Minerva Mills v. Union of India

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Minerva Mills v. Union of India | Judgment | Law on Tips

The argument of the learned Additional Solicitor General proceeds thus: For extracting the ratio of Keshvananda Bharati (Supra). One must proceed on the basis that there were as many cases as there were declarations sought for by the petitioners therein. The majority in regard to [Article 368](/doc/594125/) is different from the majority in regard to the decision in respect of [Article 31C.](/doc/198382/) The binding ratio in regard to [Article 368](/doc/594125/) as well as the ratio resulting in upholding the validity of the first part of the [Article 31C](/doc/198382/) will both sustain the validity of [section 4](/doc/52261914/) of the 42nd Amendment. In regard to fundamental rights, the ratio of the judgments of 12 out of 13 Judges, i.e., all excepting Jagamohan Reddy J., will empower amendment of each one of the articles in part III, so long as there is no total abrogation of the fundamental rights which constitute essential features of the basic structure of the Constitution. Abrogation of fundamental rights which do not constitute essential features of the basic structure or abridgement of fundamental rights which constitute such essential features is within the permissible limits of amendment. The unamended [Article 31C](/doc/198382/) having been upheld by the majority in Kesavanada Bharti both on the ground of stare decisis and on the ground of 'contemporaneous practical exposition' the amended [Article 31C](/doc/198382/) must be held to be valid, especially since it is not brought about a qualitative change in comparison with the provisions of the unamended article. A harmonious and orderly development of constitutional law would require that the phrases 'inconsistent with' or 'take away' which occur in [Articles 31A](/doc/660119/)[, 31B](/doc/282612/) and [31C](/doc/198382/) should be read down to mean 'restrict' or 'abridge' and not 'abrogate'. If two constructions of those expressions were reasonably possible, the Court should accept that construction which would render the constitutional amendment valid.

> This is not mere semantics. The edifice of our Constitution is built upon the concepts crystallised in the Preamble. We resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice-social, economic and political. We, therefore, put part IV into our Constitution containing directive principles of State policy which specify the socialistic goal to be achieved. We promised to our people a democratic polity which carries with it the obligation of securing to the people liberty of thought, expression, belief, faith and worship; equality of status and of opportunity and the assurance that the dignity of the individual will at all costs be preserved. We, therefore, put Part, III in our Constitution conferring those rights on the people. Those rights are not an end in themselves but are the means to an end. The end is specified in Part IV. Therefore, the rights conferred by Art III are subject to reasonable restrictions and the Constitution provides that enforcement of some of them may, in stated uncommon circumstances, be suspended. But just as the rights conferred by Part III would be without a radar and a compass if they were not geared to an ideal, in the same manner the attainment of the ideals set out in Part IV would become a pretence for tyranny if the price to be paid for achieving that ideal is human freedoms. One of the faiths of our founding fathers was the purity of means. Indeed, under our law, even a dacoit who has committed a murder cannot be put to death 256 in the exercise of right of self-defence after he has made good his escape. So great is the insistence of civilised laws on the purity of means. The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Parts III and IV together constitute the core of our Constitution and combine to form its conscience. Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution.

> It is in this light that the validity of the. amended [Article 31C](/doc/198382/) has to be examined. [Article 13(2)](/doc/772605/) says that the State shall not make any law which takes away or abridges the rights conferred by Part Ill and any law made in contravention of that clause shall to the extent of the contravention be void. [Article 31C](/doc/198382/) begins with a non- obstante clause by putting [Article 13](/doc/134715/) out of harm's way. It provides for a certain consequence notwithstanding anything contained in [Article 13.](/doc/134715/) It then denudes [Articles 14](/doc/367586/) and [19](/doc/1218090/) of their functional utility by providing that the rights conferred by these Articles will be no barrier against passing laws for giving effect to the principles laid down in Part IV. On any reasonable interpretation, there can be no doubt that by the amendment introduced by [section 4](/doc/52261914/) of the 42nd Amendment, [Articles 14](/doc/367586/) and [19](/doc/1218090/) stand abrogated at least in regard to the category of laws described in [Article 31C.](/doc/198382/) The startling consequence which the amendment has produced is that even if a law is in total defiance of the mandate of [Article 13](/doc/134715/) read with [Articles 14](/doc/367586/) and [19](/doc/1218090/), its validity will not be open to question so long as its object is to secure a directive principle of state Policy. We are disposed to accept, the submission of the learned Solicitor General, considering the two charts of cases submitted by him, that it is possible to conceive of laws which will not attract [Article 31C](/doc/198382/) since they may not bear direct and reasonable nexus with the provisions of Part IV. But, that, in our opinion, is beside the point. A large majority of laws, the bulk of them, can at any rate be easily justified as having been passed for the purpose of giving effect to the policy of the State towards securing some principle or the other laid down in Part IV. In respect of all such laws, which will cover an extensive gamut of the relevant legislative activity, the protection of [Articles 15](/doc/609295/) and [19](/doc/1218090/) will stand wholly withdrawn. It is then no answer to say, while determining whether the basic structure of the Constitution is altered, that at least. some laws will fall outside the scope of [Article 31C.](/doc/198382/)

