CONTINUATION OF CDJ 1973 SC 415

( 1051 ). Article 14 has the flexibility of classification. Article 19 has the flexibility of reasonable restrictions. Social justice will determine the nature of the individual right and also the restriction on such right. Social justice will require modification or restriction of rights under Part. The scheme of the Constitution generally discloses that the principles of social justice are placed above individual rights and whenever or wherever it is considered necessary individual rights have been subordinated or cut down to given effect to the principles of social justice. Social justice means various concepts which are evolved in the Directive Principles of the state.

( 1052 ). The 25th Amendment has amended Article 31 (2) and also introduced Article 31 (2-B) in order to achieve two objects. The first is to eliminate the concept of market value in the amount fixed for acquisition or requisition of the property. The second is to exclude in clause (2-B) of article 31 the applicability of Article 19 (1) (f ). Articles 31-A and 31-B applied to acquisition and requisition of property The purpose of Article 31-C is to confer by constitutional mandate power on Parliament and state to make laws for giving effect to Directive Principles. The significance of the total exclusion of Part III from Articles 31-A and 31-B is that it brings about in unmistakable manner the true relationship between the provisions of Part IV and Part III of the Constitution.

( 1053 ). With reference to land legislation subordination of fundamental rights of individuals to the common good was clear in clauses (4) and (6) of Article 31. It was made clearer by the Constitution First Amendment act which introduced Articles 31-A, 31-B and Schedule 9. Articles 31-A. , 31-B schedule 9 and Article 31-G merely removed the restrictions which Part III of the Constitution imposes on legislative power. Article 31-A after the fourth Amendment, removed the restrictions on legislative power imposed by Articles 14, 19 and 31. In enacting Clauses (b), (c) and (d) in Article 31-A Parliament was giving effect to social control which though less urgent than land reform became in course of time no less vital. Article 31-B by the First Amendment retrospectively validated the laws specified in schedule 9 by retrospectively removing all invalidity from the law because of the transgression of rights in Part. Again, the seven new Arts added in the Ninth Schedule by the Fourth Amendment Act had nothing to do with agrarian reform, but dealt with subjects of great national importance. The Constitution Fourth Amendment Act was intended to remove tile barriers of Articles 14, 19 and 31 (2) in respect of land legislation considered essential for public good.

( 1054 ). State legislatures cannot remove; the fetter. They have power to attend the Constitution. Parliament can not remove the. fetter by ordinary law. By amendment of the Constitution Parliament can remove the fetter by either deleting one or more fundamental right or rights or by excluding certain laws or certain kinds of law from the fetter.

( 1055 ). The pattern of Articles 31-A, 31-B, the Ninth Schedule and article 31-G is best understood by the observations of Patanjali Sastri, C.. , in Sankariprasad's case (supra)and of Wanchoo,. ,in Golak Nath (supra ). Patanjali Sastri, C.. , said in Sankari Prasad's case (supra) ; "articles 31-A and 31-B really seek to save a certain class of laws and certain specified laws already passed from the combined -operation of Article 13 read with other relevant articles of Part. The new Articles being thus essentially amendments of the Constitution have the power of enacting them. It was said that parliament could not validate the law which it had no power to enact. The proposition holds good whether the validity of the impugned provision turns on-whether the subject-matter falls within or without the jurisdiction of the Legislature which passed it. But to make law, which contravenes the Constitution constitutionally valid is a matter of constitutional amendment and as such it falls within the exclusive power of Parliament". Wanchoo.. said of Article 31-B. "the Laws had already been passed by the State legislature and it was their constitutional infirmity, if any, which was being cured by the device adopted in Article 31-B read with the Ninth schedule. . . . . . . . . . . . . . . . . . . . . . . . Parliament alone could do it under Article 368 and there was no need for any ratification under the proviso for amendment of Part III is not entrenched in the proviso".

( 1056 ) THE conclusiveness of declaration introduced by the 25th amendment in a law under Article 31-G is to be appreciated in the entire context of Article 31-G. In removing restrictions of Part III in respect of a law under Article 31-G there is no delegation of power to any legislature. There is only removal of restriction or legislative power imposed by Articles 14, 19 and 31. Article 31-G does not confer any power to amend the constitution. The exclusion of Article 31 is a necessary corollary to protecting the impugned law from challenge under Articles 14, 19 and 31 because Article 13 (2) would but for its exclusion in Article 31-C render such laws void. The declaration clause is comparable to S. 6 (3) of the Land Acquisition Act, 1894 which contains a conclusive evidence clause that declaration shall be conclusive evidence that the land is needed for a public purpose and for a company as the case may be. A conclusive declaration would not be permissible so as to defeat a fundamental right. In Article 31 (5) it is provided that nothing in clause (2) shall affect (a) the provisions of any existing law other than a law to which the provisions of clause (6) apply and since the Land Acquisition Act, 1894 is an existing law the conclusive declaration clause prevails and is not justiciable. See Babu Barkya Thakur v. The State of Bombay and Others. The same view was reiterated by this court in Smt. Somavanti and Others, v. The State of Punjab and others, 'that a declaration under the Land Requisition Act was not only conclusive about the need but was also conclusive for the need was for a public purpose.

( 1057 ). Conclusive proof is defined in the Indian Evidence Act. It is, then fore, seen that the legislative power carries with it the power to provide for conclusive proof so as to oust jurisdiction of a court. The declaration is for the purpose of excluding the process of evaluation of legislation on a consideration of the virtues and defects with a view to seeing if the law has led to the result intended. If a question arises as to whether a piece of legislation with such declaration has a nexus with the Directive Principles in Article 39 (b) and (c) the court can go into the question for the purpose of process of identification of the legislative measure on a consideration of the scope and object and pith and substance of the legislation. Therefore, the 25th Amendment is valid.

( 1058 ). A contention was advanced on behalf of the petitioner that article 31-B applies to agrarian reforms or in the alternative Article 31-B is linked to Article 31-A and is to be read as applying to laws in respect of five subject matters mentioned in Article 31-A. The 13 Acts mentioned in the ninth Schedule as enacted by the First Amendment Act, 1951 dealt with estates and agrarian reforms. There is nothing in Article 31-B to indicate that it is linked with the same subject-matter as Article 31-A. In the Bihar Land reform's case (supra) Patanjali Sastri, G.. , said at pp. 914-915 of the report' that the opening words of Article 31-Bare only intended to make clear that article 31-A should not be restricted in its application by reason of anything contained in Article 31-B and are not in any way calculated to restrict the application of the latter Article or of the enactments referred to therein to acquisition of estates.

( 1059 ). In Vishweshwar Rao v. State of Madhya Pradesh" it was urged that article 31-B was merely illustrative of Article 31-A and as the latter was limited in its application to estates as defined therein Article 31 -B was also similarly limited. That contention was rejected and it was said that Article 31-B specifically validates certain Acts mentioned in the Schedule despite the provisions of Article 31-A and is not illustrative of Article 31-A but stands independent of it.

