted, the people alone through their convention 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.

> 1358\. 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 45 A.L.I.R. 251 the question arose as to the power of the Commonwealth Parliament under [Section 51(ii)](/doc/103078044/) of the Constitution to make laws with respect to taxation under the Pay-roll Tax Assessment Act, 1941-1969. It was unanimously held by the court that the Commonwealth Parliament had the power. During the course of arguments, 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 Constitution 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 difference to me question before us. We are concerned with the amending power. In the Australian case the Judges were concerned with legistative power and that had to be ascertained within the four corners of the Constitution by which the power had been created and under which it had to be exercised. There was room for construction on the basis of the words and structure of the Constitution, especially, the Preamble which was not liable to be amended by the Commonwealth. On the other hand, since the power to amend the Constitution is a superior power it cannot Be bound by any provision of the Constitution itself, the obvious reason being that even such a provision is amendable under the Constitution. In re The Initiative and Referendum Act, \[1919\] A.C. 935 it was held by the Privy Council that the British North America Act, 1867, [Section 92](/doc/27986095/), head 1, which empowers a Provincial legislature to amend the Constitution 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-

1363\. 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 invited to resort to the substantive due process doctrine of the Supreme Court of America in the interpretation of a Constitutional Amendment. That doctrine was rejected long ago by this Court ([Gopalan](/doc/1857950/)'s case) even in its application to ordinary legislation. See 1950 S.C.R. 88 (Kania, C.J. 110) (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 limits will be those fixed by a majority of Judges at one time, changed, if necessary, by a bigger majority at another. Every time an amendment is made of some magnitude 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 one another, their relative importance from our point of view, the limits on such imponderable concepts as liberty, equality, justice, we think proper to impose, whether we shall give preponderance to directive 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](/doc/1857950/)'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 property-matters traditionally left to legislative policy and wisdom, we are bound to flounder "in labyrinths to the character of which we have no sufficient guides.

> 1374\. Ignoring 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 [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31.](/doc/354224/) The second part provides that if such a law contains a particular declaration, courts shall not entertain a particular kind of objection. 1375. In the first place, it should be noted that what is saved by [Article 31C](/doc/198382/) is a law i.e. a law made by a competent legislature. Secondly since [Article 31C](/doc/198382/) 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.](/doc/555882/) That article is one of the several articles in Part IV of the Constitution dealing with Directive Principles of State Policy. [Article 37](/doc/76375/) 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 Principles. We are immediately concerned with the Directive Principles contained in [Article 39(b)](/doc/1200546/) 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 subserve 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 preventing concentration of wealth and means of production in a few private hands. Read along with [Article 38](/doc/1673816/) and other principles in this Part, they justify the conclusions of Granville Austin in his Indian Constitution : Cornerstone of a Nation-that our Constitution is informed by social democratic principles. See : pages 41-52 of the book. The final conclusion he came to is expressed in this way:

> The philosophy which informs the Constitution looks on concentration of wealth and means of production as a social evil because such concentration, resulting in the concentration of political and economic power in the hands of a few private individuals, not only leads to unequal freedom, on the one hand, but results, on the other, in undermining 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](/doc/367586/)[, 19](/doc/1218090/) and [31.](/doc/354224/) That would be justified even on the 'core' theory of Mr. Palkhivala because he admits the possibility of an abridgement of a fundamental right in similar cases. Therefore, [Article 31C](/doc/198382/) provides, even as [Article 31A](/doc/660119/) provided many years ago, that such laws should not be called in question on the grounds furnished by [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31.](/doc/354224/) If a law is made with a view to giving effect to the Directive Principles mentioned in [Article 39(b)](/doc/1200546/) and [39(c)](/doc/62166/) 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](/doc/198382/) is the I same as if, a proviso had been inserted below [Article 13(2)](/doc/772605/) or each of the several [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31](/doc/354224/) excluding its application to the particular type of law mentioned in [Article 31C.](/doc/198382/) If the law does not genuinely purport to give effect to the specified Directive Principles it will not be secure against the challenge under [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31.](/doc/354224/) 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](/doc/198382/) but such a difficulty is no reason for denying, the validity of the amendment.

1376\. The real difficulty is raised by the second part of [Article 31C](/doc/198382/) 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)](/doc/1200546/) or (c) and courts 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)](/doc/1200546/) 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 provisions of the Constitution and by the simple device of a declaration insert the law as an exception to [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and 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](/doc/594125/) and no other and, therefore, [Article 31C](/doc/198382/) authorising an amendment in a way other than the one [laid down in](/doc/1332919/) [Article 368](/doc/594125/), which still forms part of the Constitution with full force, is invalid. 1377. On behalf of the Union, however, it is claimed that the new [Article 31C](/doc/198382/) does not have the effect, attributed to it on behalf of the petitioners. It is, submitted, that [Article 31C](/doc/198382/) 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 its true nature and character the court considers that the legislation is not one having a nexus with the principles contained in [Article 39(b)](/doc/1200546/) or (c), it will not be saved under [Article 31C.](/doc/198382/) 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 Beauharanis v. Illinois 343 U.[S. 250](/doc/63759642/). "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.

1387\. Questions relating to the validity of the Constitution (Twentyfourth Amendment) Act, Constitution (Twentyfifth Amendment) Act and Constitution (Twehtyninth Amendment) Act, as well as the question whether the Parliament acting under [Article 368](/doc/594125/) of the Constitution can amend the provisions of Part III of the Constitution so as to take away or abridge fundamental rights arise for determination in this petition under [Article 32](/doc/981147/) of the Constitution. A number of other important questions, to which reference would be made hereafter, have also been posed during discussion, and they would be dealt with at the appropriate stage. Similar questions arise in a number of other petitions, and the counsel of the parties in those cases have been allowed to intervene. 1388. The necessary facts may now be set out, while the details which have no material bearing for the purpose of this decision can be omitted. [Kerala Land Reform's Act, 1963](/doc/83055377/) (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 amanded by [Kerala-Land Reforms (Amendment) Act, 1969](/doc/83055377/) (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 1 of 1964) as amended by the [Kerala Land Reforms (Amendment) Act, 1969](/doc/83055377/) (Act 35 of 1969). The aforesaid Act was also challenged in a number of petitions before the Kerala High Court. A Full Bench of the Kerala High Court as per its decision in V.N. Narayanan Nair v. State of Kerala ILR \[1970\] (II) Kerala 315 upheld the validity of the said Act, except in respect of certain provisions. Those 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. (1972) 2 S.C.C. 364. 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.

1398\. The second case in which there arose the question of the power of the Parliament to amend fundamental rights was [Sajjan Singh v. State of Rajasthan](/doc/1308308/) \[1965\] 1 S.C.R. 933. In this case the Seventeenth Amendment made on June 29, 1964 was challenged. By the Seventeenth Amendment changes were made in [Article 31A](/doc/660119/) of the Constitution and 44 Acts were included in the Ninth Schedule to the Constitution to give them complete protection from attack under any provision of Part III of the Constitution. One of the contentions advanced in Sajjan Singh's case was that, as [Article 226](/doc/1712542/) was likely to be affected by the Seventeenth Amendment, it required ratification under the proviso to [Article 368](/doc/594125/) and that the decision in [Sankari Prasad](/doc/1706770/)'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 decision of the courts, it was unConstitutional. This Court by a majority of 3 to 2 upheld the correctness of the decision in [Sankari Prasad](/doc/1706770/)'s case. This [Court further held](/doc/1706770/) unanimously that the Seventeenth Amendment did not require ratification under the proviso to [Article 368.](/doc/594125/) The Parliament, it was held, in enacting the amendment was not legislating 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 Court held that the power conferred by [Article 368](/doc/594125/) 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)](/doc/772605/), it was held, did not include an amendment of the Constitution made in pursuance of [Article 368.](/doc/594125/) The minority, however, doubted the correctness of the view taken in [Sankari Prasad](/doc/1706770/)'s case to the effect that the word "law" in [Article 13(2)](/doc/772605/) did not include amendment to the Constitution made under [Article 368.](/doc/594125/)

1403\. [Article 368](/doc/594125/) finds its place in Part XX of the Constitution and is the only article in that part. The part is headed "Amendment of the Constitution". It is not disputed that [Article 368](/doc/594125/) provides for the procedure of amending the Constitution. Question, however, arises as to whether [Article 368](/doc/594125/) 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, Ramaswamil, Bhargava and Mitter JJ. expressed the view that [Article 368](/doc/594125/) dealt with not only the procedure of amending the Constitution but also contained the power to amend the Constitution. The argument that the power to amend the Constitution was contained in the residuary power of Parliament in [Article 248](/doc/1270258/) read with item 97 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](/doc/1270258/) read with entry 97 of List I. According to him, the power of amendment was sat generis. As against that, the view taken by Subha Rao C.J., Shah, Sikri, Shelat and Vidialingam JJ. was that [Article 368](/doc/594125/) merely prescribed the various steps in the matter of amendment of the Constitution and that power to amend the Constitution was derived from [Articles 245](/doc/574894/)[, 246](/doc/77052/) and [248](/doc/1270258/) 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. 1404. Amendment of the Constitution, according to the provisions of [Article 368](/doc/594125/), is initialed 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 assent. When the President gives his assent to the Bill, the Constitution, according to [Article 368](/doc/594125/), shall stand amended in accordance with the terms of the Bill. There is a proviso added to [Article 368](/doc/594125/) with respect to amendment of certain articles and other provisions of the Constitution including [Article 368.](/doc/594125/) 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 one-half of the States by iresolutions 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.

1405\. The words in [Article 368 "](/doc/594125/)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 the procedure for amending the Constitution but also contains the power to amend [Article 368.](/doc/594125/) The fact 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](/doc/1270258/) read with item 97 of List I has a wide scope, but in spite of the width of its scope, it cannot, in my opinion, include the power to amend the Constitution. The power to legislate contained in [Articles 245](/doc/574894/)[, 246](/doc/77052/) 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 contained in [Article 248](/doc/1270258/) read with 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](/doc/1015123/) and [169](/doc/1295106/) 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](/doc/594125/) would thus become more or less a dead letter. 1406. [Article 248](/doc/1270258/) read with entry 97 List I contemplates legislative process. If the amendment of the Constitution were such a legislative process, the provision 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](/doc/1270258/) read with entry 97 List I. It is noteworthy that ratification is by means of resolutions by State Legislatures. The passing of resolution can plainly be not considered to be a legislative process for making a law. The State Governors also do not come into the picture for the purpose of ratification. The State Legislatures in ratifying, it has been said, exercise a constituent function. Ratifying process, according to Orfield, is equivalent to roll 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).

> 1416\. 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 27 was to the effect as to what provision should be made regarding the amendment of the Constitution. The attention 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](/doc/1937835/) 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 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 is inconceivable that, despite the awareness of the fact that in the Constitutions 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](/doc/594125/) 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](/doc/287871/) of the Draft Constitution which immediately followed [Article 304](/doc/1392920/) corresponding to [Article 368](/doc/594125/) of the Constitution as finally adopted. [Article 305](/doc/287871/) of the Draft Constitution, which was subsequently dropped, was in the following terms:

1428\. [Article 395](/doc/493040/) of the Constitution repealed the Indian Independence Act, 1947 and the [Government of India, Act, 1935](/doc/93056159/), together with all enactments amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949. The law in force mentioned in [Article 372(1)](/doc/74529/) has reference not to any Constitutional law in the sense of being a law relating to the Constitution of either the territory of erstwhile British India or the territory comprised in the Indian States. So far as the territory of British India was concerned, the law before January 26, 1950 relating to the Constitution was contained in the [Government of India Act, 1935](/doc/93056159/) and the Indian Independence Act, 1947. Both these Acts were repealed by [Article 395](/doc/493040/) 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)](/doc/74529/) must be such as was continued after January 26, 1950, it would follow that [Article 372](/doc/74529/) does not relate to the Constitutional law in the sense of being law relating to the Constitution of a territory.