> It was repeatedly impressed upon us, especially by the Attorney General, that [Article 38](/doc/1673816/) of the Constitution is the king-pin of the directive principles and no law passed in order to give effect to the principle contained therein can ever damage or destroy the basic structure of the Constitution. That Article provides that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. We are unable to agree that all the directive Principles of State Policy contained in part IV eventually verge upon [Article 38.](/doc/1673816/) [Article 38](/doc/1673816/) undoubtedly contains a broad guideline, but the other directive principles are not mere illustrations of the principle contained in [Article 38.](/doc/1673816/) Secondly, if it be true that no law passed for the purpose of giving effect to the directive principle contained in [Article 38](/doc/1673816/) can damage or destroy the basic structure of the Constitution, what was the necessity, and more so the justification. for providing by a constitutional amendment that no law which is passed for giving effect to the policy of the State towards securing any principle laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges the rights conferred by [Articles 14](/doc/367586/) and [19 ?](/doc/1218090/) The object and purpose of the amendment of [Article 31C](/doc/198382/) is really to save laws which cannot be saved under [Article 19(2)](/doc/493243/) to (6). Laws which fall under those provisions are in the nature of reasonable restrictions on the fundamental rights in public interest and therefore they abridge but do not abrogate the fundamental rights It was in order to deal with laws which do not get the protection of [Article 19(2)](/doc/493243/) to (6) that [Article 31](/doc/354224/) was amended to say that the provisions of [Article 19](/doc/1218090/), inter alia, cannot be invoked for voiding the laws of the description mentioned in [Article 31C.](/doc/198382/)

> [Articles 14](/doc/367586/) and [19](/doc/1218090/) do not confer any fanciful rights. They confer rights which are elementary for the proper and effective functioning of a democracy. They are universally so regarded, as is evident from the universal Declaration of Human Rights. Many countries in the civilised world have parted with their sovereignty in the hope and belief 258 that their citizens will enjoy human freedoms. And they preferred to be bound by the decisions and decrees of foreign tribunals on matters concerning human freedoms. If [Articles 14](/doc/367586/) and [19](/doc/1218090/) are put out of operation in regard to the bulk of laws which the legislatures are empowered to pass, [Article 32](/doc/981147/) will be drained of its life-blood. [Article 32(4)](/doc/393253/) provides that the right. guaranteed by [Article 32](/doc/981147/) shall not be suspended except as otherwise provided for by the Constitution. [Section 4](/doc/52261914/) of the 42nd Amendment found an easy way to circumvent [Article 32(4)](/doc/393253/) by withdrawing totally the protection of [Articles 14](/doc/367586/) and [19](/doc/1218090/) in respect of a large category of laws, so that there will be no violation to complain of in regard to which redress can be sought under [Article 32.](/doc/981147/) The power to take away the protection of [Article 14](/doc/367586/) is the power to discriminate without a valid basis for classification. By a long series of decisions this Court had held that [Article 14](/doc/367586/) forbids class legislation but it does not forbid classification. The purpose of withdrawing the protection of [Article 14](/doc/367586/), therefore, can only be to acquire the power to enact class legislation. Then again, regional chauvinism will have a field day if [Article 19(1)(d)](/doc/1024002/) is not available to the citizens. Already, there are disturbing trends on a part of the Indian horizon. Those trends will receive strength and encouragement if laws can be passed with immunity, preventing the citizens from exercising their right to move freely throughout the territory of India. The nature and quality of the amendment introduced by [section 4](/doc/52261914/) of the 42nd Amendment is therefore such that it virtually tears away the heart of basic fundamental freedoms.

> We must also mention, what is perhaps not fully realised, that [Article 31C](/doc/198382/) speaks of laws giving effect to the "Policy of the State", "towards securing all or any of the principles laid down in Part IV."' In the very nature of things it is difficult for a court to determine whether a particular law gives effect to a particular policy. Whether a law is adequate enough to give effect to the policy of the State towards securing a directives principle is always a debatable question 261 and the courts cannot set aside the law as invalid merely because, in their opinion, the law is not adequate enough to give effect to a certain policy. In fact, though the clear intendment of [Article 31C](/doc/198382/) is to shut out all judicial review, the argument of the learned Additional Solicitor General calls for a doubly or trebly extensive judicial review than is even normally permissible to the courts. Be it be remembered that the power to enquire into the question whether there is a direct and B. reasonable nexus between the provisions of a law and a directive principle cannot confer upon the courts the power to sit in judgment over the policy itself of the State. At the highest, courts can, under [Article 31C](/doc/198382/), satisfy themselves as to the identity of the law in the sense whether it bears direct and reasonable nexus with a directive principle. If the court is satisfied as to the existence of such nexus, the inevitable consequence provided for by [Article 31C](/doc/198382/) must follow. Indeed, if there is one topic on which all the 13 Judges in Kesavananda Bharati were agreed, it is this: that the only question open to judicial review under the unamended [Article 31](/doc/354224/) was whether there is a direct and reasonable nexus between the impugned law and the provisions of [Article 39(b)](/doc/1200546/) and (c). Reasonableness is evidently regarding the nexus and not regarding the law. It is therefore impossible to accept the contention that it is open to the courts to undertake the kind of enquiry suggested by the Additional Solicitor General. The attempt therefore to drape [Article 31C](/doc/198382/) into a democratic outfit under which an extensive judicial review would be permissible must fail.