( 1060 ). Again in Jeejibhoy v. Assistant Collector it was contended that articles 31-A and 3 i-B should be read together and if so read Article 31-B would only illustrate the cases that would otherwise fall under Article 31 -B, and, therefore, the same construction as put upon Article 31-B should apply to Article 31-A. This court did not accept the argument. It was said that the words "without prejudice to the generality of the provisions contained in article 31-A' ' indicate that the Acts and Regulations specified in the Ninth schedule would have the same immunity even if did not attract Article 31-A of the Constitution. If every, Act in the Ninth Schedule would he covered by article 31-A, Article 31b 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 31-A (2) of the Constitution. It was, therefore, held in Jeejibhoy's case (supra) that Article 31-B was constitutional device to place the specific statute beyond any attack on the ground that they infringe Part III of the constitution. ,

( 1061 ). The-words "without prejudice to the generality of the provisions contained in Article 31-A" occurring in Article 31-B indicate that Article 31-B stands independent of Article 31-A. Article 31-B and the Schedule are placed beyond any attack on the ground that they infringe Part III of the constitution. Article 31-B need not relate to any particular type of legislation. Article 31-B gives a mandate and complete protection from the challenge of fundamental rights to the Scheduled Acts and the Regulations. Article 31-A protects laws in respect of five subject-matters from the challenge of Articles 14, 19 and 31, but not retrospectively Article 31-B 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.

( 1062 ). The validity of the Constitution 29th Amendment Act lies within a narrow compass. Article 31-B has been held by this court to be a valid amendment. Article 31-B has also been held by this court to be an independent provision. Article 31-B has no connection with Article 31-A. The Bihar Land Reform's case, (supra) and Jeejibhoy's cast, (supra) are well-settled authorities for that proposition. It, therefore, follows that Mr. Palkhivala's contention cannot be accepted that before the Acts can be included in the ninth Schedule requirements of Article 31-A are to be complied with.

( 1063 ). For the foregoing reasons these are the conclusions.

( 1064 ). First, the power to amend the Constitution is located in Article 368. Second, neither the Constitution nor an amendment of the Constitution can be or is law within the meaning of Article 13. Law in Article "i means laws enacted by the legislature subject to the provision of the Constitution. Law in Article 13 (2) 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 Golal math's case, (supra) is with respect wrong. Fourth, there are no express limitations to the power of amendment. Fifth, there are no implied (and inherent limitations on the power of amendment. Neither the preamble nor Article 13 (2) is at all a limitation on the power o amendment. Sixth, the power to amend is wide and unlimited. The power to amend means the power to add, alter or repeal any provision o the Constitution. There can be or is no distinction between essential. And inessential 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 36 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 me 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 4. 11 provisions of the Constitution which in the end would be "an amendment of this Constitution".

( 1065 ). The 25th Amendment is valid. The adequacy of amount fixed or the principles specified cannot be the subject-matter of judicial review. The amendment of article 31 (2-B) is valid. Article 31 (2) is self contained and Articles 31 (2) and, 19 (1) (f) are mutually exclusive. Amendment of fundamental right prior to the amendment was and is now after the 24th amendment valid. Article 31-C does not delegate or confer any power on the State Legislature to' amend the Constitution. Article 31-G merely removes the restrictions of Part III from any legislation giving effect to directive Principles under Article 39 (b) and (c). The power of Parliament and of State legislatures to legislate on the class of legislation covered by article 31-C is rendered immune from Articles 14,19 and 31.

( 1066 ). The inclusion of the Kerala Act, 35 of 1969 and the Kerala Act 25 of 1971 by the 29th Amendment in the Ninth Schedule is valid. Article 31-Bis independent of Article 31-A,

( 1067 ). In the result the contentions of Mr. Palkhivala fail. Each party will pay and bear its own costs. The petitions will be placed before the Constitution bench for disposal in accordance with law.

( 1068 ). Jaganmohan Reddy,.-The detailed contentions addressed before us for 66 days have been set out in the judgment of My Lord the Chief justice just pronounced, and I would only refer to such of those as are necessary for dealing with the relevant issues. Though I agree with some of the conclusions arrived at by him, but since the approach in arriving at a conclusion is as important as the conclusion itself, and particularly in matters involving vital constitutional issues having a far-reaching impact on fundamental freedoms of the people of this country and on the social objectives which the State is enjoined to achieve under the Directive principles of State Policy, I consider it my duty to express my views in my own way for arriving at those conclusions.

( 1069 ). In this case the validity of the Constitution (Twenty-fourth) and (Twenty-fifth) Amendment Acts of 1971 and the Constitution (Twenty-ninth) amendment Act of 1972 has been challenged as being outside the scope of the power of amendment conferred on Parliament by Article 368 of the constitution and consequently void.

( 1070 ). The validity of the Twenty-fourth Amendment would depend upon the interpretation of two crucial articles. Article 13 and Article 368, and two words, one in each article, namely, 'law' in the former, and 'amendment' in the latter. For the purposes of ascertaining the true intent and scope of these articles in 1. C. Golaknath and others v. State of Punjab," the basic question which the court first considered was, where was the power to amend the Constitution of India to be found? Subba Rao, C.. , with whom Shah and Sikri,. , as they then were, and Shelat and Vaidialingam,. , concurred, (hereinafter referred to as the leading majority judgment), held that the power was contained in Articles 245,246 and 248, read with Entry 97 of List I of Schedule VII, and not in Article 368 which only provided for the procedure to amend the Constitution. Hidayatullah,. , a_ he then was, in his concurring judgment held that the procedure of amendment if it can be called a power at all, is a legislative power, but it is suigeneris and outside the three Lists of the Constitution, and that article 368 outlines a process which, if followed strictly, results in the amendment of the Constitution. He was, therefore, of the view that the article gives power to no particular person or persons. All the named authorities have to act according to the letter of the Article to achieve the result.

( 1071 ) WANCHOO, J, as he then was, for himself and two other Judges, Bachawat and Ramaswami,. , found the power in Article 368 itself and not in Articles 245, 246 and 248, read with Entry 97 of List 1.

( 1072 ). It is, therefore, contended by the learned Advocate-General of Maharashtra, firstly that the finding in the leading majority judgment that the fundamental rights cannot be amended is based on the decision that the amending power is to be found in the residuary Article 248 read with Entry 97 of list I of Schedule. This finding deprived of its foundation, since six judges held that the amending power ia not to be found in the residuary article and Entry 97 of List 1. Secondly, the conclusion that the fundamental rights cannot be amended was reached by the leading majority judgment on the basis that Article 13 (2) was attracted by the opening words of Article 245 and, therefore, a law amending the Constitution under Entry 97 of List I was a law referred to in Article 245, and as it was in conflict with article 13 (2) the law was void.