1432\. The Constitution itself treats the subject of ordinary legislation as something distinct and different from that of amendment of the Constitution. [Articles 245](/doc/574894/) to 248 read with Seventh Schedule deal with ordinary legislation, while amendment of Constitution is the subject matter of [Article 368](/doc/594125/) in a separate Part. [Article 368](/doc/594125/) is independent and self-contained. [Article 368](/doc/594125/) does not contain the words "subject to the provisions of this Constitution" as are to be found at the beginning of [Article 245.](/doc/574894/) The absence of those words in [Article 368](/doc/594125/) thus shows that an amendment of the Constitution made under that article has a status higher than that of legislative law and the two are of unequal dignity. If there is any limitation on power of amendment, it must be found in [Article 368](/doc/594125/) itself which is the sole fountain-head of power to amend, and not in other provisions dealing with ordinary legislation. As stated on pages 24-26 in the Amending of Federal Constitution by Orfield, 'limitation on the scope of amendment should be found written in the amending clause 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 in the Part and Chapter (Part XI Chapter I) dealing with legislative powers shows that the two powers are different in character and operate in separate fields. There is also a vital difference in the procedure for passing ordinary legislation and that for bringing about a Constitutional amendment under [Article 368.](/doc/594125/) 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 does it warrant the conclusion that constituent power is a species of legislative power.

> 1437\. 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 with the problems of the Government. This is so whether the Government originates 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 Constitution many views including those emanating from conflicting extremes are presented. In most cases the Constitution is the result of a compromise between conflicting views. Those who frame a Constitution cannot be oblivious of the fact that in the working of a Constitution many difficulties would have to be encountered 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-based 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 contemplated 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 changing 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, as was said by Burke in his Reflections on 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 the 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 Phillipe's monarchy was destroyed within seven years of the time when Tocqueville pointed out that no power existed 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:

> 1443\. 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 requisities of growth and on the other hand to those of conservatism. The letter of the Constitution must neither be idolized as a sacred instrument with that mistaken conservatism which ding to its own worn out garments until 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 statute (see Political Science and Government by J.W. Garner, p. 538). 1444. 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. Provision 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 Constitution 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. This 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.

> 1445\. Another circumstance which must not be lost sight of is that no 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 incapable of change, alteration and replacement even though the future generations want to change, alter or replace them. The 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 vain act and a myopic obsession with its 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 juris. 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 from 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 neither 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 left 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).

> And remember this that while we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitutions. Their should be a certain flexibility. If you make anything rigid and permanent you stop a Nation's growth, the growth of living vital organic people. Therefore it has to be flexible. 1449. If it is not permissible under [Article 368](/doc/594125/) to so amend the Constitution as to take away or abridge the 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 [Article 368](/doc/594125/) is clear and, contains no limitation on the power to make amendment so as to take away or abridge fundamental rights, even if two interpretations were possible, one according to which the abridgement or extinguishment of fundamental rights is permissible in accordance with the procedure prescribed by [Article 368](/doc/594125/) and the other according to which the only way of bringing about such a result is an extra-Constitutional method like revolution, the court, 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 dangerous potentialities the former method is to be preferred. The contrast between the two methods is so glaring that there can hardly be any difficulty in making our choice between the two alternatives. 1450. The aforesaid discussion would also reveal that the consequences which would follow from the acceptance of the view that there is no power under [Article 368](/doc/594125/) to abridge or take away fundamental rights would be chaotic because of the resort to extra- Constitutional methods. As against that the acceptance of the opposite view would not result in such consequences. Judged even in this light, I find it difficult to accede to the contention advanced on behalf of the petitioner.

> 1451\. I may at this stage deal with the question, adverted to by the learned Counsel for the petitioners as to how far the consequences have to be taken into account in construing the provisions of the Constitution. In this connection, I may observe that it is one of the well-settled 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 equally well-settled that where alternative constructions are equally open that alternative is to be chosen which 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, friction, or confusion into the working of the system (see [Collector of Customs, Baroda v. Digvijaysinhji Spinning & Weaving Mills Ltd.](/doc/1560414/) \[1962\] 1 S.C.R. 896 (on p. 899)). These principles of construction apply with greater force when we are dealing with the provisions of a Constitution. 1452. I have kept the above principles in view and am of the opinion that as the language of [Article 368](/doc/594125/) is plain and unambiguous, it is not possible to read therein a limitation on the power of Parliament to amend the provisions of Part III of the Constitution so as to abridge or take away fundamental rights; Apart from that, I am of the view that if two constructions were possible, the construction which I have, accepted would, as mentioned above, avoid chaotic consequences and would also prevent the introduction of uncertainty, friction or confusion into the working of our Constitution. 1453. It is also, in my opinion, not permissible in the face of the plain language of [Article 368](/doc/594125/) to ascertain by any process akin to speculation the supposed intention of the Constitution-makers. We must act on the principle that if the word's are plain and free from any ambiguity the Constitution-makers should be taken to have incorporated their intention in those words.

1462\. The third method is peculiar to federations. The voting on the proposed measure may be either popular or by the legislatures of the states concerned. In Switzerland and Australia the referendum is in use; in the United States any proposed amendment requires ratification by the legislatures, or special conventions of three fourth of the several states. 1463. The last method is one in which a special body is created ad hoc 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). 1464. The decision as to which method of amending the Constitution should be chosen has necessarily to 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 made by the Constituent Assembly 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 amendment. [Article 138](/doc/948250/) of the Italian Constitution makes provision for referendum to bring about amendment of the Constitution. It has however, been expressly provided in the article that referendum does not take place if a law has been approved in its second vote by a majority of two- thirds of the members of each chamber. The Italian Constitution thus makes a vote of majority of two-thirds of the members of each chamber at the second voting as effective as a referendum. [Article 89](/doc/1924932/) of the Constitution of the French Fifth Republic like-wise makes provision for referendum for amendment of Constitution. It is, however, provided in that article 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 three-fifth majority of the votes cast.

> 1470\. I am, therefore, of the view that there is no warrant for the proposition that as the amendments under [Article 368](/doc/594125/) 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](/doc/594125/) is on that account subject to limitations. 1471. Argument has then been advanced that if power be held to be vested in Parliament under [Article 368](/doc/594125/) 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. India, 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 majority of representatives of the people. It is also based upon the belief that the power under [Article 368](/doc/594125/) by two-thirds of the members present and voting in each House of Parliament would be abused or used extravagently. 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](/doc/594125/) because of any such supposed fear or possibility of the abuse of power. I may in this context refer to the observations of Marshall C.J. regarding the possibility of the abuse of power of legislation and of taxation in the case of The Providence Bank v. Alpheus Billings. 29 U.S. 514 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 interest, 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.

1473\. Apart from the fact that the possibility 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](/doc/594125/) has been vested not in one individual but in the majority of the representatives of the people in Parliament. For this purpose, the majority has to be of not less than two-thirds of the members present and voting in each House. In addition to that, it is required that the amendment Bill should be passed in each House by a majority of the total membership of that House. It is, therefore, not possible to pass an amendment 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 Rajya Sabha, by the prescribed majority ensures that it is not permissible to get the Bill passed in a joint sitting of the two Houses (as in the case of ordinary legislation) wherein the members of the Rajya 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 the passing of the 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 members are elected by the members of the State Assemblies 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 relates to certain provisions which impinge upon the rights of the States. The fact that a prescribed majority of the people's representatives is required for bringing about the amendment is normally 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 letter on the right of people's representatives to change the Constitution by following the procedure laid down in the Constitution itself. It would not be a correct approach to start with a distrust in the people's representatives in the Parliament and to assume that majority of them would have ah aversion for the liberties of the people and would act against the public interest. To quote the words of Justice Holmes in Missouri Kansas & Texas Ry. v. May 194 U.[S. 267](/doc/23016406/) (on p. 270).

1480\. We may now deal with the question as to what is the scope of the power of amendment under [Article 368.](/doc/594125/) This would depend upon the connotation of the word "amendment". Question has been posed during arguments as to whether the power to 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 retention 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 to the requirements of changing conditions, 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 of 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 Constitution does not furnish a pretence for subverting the structure of the Constitution nor can [Article 368](/doc/594125/) be so construed as to embody the death wish of the Constitution or provide sanction for what may perhaps be called its lawful harakiri. Such subversion or destruction cannot be described to be amendment of the Constitution as contemplated by [Article 368.](/doc/594125/)

> "Although we are to interpret words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these 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 Act which declares what the law is to be." In In re The Central Provinces and Berar Act XIV of 1938 \[1939\] F.C.R. 18 (at 37), Sir Maurice Gwyer C.J. after adopting these observations said : "Especially is this true of a Federal Constitution with its nice 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 considerable 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 words. 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 Constitution 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.

> 1492\. Reference has been made on behalf of the petitioners to para 7 of the Fifth Schedule to the Constitution which empowers the Parliament to amend by way of addition, variation or repeal any of the provisions of that Schedule dealing with the administration 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 adminisitration of tribal areas. It is urged that while [Article 368](/doc/594125/) 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 merit. This contention, in my opinion, is not well founded. The words "by way of addition, variation or repeal" merely amplify the meaning of the word "amend" and clarify what was already implicit in that word. It, however, cannot be said that 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](/doc/43788249/) 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 addition, modification or repeal, in the provisions of that Act or of any Order made thereunder in relation 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 Constitution for purpose of [Article 368.](/doc/594125/) As sub-paragraph (1) deals with amendment by way of addition, variation or repeal, the amendment of Constitution for purpose of [Article 368](/doc/594125/) 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. 1493. The Judicial Committee in the case of British Coal Corporation v. The King \[1935\] A.C. 500 laid down the following rule:

> 1495\. I cannot subscribe to the view that an amendment of the Constitution 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 broad connotation and would embrace within itself the total repeal of some articles or their substitution by new articles which may not be consistent with or in conformity with earlier articles. Amendment in [Article 368](/doc/594125/) has been used to denote change. This is clear from the opening words of the proviso to [Article 368](/doc/594125/) according to which ratification 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 cases of repeal and replacement of earlier provisions by new provisions of different nature. 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](/doc/594125/) 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 ground, it would be tantamount to the court substituting its own opinion for that of the Parliament, reinforced in certain cases by that of not less than half of State Legislatures, regarding the wisdom of making the impugned Constitutional 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 nation 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 (1904) 198 U.[S. 45](/doc/20268135/).

> 1496\. 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](/doc/594125/), 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 vital 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](/doc/594125/), however, shows that ratification by the State Legislatures has been 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](/doc/594125/) is not to divide the articles of the Constitution into two categories, viz., important and not so important articles. What [Article 368](/doc/594125/) 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 imperative to obtain ratification by not less than half of the State Legislatures in addition to the two-thirds majority of the members present and voting-in each House of the Parliament for bringing about the amendment. It is plain that for the 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.

> 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 desirable to adopt this procedure. If Members of the House who are interested in this matter are to examine the articles that have been put under the proviso, they will find that they refer not merely 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 fay 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 Central Parliament by two-thirds majority, without permitting the provinces or States to have any voice, is in my judgment altogether nullifying the fundamentals of the Constitution. 1497. 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 implied limitations is concerned, it has two facets. Under the first facet, they are limitations which flow by necessary 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 are stated to be based upon certain higher values which are very dear to the human heart and are generally considered essential traits of civilized existence. It is also stated that those higher values constitute the spirit and provide the scheme of the Constitution. This aspect of implied limitations is linked with the existence of natural rights and it is stated that such rights being of paramount character, no amendment of Constitution can result in their erosion.