that he regarded fundamental rights as not forming part of the basic structure of the Constitution and therefore, according to him, they could be abrogated or takes away by Parliament by an amendment made under [Article 368.](/doc/594125/) If this argument were correct, the majority holding in Keshavanda Bharti's case would have to be taken to be that the fundamental rights could be abrogated or destroyed in exercise of the power of amendment. because Ray, J., Palekar, J., Mathew, J., Beg, J., Dwivedi, J. and Chandrachud, J. took the view that the power of amendment being unlimited, it was competent to Parliament in exercise of this power to abrogate or emasculate the Fundamental Rights and adding the view of Khanna, J., there would be 7 Judges as against 6 in holding that the Fundamental Rights could be abrogated or taken away by Parliament by a constitutionally amendment. But we do not think that this submission urged or behalf of the respondents is well founded. It is undoubtedly true. that there are certain observations in the judgment of Khanna, J. at the bottom of page 688 of the Report which seem into suggest that according to the learned Judge, the fundamental rights could be abridged or taken away by an amendment under [Article 368.](/doc/594125/) For example, he says: "No serious objection is taken to repeal, addition or alteration of provisions of the Constitution other than those in Part III under the power of amendment conferred by [Article 368.](/doc/594125/) The same approach in my opinion should hold good when we deal with amendment relating to Fundamental Rights contained in Part III of the Constitution. It would be impermissible to differentiate between the scope and width of the power of amendment when it deals with Fundamental Rights and the scope and width of that power when it deals with provisions not concerned with Fundamental Rights." Then again at page 707 of the Report, the learned Judge rejects the argument that the core and essence of a Fundamental Right is immune from the amendatory process. These observations might at first blush appear to support the view that, according to Khanna, J., the amendatory power under [Article 368](/doc/594125/) was sufficiently wide to comprehend not only addition or alternation but also repeal of a Fundamental Right resulting in its total abrogation. But if we look art the judgment of Khanna, J. as a whole, we do not think this view can be sustained. It is clear that these observations were made by the learned Judge with a view to explaining the scope and width of the power of amendment under [Article 368.](/doc/594125/) The learned Judge held that the amendatory power of Parliament was wide enough to reach every provision of the Constitution including the Fundamental Rights in Part Ill of the Constitution. but while so holding, he proceeded to make it clear that despite all this width the amendatory power was subject to an overriding limitation.

This exercise of determining whether certain particular features formed part of the basic structure of the Constitution had to be undertaken by this Court in [Smt. Indira Gandhi](/doc/1240174/)'s case (supra) which came up for consideration within a short period of four years after the delivery of the Judgments in Keshvananda Bharti's case. The constitutional amendment which was challenged [in that case](/doc/1240174/) was the [Constitution (Thirty-ninth Amendment) Act](/doc/36314713/). 1975, which introduced [Article 329A](/doc/190157089/) and the argument was that clause (4) of this newly added article was constitutionally invalid on the ground that it violated the basic structure or framework of the Constitution. This challenge was unanimously upheld by a Constitution Bench which consisted of 280 the Chief Justice and four senior most Judges of this Court. It is not necessary for our purpose to analyse the judgments given by the five Judges in this case as they deal with various matters which are not relevant to the questions which arise before us. But it may be pointed out that two of the learned Judges, namely, Khanna and Mathew, JJ. held that democracy was an essential feature forming part of the basic structure and struck down clause (4) of [Article 329A](/doc/190157089/) on the ground that it damaged the democratic structure of the Constitution. Chandrachud, J. (as he then was) emphatically asserted that, in his opinion, there were four unamendable features which formed part of the basic structure, namely, "(i) India is a sovereign democratic republic; (ii) Equality of status and opportunity shall be secured to all its citizens; (iii) The State shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and the right freely to process, practise and propagate religion and (iv) The nation shall be governed by a government of laws, not of men." These, according to him, were "the pillars of our constitutional philosophy, the pillars, therefore, of the basic structure of the Constitution." He then proceeded to hold that clause (4) of [Article 329A](/doc/190157089/) was "an outright negation of the right of equality conferred by [Article 14](/doc/367586/), a right which more than any other is a basic postulate of our Constitution" and on that account declared it to be unconstitutional and void, Mathew, J. however, expressed his dissent from the view taken by Chandrachud, J. as regards the right of equality conferred by [Article 14](/doc/367586/) being an essential feature of the Constitution and stated inter alia the following reason:

It is clear from the majority decision in Keshavananda Bharati's case that our Constitution is a controlled Constitution which confers powers on the various authorities created and recognised by it and defines the limits of those powers. The Constitution is supreme lex, the paramount law of the land and there is no authority, no department or branch of the State, which is above or beyond the Constitution or has powers unfettered and unrestricted by the Constitution. The Constitution has devised a structure of power relationship with checks and balances and limits are placed on the powers of every authority or instrumentality under the Constitution. Every organ of the State, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of such authority. Parliament too, is a creature of the Constitution and it can only have such powers as are given to it under the Constitution. It has no inherent power of amendment of the Constitution and being an authority created by the Constitution, it cannot have such inherent power, but the power of amendment is conferred upon it by the Constitution and it is a limited power which is so conferred. Parliament cannot in exercise of this power so 286 amend the Constitution as to alter its basic structure or to change its identity. Now, if by constitutional amendment, Parliament were granted unlimited power of amendment, it would cease to be an authority under the Constitution, but would become supreme over it, because it would have power to alter the entire Constitution including its basic structure and even to put an end to it by totally changing its identity. It will therefore be seen that the limited amending power of Parliament is itself an essential feature of the Constitution, a part of its basic structure, for if the limited power of amendment were enlarged into an unlimited power, the entire character of the Constitution would be changed. It must follow as a necessary corollary that any amendment of the Constitution which seeks, directly or indirectly, to enlarge the amending power of Parliament by freeing it from the limitation of unamendability of the basic structure would be violative of the basic structure and hence outside the amendatory power of Parliament.

> 368\. It is difficult to appreciate the. meaning of the opening words "For the removal of doubts" because the majority decision in Keshavananda Bharati's case clearly laid down and left no doubt that the basic structure of the Constitution was outside the competence of the mandatory power of Parliament and in [Smt. Indira Gandhi](/doc/1240174/)'s case all the Judges unanimously accepted theory of the basic structure as a theory by which the validity of the amendment impugned before them, namely, [Article 329A(4)](/doc/76088191/) was to be judged. Therefore, after the decisions in Keshavananda Bharati's case and [Smt. Indira Gandhi](/doc/1240174/)'s case, there was no doubt at all that the amendatory. power of Parliament was limited and it was not competent to Parliament to alter the basic structure of the Constitution 289 and clause (5) could not remove the doubt which did not exist. What A clause (S) really sought to do was to remove the limitation on the amending power of Parliament and convert it from a limited power into an unlimited one. This was clearly and indubitably a futile exercise on the part of Parliament. I fail to see how Parliament which has only a limited power of amendment and which cannot alter the basic structure of the Constitution can expand its power of amendment so as to confer upon itself the power of repeal or abrogate the Constitution or to damage or destroy its basic structure. That would clearly be in excess of the limited amending power possessed by Parliament. The Constitution has conferred only a limited amending power on Parliament so that it cannot damage or destroy the basic structure of the Constitution and Parliament cannot by exercise of that limited amending power convert that very power into an absolute and unlimited power. If it were permissible to Parliament to enlarge the limited amending power conferred upon it into an absolute power of amendment, then it was meaningless to place a limitation on the original power of amendment. It is difficult to appreciate how Parliament having a limited power of amendment can get rid of the limitation by exercising that very power and convert it into an absolute power. Clause (S) of [Article 368](/doc/594125/) which sought to remove the limitation on the amending power of Parliament by making it absolute must therefore be held to be outside the- amending power of Parliament. There is also another ground on which the validity of this clause can be successfully assailed. This clause seeks to convert a controlled Constitution into an uncontrolled one by removing the limitation on the amending power of Parliament which, as pointed out above, is itself an essential feature of the Constitution and it is therefore violative of the basic structure would in the circumstances hold clause (5) of [Article 368](/doc/594125/) to be unconstitutional and void.

I may now turn to consider the constitutional challenge against the validity of [Article 31B](/doc/282612/) read with the 9th Schedule. This Article was introduced in the Constitution alongwith [Article 31A](/doc/660119/) by the [Constitution (First Amendment) Act, 1951](/doc/136460171/). [Article 31A](/doc/660119/) as originally introduced was confined only to legislation for acquisition of an estate or extinguishment or modification of any rights in an estate and it saved such legislation from attack under [Articles 14](/doc/367586/)[, 19](/doc/1218090/) and [31.](/doc/354224/) Now once legislation falling within this category was protected by [Art. 31A](/doc/660119/), it was not necessary to enact another saving provision in regard to the same kind of legislation. But, presumably, having regard to the fact that the constitutional law was still in the stage of evolution and it was not clear whether a law, invalid when enacted, could be revived without being re-enacted. Parliament thought that [Article 31A](/doc/660119/), even if retrospectively enacted. may not be sufficient to ensure the validity of a legislation which was already declared void by the courts as in [Kameshwar Singh](/doc/1308308/)'s case, and therefore considered it advisable to have a further provision in [Article 31B](/doc/282612/) to specifically by-pass judgments striking down such legislation. That seems to be the reason why [Article 31B](/doc/282612/) was enacted and statutes falling within [Article 31A](/doc/660119/) were included in the 9th Schedule. [Article 31B](/doc/282612/) was conceived together with [Article 31A](/doc/660119/) as part of the same design adopted to give protection to legislation providing for acquisition of an estate or extinguishment or modification of any rights in an estate. The 9th Schedule of l? [Article 31B](/doc/282612/) was not intended to include laws other than those covered by [Article 31A.](/doc/660119/) That becomes clear from the speeches of the Law Minister and the Prime Minister during the discussion on the [Constitution (First Amendment) Act, 1951](/doc/136460171/). Dr. Ambedkar admitted of the 9th Schedule that prima facie "it is an unusual procedure" but he went on to add that "all the laws that have been saved by this Schedule are laws that fall under [Article 31."](/doc/354224/) Jawaharlal Nehru also told Parliament:

This is rather a disturbing phenomenon. Now out of the statutes which are or may in future be included in the 9th Schedule by subsequent constitutional amendments. if there are any which fall within a category covered by [Article 31A](/doc/660119/) or 31C, they would be protected from challenge under [Articles 14](/doc/367586/) and [19](/doc/1218090/) and it would not be necessary to consider whether their inclusion in the 9th Schedule J' is constitutionally valid, except in those rare cases where protection may be claimed for them against violation of any other fundamental\] rights. This question would primarily arise only in regard to statutes not covered by [Article 31A](/doc/660119/) or 31C and in case of such statutes the Court would have to consider whether the constitutional amendments including such statutes in the 9th Schedule violate the basic structure of the Constitution in granting them immunity from challenge of the fundamental rights. It is possible that in a given case, even an abridgement of a fundamental right may involve violation of the basic structure. It would all depend on the nature of the fundamental right, the extent and depth of the infringement, the purpose for which the infringement is made and its impact on the basic values of the Constitution. Take for example, right to life and personal liberty enshrined in [Article 21.](/doc/1199182/) This stands on an altogether different footing from other fundamental rights. I do not wish to express any definite opinion, but I may point out that if this fundamental right is violated by any legislation. it may be difficult to sustain a constitutional amendment which seeks to protect such legislation against challenge under [Art. 21.](/doc/1199182/) So also where a legislation which has nothing to do with agrarian reform or any Directive Principles infringes the equality clause contained in [Article 14](/doc/367586/) and such legislation is sought to be protected by a constitutional amendment by including it in the 9th Schedule, it may be possible to contend that such constitutional amendment is violative of the egalitarian principle which forms par of the basic structure. But these are only examples which I am giving by way of illustration. for other situations may arise where infraction.

368\. The petitioners contended under this head of challenge that the [Constitution (Fortieth Amendment) Act, 1976](/doc/165057551/) was passed by the Lok Sabha on 2nd April, 1976 and the [Constitution Forty-Second Amendment) Act, 1976](/doc/50073852/) sometime in November, 1976, but on these dates the Lok Sabha was not validly in existence because it automatically dissolved on 18th March, 1976 on the expiration of its term of 5 years. It is no doubt true that the [House of People (Extension of Duration) Act, 1976](/doc/708220/) was enacted by Parliament under the Proviso to [Art. 83(2)](/doc/1713437/) extending the duration of the Lok Sabha for a period of one year, but the argument of the petitioners was that this Act was ultra vires and void, because the duration of, the Lok Sabha could be extended under the proviso to [Art. 83(2)](/doc/1713437/) only during the operation of a Proclamation of an Emergency and, in the submission of the petitioners, there was no Proclamation of Emergency in operation at the time when the [House of People (Extension of Duration) Act, 1976](/doc/708220/) was passed. It may be conceded straight away that, strictly speaking, it is superfluous and unnecessary to consider this argument because, even if the [Constitution (Fortieth Amendment) Act, 1976](/doc/165057551/) is unconstitutional and void and the Amending Acts 21 of 1975, 47 of 1975 and 2 of 1976 have not been validly included in the 9th Schedule so as to earn the protection of [Art. 318](/doc/396535/), they are still as pointed out earlier, saved from invalidation by [Art. 31A](/doc/660119/) and so far as the [Constitution Forty-second Amendment) Act, 1976](/doc/50073852/) is concerned, I have already held that it is outside the constituent power of Parliament in so far as it seeks to include clauses (4) and (5) in [Art. 368.](/doc/594125/) But since a 303 long argument was addressed to us seriously pressing this ground of challenge, I do not think I would be unjustified in dealing briefly with it.