( 1073 ). 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. In view of the conclusion of Hidayatullah, that the power of amendment as well as procedure therefor was contained in Article 368 itself, he submits that there is no ratio binding on this court unless it be that the power of amendment is not in the residuary article but in Article 368. This argument is of little validity, because the ratio of the decision, where a question is directly raised before the court for decision, is that which it decides, and in that case wherever the power may have been found, whether in Article 368 or in the residuary Entry 97 of List I of Schedule VII, the controversy was whether an amendment made under Article 368 is a law' within the meaning of article 13 (2), 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 is a law' within the meaning of Article 13 (2 ). What the leading majority judgment in that case did not decide, however, is whether Article 368 itself could be amended under the proviso of that article conferring a power to amend the whole Constitution. Atp. 805, Subbarao, g.. , observed, "in the view we have taken, on the scope of Article 368 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". 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, Hidayatullah, held that by amending Article 368, Parliament could not do indirectly what it could not do directly, namely, amend Article 13 (2) or override the provisions thereunder, because as he said, "the whole Constitution is open to amendment. Only two dozen articles are outside the reach of the Article 368, that too because the Constitution has made them fundamental". . There is, therefore, warrant for the submission that Golaknaths' case (supra.) is not determinative of the question now raised before this court as to whether the power to amend Article 368 could be exercised to amend the fundamental' rights in Part. At any rate, five of the six Judges who expressed an opinion on this aspect support the proposition that this can be done.

( 1074 ). It was also submitted that no question in fact arose for decision in Golaknaths' case (supra) that in future Parliament could not amend the fundamental rights, because what that case was concerned with was the past exercise of the power to amend the fundamental rights, and, therefore, the observations in the majority judgments, of Subba Rao, G.. , and Hidyatullah,. , as he then was, about the future exercise of that power are clearly obiter. It may be pointed out that the majority judgment as well as the minority judgment concurred in dismissing the petition, the former on the ground then the First, Fourth and Seventeenth Amendments were not affected either on the basis of the doctrine of prospective overruling or on the basis of acquiescence or on the ground that they were made by virtue of a valid exercise of the amending power under Article 368. On this basis it is submitted that no ratio can be found in that case for the majority declaring that Parliament in future cannot amend fundamental rights which is bind- ing on this court ; nor can it amend the amending article to take away or abridge fundamental rights.

( 1075 ). Whether the First, Fourth and Seventeenth Amendments have been rightly held to be valid or not, the ratio of the decision as was observed earlier is that under Article 368 as it was before its amendment. Parliament could not amend the Constitution to take away or abridge any of the fundamental rights conferred by Part III of the Constitution, and that question will only assume importance if this court comes to the conclusion, following Hidayatullah,j'. s decision, that Parliament cannot amend Article 368 under proviso (e) thereof to take away or abridge any of the fundamental rights or to amend Article 13 (2) making it subject to an amendment under article 368. If such a power exists, the question whether. an amendment in article 368 is a 'law' within the meaning of Article 13 (2)may not prima facie he of significance. There are, however, two aspects to this problem, firstly, whether law' in Article 13 (2) includes an amendment of the Constitution under Article 368; and secondly, if this court holds that law 'in Article 13 (2) does not include an amendment under Article 368, then the question would be, has the Constitution (Twenty-fourth) Amendment purported to exercise a power in effecting that amendment which was not granted under that Article? In other words, are there any limitations to the amending power under Article 368? If, as was held by Hidayatullah,. , that the power of amendment conferred on Parliament under Article 368 is not a constituent power, and any amendment made thereunder is a legislative power, which is-'law' within the meaning of Article 13 (2), then Parliament cannot do indirectly what it cannot do directly.

( 1076 ). The first question which would arise for decision is what does law' in Article 13 (2) signify, and is there any internal evidence which would indicate that that word has been used to include an amendment under Article 368, and if it does, whether it is subject to any limitations, and if to, what? It is contended that the word 'law' in Article 13 (2) not only includes ordinary legislative law, but also constitutional law.

( 1077 ). It may not, in my view, be necessary to examine the submission, that an amendment under Article 368 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 t) the irresistible conclusion that Article 13 (2) was meant only to place an embargo on a law made by a Legislature so-called in contradistinction to an amendment of the Constitution under Article 368 which no doubt is also a law in its generic sense, as indeed was the view taken in Sankari Prasad Singh DM v. Union of India and State of Bihar Sajjan Singh v. State of Rajasthan and Golaknath case (supra) by some of the learned Judges. The framers of the constitution have defined "law" in sub-clause (a) of clause (3) of article 13 and that this definition would on the first impression appear to apply to only clause (2) of that Article. But it would also, having regard to the words "unless the context otherwise requires", apply to clause (1) thereof. While the expression "laws in force" has been defined in sub- clause {b) of clause (3) for the purposes of clause (1) as including law 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 would, by virtue of sub-clause (a) of clause (3), equally apply to clause (1) of Article 13.

( 1078 ). Again, though sub-clause (a) of clause (3) contains an inclusive definition of the word law' and does not specifically refer to a law made by Parliament or the Legislatures of States, it cannot be, nor has it been denied, that laws made by them are laws within the meaning of Article 13 (2 ). What is contended, however, is that it also includes an amendment of the Constitution or constitutional laws. No elaborate reasoning is necessary in support of the proposition that the word "law" in Article 13 (2) includes a law made by Parliament or a Legislature of the State. When an ordinance made either by the President under Article 123 or by a governor under Article 213, in exercise of his legislative power which under the respective sub-clause (2) has the same force and effect as an act of Parliament or the Legislature of a State assented to by the President or the governor, as the case may be, is included in Article 13 (3) (a), a law passed by Parliament or a Legislature of a State under Article 245 which specifically empowers Parliament for making laws for the whole or any part of India or any part of a State and the Legislature of a State for the whole or any part of State, would be equally included within the definition of "law". Articles 246 to 255 deal with the distribution of legislative powers between parliament and the State Legislatures to make laws under the respective lists in the Seventh Schedule, and further provides under Article 248 (1) and (2) that Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List including the power of imposing tax not mentioned in either of those Lists.
( 1079 ). Whereas Article 13 (3) (a) has specifically included within the definition of law', custom or usage having in the territory of India the force of law, and even though it has not specifically mentioned an amendment made under Article 368 or a law made by Parliament or a Legislature it would certainly include a law made by the latter organs by reason of the legislative provisions of the Constitution referred to above. Having regard to importance of the amending power, whether it is considered as a constituent power or as a constituted power, the omission to include it specifically would, it is contended, indicate that it was not in the contemplation of the framers of the Constitution to extend the embargo in Article 13 (2) to an amendment under Article 368. To my mind what is difficult to envisage is that while the framers included minor legislative acts of the State within the definition of law' in Article 13 (3), they did not' think of including an amendment of the Constitution therein, even though attempts were made towards that end till the final stages of its passage through the Constituent assembly. It is contended that the answer to this could be that the framers did not include specifically a law made by the Legislature in that definition, and as such all laws whether legislative or amendments of the Constitution would come within its 'purview. This argument loses its significance in view of the fact that the enumeration of laws like rule, bye-law, regulation and notification which have their source and existence in the legislative law clearly indicate the inclusion of a law made by Parliament or a Legislature of a State. It is not that the framers did not consider meticulously any objections to or defects in the definitions as I will show when dealing with the various stages of the consideration of the draft article.