> 1505\. By the Constitution (Amendment No. 10) Act, 1928, passed within the said period of eight years, the Constitution was amended by, inter alia, the deletion of [Article 47 (dealing with referendum)](/doc/1551554/) and the deletion from [Article 50](/doc/192717/) of the words "and as such shall be subject to the provisions of [Article 47](/doc/1551554/) thereof". By the Constitution (Amendment No. 15) Act, 1929, also passed within the said period of eight years, [Article 50](/doc/192717/) was amended by the substitution of the words "sixteen 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 to 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 in the context of the validity of the establishment of such Tribunals that the question arose as to whether there was an implied limitation on the power to make amendment. It was held by the Supreme Court (FitzGibbon and Murnaghan JJ. and Kennedy C.J. dissenting), while dealing with the first two amendments, that these enactments were within the power of amendment conferred on the Oireachtas by [Article 50](/doc/192717/) 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](/doc/192717/) or [Article 47](/doc/1551554/) 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 conflicting with specific articles of the Constitution such as [Article 6](/doc/19636/) relating to the liberty of the person, [Article 64](/doc/393838/) relating to the exercise of judicial power or [Article 72](/doc/1008926/) relating to the trial by jury or by reason of infringing or abrogating other articles of the Constitution or principles underlying the various articles of the Constitution which were claimed to be fundamental and immutable. Kennedy C.J., after referring 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:

> 1509\. We may now deal with the concept of natural rights. Such rights are 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 still 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 enforced. The courts look to the provisions of the Constitution and the statutory law to determine the rights of individuals. The binding force of Constitutional and statutory provisions cannot be taken away nor can their amplitude and width be restricted by invoking the concept of natural rights. Further, 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 the Constitution 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 amendatory process.

> 1526\. 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](/doc/594125/) 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](/doc/594125/) 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 created by the Preamble. It is not necessary to further dilate upon this aspect because I am of the view that the principle of construction is that reference can be made to Preamble for purpose of construing when the words of a statute or Constitution are 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 Constitution, 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 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 (see para 462). The office of the Preamble has been stated by the House of Lords in Att.-Gen. v. H.R.H. Prince Ernest Augustus of. Hanover. \[1957\] A.C. 436 In that case, Lord Normand said:

1542\. 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](/doc/594125/) in the Constitution which gave power to the two Houses of future Parliaments 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 to restrict the scope of [Article 368](/doc/594125/) because of anything said in Section 6 of the Indian Independence Act. 1543. 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 erstwhile 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 rights of minorities are now protected in [Articles 25](/doc/631708/) to 30. Apart from the articles relating to protection to the minorities, the various articles contained in Part III of the Constitution are applicable to all citizens. There is nothing to show that the people belonging to different regions would have or indeed could have declined to either join the Indian Union or to remain in the Indian Union but for the incorporation 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.

> 1550\. An article by Dale Gibson in Volume 12-1966-67 in McGill Law Journal shows that though the proposition enunciated by Duff C.J. has commanded the allegiance of an impressive number of judges and has not been decisively rejected, it has never been 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 properly be the subject matter of legislation separate and apart from any other-subject matter. Others have taken the view that unlimited jurisdiction falls within Dominion control under its general power to make laws "for the peace, order and good government of Canada". A third view which has been taken is mat the creation of a Parliament and reference in the Preamble to "a Constitution 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 dictum of Abbott J. has observed in Canadian Constitutional Law: Apart 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 civil liberties in the B.N.A. Act nothing comparable to the Bill of Rights (the 1st ten amendments) in the Constitution of the United States, which, within limits and on conditions prescribed by the Supreme Court as ultimate expounder of the meaning and range of the Constitution, prohibits both federal and state action infringing, inter alia, freedom of religion, of speech, of the press and of assembly. (see p. 970). 1551. It would appear from the above that the different views which have been expressed in Canada are in the context of the preamble and section of the British North America Act, the provisions of which are materially different from our Constitution. Even in the context of the British. North America Act, the observations of Abbott J. relied upon on behalf of the petitioners have not been accepted by the majority of the judges of the Canadian Supreme Court, and in my opinion, they afford a fragile basis for building a theory of implied limitations.

> 1553\. 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 General of Nova Scotia and The Attorney General of Canada \[1950\] S.C.R. 31 (Canada) decided by the Supreme Court of Canada. It was held in that case that an Act respecting the delegation of 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 delegation 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](/doc/27986095/) 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](/doc/43524555/) or [Section 92](/doc/27986095/), as the case may be. Neither was capable therefore of delegating 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. 1554. 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](/doc/163582879/) of the Ceylon (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 different. [Section 29](/doc/163582879/) reads as under:

1570\. The Bill seeks to amend [Article 368](/doc/594125/) suitably for the purpose and makes it clear that [Article 368](/doc/594125/) 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 has assent thereto. The Bill also seeks to amend [Article 13](/doc/134715/) of the Constitution to make it inapplicable to any amendment of the Constitution under [Article 368.](/doc/594125/) 1571. [Section 2](/doc/176529644/) of the Bill which was ultimately passed as the Constitution (Twentyfourth Amendment) Act has added a clause in [Article 13](/doc/134715/) that nothing in that article would apply to any amendment of the Constitution made under [Article 368.](/doc/594125/) As a result of Section 3 of the Amendment Act, [Article 368](/doc/594125/) has been re-numbered as Clause (2) thereof and the marginal heading now reads "Power of Parliament to amend the Constitution and procedure therefor". Non-obstante Clause (1) 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, variation 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 Bill after it has been passed in accordance with the article. Clause (3) has further been added in [Article 368](/doc/594125/) to the effect that nothing in [Article 13](/doc/134715/) would apply to an amendment made under [Article 368.](/doc/594125/) Although considerable arguments have been addressed before us on the point as to whether the power of amendment under [Article 368](/doc/594125/) 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](/doc/21266288/) [Article 368](/doc/594125/) 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. 1, therefore, uphold the validity of the said Act. 1572. We may now deal with the Constitution (Twentyfifth Amendment) Act, 1971. The Twentyfifth Amendment has made three material changes:

So far as the substitution of the word "amount" for the word "compensation" for property acquired or requisitioned in [Article 31(2)](/doc/108209556/) is concerned, we find that this Court held in Mrs. Bela Bose \[1954\] S.C.R. 558 case that by the guarantee of the right to compensation for compulsory acquisition under [Article 31(2)](/doc/108209556/), before it was amended by the [Constitution (Fourth Amendment) Act](/doc/70678966/), the owner was entitled to receive a "just equivalent" or "full indemnification". In P. Vajravelu Mudaliar's \[1965\] 1 S.C.R. 614 case this Court held that notwithstanding the amendment of [Article 31(2)](/doc/108209556/) by the [Constitution (Fourth Amendment) Act](/doc/70678966/) 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 compensation provided by that law is not adequate", the expression "compensation continued to have the same meaning as it had in [Article 31(2)](/doc/108209556/) before it was amended, viz., just equivalent or full indemnification. Somewhat different view was taken by this Court thereafter, in the case of Shantilal Mangaldas \[1969\] 3 S.C.R. 341. In the case of [P. Vajravelu Mudaliar](/doc/1634289/) (supra) it was observed that the Constitutional guarantee was satisfied only if a just equivalent of the property was given to the owner. In the case of Shantilal 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 "full 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 ground 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 596 in the case of R.C. Cooper v. Union \[1970\] 3 S.C.R.

1579\. It would appear from the above that while [Article 31A](/doc/660119/) dealt with a law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of such rights or other matters mentioned in Clauses (b) to (e) of that article, [Article 31C](/doc/198382/) relates to the securing of the objective that the ownership and control of the material resources of the community are so distributed as best to subserve the common good and that operation of the economic system does 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 first clause of [Article 31A](/doc/660119/) and that of the first part of [Article 31C](/doc/198382/) is identical. Both [Articles 31A](/doc/660119/) and [31C](/doc/198382/) deal with right to property. [Article 31A](/doc/660119/) 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](/doc/198382/) is to prevent concentration of wealth and means of production and to ensure the distribution of ownership and control of the material resources of the community for the common good. [Article 31C](/doc/198382/) is thus essentially an extension of the principle which was accepted in [Article 31A.](/doc/660119/) The fact that the provisions of [Article 31C](/doc/198382/) are more comprehensive and have greater width compared to those of [Article 31A](/doc/660119/) would not make any material difference. Likewise, the fact that [Article 31A](/doc/660119/) deals with law providing for certain subjects, while [Article 31C](/doc/198382/) deals with law giving effect to the policy towards securing the principles specified in Clause (b) or Clause (c) of [Article 39](/doc/555882/), would not detract from the conclusion that [Article 31C](/doc/198382/) is an extension of the principle which was accepted in [Article 31A.](/doc/660119/) Indeed, the legislature in making a law giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause

(c) of [Article 39](/doc/555882/) acts upon the mandate contained in [Article 37](/doc/76375/), according to which the Directive Principles are fundamental in the governance of the country and it shall be the duty of the State to apply those principles in making laws. If the amendment of the Constitution by which [Article 31A](/doc/660119/) was inserted was valid, I can see no ground as to how the Twentyfifth Amendment relating to the insertion of the first part of [Article 31C](/doc/198382/) can be held to be invalid. The validity of the First Amendment which introduced [Article 31A](/doc/660119/) was upheld by this Court as long ago as 1952 in the case of [Sankari Prasad v. Union of India](/doc/1706770/) (supra). [Article 31A](/doc/660119/) having been held to be valid during all these years, its validity cannot now be questioned on account of the doctrine of stare decisis. Though the period for which [Sankari Prasad](/doc/1706770/)'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](/doc/21266288/)'s case, are so overwhelming that we should not disturb the decision [in that case](/doc/21266288/) 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 agricultural land which have been passed in the course of the years after the decision in [Sankari Prasad](/doc/1706770/)'s case have brought about an agrarian revolution. Agricultural population constitutes a vast mapority of 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 would, therefore, hold that this is one of the fittest cases in which the principle of stare decisis should be applied. The ground which sustained the validity of Clause (1) of [Article 31A](/doc/660119/), would equally sustain the validity of the first part of [Article 31C.](/doc/198382/) I may in this context refer to the observations of Brandeis J. in Lesses v. Garnet (258) U.[S. 130](/doc/71442247/) 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 addition to the electorate destroyed the social compact and the residuary rights of the States. Justice Brandeis observed:

> 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](/doc/198382/) when taken along with its second part. The law made under [Article 31C](/doc/198382/) 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 necessary in the case of laws inserted in the Ninth Schedule of the Constitution. Nor can the law made under [Article 31C](/doc/198382/) be subject to judicial review with a view to find out whether the law has, in fact, been made for an object mentioned in [Article 31C.](/doc/198382/) [Article 31C](/doc/198382/) thus departs from the scheme of [Article 31A](/doc/660119/), because while a judicial review is permissible under [Article 31A](/doc/660119/) to find out as to whether a law has been made for any of the objects mentioned in [Article 31A](/doc/660119/), such a judicial review has been expressly prohibited under [Article 31C.](/doc/198382/) The result is that even if a law made under [Article 31C](/doc/198382/) can be shown in court of law to have been enacted not for the purpose mentioned in [Article 31C](/doc/198382/) but for another purpose, the law would still be protected and cannot be assailed on the ground of being violative of [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31](/doc/354224/) of the Constitution because of the declaration made by the legislature as contemplated by second part of [Article 31C.](/doc/198382/) 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, which is generally one-tenth of the total membership of the legislature, are present at the time the law is passed.