I think it is necessary to emphasize even at the cost of repetition that it was not the case of the petitioners that the first Proclamation of emergency when issued, was invalid. It is a historical fact which cannot be disputed that Pakistan committed aggression against India on 3rd December, 1971 and a grave threat to the security of India arose on account of this external aggression. The President was, therefore, clearly justified in issuing the first Proclamation of Emergency under cl. (1) of [Art. 352.](/doc/1018568/) The petitioners, however, contended that the circumstances which warranted the issue of the first Proclamation of Emergency ceased to exist and put forward various facts such as the termination of hostilities with Pakistan on 16th December, 1971, the signing of the Simla Pact on 2nd June, 1972, the resumption of postal and 305 telecommunication links on 4th November, 1974 and the conclusion of trade agreement between India and Pakistan on 24th November, 1974 as also several statements made by the Prime Minister and other Ministers from time to time to show that the threat to the security of India on account of external aggression ceased long before 1975 and there was absolutely no justification whatsoever to continue the Proclamation and hence the continuance of the Proclamation was mala-fide and in colourable exercise of power and it was liable to be declared as unconstitutional and void. I do not think this contention of the petitioners can be sustained on a proper interpretation of the provisions of [Art. 352.](/doc/1018568/) This Article originally consisted of three clauses, but by [section 5](/doc/165943086/) of the Constitution (Thirty-eighth Amendment) Act, 1975. clauses (4) and (5) were added in this Article and thereafter, by a further amendment made by [sec. 48](/doc/49265902/) of the Constitution Forty-second Amendments Act, 1976, another clause (2A) was introduced after cl. (2). The whole of this Article is not relevant for our purpose but I shall set out only the material provisions thereof which have a bearing on the controversy between the parties;

> It is axiomatic that if a question brought before the court is purely a political question not involving determination of any legal or constitutional right or obligation, the court would not entertain it, since the court is concerned only with adjudication of legal rights and liabilities. But merely because a question has a political complexion, that by itself is no ground why the court should shrink from performing its duty under the Constitution, if it raises an issue of constitutional determination. There are a large number of decisions in the United States where the Supreme Court has entertained actions having a political complexion because they raised constitutional issue. Vide Gomallion v. Lightfoot and Baker v. Carr. The controversy before the court may be political in character, but so long as it involves determination of a constitutional question, the court cannot decline to entertain it. This is also the view taken by Gupta, J. and myself in [State of Rajasthan v. Union of India](/doc/174974/). I pointed out in my judgment [in that case](/doc/174974/) and I still stand by it, that merely because a question has a political colour, the court cannot fold its hands in despair and declare "Judicial hands off". So long as the question is whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the court. Indeed it would be its constitutional obligation to do so. I have said before I repeat again that the Constitution is suprema lex the paramount law of the land, and there is no department or branch of government above or beyond it. Every organ of government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority and whether it has done so or not is for the Court to decide. The Court is H 309 the ultimate interpreter of the Constitution and when there is manifestly unauthorised exercise of power under the Constitution, it is the duty of the Court to intervene. Let it not be forgotten, that to this Court as much as to other branches of government, is committed the conservation and furtherance of constitutional values. 'the Court's task is to identify those values in the constitutional plan and to work them into life in the cases that reach the court. "Tact and wise restraint ought to temper any power but courage and the acceptance of responsibility have their place too." The Court cannot and should not shirk this responsibility, because it has sworn the oath of allegiance to the Constitution and is also accountable to the people of this country. It would not therefore, be right for the Court to decline to examine whether in a given case there is any constitutional violation involved in the President issuing a Proclamation of Emergency under cl. ( I) of [Article 352.](/doc/1018568/)

> It is true that so far there is no decision of this court taking the view that the validity of a Proclamation of Emergency can be examined by the court though within these narrow limits. But merely because there has been no occasion for this Court to pronounce on the question of justiciability of a Proclamation of Emergency no inference can be drawn that a Proclamation of Emergency is immune from judicial scrutiny. The question whether or not a Proclamation of Emergency can be judicially reviewed on the ground that it is mala fide or an abuse of power of the President did arise before this Court in Gulam Sarwai v. Union of India. but the court declined to 311 express any opinion on this question since no material was placed before the Court making out a case of mala fides or abuse of power. Undoubtedly, in the subsequent decision of this Court in Bhutnath Mato v. State of West Bengal there are one or two observations which might seem to suggest at first blush that a Proclamation of Emergency being a political matter is "de hors our ken", but if one looks closely at the judgment of Krishna Iyer, J. in that case, it will be apparent that he does not lay down that a Proclamation of Emergency cannot be reviewed by the judiciary even on a limited ground and leaves that question open and rejects the contention of the petitioner challenging the continuance of Emergency only on the ground that "the onus of establishing the continuation of Emergency and absence of any ground whatever for the subjective satisfaction of the President, heavy as it is, has hardly been discharged, "and consequently it would be an academic exercise in constitutional law to pronounce on the question of judicial reviewability of a Proclamation of Emergency. There is thus no decision of this court holding that a Proclamation of Emergency is beyond the judicial ken and I am not fettered by any such decision compelling me to take a view different from the one which I have expounded in the preceding paragraph of this opinion. In fact, the judgment of Gupta, J. and myself in [State of Rajasthan v. Union of India](/doc/174974/) (supra) completely supports me in the view I am taking. A Proclamation of Emergency is undoubtedly amenable to judicial review though on the limited ground that no satisfaction as required by [Article 352](/doc/1018568/) was arrived at by the President in law or that the satisfaction was absurd or perverse or mala fide or based on an extraneous or irrelevant ground.