( 1080 ). It may be necessary first to examine whether in the context of the inclusive definition of 'law', and not forgetting that an amendment under Article 368 could also be termed 'law', the prohibition that the State cannot take away or abridge the rights conferred under any of the provisions of Part III is confined to those categories of law of which I have specifically referred, namely, to the law made by Parliament or a Legislature of the state and to those indicated in Article 13 (3) (a ). The law referred to in article 14, clauses (3) and (5) of Article 16, Article 17, clauses (2) to (6) of Article 19, Article 20, Article 21, clauses (4) and (7) of Article 22, clause (1) of Article 23, clause (2) of Article 25, Article 31, clause (3) of article 32, Articles 33, 34 and clause (a) of Article 35, is, in my view, a law which the Parliament or a Legislature of the State or both, as the case may be, is required to make for giving force to the rights or is permitted to make to restrict the rights conferred by Part. In other words, the permissible limits are indicated therein. Further under Article 15 the words 'special provision' and in clause (4) of Article 16 the making of any provision by the State, and clause (2) of Article 23 imposing of a compulsory service by the State for public purposes, or preventing the State from doing or permitting it to take certain actions under Article 28, clause (2) of article 29 and clause (2) of Article 30 can either be by an ordinary legislative law or by an order or notification issued by the government which may or may not be under any law but may be in the exercise of a purely executive power of the government of India or the government of a State having the force of law.

( 1081 ). Even where reasonable restrictions are permitted as in clauses (2) to (6) of Article 19 or where restrictions or abrogation of the totality of fundamental rights contained in Part III have been permitted in respect of members of the armed forces or the forces charged with the maintenance of public order under Article 33, or where it is sought to indemnify persons in the service of the Union or a State or any other person, it is the Parliament that has been empowered to make a law in that regard. Article 35, 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. Hidayatullah,. , However, thought that the opening words in Article 35 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 had held that it was an exception to S. 128. 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, did not agree. In my view it is unsafe to rely on cases which arise under other constitutions. Apart from this. Article 35 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 to safeguard it from being amended under Article 368. On the other hand, this article empowers Parliament to give effect to fundamental rights and gives no indication to delimit the power of amendment under Article 368.

( 1082 ). It is that the Constitution itself has provided the limitations that can be imposed on the fundamental rights guaranteed in Part III, but those limitations can only be effected by ordinary law as opposed to constitutional law and for imposing those limitations an amendment of the constitution is not needed. Once a right is conferred on the citizen, to what extent the right can be restricted, or where a State is prohibited from acting in any particular manner to what extent it is permitted, is to be regulated only by an ordinary law. If so, the bar against exceeding the permissible limits must prima facie be against the State making such a law. In the circumstances, could it be said that the framers of the Constitution contemplated the inhibition in 'article 13 (2) to operate on any thing other than ordinary law? To limit the extent and ambit of the power under article 368 in which there is no reference to law, by including within the ambit of the definition of 'law' in Article 13 (3) (a) for purposes of article 13 (2), an amendment effected under Article 368, is to restrict the power of amendment by a strained construction or to impute to the framers of the Constitution a lack of respect to the amending power by making the bar of Article 13 (2) applicable to it by mere implication, when in respect of minor instruments they wore careful enough to include them in the definition of 'law'.

( 1083 ) WHILE this is so, a consideration of the conspectus of various rights in Part III when read with Article 13 (2) would, in my view, prohibit the taking away or abridging of those rights by a law made by the Legislature, namely, the Parliament, Legislature of a State, or by executive action. This conclusion of mine will be substantiated if Article 13 (2) is read along with each of the Articles in Part III, insofar as any of them contain the word law' which indeed it can be so read. The object of incorporating Article 13 (2) was to avoid its repetition in each of the Articles conferring fundamental rights. Only one instance of this may be given in support of my conclusion. Clauses (2) to (6) of Article 19 which are limitations on the freedoms in Article 19 (1) (a) to (g) respectively are couched in similar terms, and if I were to take one of these clauses fur illustrating the point, it would amply demonstrate that the framers used the word 'law' in both Article 13 (2) and clauses (2) to (6) of Article 19 only in the sense of an ordinary law. Sub-clause (a) of clause (1) of Article 19 and clause (2) of that Article, if so read with Article 13 (2) of the Constitution as it stood on 26/01/1950, may be redrafted as under: "19. (1) All citizens shall have the right- (a) to freedom of speech and expression;. (2) The State shall not make any law which takes away or abridges the rights conferred by this article and any law made in contravention of this clause shall, to the extent of the contravention, be void: provided that nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law insofar as it relates to, or prevent the state from making any law relating to libel, slander, defamation contempt of court or any matter which offends against decency or morality or which undermines the security of, tends to overthrow, the state. "clause (2) in the above draft incorporates the entire clause (2) of Article 13 except that instead of Part III the word 'article' has been used, and clause (2) of Article 19 has been incorporated as a proviso.

( 1084 ). In the alternative, if clauses (2) to (6) of Article 19 are read as a proviso to Article 13 (2) they would appear as follows :"the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void :provided nothing in sub-clause (a) of clause (1) of Article 19 shall affect the operation of any existing law insofar as it relates to, or prevent the State from making any law relating to, libel, slander defamation, contempt of court or any matter which offends against the decency or morality or which undermines the security of, tends to overthrow, the State. "in each of the clauses (3) to (6) of Article 19 the expression 'any existing law insofar as it imposes or prevents the State from making any law imposing' has been uniformly used, and if these clauses are read as provisos just in the same way as clause (2) of Article 19 has been read in either of the manner indicated above, the word law ' in all these clauses as well as in clause (2) of article 13 would be the same and must have the same meaning. Similarly article 16 (3) and (5) and Article 22 (3) may also be so read. In reading the above articles or any other article in Part III with Article 13 (2) it appears to me that the words law', 'in accordance with law', or 'authority of law' clearly indicate that law' in Article 13 (2) is that which may be made by the ordinary legislative organs. I shall also show, when I examine the various stages through, which the corresponding draft article which became article 13 (2), passed through the Drafting Committee and the Constituent assembly, that the proviso to Article 8 would lead to a similar conclusion.