> 1590\. In a federal system where the spheres of legislative 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 exclusively 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 the Constitution-makers, though not strictly adopting the federal system, 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 trespassed upon the legislative 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 legislatures. 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 within the four comers of the legislative lists earmarked for them; the courts also deal with the question as to whether the laws are 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 Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are not contravened. Dealing with draft [Article 25 (corresponding to present](/doc/631708/) [Article 32](/doc/981147/) 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:

> 1592\. I find it difficult to accede to this contention in view of the language of [Article 31C](/doc/198382/) pertaining to the declaration. The above contention would have certainly carried weight if the second part of the article 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 to the policy of the State towards securing the principles specified in Clauses (b) or (c) of [Article 39](/doc/555882/) before it can uphold the validity of the impugned law under [Article 31C.](/doc/198382/) 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.](/doc/198382/) [Article 31C](/doc/198382/) protects the law giving effect to the policy of the State towards securing the principles specified in Clauses (b) or (c) of [Article 39](/doc/555882/) and at the same time provides that 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. It is, therefore, manifest that once a law contains the requisite 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.](/doc/555882/) In view of the conclusive nature of the declaration, it would, in my opinion, be straining the language of [Article 31C](/doc/198382/) to hold that a court can despite the requisite 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.](/doc/555882/) The result is that if a law contains the declaration contemplated by [Article 31C](/doc/198382/), it would have complete protection from being challenged on the ground of being violative of [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31](/doc/354224/) 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.](/doc/555882/) 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

> 1623\. The basic principles of construction were definitively enunciated by the Privy Council in The Queen v. Burah (1878) 3 A.C. 889, 904-905 and those principles were accepted and applied by Earl Loreburn in Attorney General for Ontario v. Attorney General for Canada (1912) A.C. 572 at 583 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 terms of the instrument 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 affirmative words which give the power, and if it violates no express condition of 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. In other words, in interpreting a Constitution, as Lord Loreburn said in the latter case, if the text is explicit, the text is conclusive alike in what it directs and what it prohibits. 1624. 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 or class. They must be aware that there are before them more than Verbal problems; more than final solutions cast in generalisations in every society which make it an organism; which demand new schemata of adaptation; which will disrupt it, if rigidly confined" See the passage of Learned Hand quoted in "Cases and Materials on the Legal Process" by F.K.H. Maher and Ors., 2nd ed., p. 498. An this is why President Roosevelt said that the judges of the Supreme Court must be not only great justices, but they must be great constructive :statesmen See the passage quoted by Frederic R. Coudert in 13 Yale Law Journal, p. 338.

1629\. Reliance was also placed by counsel on [Section 291](/doc/43788249/) of the Government of India Act, 1935, as amended by the [Third Amendment Act](/doc/175695088/) 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](/doc/594125/) or its width as 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 circumstance 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 See Maxwell on the Interpretation of Statutes, 12th ed., p. 286. 1630. It was submitted that if the word 'amendment' is given an unlimited amplitude, the entire Constitution could be abrogated or repealed and that certainly could not have been the intention of the makers of the Constitution. The question whether the power of amendment contained in [Article 368](/doc/594125/) 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 to delete any provision. But when the article said that, on the bill for the amendment of 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 system 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](/doc/594125/) because it would violate the Constitutional provision that "the Constitution shall stand amended". 1631. Even if the word 'amendment' in [Article 368](/doc/594125/) 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 [Article 13(2)](/doc/772605/) was a bar to the amendment of the Fundamental Rights by Parliament in such a way as to take away or abridge them:

1635\. 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 not-as a positive 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 presupposed 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 See Hans Kelsen, "General Theory of Law and State", p. 116. 1636. Whether the observations of Kelsen would apply to our Constitution would depend upon the answer to the question whether the legal 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. 1637. It does not follow from what 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 enforce Acts of Parliament is not derived from any principle of common law, but is itself an ultimate principle of English Constitutional Law See H.W.R. Wade, "The Basis of Legal Sovereignty", (1955) (Cam-bridge Law, Journal, 172. 1638. 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 Constitution is a sovereign body and generally needs no legal authority whereas a body which makes the ordinary law is rot 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 Constitution. An amendment of the Constitution can be ultra vires just as an ordinary law can be.

> in the territory of India immediately before the commencement 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 'law' in Clause (2) of [Article 13](/doc/134715/) must also include Constitutional law. Assuming that the expression "laws in force" in [Article 13(1)](/doc/1010805/) and [372](/doc/74529/) 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](/doc/493040/) repealed the Indian Independence Act, 1947, and the [Government of India Act, 1935](/doc/93056159/), together with all enactments amending and supplementing the latter Act. I am not sure whether there were any Orders passed under the [Government of India Act](/doc/93056159/) which could be called Constitutional law. That apart, I doubt whether the [Government of India Act, 1935](/doc/93056159/), and the Indian Independence Act, 1947, were Constitutional 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 legal sovereign, namely, the British Parliament. And the reason why their provisions could not have been challenged in a Court of Law was not that they were the supreme law of the land but because they were laws in conformity with the supreme law, namely, the will of the British Parliament. As regards the native States, the fact that the Courts therein could not have challenged the validity of the provisions of a Constitution promulgated by an absolute monarch would not show that those provisions could be equated with the provisions of the Constitution of India. A Constitution established by an absolute monarch will be enforced by the Court 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 Ross said, the Constitution was granted by the monarch with the intention that it should not be revocable Alf Ross, "On Law and Justice", p. 82. 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 the commencement of the Constitution of India which contravened the provisions of Part III became void ([Article 13(1)](/doc/1010805/)) and others which continued, continued subject to the provisions of the Constitution (Article

1645\. If the power to amend was to be found within [Article 368](/doc/594125/) and not under [Article 248](/doc/1270258/) read with entry 97 of List I of the Seventh Schedule, it stands to reason to hold that constituent power for amend ment of the Constitution is distinct from legislative power. The leading majority in the [Golaknath](/doc/120358/) Case \[1967\] 2 S.C.R. 762 took pains to locate the power to amend in [Article 248](/doc/1270258/) 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).](/doc/772605/) But if the power 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 virtue of that power, can be passed only "subject to the provisions of the Constitution" as mentioned in [Article 245.](/doc/574894/) 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? 1646. It would be strange that when a whole chapter has been devoted 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 Constitution was thought to be legislative in character, it was not put as a specific entry in List I but relegated to the residuary entry ! And, considering 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 entry because, in respect of the matters covered by the proviso to [Article 368](/doc/594125/), Parliament has no exclusive power to amend the Constitution.

1663\. However, I think that [Article 13(2)](/doc/772605/) was necessary for a different purpose, namely, to indicate the extent of the invasion of the fundamental right which would make the impugned law void. The word 'abridge' has a special connotation in the American Constitutional jurisprudence; and, it is 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, they intended to adopt the meaning which that 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 of a priori assumption or of mechanical jurisprudence. The Court must arrive at a value judgment as to what it is that is to be protected from abridgement, and then, it must make a further value judgment as to whether the law impugned 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 function, 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 principles in Part IV to see what exactly is the content of the Fundamental Right and whether the law alleged to be in detraction or abridgement 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 rights come with a momentum lacking in the case of shifting economic arrangements. To put it differently, the type of restriction which 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.

1669\. The supremacy enjoyed by the Constitution has led some to think that the document must be regarded as sovereign. They talk about the government of laws and not of men; but sovereignty, by definition, must be vested in a person or body of persons. The Constitution itself is incapable of action. Willoughby has said that sovereignty of the people, popular sovereignty and national sovereignty cannot accurately be held to mean that, under an established government, the sovereignty remains in the people. It may mean, however, that the Constitutional jurisprudence of the State to which it is applied is predicated upon the principle that no political or individual or organ 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 in an electorate representing the governed See Willoughby, "Fundamental Concepts of Public Law", pp. 99-100. 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 has raised so many conflicting issues involving jurists and political theorists in so desperate a maze as the genuine and proper meaning of sovereignty. 1670. Seeing, however, that the people have no Constitutional or legal power assigned to them under the Constitution and that by virtue of their political supremacy they can unmake the Constitution only by a method not sanctioned by the juridical order, namely, revolution, it is difficult to agree with the proposition of counsel that the legal sovereignty under the Constitution resides in the people, or, that as 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. In the last, analysis, 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 distribution of governing power 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 as well as that of Ors. Willoughby, "The Nature of the State" (1928), p. 197. In Germany, the publicists have developed a similar theory known as the "kompetenz kompetenz theory" See Merriam, "History of the Theory of Sovereignty since Rosseau" (1900), 190-

> 1695\. As regards the second point, Kennedy, C.J. was of the opinion 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 expect (if it were so intended) that the power would express that intention by the insertion of a provision to that effect by some such words as "including amendment of this 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 Kennedy, 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 Alf Ross, "Law and Justice", p. 81. Now, whereas [Article 50](/doc/192717/) of the Irish Constitution did not contain any power to amend that article, proviso (c) of [Article 368](/doc/594125/) makes it clear that [Article 368](/doc/594125/) itself can be amended and so, the whole line of the reasoning of Kennedy, C.J. has no relevance for our purpose. It is interesting to note that in Moore v. Attorney General for the Irish State (1935) A.C. 484 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"

> 1713\. Reference was made to the case of Victoria v. Commonwealth 45 Australian Law Journal 251 in support of the proposition that there are implied limitations upon the power of 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, 1941-69, to be levied and paid or payable by any employer. Section 3(1) of the Pay Roll Tax Assessment Act defined 'employer' to include 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 cakes 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 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. 1714. As to the general principle that non-discriminatory laws of the Commonwealth may be invalid 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 Amalgamated Society of Enginears v. Adelaide Steamship Co. Ltd. (1920) 28 C.L.R. 129 itself to 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 they were alive to the great difficulties which would be encountered in the formulation. 1715. 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 Commonwealth will be invalid because of the application of the general principle.

> 1743\. 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 termed absolute and inviolable, they are limited by the requirements of the universal Order to which they are subordinated. Specifically, the natural rights of man are 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". See Romen, "The Natural Law" (1947), footnote 49, p. 253. 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 a recognition of the natural rights. It only shows that Fundamental Rights like natural rights are liable to be limited for the common 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 can restrict the exercise of or even take away the Fundamental Rights of the military personnel or the 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 bask 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 than another in a given situation. Sir Frederick Pollock said that natural justice has no means of fixing any rule to terms defined in number or measure, nor of choosing one practical solution out of two or more which are in themselves 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. See Pollock, "The Expansion of the Common Law" (1904), p. 128.

> 1765\. The definition of the word 'State' both for the purpose of Part III and Part IV is the same. Whereas [Article 45](/doc/1791268/) of the Irish Constitution addresses the directive only for the guidance of the Oireachtas, i.e., the legislature, all the directives from [Articles 38](/doc/1673816/) to 51 of our Constitution are addressed to the 'State' as defined in [Article 12.](/doc/609139/) That judicial process is also "State Action" seems to be clear. [Article 20(2)](/doc/17858/) which provides that no person shall be prosecuted and punished for the same offence more than once is generally violated by the judiciary and a writ under [Article 32](/doc/981147/) should lie to quash the order. In his dissenting judgment in [Naresh v. State of Maharashtra](/doc/1643138/) \[1966\] 3 S.C.R. 744 Hidayatullah, J. took, the view. I think rightly that the judiciary is also "State" within the definition of the word "State" in [Article 12](/doc/609139/) of the Constitution. See also Shelley v. Kraemer 334 U.[S., 1](/doc/83057184/); Eudhan v. State of Maharashtra \[1955\] 1 S.C.R. 1045. Frankfurter, J. asked the question that if the highest court of a state should candidly deny to one litigant a rule of law which it concededly would apply to all other litigants in similar situation, could it escape condemnation as an unjust discrimination and therefore a denial of the equal protection of the laws. See Backus v. Fort Street Union Depot Co., 169 U.S. 557, 571; also Snowden v. Hughes, 321 U.[S. 1](/doc/83057184/).? In Carter v. Texas 177 U.S. 442, 447 the Court observed that whenever by any action of a State, whether through its legislature, through its courts, or through 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 of the African race, the equal protection of the laws is denied. 1766. 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 III"

115\. 1769. 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 of unreality when you assume that Fundamental Rights have any meaningful existence for the starving millions. 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 property if the society offers them no chance 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 not to say that the struggle for a just economic order should be allowed to take priority over the struggle for the more intangible hopes of man's personal self-fulfilment. But in particular contexts, fundamental freedoms and rights must yield to material and practical needs. Economic goals have an un-contestable claim for priority over ideological ones on the ground that excellence comes only after existence. See generally A.R. Blackshield "Fundamental Rights and Economic Viability of the Indian Nation", Journal of the Indian Law Institute, Vol. 10 (1968) 1. It is only if men exist that there can be fundamental rights. "Tell an unprovisioned man lost in the desert that he is free to eat, drink, bathe, read.... No one is hindering him. For the attainment of most of these ends he might better be in prison. Unrestraint 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 opposite of freedom for.... To contemporary consciousness it has become an axiom that there can be no freedom without provision. See Hocking "Freedom of the Press", pp. 55-56.