> (c) such a Proclamation ceases to operate at the expiration of two months, unless it has been approved by both Houses of Parliament before the expiration of two 312 months. It is clear from this provision that a Proclamation of Emergency validly issued under clause (1) would continue to operate at least for a period of two months and if before the expiration of that period, it has been approved by resolutions of both Houses of Parliament, it would continue to operate further even beyond the period of two months, and the only way in which it can be brought to an end is by revoking it by another Proclamation issued under clause 2(a). There is no other way in which it can cease to operate. Neither [Article 352](/doc/1018568/) nor any other Article of the Constitution contains any provision saying that a Proclamation of Emergency validly issued under clause (1) shall cease to operate as soon as the circumstances warranting its issuance have ceased to exist. It is, therefore, clear on a plain natural interpretation of the language of sub-clauses (a) to (c) of clause (2 that so long as the Proclamation of Emergency is not revoked by another Proclamation under sub-clause (2) (a), it would continue to be in operation irrespective of change of circumstances. It may be pointed out that this interpretation of the provision of clause (2) of [Article 352](/doc/1018568/) is supported by the decision of this Court in Lakhan Pal v. Union of India where dealing with a similar contention urged on behalf of the petitioner that the continuance of the emergency which was declared on 26th October, 1962 was a fraud on the Constitution. this Court speaking through Sarkar, C. J. pointed out that "the only way a proclamation ceases to have effect is by one of the events mentioned in this clause" and since neither had happened, the Proclamation must be held to have continued in operation. The petitioner urged in that case that armed aggression which justified the issue of the Proclamation of Emergency had come to an end and the continuance of the Proclamation was therefore unjustified. But this contention was negatived on the ground that the Proclamation having been approved by the two Houses of Parliament within a period of two months of its issuance, it could cease to have effect only if revoked by another Proclamation and that not having happened, the Proclamation continued to be in force.

It is true that the power to revoke a Proclamation of Emergency is vested only in the Central Government and it is possible that the Central Government may abuse this power by refusing to revoke a Proclamation of Emergency even though the circumstances justifying the issue of Proclamation have ceased to exist and thus prolong baselessly the state of emergency obliterating the Fundamental Rights and this may encourage a totalitarian trend. But the Primary and real safeguard of the citizen against such abuse of power lies in "the good sense of the people and in the system of representative and responsible Government" which is provided in the Constitution. Additionally, it may be possible for the citizen in a given case to move 313 the court for issuing a writ of mandamus for revoking the Proclamation of Emergency if he is able to show by placing clear and cogent material before the court that there is no justification at all for the continuance of the Proclamation of Emergency. But this would be a very heavy onus because it would be entirely for the executive Government to be satisfied whether a situation has arisen where the Proclamation of Emergency can be revoked. There would be so many facts and circumstances and such diverse considerations to be taken into account by the executive Government before it can be satisfied that there is no longer any grave emergency whereby the security of India is threatened by war or external aggression or internal disturbance. 'this is not a matter which is a fit subject matter for judicial determination and the court would not interfere with the satisfaction of the executive Government in this regard unless it is clear on the material on record that there is absolutely no justification for the continuance of the Proclamation of Emergency and the Proclamation is being continued mala fide or for a collateral purpose. The court may in such a case, if satisfied beyond doubt, grant a writ of mandamus directing the Central Government to revoke the Proclamation of Emergency. But until that is done, the Proclamation of Emergency would continue in operation and it cannot be said that, though not revoked by another Proclamation, it has still ceased to be in force. Here, in the present case it was common ground that the first Proclamation of Emergency issued on 3rd December 1971 was not revoked by another Proclamation under clause 2(a) of [Article 352](/doc/1018568/) until 21st March 1977 and hence at the material time when the [House of People (Extension of Duration) Act, 1976](/doc/708220/) was passed, the first Proclamation of Emergency was in operation.

Now if the first Proclamation of Emergency was in operation at the relevant time, it would be sufficient compliance with the requirement of the proviso to clause (2) of [Article 83](/doc/1463849/) and it would be unnecessary to consider whether the second Proclamation of Emergency was validly issued by the President. But, contended the petitioners, the [House of People (Extension of Duration) Act, 1976](/doc/708220/) on a proper interpretation of [section 2](/doc/68858640/) postulated the operational existence of both the Proclamations of Emergency and if either of them was not in existence at the material date, the Act would be inoperative and would not have the effect of extending the duration of the Lok Sabha. It was therefore not enough for the respondents to establish that the first Proclamation of Emergency was in operation at the relevant date, but it was further necessary to show that the second Proclamation of Emergency was also in operation and hence it was necessary to consider whether the second Proclamation of Emergency was validly issued by the President. The respondents sought to answer this contention 314 of the petitioners by saying that on a proper construction of the language of [section 2](/doc/68858640/), it was not a condition precedent to the operation. of the [House of People (Extension of Duration Act, 1976](/doc/708220/) that both the Proclamations of Emergency should be in operation at the date when the Act was enacted. [The House of People (Extension of Duration) Act, 1976](/doc/708220/) no doubt referred to both the Proclamations of Emergency being in operation but that was merely, said the respondents, by way of recital and it was immaterial whether this recital was correct or in correct, because so long as it could be objectively established that on Proclamation of Emergency at least was in operation, the requirement of the proviso to [Article 83](/doc/1463849/) clause (2) would be satisfied and the Act would be within the competence of Parliament to enact. These rival contentions raised a question of construction of [section 2](/doc/1438938/) of the House of People (Extension of Duration) Act, 1976. It is a simple question which does not admit of much doubt or debate and a plain grammatical reading of [section 2](/doc/68858640/) is sufficient to answer it. It would be convenient to reproduce [section 2](/doc/68858640/) which co-incidentally happens to be the only operative section of the Act:

It is interesting to note that our [Article 37](/doc/76375/) makes three significant departures from the language of [Article 45;](/doc/1791268/) first whereas Articles 4. provides that the application of the principles of social policy shall not be cognizable by any court, [Article 37](/doc/76375/) says that the Directive Principles shall not be enforceable by any court: secondly whereas [Article 45](/doc/1791268/) provides that the principles of social policy are intended for the general guidance of the Direchtas, [Article 37](/doc/76375/) makes the Directive Principles fundamental in the governance of this country; and lastly, whereas [Article 45](/doc/1791268/) declares that the application of principles of social policy in the making of laws shall be the care of the Direchtas exclusively, [Article 37](/doc/76375/) enacts that it shall be the duty of the State to apply the Directive Principles in making laws. The changes made by the framers of the Constitution are vital and they have the effect of bringing about a total transformation or metamorphosis o f this provision, fundamentally altering its significance and efficacy, 326 It will be noticed that the Directive Principles are not excluded from the cognizance of the court, as under the Irish Constitution: they are merely made non-enforceable by a court of law for reasons already discussed But merely because they are not enforceable by the judicial process does not mean that they are of subordinate importance to any other part of the Constitution. I have already said this before, but I am emphasizing it again, even at the cost of repetition, because at one time a view was taken by this Court in State of Madras v. Champkan Dorairajan that because Fundamental Rights are made enforceable in a court of law and Directive Principles are not. "the Directive Principles have to conform to and run as subsidiary to the Chapter on Fundamental Rights." This view was patently wrong and within a few years, an opportunity was found by this Court in the Kerala Education Bill, 1959 SCR 995 to introduce a qualification by stating that: "Nevertheless in determining the scope and ambit of the Fundamental Rights relied on by or on behalf of any person or body, the court may not entirely ignore these Directive Principles of State Policy laid down in Part IV of the Constitution but should adopt the principle of harmonious construction and should attempt to give effect to both as much as possible." But even this observation seemed to give greater importance to Fundamental Rights as against Directive Principles and that was primarily because the Fundamental Rights are enforceable by the Judicial process while the Directive Principles are expressly made non-enforceable I am however, of the opinion, and on this point I agree entirely with the observation of Hegde, J. in his highly illuminating Lectures on the "Directive Principles of State Policy" that:

Parliament took the view that the constitutional obligation in regard to Directive Principles should have precedence over the constitutional obligation in regard to the Fundamental Rights in [Articles 14](/doc/367586/) and [19](/doc/1218090/), because Fundamental Rights though precious and valuable for maintaining the democratic way of life, have absolutely no meaning for the poor, down trodden and economically backward classes of people who unfortunately constitute the bull of the people of India and the only way in which Fundamental Rights can be made meaningful for them is by implementing the Directive Principles, for the Directive Principles are intended to bring about a socio-economic revolution and to create a new socio-economic order where there will be social and economic justice for all and every one, not only a fortunate few but the teeming millions of India, would be able to participate in the fruits of freedom and development and exercise the Fundamental Rights. Parliament therefore amended [Article 31C](/doc/198382/) with a view to providing that in case of conflict Directive Principles shall have precedence over the Fundamental Rights in [Articles 14](/doc/367586/) and [19](/doc/1218090/) and the latter shall yield place to the former. The positive constitutional command to make laws for giving effect to the Directive Principles shall prevail over the negative constitutional obligation not to encroach on the Fundamental Rights embodied in [Articles 14](/doc/367586/) and [19.](/doc/1218090/) Parliament in making this amendment was moved by the noble philosophy eloquently expressed in highly in spiring and evocative words. full of passion and feeling. by Chandrachud, J. (as he then was) in his judgment in Keshavananda Bharati's case at page 991 of the Report 1 may quote here what Chandrachud, J. (as he then was) said on that, occasion, for it sets out admirably the philosophy which inspired Parliament in enacting the amendment in [Article 31C](/doc/198382/) The learned Judge said:

> "I have stated in the earlier part of my judgment that the Constitution accords a place of pride to Fundamental Rights and 334 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 IIl and IV, I feel no doubt That the basic object of conferring freedoms on individuals is the ultimate achievement of the ideals set out in Part IV. A circumspect use of the freedoms guaranteed by Part III is bound to subserve the common good but voluntary submission to restraints is a philosopher's dream. Therefore, [article 37](/doc/76375/) enjoys the State to apply the Directive Principles in making laws. The freedom of a few have them to be abridged in order to ensure the freedom of all. It is in this sense that Parts, III and IV, as said by Granville Austin, together constitute "the conscience of the constitution". The Nation stands today 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."

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