( 1085 ). Though the word 'state' has a wider meaning and may include parliament or Parliament and the State Legislature acting together when to effect an amendment under Article 368, in the context of the restrictions or limitations that may be imposed by law on certain specified grounds mentioned in any of the provisions of Part III, particularly those referred to above, could only be a law made by the Legislature otherwise than by amendment of the Constitution. For to impose any restriction or limitation within the permissible limits on the fundamental rights under any of the provisions of Part III, an amendment of the Constitution is not necessary and hence could not have been so intended. It is also submitted that the definition of the word 'state' in Article 12, read with Article 13 (2) would prohibit agencies of the State jointly and separately from effecting an amendment, the same being a law, from abridging or taking away any of the rights conferred by Part III or in amending Article 13 (2) itself. In this connection Hidayatullah,. , in Goloknath's case (supra), at p 865-read the definition of the word 'state' in Article 12 as connoting, "the sum total of all the agencies which are also individually mentioned in Article 12", and hence, "by the definition all the parts severally are also included in the prohibition". In other words, he has taken the definition to mean and connote that all the agencies acting together, namely, the Parliament and the Legislatures, and if the two Houses of Parliament under Article 368 (1 ) or the two Houses of Parliament and the Legislatures acting together under the proviso, can effect an amendment that amendment would be as law made by the State within the meaning of Article 13 (2 ). At p. 866 this is what he said : ""if the state wields more power than the "functionaries there must be a difference between the State and its agencies such a government, Parliament, the legislatures of the States and the local and other authorities. Obviously, the state means more than any of these or all of them put together. By making the State subject to Fundamental Rights it is clearly stated in Article 13 (2) that any of the agencies acting alone or all the agencies acting together are not above the Fundamental Rights. Therefore, when the House of the people or the council of States introduces a Bill for the abridgement of the fundamental Rights. it ignores the injunction against it and even if the two houses pass the Bill the injunction is next operative against the President since the expression "government of India' in the General Clauses Act means the President of India. This is equally true of ordinary laws and laws seeking to amend the Constitution". He drew support from Article 325 of the Constitution of Nicargua in which specifically it was stated that, "the agencies of the government, jointly or separately, are forbidden to suspend the Constitution or to restrict the rights granted by it, except in the cases provided therein". In our Constitution he observed, "the agencies of the state are controlled jointly and separately and the prohibition is against the whole force of the State acting cither in its executive or legislative capacity". With great respect this argument is based on an assumption which is not warranted by the definition of the word 'state' in article 12. Nor is it in my view permissible to draw support from a provision of another Constitution which is differently worded. The assumption that "state' would mean all the agencies of the government jointly or separately when the agencies of the state have been separately enumerated, is not justified. The prohibition in article 13 (2) would be against each of them acting separately. There is no question of Parliament or the State Legislatures or Parliament or either local authorities or other authorities acting together or any one of these acting in combination. Nor under the Constitution can such combination of authorities acting together make a law. The State as Hidayatullah). , envisages, because of the inclusive definition, means, "more than any of them or all of them put together" which in my view is a State in the political sense and not in a legal sense. Under Article 51 of the Directive Principles, it is enjoined that the State shall endeavour to promote international peace and Security; or maintain just and honourable relations between nations, etc. , which in the context, can only mean government or Parliament of India. Item 10 of list I of the Seventh Schedule, read with Article 246 vests the power of legislation in respect of "foreign affairs, all matters which bring the Union into relation with the foreign countries" in those agencies. The words 'unless the context otherwise requires', in my view, refer to those agencies acting separately. If drawing an inference from other Constitution is permissible in interpreting a definition, and I have said that it is not, a reference to Article 9 in the Burmese Constitution would show that the definition of the State is not an inclusive definition, but it defines the State as meaning the several organs referred therein. I, do not, therefore, think that this reasoning would indicate that Article 13 (2) puts an embargo on an amendment made under article 368, nor does it warrant the making of a distinction between the State and the government in order to hold that these organs cannot acting together make an amendment affecting rights in Part.

( 1086 ). Another reason for arriving at this conclusion is that if amendment to the Constitution is a "jaw, the Constitution as such would also be a law. But the framers of the Constitution distinguished the 'constitution' from "law' or laws', by making evidence their intention by using the word law' in contradistinction to the 'constitution' indicating thereby that the word 'jaw' wherever referred to, means only an ordinary legislative law, while the 'constitution' as something distinct from it. In Article 60 the President, and in Article 159 the governor, is required to take oath when assuming office, to preserve, protect and defend the Constitution and the law. Under Article 61 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 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) 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) and 219 each read with Schedule. It is provided in article 76 (2) that the Attorney-General is required to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force. Again in Article 148 (5) dealing with the conditions of service of person 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'.

( 1087 ). If this view is correct, and I venture to suggest that it is, a question would arise as to whether Article 13 (2) is really redundant, and should the court so construe it as to impute to the framers an intention to in- corporate something which has no purpose. The court, it is well established, should not ordinarily construe any provision as redundant and, therefore, must give effect to every provision of a Statute or law. In support of this line of reasoning it is contended that insofar as Article 13 (J) is concerned, "a law in force' has been defined in Article 13 (3) (b), but by virtue of Article 372 (1) and Explanation I therein the same result would be achieved and any pre- constitution or Constitutional law which acquires the force of law by virtue of that article is "subject to the other provisions' 'of the Constitution and consequently to the provisions in Part. Similarly any law made after the constitution came into force would be void to the extent of its repugnancy with any of the provisions of the Constitution including those in Part III because of the doctrine' of ultra vires. If so, it is argued, there was no purpose in enacting Article 13 (2 ). On the other hand, the petitioner's learned advocate submit that Article 13 (2) has a purpose, in that among the laws in force there would be saved some laws of a constitutional nature which were in force in the erstwhile princely States or even under the Government of India Act, 1935, where the governor-General had made orders of that nature. As it was pointed out to the Constituent Assembly by Sardar Vallabhbhai Patel on 29/04/1947, that such may be the position, article 13 (1), it is 'said, has been incorporated in Part III, and for the same reason in order to protect Fundamental Rights which were basic human freedoms from being taken away or abridged even by an amendment of the constitution, that Article has been incorporated. A reference to the latter would show that what Sardar Vallabhbhai Patel said was that they had not sufficient time to examine in detail the effect of clause (2) "of the draft article on the mass of existing legislation and that clause was, therefore, subject to examination of its effect on the existing law which will be done before the constitution is finally drafted and the clause finally adopted. There is nothing in the proceedings or debates to indicate that certain constitutional laws were intended to be saved or that that laws was to include an amendment of the Constitution, nor is the contention that Article 13 (1) was specially designed to save pre-existing constitutional laws notwithstanding that the government of India Act and the Indian Independence Act were repealed by article 395. If there be in force any constitutional laws other than those repealed these are by Article 372 (1) given the same force as any of the ordinary legislative law subject to the other provisions of the Constitution and such laws continue to be in force only until altered, repealed or amended by a competent legislature or other competent authority. There is no indication whatever that these laws were accorded a status similar to any of the provisions of the Constitution, nor could they co-exist with them in the sense that they can only be dealt with by an amendment under Article 368. Kariia, G.. in A. K. Gopalan's case (supra), had no doubt pointed out that, "the inclusion of Article 13 (1) and (2) appear to be a matter of abundant caution", and that, "even in their absence if any of the Fundamental Rights was infringed by any legislative, enactment, the court has always the power to declare the enactment to the extent it transgresses the limits, invalid". Hidayatullah,. ,as he then was, in Sajjan Singh's (supra), at p. 961- commenting on the above passage of Kania,g,. ,pointed out that, "the observation is not clear in its meaning. There was undoubtedly a great purpose which this article achieves. It is probable that far from belittling the importance of Article 13 the learned chief justice meant rather to emphasise the importance and the commanding position of Fundamental rights in that even without Article 13 they would have the same effect on other laws. To hold that Article 13 is framed merely by way of abundant caution, and serves no additional or intrinsic function of its own, might, by analogy persuade us to say the same of Article 32 (1) because this court would do its duty under Article 32 (2) even in the absence of the guarantee". No one can deny that Article 13 (2) has a purpose and that purpose, as Hidayatullah, J , pointed out, was meant rather to emphasise the importance and the commanding position of Fundamental Rights, because having regard to the history of the agitation for a Bill of Rights being inscribed in a constitution, to which I have adverted earlier, and the great hope that was inspired in the people of this country that there are some fundamental basic rights which are guaranteed to them and which cannot be subject to the vagaries of the legislatures, the State was enjoined not to lake away or abridge those rights in Part III were intended to be made self-contained with the right of redress guaranteed to them by Article 32-unlike in the United States where the judiciary had to invoke and envolve the doctrine of judicial review ,over the years Mere general declarations of rights were without enforceability. As experience showed such general rights were found ineffective to check the growing power of the modern State, our framers examined judicial review of fundamental rights in various constitution and provided in our Constitution an effective remedy against encroachment of these rights. Article 32 (2) provided for a direct approach to the Supreme court in cases where fundamental rights are infringed, which without that provision would only come before it by way of an appeal under article 133 or by special leave under Article 136 from a decision of the High court rendered under Article 226. It is this purpose that Article 13 (2), read with Article 12 emphasises. The framers of our Constitution conscious of the pitfalls and difficulties that were confronted by the varying exercise of judicial review in America wanted to ensure that the doctrine of void and relatively void-a typically American concept-should find no place in our constitution, if a. s stated Golaknath case (supra), by the leading majority judgment and by Hidayatullah, that fundamental rights were not to be subject to an amending process, it is inconceivable that our framers who gave such meticulous care in inscribing those lights in the Constitution, as is evident from the proceedings in the Constituent Assembly, should not have specifically entrenched them against that process. I am aware of the contrary argument that if they wanted that the amending process in Article 368 should not be fettered by Article 13 (2) they would have expressly provided for it either in Article 368 or in Article 13 (2) as indeed attempts were made to that effect by moving suitable amendments which, later, at the concluding stages of the final Draft Constitution, as we shall presently see, were either withdrawn, not pressed or negatived. But this is neither here nor there, as indeed if the framers took the view that the embargo in Article 13 (2) is only against legislative law, they may have felt that there was no need for any words of limitation which will make it inapplicable to Article 368.