1774\. 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 are not necessarily mutually incompatible may nevertheless come into conflict in particular situations. 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, none of which can be given effect to completely without prejudice to the others. The scheme of interests, like the jural postulates, 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. See Julius Stone, Human Law and Human Justice, pp. 269-270. And what are 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 in this country and which demand recognition as interests protected 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 to 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.

1776\. In the light of what I have said, I do not think that there were any express or implied limitations 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 article should make it clear that no invisible radiation from any other provision of the Constitution would operate as implied limitation upon the power of amendment. Further, the amended [Article 368](/doc/594125/) puts it beyond doubt that the power to amend the provisions of the Constitution is in the article itself that the power includes the power to add, vary or repeal any provision of the Constitution, that the power is a constituent power, that the assent of the President to a bill for amendment is compulsory and that nothing in [Article 13(2)](/doc/772605/) will apply to an amendment under the article. 1777. [Article 368](/doc/594125/), 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](/doc/120358/) case \[1967\] 2 S.C.R. 762 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 Galaknalh case, that the power is plenary in character and that [Article 13(2)](/doc/772605/) 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.](/doc/594125/) 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 amending power, to abridge or take away the Fundamental Rights since the majority in the [Golaknath](/doc/120358/) Case held that the Parliament had no such power. As I have already said, the Amendment has added nothing to the content of the article except the requirement as to the compulsory character of the assent of the President to the bill for amendment. That an Amending Body, in the exercise of its power to amend, if the power to amend is plenary, can make an amendment in order to make clear what was implicit in the article and to correct a judicial error in the interpretation of the article appears to me to be clear.

> 1797\. When property is acquired for implementing the directive principles under [Article 39(b)](/doc/1200546/) 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 one, 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 refuses any money for it. [Article 31(2A)](/doc/354224/) 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 his property, the State is not bound to pay compensation, what is the principle of justice which demands that he 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 support 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 full 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 leaders of culture, suddenly deprived of their income. Whether it was desirable for the slaves themselves to be suddenly taken away from their masters and cut adrift on the sea of freedom without compensation is another matter. "When prohibition was introduced in America, there was virtual confiscation of many millions of dollars' worth of property. Were the distillers and brewers entitled to compensation for their losses?. 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 property since they were only employees, but who found it difficult late in life to enter new employments. These and other examples of justifiable confiscation without compensation are inconsistent with the absolute theory of private property". See generally M.R. Cohan, "Property and Sovereignty", Law and Social Order, p. 45 onwards.

> 1824\. I should have thought that [Article 31C](/doc/198382/) is a proviso to [Article 13(2)](/doc/772605/) 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 provision of [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31.](/doc/354224/) 1825. I have no doubt that 'law' in [Article 31C](/doc/198382/) can only mean a law passed by Parliament or the State legislatures. The word must take its colour from the context. 1826. The makers of the Constitution imposed a ban by [Article 13(2)](/doc/772605/) upon the 'State' passing a law in contravention of the rights conferred by Part III. If 24th Amendment which enablies 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 or state legislatures to pass law for implementing the Directive Principles specified in [Article 39(b)](/doc/1200546/) and (c) which would be immune from attack on the ground that those laws violate [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31?](/doc/354224/) Is it not open to the Amending Body to enact an amendment 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)](/doc/1200546/) and (c) would not be void, even if they contravene some of the fundamental rights, namely, those under [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31?](/doc/354224/) [Article 31C](/doc/198382/) 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)](/doc/772605/) in some respects. Parliament or State legislatures pass a law for giving effect to the Directive Principles specified in [Article 39(b)](/doc/1200546/) or (c), not by virtue of [Article 31C](/doc/198382/), but by virtue of their power under the appropriate legislative entires. What [Article 31C](/doc/198382/) does is to confer immunity on those laws from attack on the ground that they violate the provision of [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31.](/doc/354224/)

> 1828\. It is a bit difficult to understand how [Article 31C](/doc/198382/) has delegated or, if I may say so more accurately, invested the Parliament in its legislative capacity or the State legislatures, with any power to amend the Constitution. Merely because a law passed by them to give effect to the policy of the State towards securing the Directive Principles specified in [Article 39(b)](/doc/1200546/) and (c) in pursuance to valid legislative, entries in the appropriate Lists in the Seventh Schedule might violate the Fundamental Rights under [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31](/doc/354224/) and such law is deemed not void by virtue of [Article 31C](/doc/198382/), it would not follow that [Article 31C](/doc/198382/) has invested the Parliament in its legislative capacity or the State legislatures with power to amend the Constitution. It is by virtue of the 25th Amendment that the law, although it might violate the Fundamental Rights under [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31](/doc/354224/) is not deemed viod. Whenever Parliament or State legislatures pass such a law, the law so passed gets immunity from attack on the ground that it violates the Fundamental Rights under [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31](/doc/354224/) by Virtue of [Article 31C](/doc/198382/) which in effect has made a pro-tanto amendment of [Article 13(2)](/doc/772605/) 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 legislature passes such a law and if the law violates the Fundamental Rights under [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31](/doc/354224/), it is that law which amends the Constitution and makes it valid. The amendment of the relevant provision of the Constitution, namely [Article 13(2)](/doc/772605/), 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.

1830\. If [Article 31C](/doc/198382/) 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 Rights under [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31](/doc/354224/) in such a way as to take away or abridge them is the grant of such a power valid. The answer seems to me to be simple. If the effect of [Article 31C](/doc/198382/) is as assumed, then it is a pro-tanto amendment of [Article 368.](/doc/594125/) It is not necessary that [Article 31C](/doc/198382/) should in such a case purport to amend [Article 368.](/doc/594125/) See Mohamed Samsudeen Kariapper v. S.S. Wijesinha and Anr. (1968) A.C. 717, 739 to 744. Nor is it necessary that [Article 31C](/doc/198382/) should commence with the words "Notwithstanding anything contained in [Article 368".](/doc/594125/) Just as the Dog Act under an uncontrolled Constitution, pro-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.](/doc/594125/) I cannot read any limitation upon the power to amend the amending power which would preclude [Article 368](/doc/594125/) 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.](/doc/594125/) 1831. 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](/doc/367586/)[, 19](/doc/1218090/) and [31.](/doc/354224/)

1835\. Nobody demurs when a law preventing adulteration of food is passed. Is the adulteration of news, the everyday mental pabulum of the citizen, a less serious matter? The need of the consumer to have adequate and uncontaminated mental food is such that he is under a duty to get it. Because of this duty his interest acquires the status of a right since the consumer is no longer free not to consume and can get what he requires only through the existing press organs, the protection of the freedom of the issuer is no longer sufficient to protect 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 be left free from all kinds of regulation. The ante-thesis between complete laissez faire and complete governmental operation or control 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. See Hocking, "The Freedom of the Press", pp. 167-9. As I said in my judgment, concentration of power substitutes one controlling policy for many independent policies, it lessens the number of competitOrs. The influential part of the nation's press is large scale enterprise closely inter-locked with the system of finance and industry. It will not escape the natural 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 the 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 Jaw for giving effect to the State policy towards securing the Directive Principles contained in [Article 39(b)](/doc/1200546/) and (c) to deal with the commercial aspect of the press, and that aspect being connected with the freedom of speech, it might become inevitable for the law to abridge that freedom.

(c) that can contain a declaration 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 the latter part of [Article 31C](/doc/198382/) can only mean the type of law referred to in the first part. To be more specific the expression '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 in [Article 39(b)](/doc/1200546/) or (c) from attack on the ground of violation of these articles. Any law under the Sun can be brought under the protective umbrella 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](/doc/555882/), 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 the law gives effect to the said policy. Whenever a question is raised that the Parliament or State legislatures 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)](/doc/1200546/) or (c), the Court must necessarily go into that question and decide it. To put it in other words, the legislative jurisdiction to incorporate a declaration that the law gives effect to the policy of the State is conditioned upon the circumstances that the law gives effect to the policy of the State towards securing the Directive Principles specified in [Article 39(b)](/doc/1200546/) and (c). If this is so, the declaration that the law is to give effect to the policy of the State cannot bar the jurisdiction of the Court to go into 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 one 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.

1840\. Apart from the safeguard furnished by judicial scrutiny, there is sufficient guarantee in [Article 31C](/doc/198382/) that a State legislature will not abuse the power as the law passed by it 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 judicial 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. Nor has the dictum of Justice Holmes : Holmes, "Collected Legal Papers", pp. 295-296. "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. 1841. It was said that the Constitution-makers never intended that Fundamental Rights should be subservient to Directive Principles and that they visualized a society where the rights in Part III and the aspirations in Part IV would co-exist in harmony. (The doctrine of harmonious construction has been a panacea for many of our ills. But I am not sure of its efficiency.) A succeeding generation might view the relative importance of the Fundamental Rights and Directive Principles in a different light or from a different perspective. The value judgment of the succeeding generations as regards the relative weight and importance of these rights and aspirations might be entirely different from that of the makers of the Constitution. And it is no answer 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.

1851\. This reference to a special bench of thirteen Judges, larger than any previous bench hearing a case in this Court, was made so that the correctness of a view which became binding law of this country by a narrow majority of one, as a result of the eleven Judge decision of this Court, in [Golak Nath and Ors. v. State of Punjab and Anr.](/doc/21266288/) \[1967\] 2 S.C.R. 762 may be if need be reconsidered. That view was that the prohibition contained in [Article 13(2)](/doc/772605/) of our Constitution 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. Although that was a decision on a limitation held to exist, under our Constitution, as it then stood, on the power of amendment contained in [Article 368](/doc/594125/) of the Constitution, yet, it did not decide what the position would be, if [Article 368](/doc/594125/) was itself amended under the express power of such amendment recognised by Clause (e) of the proviso to [Article 368 (2)](/doc/1389240/) of the Constitution. Although, that question, which then neither arose nor was decided, is before us now directly for decision, yet, I think, we cannot avoid pronouncing upon the correctness of the majority decision in the [Golak Nath](/doc/21266288/)'s case (Supra), which has a bearing upon the scope of the power of amendment contained in the unamended [Article 368.](/doc/594125/) 1852. The cases before us have become so much loaded with learning and marked by brilliance of exposition of all the points involved, either directly or indirectly, both by my learned brethren and the members of the Bar of this Court, in view of the crucial importance, for the future Constitutional history of this country, of the issues placed before us, that it would be presumptuous on my part to attempt to deal with every point which has been raised. Indeed, it is not necessary for me to repeat such views as I accept as correct expressed by my learned brethren with whose conclusion I agree. The reasons 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 which I shall content myself before recording my conclusions. I venture to make these observations because, as my learned Brother Mathew has pointed out, in cases of the nature before us, the healthier practice is to follow the example of House of Lords even though a multiplicity of opinions may produce a "thicket", which, according to Judge Learned Hand, it is the function of judicial learning and wisdom to remove. I do hope that my observations will not add to the thickness of this thicket without some useful purpose served by making them.

> 1859\. The result may be described as the transfer of political as well at 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 some of the die-hard exponents of the legal omnipotence of the British Parliament may have expounded, the modern view, even in Britain, is that what was so transferred from one nation to another could not be legally revoked. The vesting of the power of making the Constitution 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. 1860. The voice of the people speaking through the Constituent Assembly constituted a new "Republic" which was both "Sovereign and Democratic". It no doubt sought to secure the noble objectives [laid down in](/doc/21266288/) the Preamble primarily through both the Fundamental rights found in 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 Directive Principles, contained in Part IV as the ends of the endeavours of the people to attain the objectives of their Constitution. 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 Principles.

> 1862\. Perhaps, the best way of describing the relationship between the fundamental rights of individual citizens, which imposed corresponding obligations upon the States and the 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 aims 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 other 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 assumption. 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](/doc/21266288/) the Directive Principles 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](/doc/76375/), as "the principles...fundamental in the governance of the country". The mandate of [Article 37](/doc/76375/) 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 some judicial law making, within the interstices of the Constitution or any Statute before them for construction, the Courts too are bound by this mandate. 1863. 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 fundamental rights, freedom of individual citizens, viewed 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 was, no doubt, to be always attempted whenever this was 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.