( 1088 ). Before I refer to the proceedings of the Constituent Assembly, I must first consider the question whether the Constituent Assembly I debates can be looked into by the court for construing these provisions The advocate-General of Maharastra says until the decision of his court in h. H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Others v. Union of Indian-commonly known as Privy Purses case-debates and proceedings were held not to be admissible. Nonetheless counsel on either side made copious reference to them. In dealing with the interpretation of ordinary legislation, the widely held view is that while it is not permissible to refer to the debates as an aid to construction, the various stages through which the draft passed, the amendments proposed to it either to add or delete any part of it, the purpose for which the attempt was made and the reason for its rejection may throw light on the intention of the framers or draftsmen. The speeches in the legislatures are said to afford no guide because members who speak in favour or against a particular provision or amendment only indicate their understanding of the provision which would not be admissible as an aid for construing the provision. The members speak and express views which differ from one another, and there is no way of ascertaining what views are held, by those who do not speak. It is, therefore, difficult to get a resultant of the views in a debate except for the ultimate result that a particular provision or its amendment has been adopted or rejected, and in any case none of these can be looked into as an aid to construction except that the legislative history of the prevision can be referred to for finding out the mischief sought to be remedied or the purpose for which it is enacted, if they are relevant. But in Travancore Cochin and Others v. Bombay Company Ltd. , the Golaknath case (supra), the Privy Purses case (supra), and Union of India v. H. S. Dhillon there are dicta against referring to the speeches in the constituent Assembly and in the last mentioned case they were referred to as supporting the conclusion already arrived at. In Golaknath case (supra), as well as Privy Purses case (supra), the speeches were referred to though it was said not for interpreting a provision but for either examining the transcendental character of Fundamental Rights or for the circumstances which necessitated the giving of guarantees to the rulers. For whatever purpose speeches in the Constituent Assembly were looked at though it was always claimed that these are not admissible except when the meaning was ambiguous or were the meaning was clear for further support of the conclusion arrived at. In either case they were looked into Speaking for myself, why should we not look into them boldly for ascertaining what was the intention of our framers and how they translated that intention? What is the rationale for treating them as forbidden or forbidding material. The court in a constitutional matter, where the intent of the framers of the constitution as embodied in the written document is to be ascertained, should look into the proceedings, the relevant data including any speech which may throw light on ascertaining it. It can reject them as unhelpful, if they throw no light or throw only dim light in which nothing can be discerned. Unlike a statute, a Constitution is a working instrument of government, it is drafted by people who wanted it to be a national instrument to subserve successive generations. The Assembly constituted Committees of able men of high calibre, learning and wide experience, and it had an able adviser, Shri B. N. Rau to assist it. A memorandum was prepared by Shri B. N. Rau which was circulated to the public of every shade of opinion, to professional bodies, to legislators, to public bodies and a host of others and was given the widest publicity. When criticism, comments and suggestions were received, a draft was prepared in the light of these which was submitted to the constituent Assembly, and introduced with a speech by the sponsor dr. Ambedkar. The assembly thereupon constituted three Committees: (1) union Powers Committee; (2) Provincial Powers' Committee; and (3) committee on the Fundamental Rights and Minorities Committee. The deliberations and the recommendations of these Committees, the proceedings of the Drafting Committee, and the speech of Dr. Ambedkar introducing the draft so prepared along with the report of these Committees are all valuable material. The objectives of the Assembly, the manner in which they met any criticism, the resultant decisions taken thereupon, amendments proposed, speeches in favour or against them and their ultimate adoption or rejection will be helpful in throwing light on the particular matter in issue In proceedings of a legislature on an ordinary draft bill, as I said earlier, there may be a partisan and heated debate, which often limes may not throw any light on the issues which come before the court but the proceedings in a constituent Assembly have no such partisan nuances and their only concern is to give the national a working instrument with its basic structure and human values sufficiently balanced and stable enough to allow an interplay of forces which will subserve the needs of future generations. The highest court created under it and charged with the duty of understanding and expounding it, should not, if it has to catch the objectives of the framers, deny itself the benefit of the guidance derivable from the records of the proceedings and the deliberations of the Assembly. Be that as it may, all I intend to do for the present is to examine the stages through which the draft passed and whether and what attempts were made to introduce words or expressions or delete any that were already there and for what purpose. If these proceedings -are examined from this point of view, do they throw any light on or support the view taken by me?