> It may yet be fairly argued that, in every State, some distinction between the three powers is essential to the maintenance 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. 1876. In order to avoid concentration of such excessive power in few hands that it may corrupt or be misused by chose who wield it, our Constitution also divides or distributes 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 judicial branch of the State. 1877. Here we 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 the sphere of the primary fundamental law of the Constitution lies also the amending power contained in [Article 368](/doc/594125/) 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 of the judicial organ over the Constituent power vested in the Constitutional bodies or organs mentioned in [Article 368](/doc/594125/) of the Constitution ceases. No doubt the judicial 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.

> 1887\. 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 has 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.](/doc/594125/) It has been rightly pointed out that the careful manner in which the Constitution, and, particularly, the amending [Article 368](/doc/594125/) was framed precludes the possibility of a delibrate casus omissus so as to exclude from its scope the making of any provision which may either take away or abridge or affect a fundamental right or any other basic feature. In any case, in such a Constitution 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](/doc/594125/) as originally framed. Without express words in [Article 368](/doc/594125/) itself to that effect, I am not prepared to merely presume or infer the presence of any casus omissus here. 1888. It was no doubt argued, on the strength of the [Golak Nath](/doc/21266288/) case (supra), that direct or indirect abridgement or taking away of a fundamental right by an amendment under [Article 368](/doc/594125/) was expressly barred by the language of [Article 13(2)](/doc/772605/) of the Constitution. I am in agreement with the views of my learned brethern who hold that [Article 13(2)](/doc/772605/) 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](/doc/594125/) which deals with the amendment of the fundamental law itself of which [Article 13(2)](/doc/772605/) is a part. The language and the context as well as the subject matter of it, found stated in [Article 13(2)](/doc/772605/) of the Constitution itself, preclude me from holding that it could possibly operate as a restriction on the powers of amendment of any part of the Constitution contained in [Article 368](/doc/594125/) of the Constitution even before it was amended by the 24th Amendment.

1900\. The cases from Australia decided by the Privy Council were : McCawley v. The King 1920 A.C. p. 691., Taylor v. Attorney General of Queensland 23 C.L.R. p. 457 where an interpretation of Section 5 of the Colonial Law Validity Act was given in the light of a presumption that 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 \[1907\] A.C. p. 81 where the theory of implied restrictions on powers found in the Commonwealth Parliament Act was rejected; Victoria v. Commonwealth, 45 Australian L.J. p. 251 where, without questioning the basic principle of grant of plenary powers of legislation, laid down by Lord Selborne in Q. v. Burah (1878) 3 A.C. 889 a decision was given on the lack of powers in the Federal Legislature, to tax a State, on a subject falling outside [Section 51](/doc/103078044/) 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. 1901. The cases from Canada may lend some support to the implications of a grant of power contained by an enactment 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](/doc/594125/) is a pivotal part, which we have adopted. The cases from Canada cited before us were : Alberta Press cases 1938 (2) D.L.R. p. 81 Switzman v. Elbing & Attorney General of Quebec 1957 (7) D.L.R. p. 337 Saumur v. City of Quebec & Attorney General of Quebec 1953 (4) D.L.R. p. 461 A.G. for the Province of Ontario and Ors. v. A.G. for the Dominion of Canada and Anr. \[1912\] A.C. p. 571 where the assumption, underlying some of the decisions, that Canada did not possess fully blossomed legislative power, seems to have been repelled; In Re the Initiative and Referendum Act, where legislation offending [Section 92](/doc/27986095/) head 1 of the British North America Act, 1867; was held to be invalid.

> 1904\. This case shows that repugnancy to some vague principle of "natural justice" could not invalidate the enactments of a fully competent legislative authority. 1905. 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 [Article 368](/doc/594125/) of the Constitution would share the legislative sovereignty and would constitute the "Principal" whose will is expressed in the amendment. 1906. 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](/doc/594125/) of the Constitution. It may also be possible 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 intend abrogation of the fundamental rules of natural justice. 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](/doc/367586/) and [19](/doc/1218090/) of the Constitution apply. The exclusion of [Articles 14](/doc/367586/) and [19](/doc/1218090/) by a Constitutionally valid amendment only carves out or creates a new legislative 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](/doc/594125/) 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 violations of Articles 14 and 19 and

(b) and (c) of [Article 39](/doc/555882/) 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 question of relevancy or nexus with the specified principles would be open to judicial scrutiny in such cases of declarations annexed to laws passed. 1915. My learned brother Khanna has been pleased, despite the concession mentioned above, to declare the second part of [Article 31C](/doc/198382/) 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 of the essential features of its basic structure, that is to say, judicial review, had been removed. 1916. I think that the concession made on behalf of the Union of India is quite justifiable on a ground which I now proceed to adopt. It is that a declaration by itself is not part of the law made, but it is something only attached to the law even though this annexation is by a purported law. In other words, the declaration, though provided for by law, takes the place of judicial consideration by the Courts and involves consideration of the question whether it is reasonable and necessary to attach such a declaration to a particular law. 1917. 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 [Article 31C](/doc/198382/) 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](/doc/198382/) are valid.

> Jawaharlal Nehru : C.A.D. Vol. 9 page 1194 (emphasis added). At bottom the controversy in these cases is as to whether the meaning of the Constitution consists in its being or in its becoming. The Court is called upon to decide whether it is a prison-house or a freeland, whether it speaks for 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 and 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 Constitutions are in identical terms, it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another. This may be so even where the words or expressions used are same in both cases, for a word or phrase may take a colour from its context and bear different senses accordingly." (In Re. C.P. & Berar Sales of Motor Spirit Lubricants Taxation Act, 1938). \[1939\] F.C.R. 18 at page 38 per Gwyer C.J. For instance, law- making and Constitution-amending are both called 'law' 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 unique.... 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](/doc/476269/)). \[1951\] S.C.R. 747 at page 1112 per Bose J. 1925. "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](/doc/288909/).) A.I.R. 1911 All. 251 at page 297 per Sapru J. Constitutions which grew up in the 17th, 18th and 19th centuries reflected the hopes and aspirations of men of those times; the Constitution of 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 safe guide in construing the Constitution of India framed for ushering in social and economic democracy. 1926. 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 right of property, and the main problems of politics will deal with the alterations to be brought about in the right of property-holders."

1969\. Ordinarily fundamental rights avail against the State organs, that is, the Legislature, the Executive and the Judiciary and other agencies of the State. While making an amendment under [Article 368](/doc/594125/), Parliament acts as a constituent authority and not as a State organ. The body making a law in accordance with the procedure prescribed under [Articles 107](/doc/1143713/) to 111 and an amendment according to the procedure prescribed in [Article 368](/doc/594125/) may be the same, but the two functions are 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 are holding high judicial offices cannot 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 Constitution of India. But the same members-acting 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 [Articles 107](/doc/1143713/) to 111 and [Article 368.](/doc/594125/) 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 bicamerally or unicamerally. But an amendment of the Constitution under [Article 368](/doc/594125/) cannot be made by a vote in a joint sitting of the two Houses. The two Houses must meet separately and pass tile amending bill by the requisite majority. The President may withhold his assent to the Constitution amending bill. 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 [Articles 107](/doc/1143713/) 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.

1970\. Legislative power in [Article 245](/doc/574894/) is made 'subject to the provisions of this Constitution'. But [Article 368](/doc/594125/) is not made 'subject to the provisions of this Constitution'. [Article 368](/doc/594125/) 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 [Article 368.](/doc/594125/) The framers of the Constitution were aware of the fact that certain foreign Constitutions have expressly put the amending power in substantive fetters. Indeed [Article 305](/doc/287871/) sought to place such a fetter on the Draft [Article 304 (corresponding to](/doc/1392920/) [Article 368](/doc/594125/)). In the absence of clear textual evidence, I am unable to expand the meaning of 'law' in [Article 13(2)](/doc/772605/), for an expansive construction would permanently rule out the lawful making of structural reforms in the social, economic and political frame of the country. Speaking on the First amendment to the Constitution following the decision of this Court in [State of Madras v. Srimathi Champakan Dorairajan](/doc/149321/), (1951) S.C.R. 525 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 up 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 quo undoubtedly. Therefore, if this argument is correct, then we cannot make any major change in the status quo, whether economic or in any sphere of public or private activity." Parliamentary Debates Vols. XII-XIII, Part II- 1951, pages 9616-9617.

1971\. The word 'compensation' in the unamended [Article 31(2)](/doc/108209556/) has been construed by this Court to mean full market value of the acquired property. This construction creates a direct conflict between [Article 31(2)](/doc/108209556/) and [Article 39(c).](/doc/62166/) [Article 39(c)](/doc/62166/) enjoins the State 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 [Articles 31(2)](/doc/108209556/) and [39(c)](/doc/62166/) or between [Articles 29](/doc/1888152/) and [46.](/doc/352126/) 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 [Article 368.](/doc/594125/) "My concept of a fundamental right is something which Parliament cannot touch save by an amendment of the Constitution" (emphasis added) ([S. Krishnan versus State of Madras](/doc/1879676/)) \[1951\] S.C.R. 621 at page 652 per Bose J. 1972. The phrase 'notwithstanding anything in the Constitution' is used in a provision granting power for emancipating the grant from any restrictive provision in the Constitution. As the word 'law' in the [Article 13(2)](/doc/772605/) is not intended to include an amendment of the Constitution, [Article 368](/doc/594125/) does not open with the non-obstante clause. 1973. No unmistaking conclusion can be drawn from the history of [Article 13(2)](/doc/772605/) 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. Shiva Rao, Framing of India's Constitution, Vol. II, p. 137. Clause 2 of the annexure relevantly 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 sub-Committee forwarded an annexure on Fundamental Rights to the Chairman, Advisory Committee on Fundamental Rights. Clause 2 of the annexure materially read:

> 1982\. 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 this 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 best 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" Parliamentary Debates Vols. XII-XIII, Part II, pp. 9624-9625. 1983. [Articles 15(3)](/doc/1603957/)[, 16(4)](/doc/68038/) and [(5)](/doc/1937835/)[, 19(2)](/doc/493243/) 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)](/doc/493243/) has invented a completely new restriction to free speech, namely, 'friendly relations with foreign states' [Article 33](/doc/829916/) 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 [Article 19](/doc/1218090/) was made unjusticiable in the State of Jammu and Kashmir. Clause (7) added to [Article 19](/doc/1218090/) 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](/doc/131052924/) 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)](/doc/1800328/) 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](/doc/147929/) suspends rights under [Article 19](/doc/1218090/) during the operation of the Proclamation of Emergency under [Article 352.](/doc/1018568/) [Article 359](/doc/1594774/) empowers the President to suspend the rights under [Article 32](/doc/981147/) 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. ([Basheskar Nath v. The Commissioner of Income Tax](/doc/761967/) \[1959\] Supp. 1 S.C.R. 528 at pages 604-605 per S.K. Das J.).

1992\. Implied limitations cannot be spelt out of the vague emotive generalities of the Preamble. 'People', 'Sovereign', 'Democratic', 'Republic', 'Justice', 'Liberty', 'Equality' and 'Fraternity' are plastic words, and different people have impressed different meanings on 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](/doc/1706770/), Supra, p. 282). 1993. 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 and to define, demarcate and limit their powers and functions. The scheme of [Article 368](/doc/594125/), on the other 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 it must plainly have been the intention of the Constitution-makers that [Article 368](/doc/594125/) should control and condition rather than be controlled and conditioned by other provisions of the Constitution. [Article 368](/doc/594125/) is the master, not the slave of the other provisions. Acting under [Article 368](/doc/594125/), Parliament is the creator, not the creature of the Constitution. In one word, it is supreme. As Lord Halifax has said : The "reverence that is given to a fundamental...would be much better 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 fundamental first, that in every Constitution there is some power which neither will nor ought to be bounded. Gough, Supra, at page 170." Jawaharlal Nehru also said : "(U)ltimately the whole Constitution is a creature of Parliament." C.A.D. Vol. IX, p. 1195.

1997\. 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 [Article 368](/doc/594125/) itself. Every provision of the Constitution which may be amended only by the procedure prescribed in [Article 368](/doc/594125/) 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 [Article 368](/doc/594125/) 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 [Article 368.](/doc/594125/) On a parity of reasoning, judicial review of legislation is also amendable. The Constitution creates, enlarges, restricts and excludes judicial review of legislation. (See [Articles 32(2)](/doc/1566826/)[, 138](/doc/948250/)[, 139](/doc/556297/)[, 143](/doc/210155/)[, 77(2)](/doc/1085831/)[, 166(2)](/doc/500615/) and [31(4)](/doc/49756294/)[, (5)](/doc/1937835/) and [(6)](/doc/19636/)). [Article 32(2)](/doc/1566826/) is as amendable as any fundamental right in Part III. The word "guaranteed" in [Article 32(1)](/doc/846967/) does not testify to its unamendable character. The guarantee is good against the Government organs and not against the constituent power. It may be recalled that on December 9, 1948, Dr. B.R. Ambedkar, while speaking on [Article 25](/doc/631708/) of the Draft Constitution (present [Article 32](/doc/981147/)) said : "The Constitution has invested the Supreme Court with these writs and these write could not be taken away Unless and until the Constitution itself is amended by means left open to the Legislature C.A.D. Vol. VII, p. 953." And this he said in spite of his affirmation that [Article 25](/doc/631708/) is the "very soul" and the "very heart" of the Constitusion.

1998\. [Article 368](/doc/594125/) places no express limits on the amending power. Indeed, it expressly provides for its own amendment. Parliament and more than half of the States may jointly repeal [Article 368](/doc/594125/) and thus make fundamental rights immutable if they so desire. 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. ([A.K. Gopalan v. The Union of India](/doc/1857950/) \[1950\] S.C.R. 88 at p. 120 per Kania C.J. and p. 220 per Mahajan J.; [Raja Suriya Pal Singh v. State of U.P.](/doc/629631/) \[1952\] S.C.R. 1056 at page 1068 per Mahajan J.). In Babu Lal Pavate versus State of Bombay \[1960\] 1 S.C.R. 905 the [Constitutionality of the States Reorganisation Act, 1956](/doc/1211891/) was questioned by this Court. [The Act](/doc/93056159/) provided for the formation of two separate units out of the 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](/doc/93056159/) was passed under [Article 3](/doc/1659104/) of the Constitution. [Article 3](/doc/1659104/) has a proviso to the effect that no Bill under the main part of [Article 3](/doc/1659104/) shall be introduced in either of the Houses unless, 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 the Act carved out only two units. It was urged that the word "State" in [Article 3](/doc/1659104/) 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 [Article 3.](/doc/1659104/) According to this "democratic process" the representatives of the people of the State of Bombay assembled in the State Legislature should have been given an opportunity of expressing their views not merely on the proposal contained in the Bill but on any subsequent modification thereof. Rejecting this argument, S.K. Das, J. said:

> 2026\. A proviso has also been added to [Article 31(2).](/doc/108209556/) According 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 Clause (1) of [Article 30](/doc/1983234/), 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. 2027. [Section 2](/doc/176529644/) adds Clause (2B) to [Article 31.](/doc/354224/) Clause (2B) states that the provisions of [Article 19(1)(f)](/doc/258019/) shall not affect any law referred to in the amended [Article 31(2).](/doc/108209556/) 2028. The birth of [Section 2](/doc/176529644/) is dictated by the history of [Article 31(2).](/doc/108209556/) [Article 24](/doc/1540780/) of the Draft Constitution became [Article 31(2).](/doc/108209556/) [Article 24](/doc/1540780/) 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 C.A.D. Vol. IX, p. 1193". His construction of [Article 24](/doc/1540780/) 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 lands. In one case the property acquired was worth over rupees five lacs. It was sold during the Non-cooperation Movement to an old Diwan of a native State for something like Rs. 6000. The income from the property was about Rs. 80,000.00 a year. The Diwan had received that income for about 10 years. The Bombay Legislature acquired the property 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 the word "compensation" in Article 31(2) means "full cash equivalent" (The State of West Bengal v. Mrs. Bela Banerjee) (1954) S.C.R.

> 2044\. It is also stressed that the second part of [Section 3](/doc/176943212/) arms the legislatures with the absolute power of sheltering laws which violate [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31](/doc/354224/) and have no relation to the principles specified in [Article 39(b)](/doc/1200546/) and (c). 2045. The second part prohibits any court from inquirying whether the law protected by [Article 31C](/doc/198382/) has relevancy to [Article 39(b)](/doc/1200546/) and (c) if it contains a declaration that it gives effect to the policy specified in that provision. Howsoever shocking it may seem, it is not an innovation. You will find several articles having a close resemblance to it. [Article 77(2)](/doc/1085831/) provides that the validity of an order or instrument which is authenticated as provided therein 'shall not be called in question on the ground that it is not an order or instrument made or executed by the President'. A similar provision is made in [Article 166(2)](/doc/500615/) in relation to the Governor. [Article 103(1)](/doc/834320/) provides that if any question arises as to whether a member of either House of Parliament has become subject to any of the qualifications mentioned in [Article 102(1)](/doc/964829/), the question shall be decided by the President and 'his decision shall be final.' A similar provision is to be found in [Article 192(1)](/doc/1881690/) as regards the members of the State Legislature with respect rto the decision of the Governor, [Article 311(2)](/doc/1674593/) gives a right of licaring to an employee sought to be dismissed or removed or reduced in rank. Clause (b) of the proviso to the article enacts that where the appointing authority'is satisfied that for some reason it is not reasonably practicable to hold such inquiry, the pre-requisite of hearing may be dispensed with. Clause (3) of [Article 311](/doc/47623/) then enacts that if a question arises whether it is reasonably practicable to hold an inquiry, 'the decision thereon of the authority...shall be final'. [Article 329(a)](/doc/602602/) enacts that notwithstanding anything in the Constitution the validity of any law relating to the delimitation of constituencies or allotment of seats to such constituencies made or purporting to be made under [Article 327](/doc/31824/) or [Article 328](/doc/873755/) shall not be called in question in any court. Like these articles, the second part of [Section 3](/doc/176943212/) excludes judicial review to a limited extent.

> The effect of [Section 6](/doc/171441475/) certainly is not to repeal any one of these 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 or the orders made thereunder. In other words, the orders made under [Section 3](/doc/176943212/) would be operative in regard to the essential commodity covered by the Textile Control Order wherever there is repugnancy 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 does hot necessarily amount to repeal or abrogation of that law. That law remains unrepealed but during the continuance of the order made under [Section 3](/doc/176943212/) it does not operate in that field for the time being. The ambit of its operation is just limited without there being any repeal of any one of its provisions. Conceding, however, for the sake of argument that to the extent of a repugnancy between an order made under [Section 3](/doc/176943212/), 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](/doc/171441475/) Parliament itself has declared that an order made under [Section 3](/doc/176943212/) shall have effect 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 [Section 6](/doc/171441475/). The abrogation or the implied repeal is by force of the order made by the delegate under [Section 3](/doc/176943212/). The power of the delegate is only to make an order under [Section 3](/doc/176943212/). Once the delegate has made that order its power is exhausted. [Section 6](/doc/171441475/) 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](/doc/171441475/) at all...\[1955\] 1 S.C.R. 380 at page 391-392.

2075\. During the course of arguments, a catena of decisions of several courts were cited before us. I thought when the arguments began-yes, I remember it because the commencement of the case is not that lost in antiquity-that the judgments of this Court will form the focus of discussion, foreign decisions making a brief appearance. But in retrospect, I think I was wrong. Learning, like language, is no one's monopoly and counsel were entitled to invite us to consider how heroically courts all over the world had waged battles in defence of fundamental freedoms and on the other hand how, on occasions, the letter of law was permitted to prevail in disregard of evil consequences. Between such extremes, the choice is always difficult 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 the American Supreme Court did in 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 themselvs, "the Suprme Court must act undemocratically in order to preserve democracy". 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 the protection of civil liberties is concerned, and where the legislators have demonstrated their inability to provide adequate safeguards, the courts are entirely justified (perhaps even morally obliged) in employing all the ingenuity and imagination at their command to preserve individual rights". Such exhortations have a spartan air which lends colourfulness to arid texts but they overlook the fundamental premise that judges, unlike Manu, are not law- givers. Besides, it cannot ever be too strongly stressed that the power of substantive 'due process of law' available under the Fourteenth Amendment to the American Constitution was considered and rejected by our Constituent Assembly which contained a galaxy of legal 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, 49 L. ed. 937 the law restricting employment in baker to 10 hours per day and 60 hours per week was regarded as an unConstitutional interference with the right of adult labourers, tut juris, to contract with respect to their means of livelihood. It was decades later that the Court recognised the value and the validity of the dissenting opinion recorded by Justice Holmes:

> 2078\. We ended with some of the very recent decisions of this Court like the Bank Nationalisation Case \[1970\] 3 S.C.R. 530 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](/doc/65649811/) violated the guarantee of compensation under [Article 31(2)](/doc/108209556/) 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 several decisions, prominent amongst which are: (1) The Privy Council decision in 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 Liyanage's case (1965) and Kariapper's case (1967); (2) The decisions of the Federal Court in the [C.P. & Berar Reference (1938), Subramaniam Chettiyar](/doc/21266288/)'s case (1940) and Suraj Narain Anand's case (1941); (3) The decisions of the American Supreme Court in Lochner's case (1904), Hawke v. Smith (1920), the Rhode Island Case (1920), Dillon v. Gloss (1920), Lesser v. 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 v. Waite (1894), Edwards v. Lesseur (1896), Ex parte Dillon (1920) and Geigenspan v. 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 Harris' 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 Engineer's case (1920), West v. Commonwealth of Australia in (1937), South Australia v. Commonwealth (1942) and State of Victoria v. Commonwealth (1970).

2080\. The decisions of American courts may bear examination, but in their application to the problems 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 Constitutions, the purposed vagueness of theirs and the finical content of ours and the significant disparity in the structure of their [Article 5](/doc/1937835/) and our [Article 368.](/doc/594125/) In America, an important principle of Constitutional liberty is that the sovereignty resides in the people and as they could not in their collective character exercise governmental powers, a written document was by common consensus agreed upon in each of the States. The American Constitution, thus, is covenant of the sovereign people with the 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 Constitution. "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 of 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 phrases 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 and 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).

> 2132\. Every one of the articles of the Constitution is amendable under [Article 368](/doc/594125/) and there was no room for any implication in the construction of that article. 2133. It is thus clear that the majority of Judges in the [Golak Nath](/doc/21266288/) case consisting of Justices Wanchoo, Hidayatullah, Bhargava, Mitter, Bachawat and Ramaswami rejected the argument that [Article 368](/doc/594125/) merely prescribes the procedure to be followed in amending the Constitution. They held that [Article 368](/doc/594125/) 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 Hidayatullah J. held that there was no distinction between constituent power and legislative power and that the word 'law' used in [Article 13(2)](/doc/772605/) 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 different view and held that for making radical alterations so as to abridge Fundamental Rights [Article 368](/doc/594125/) should 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 [Article 368.](/doc/594125/) 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 different methods for achieving that purpose. Subba Rao C.J. and his 4 colleagues suggested calling of a Constituent Assembly; Hidayatullah J. suggested an amendment of [Article 368](/doc/594125/) for calling a Constituent Assembly after passing a law under Entry 97; the remaining 5 Judges held that the Parliament itself had the power to amend the Constitution so as to abridge or take away the Fundamental Rights.