( 1089 ). The various stages of the Constituent Assembly proceedings, while considering the draft Articles 8 and 304 corresponding to Articles 13 and 368 respectively, would show that attempts were made to introduce amendments to both these articles to clarify that the embargo in Article 13 (2) does not apply to an amendment made under Article 368. First, Shri K. Santhanam, one of the members of the Constituent Assembly moved an amendment on 29/04/1947 to clause (2) of the draft submitted to the constituent Assembly along with the Interim Report on Fundamental Rights. This amendment was, that for the words "nor shall the Union or any unit make any law taking away or abridging any such right", the following be substituted: “nor shall any such right be taken away or abridged except by an amendment of the Constitution. "The sponsor explained "that if the clause stands as it is even by an amendment of the Constitution" we shall not be able to change any of these lights if found unsatisfactory. In some Constitutions they have provided that some parts of the Constitution may be changed by future constitutional amendments and other parts may not be changed. In order to avoid any such doubts, I have moved this amendment and I hope it will be accepted". This amendment was accepted by Sardar Vallabhbhai Patel and adopted by the Constituent Assembly. Clause (2), after it was so amended, was as follows: “all existing laws, notifications, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this Part of the Constitution shall stand abrogated to the extent of such inconsistency. Nor shall any such right be taken away or abridged except by an amendment of the Constitution. "Even as the clause stood originally in the draft, it was only the 'union' or any 'unit' that was prohibited from making a law taking away or abridging any such right. At that stage there was nothing to show that a provision for amendment of the Constitution was either drafted or was before the constituent Assembly for consideration. But otherwise also, it was not a case of the "union" or. 'Union’ and 'the unit' being prevented from making a law. In order to justify the submission that all the organs of the State including the 'union' or the 'union' and the 'unit' were prevented from effecting an amendment of the Constitution, the only indication is that the law which was prohibited from taking away or abridging fundamental rights was the law of the 'union' or any 'unit'. The amendment of Shri Santhanam was incorporated by the draftmen in the Supplementary Report on fundamental Rights which was presented to the Constituent Assembly on 25/08/1947, but subsequently this amendment of Shri K. Santhanam incorporated in the draft article was deleted by the Drafting Committee. After the Draft Constitution was submitted to the President of the Constituent Assembly on 21/02/1948, and was given wide circulation, there appears to have been some criticism with respect to what had then become draft Article 8 (2 , which was in the following terms: “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 :provided that nothing in this clause shall prevent the State from making any law for the removal of any inequality, disparity, disadvantage or discrimination arising out of any existing law. "The note relating to the addition of the proviso is stated thus: "'the proviso has been added in order to enable the State to make laws removing any existing discrimination. Such laws will necessarily be discriminatory in a sense, because they will operate only against those who hitherto enjoyed an undue advantage. It is obvious that laws of this character should not be prohibited. "The Constitutional Adviser's note to the Drafting Committee showed that a critic had pointed out that "clause (2) of Article 8 may be held as a bar to the amendment of the provisions of the Constitution relating to the fundamental rights by a law passed under draft Article 304, and it should, therefore, be made clear that there is no restriction on the power of parliament to amend such provisions under Article 304". The comment of the Constitutional Adviser to this objection was that "clause (2) of Article 8 does not override the provisions of Article 304 of the Constitution. The expression law' used in the said clause is intended to mean 'ordinary legislation'. However, to remove any possible doubt, the following amendment may be made in Article 8 :"in the proviso to clause (2) of Article 8, after the words 'nothing in this clause shall' the words 'affect the provisions of Article 304 of this Constitution or' be inserted. "The Drafting Committee does not appear to have accepted this suggestion, because the proviso remained as previously drafted, until it was deleted as a result of Amendment No. 252 which was standing in the name of Mehboob Ali Beg. On 25/11/1948, Pandit Lakshmi Kanta Maitra in moving this Amendment said-"the purpose of this amendment is self-evident, and as I have been strictly enjoined not to make any speech I simply move this amendment". This amendment was adopted on 29/11/1948, and the proviso was deleted. (See C. A. D. , Vol. VII, pp. 611 and 645 ).

( 1090 ). How meticulously this article was considered, can be seen from the proceedings on the objection of Naziruddiii Ahmed that the words "custom or usage in the definition of law' in Article 8 (3) 'a) corresponding to Article 13 (3) (a) would apply to Article 8 (2), but the State does not make a 'usage or custom'. Dr. Ambedkar pointed out that that will apply to article 8 (1) which deals with law 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 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.

( 1091 ). It would appear from the proviso before it was deleted, if read with clause (2) of draft Article 8, as also the note showing the purpose for which it was incorporated, that the law referred to therein was a legislative law. It could not by any stretch of the language be construed as including an amendment under draft Article 304, because the proviso was making the restriction in clause (21 of Article 8 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 that it is also a legislative law that is therein referred.

( 1092 ). To Article 304 also amendments were moved-one of them, amendment No. 157 was in the name of Shri K. Santhanam, hut he said he was not moving it. (Sec C. A. D. , Vol. IX, p. 1643 ). Both the Attorney- general as well as the Advocate-General of Maharastra said that they were not able to find out what these amendments were. But even assuming that this amendment was designed to make the embargo under Article 13 (2) applicable to Article 368, no inference can be derived therefrom. On the other hand an attempt was made by Dr. Deshmukh to entrench Fundamental rights He moved Amendment No. 212 to insert the following Article 304-A after Article 304:"304-A Notwithstanding anything contained in this Constitution to the contrary, no amendment which is calculated to infringe or restrict or diminish the scope of any individual rights, any rights of a person or persons with respect to property or otherwise shall be permissible under this Constitution and any amendment which is or is likely to have such an effect shall he void and ultra vires of any Legislature. "This amendment after Dr. Ambedkar's speech regarding the scope of the amendment under Article 304 was, by leave, withdrawn.

( 1093 ). Earlier when the Drafting Committee was considering the objectives, there was a proposal by Shri K. Sa. thanam, Mr. Anaiitha- sayanam Ayyangar, Mr. T. T. Krishnamachari and Shrimati G. Durgabai that Parts III, IV, IX and XVI be added in the proviso to Article 304, but it was pointed out by the Constitutional Adviser that that amendment involved n 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 affected by the procedure prescribed for amendment which would he 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 or that 'law' in Article 13 (2) is not the ordinary legislative law, but would include an amendment under article 366. An attempt was made to show that on 17/09/1949, Dr. Ambedkar while speaking on draft Article 304 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 amenriable by a bare majority, and as to the second category he had said : "'if future Parliament wishes to amend any particular article which is not mentioned in Part III or Article 304, all that was necessary for them is to have two-thirds majority". The third category for the purposes of amendment he explained required 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, along with Article 304, 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. 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.

( 1094 ). In the view I take on the construction of Article 13, read with the other provisions of Part III, Article 13 (2) does not place an embargo on article 368 for amending any of the rights in Part III, and it is, therefore, not necessary to go into the question whether the leading majority judgment is right in finding the power of amendment in the residuary Entry 97 of List I of Schedule VII, nor is it called for, having regard to the majority decision that the power of amendment is to be found in Article 368 itself. Whether the power is implied, what is the' width and whether Parliament can enlarge that power may have to be considered, but that Article 368 contains the power and the procedure of amendment can admit of little doubt, as was held by the majority in Golaknath's cafe (supra), by five Judges and Hidayatullah.. It may, also be noticed that the leading majority judgment did not express any view as to whether under the proviso to Article 368, by amending that article itself, fundamental rights could be amended.