2137\. Part XX of the Constitution is entitled "Amendment of the Constitution", not "Procedure for Amendment of the Constitution". [Article 368](/doc/594125/), 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: "](/doc/594125/)Procedure for Amendment of the Constitution" was only 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](/doc/594125/) 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](/doc/93056159/), and the scheme of distribution of legislative power show that if a subject of legislative power was prominently present to the minds of the framers of the Constitution, it would not have been relegated to a Residuary Entry, but would have been included expressly in the 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 exclusively to the Parliament. The power to amend the Constitution cannot be located in that Entry because in regard to matters falling within the proviso to [Article 368](/doc/594125/), Parliament does 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](/doc/1392920/), which corresponds to [Article 368](/doc/594125/), 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](/doc/574894/) is "subject to the provisions of this Constitution", so that under the residuary power, no amendment could be made to any part of the Constitution, as any amendment is bound, to some extent, to be inconsistent with the article to be amended.

2144\. The various shades of meaning of the word 'amendment' may apply differently in different contexts, but it seems to me that in the context in which that word occurs in [Article 368](/doc/594125/), it is neither ambiguous nor amorphous, but has a definite import. 2145. The proviso to [Article 368](/doc/594125/) 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](/doc/594125/) 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 make 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](/doc/594125/) and thus the article itself envisages that the amendment may take the form of 'change'. There is in this case a dictionary at every corner 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' does 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'. 2146. Paragraph 7 of 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:

> 2157\. [Article 368](/doc/594125/), manifestly, does not impose any express limitations. The reason for this is obvious. The power of amendment is in substance and reality a power to clarify the original intention obscured, for example, by limitations 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 enervated strength of a document evolved 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 Constitutional Government & Democracy, 4th Ed. p. 139, "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 British Coal Corporation v. Rex 1935 (A.C.) 500, 518. 2158. If, on the terms of [Article 368](/doc/594125/) the power of amendment is wide and unfettered, does [Article 13(2)](/doc/772605/) impose any restraint on that power? Hereby hangs a tale. A majority of Judges held in the [Golak Nath](/doc/21266288/) case that the power of amendment was to be traced to [Article 368.](/doc/594125/) But a majority, differently composed, held that amendment of the Constitution was 'law' within the meaning of [Article 13(2)](/doc/772605/) and, therefore, the Parliament had no power to take away or abridge 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 the decision in the [Golak Nath](/doc/21266288/) case. It is therefore necessary to consider that question closely.

> 2181\. It is difficult to accept the argument that inherent limitations should be read into the amending power on the ground that Fundamental Rights are 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 Constitution-makers. [Article 13(2)](/doc/772605/) speaks of rights "conferred" by Part III and enjoins the States not to make laws inconsistent therewith. [Article 32](/doc/981147/) 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](/doc/1218090/) 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](/doc/829916/) confers upon the Parliament the power to determine to what extent the rights conferred by Part III should be restricted or abrogated in their application to the members of the Armed Forces. [Article 359(1)](/doc/1760044/) empowers the President to suspend the rights "conferred" by Part III during the proclamation of an emergency. [Articles 25](/doc/631708/) and [26](/doc/1858991/) 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.; Sri Venkataramana Devaru and Ors. v. The State of Mysore and Ors. see also Bourne v. Keane 1919 A.C. 815 at 861 per Lord Birken-head L.C.). Thus, in India, citizens 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.

> 2187\. An important rule of interpretation which, 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 what it forbids. The consequences of a particular construction, if the text be explicit, can have no impact on the construction of a Constitutional provision (Attorney-General, Ontario v. Attorney-General, Canada) \[1892\] A.C. 571. As observed by Chief Justice Marshall in Providence Bank v. Alpheus Billings L. ed. 939, 957 a power may be capable of being abused 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, are 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](/doc/581566/) of the Constitution, I feel a revolt rising within myself, but then personal predilections are out of place in the construction of a Constitutional provision. Clause (7) of [Article 22](/doc/581566/) 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 obligation 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. In 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 v. New York 49 L. ed. 937 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 unreasonable. In Bank of Toronto v. Lambe \[1887\] A.C. 575, 586 Lord Hobhous observed: "People who are trusted with the great power of making 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"

2207\. While winding up this discussion of authorities, it is necessary to refer to the decision of the Privy Council in Livange v. the Queen (1967) 1 A.C. 259 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'. 2208. It must follow from what precedes that [The Constitution (Twenty-fourth Amendment) Act, 1971](/doc/145156929/) is valid. I have taken the view that Constitutional amendments made under [Article 368](/doc/594125/) fell outside the purview of [Article 13(2).](/doc/772605/) [Section 2](/doc/176529644/) of the 24th Amendment Act reiterates this position by adding a new Clause (4) in [Article 13 : "(4)](/doc/430906/) Nothing in this article shall apply to any amendment of this Constitution made under [Article 368."](/doc/594125/) I have also taken the view that the old [Article 368](/doc/594125/) not only prescribed the procedure for amendment of the Constitution but conferred the power of amendment. That position is made clear by [Section 3](/doc/176943212/) of the 24th Amendment which substitutes by Clause (a) a fully expressive marginal heading to [Article 368.](/doc/594125/) I have held that the power of amendment conferred by [Article 368](/doc/594125/) was wide and untrammelled. Further, that Constitutional amendments are 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](/doc/176943212/). Clause (c) of [Section 3](/doc/176943212/) 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](/doc/176943212/) of the 24th Amendment excludes the application of [Article 13](/doc/134715/) to an amendment made under [Article 368.](/doc/594125/) As indicated in this judgment that was the correct interpretation of [Articles 13](/doc/134715/) and [368.](/doc/594125/) 2209. [The Constitution (Twenty-fourth Amendment) Act, 1971](/doc/145156929/), thus, merely clarifies what was the true law and must therefore be held valid.

614\. 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](/doc/7832/). Delivering the judgment of the Court, Subba Rao J. held that the fact that Parliament used the same expressions, 'compensation' and 'principles' as were found in [Article 31](/doc/354224/) before its Amendment, was a clear indication that it accepted the meaning given by this Court to those expressions in [Bela Banerjee](/doc/1890860/)'s case. The Legislature, therefore, 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 working 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).](/doc/108209556/) [The Act](/doc/93056159/), however, was struck down under [Article 14](/doc/367586/) on the ground that full compensation had still to be paid under a parallel Law : [The Land Acquisition Act](/doc/7832/). 2211. In [Union v. Metal Corporation](/doc/602096/), \[1967\] 1 S.C.R. 255 a Bench of two Judges consisting of Subba Rao C.J. and Shelat 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 are not arbitrary that the adequacy of the resultant product could not be questioned in a court of law. It is evident that this decision marked a departure from the judgment in [Vajravelu](/doc/1634289/)'s case.

2214\. This chain of decisions on the construction of [Articles 31(2)](/doc/108209556/) introduced uncertainty in law and defeated to a large extent the clearly expressed intention of the amended [Article 31(2)](/doc/108209556/) 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 Shantilal Mangaldas \[1969\] S.C.R. 341 at 362, 363 case had observed with reference to the decision in [Bela Banerjee](/doc/1890860/)'s case and Subodh Gopal's \[1954\] S.C.R. 587 case 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.](/doc/555882/) Subba Rao J. had also observed in Vajravelu's \[1965\] 1 S.C.R. 614, 626 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 'compensation' in the new [Article 31(2).](/doc/108209556/) 2215. The provision in the newly added Clause 2B of [Article 31](/doc/354224/) that nothing in [Article 19(1)(f)](/doc/258019/) shall affect any law referred to in [Article 31(2)](/doc/108209556/) has been obviously incorporated because the Bank Nationalisation case overruled a long line of authorities which had consistently taken the view that [Article 19(1)(f)](/doc/258019/) and [Article 31(2)](/doc/108209556/) were mutually exclusive so far as acquisition and requisition were concerned \[See for example [Gopalan](/doc/1857950/)'s case, 1950 S.C.R. 88; Chiranjit Lal Choudhury's case, 1950 S.C.R. 869 at 919; [Sitabati Devi](/doc/1332919/)'s case, (1967) 2 S.C.R. 949; [Shantilal Mangaldas](/doc/673450/)'s case, 1969 S.C.R. 341; and [H.N. Rao](/doc/660275/)'s case, 1969(2) S.C.R. 392\].

2219\. I have stated in the earlier part of my judgment\] 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, economic and political-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 does not bear on their relative importance. An equal right of men and women to an adequate means of livelihood; the right to obtain humane conditions of work ensuring a decent standard of life and full enjoyment of leisure; and raising the level of health and nutrition are not matters for compliance with the Writ of a Court. As I look at the provisions of Parts III and IV, I feel no doubt that the basic object of conferring freedoms on individuals is the ultimate achievement of the ideals sec out in Part IV. A circumspect use of the freedoms guaranteed by Part III is bound to subserve the common good but voluntary submission to restraints is a philosopher's dream. Therefore, [Article 37](/doc/76375/) enjoins the State to apply the Directive Principles in making laws. The freedom of a few have then to be abridged in order to ensure the freedom of all. It is in this sense that Parts III and IV, as said by Granwille Austin The Indian Constitution-Cornerstone of a Nation, Edn. 1966, together constitute "the conscience of the Constitution". The Nation stands to- day at the cross-roads of history and exchanging the time-honoured 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 the many and then all freedoms will vanish. In order, therefore, to preserve their freedom, the privileged few must part with a portion of it.

> 2230\. I find it difficult to accept the argument, so strongly pressed upon us, that [Article 31C](/doc/198382/) delegates the amending power to State Legislatures and empowers them to make amendments to the Constitution without complying with the form and manner prescribed by [Article 368.](/doc/594125/) I am also unable to appreciate that the article empowers the Parliament likewise. The true nature and character of [Article 31C](/doc/198382/) is that it identifies a class of legislation and exempts it from the operation of [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31.](/doc/354224/) [Articles 31(4)](/doc/49756294/) and [(6)](/doc/19636/) identified laws in reference to the period of their enactment. [Articles 31(2)](/doc/108209556/) and [31A](/doc/660119/) identified the legislative field with reference to the subject-matter of the law. [Articles 15(4)](/doc/251667/) and [33](/doc/829916/) identified laws with reference to the objective of the legislation. In this process no delegation of amending power is involved. Thus, these various provisions, like [Article 31C](/doc/198382/), create a field exempt from the operation of some of the Fundamental Rights. The field of legislation is not created by [Article 31C.](/doc/198382/) The power to legislate exists apart from and indepedently of it. What the article achieves is to create an immunity against the operation of the specified Fundamental Rights in a pre-existing field of legislation. In principle, I see no distinction between [Article 31C](/doc/198382/) on the one hand and [Articles 15(4)](/doc/251667/)[, 31(4)](/doc/49756294/)[, 31(5)(b)(ii)](/doc/170199134/), and [31(6)](/doc/64339869/) 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

2231\. The argument that [Article 31C](/doc/198382/) permits a blatant violation of the form and manner prescribed by [Article 368](/doc/594125/) overlooks that the article took birth after a full and complete compliance with the form and manner spoken of in [Article 368.](/doc/594125/) Besides, implicit in the right to amend [Article 368](/doc/594125/) is the power, by complying with the form and manner of [Article 368](/doc/594125/), to authorise any other body to make the desired amendments to Constitutional provisions. The leading majority judgment in [Golak Nath](/doc/21266288/) 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 named authority or authorities to exercise the same power. This aspect of the matter does not, however, arise for further consideration, because [Article 31C](/doc/198382/) does not delegate the power to amend. 2232. The latter part of [Article 31C](/doc/198382/) presents to me no difficulty: "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." Clearly, this does 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)](/doc/1200546/) or (c). Laws passed under [Article 31C](/doc/198382/), can, in my opinion, be upheld only, and only if, there is a direct and reasonable nexus between the law and the Directive Policy of the State expressed in [Article 39(b)](/doc/1200546/) or (c). The law cannot be called in question on the ground that it does not give effect to such policy but I suppose no court can ever take upon itself the task of finding out whether a Jaw in fact gives effect to its true policy. If such a latitude were open to the Judges, laws of Prohibition and Gambling should have lost their place on the statute booklong since.

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