( 1095 ). The question then arises, whether the Twenty-Fourth Amendment is valid, and if it is valid, whether Article 368 as amended is subject to any limitation, and if so, what? The objects and reasons of the Twenty-Fourth amendment Bill set out the purpose for which it was enacted and the mischief it sought to remedy. It is stated in Para 2 thereof thus: “the Bill seeks to amend Article 368 suitably for the purpose and makes it clear that Article 368 provides for amendment of the Constitution as well as procedure therefor. The Bill further provides that when a Constitution Amendment Bill passed by both Houses of Parliament is presented to the President for his assent, he should give his assent thereto. The Bill also seeks to amend Article 13 of the Constitution to make it inapplicable to any amendment of the Constitution under article 368. "What in fact the amendment effected will become clear, if the relevant provisions of Article 368, both before and after the amendment was made, are read in juxtaposition along with a new sub-clause (4) added to article 13. Before the Amendment

( 1096 ). The above amendment seeks to provide-d) that the source of power to amend is in Article 368 i (i'i) that when Parliament seeks to make a constitutional amendment it does so "in exercise of its constituent power"; (iii) that the power to amend was by way of addition, variation or repeal; (iv) that the bar in Article 13 against abridging or taking away any of the fundamental Rights does not apply to any amendment made under article 368; (v) that nothing in Article will apply to an amendment of the Constitution under Article 368; (vi) that the words "any provision of the constitution" were added so that "any" were to mean "every provision" ; and (vii) that it is obligatory on the President to give his assent to any Bill duly passed under that Article.

( 1097 ). In so far as the contention that Article 13 (2) is a bar to constitutional amendments is concerned, I have already given my reasons why I consider that argument as not available to the petitioner inasmuch as the inhibition contained therein is only against ordinary legislative actions. The question, however, is whether Article 13 (2) which bars the taking away or abridging the Fundamental Rights by Parliament, or Legislatures of the States and other enactments, specified in Article 13 (3) (a) is or is not an essential feature. If it is not, it can be amended under Article 368. Recognising this position the petitioner submits that if the effect of amending Article 368 and Article 13 is to permit the removal of the fetter of Article 13 on the ordinary legislative laws which can thereafter be empowered and left free to abrogate or take away fundamental rights, it would be an essential feature.

( 1098 ). The question whether there are any implied limitations on the power to amend under Article 368 or whether an amendment-under that Article can damage or destroy the basic features of the Constitution would depend, as I said earlier, on the meaning of the word "amendment" before the twenty-Fourth Amendment. If that word has a limited meaning, which is the case of the petitioner, it is contended that that power of amendment could not be enlarged by the use of the words "amend by way of addition, variation and repeal".

( 1099 ). It may be mentioned that arguments similar to those which were addressed before us were advanced in Golaknath's case (supra) and namely, (i) that the expression 'amendment' -in Article 368 has a positive and negative con- tent 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 amenable to the ordinary process of amendment 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".

( 1100 ). Hidayatullah, 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 views of text-book writers, particularly that of Orfield, and the position under the English and the French Constitutions , he observed at p. 878: "it is urged that such approach makes. society static and robs the States 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. 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".

( 1101 ). Wanchoo,. ,rejected the doctrine of implied limitations though he was doubtful if the Constitution can be abrogated or another new Constitution can be substituted. he said, "we have given careful consideration to the argument that certain basic features of our constitution cannot be amended under Article 368 and have come to the conclusion that no limitations fan be and should be implied upon the power of amendment under Article 368. . . . . . . . . . . . " We fail to see why if there was any intention to make any part of the Constitution unamendable, the Constituent Assembly failed to include it expressly in Article 368. . . . . . . . . . . . on the clear words of Article 368 "which provides for amendment of the Constitution which means any provision thereof, we cannot infer any implied limitations on the power of amendment of any provision of the Constitution, be it basic or otherwise". It was further observed at p. 831: "that the president can refuse to give his assent when a Bill for amendment of the constitution is predicted to him) the result being that the Bill altogether falls, for there is no specific provision for anything further to be done about the Bill in Article 368 as there is in Article III".

( 1102 ). Bachawat, noticed the argument on the basic features but did not express any opinion because he said "it is sufficient to say that the fundamental Rights are within the reach of the amending power". Ramaswami,. , on the other hand rejected the thesis of implied limitations, because Article 368 does not expressly say so. He said at p. 933: "if the constitution-makers considered that there were certain basic features of the constitution which were permanent it is most unlikely that they should not have expressly said in Article 368 that these basic features were not amend- able".

( 1103 ). During the course of the lengthy arguments on behalf of the petitioners and the respondents, we have been taken on a global survey of the Constitutions of the various countries. In support of. the rival contentions, there were cited before us innumerable decisions of the Supreme court and the State courts of the United States of America, and of the courts in Canada, Ireland, Australia and of the Privy council. A large number of treatise on constitutional law, views of academic lawyers, the applicability of natural law or higher law principles, extracts from laski's Grammar of Politics, history of the demand for fundamental rights, and the speeches in the Constituent Assembly and the Provisional parliament during the deliberations on the Constitution (First Amendment) bill, were also referred to. The able arguments addressed to us during these long hearings, with great industry and erudition and the alacrity with-which the doubts expressed by each of us have been sought to be cleared by the learned Advocates for the petitioner, the Attorney-General, the Solicitor general and by the Advocates-General of the States and the learned Advocates who intervened in those proceedings, have completely eviscerated the contents of the vital and far-reaching issues involved in this case, though some times some aspects tended to hover over the terra ferma and sometimes skirted round it, particularly when the views of academic writers who had the utmost freedom to express on hypothetical problems unrelated to concrete issues falling for a decision in any case, were pressed on us. The a priori postulates of some of the scholars are not often easy of meeting the practical needs and limitations of the tenacious aspects of the case precedents which makes our law serviceable. There have again been arguments for taking consequences into consideration which really highlighted what would be the dire consequences if the result of the decisions being one way or the other but this court ought not to be concerned with these aspects, if otherwise our decision is in accordance With the view of the law it takes. We should free ourselves of any considerations which tend to create pressures On the mind. In our view, it is not the gloom that should influence us, as Milton said, '"we cannot leave the real world for a Utopia but instead ordain wisely", and, if I may add,. according to the well-accepted rules of construction and on a true interpretation of the constitutional provisions.

( 1104 ). Lengthy arguments on the rules of construction were addressed, by referring particularly to a large number of American cases to show what our approach should be in determining constitutional matters, having regard to the paramount need to give effect to the will of the people which the legislatures and the governments represent and for exercising judicial restraint. I must confess that some of these arguments show that the tendency has been to depend more on the views of Judges from other lands, however eminent, when we have in this, the Highest court of-the land during the last over two decades, forged an approach of our own and set out the rules applicable to the interpretation of our Constitution. There is no constitutional matter which is not in some way or the other involved with political, social or economic questions, and if the Constitution-makers have vested in this court a power of Judicial review, and while so vesting, have given it a prominent place describing it as the heart and soul of the constitution, we will not be deterred from discharging that duty, merely because the validity or otherwise of the legislation will affect the political or social policy underlying it. The basic approach of this court has been, and must always be, that the Legislature has the exclusive power to determine the policy arid to translate it into law, the constitutionality of which is to be presumed, unless there are strong and cogent reasons for holding that it conflicts with the constitutional mandate. In this regard both the Legislature, the executive, as well as the judiciary are bound by the paramount instrument, and, therefore, no court and no Judge will exercise the judicial power dehors that instrument, nor will it function as a supreme legislature above the Constitution. The bona fides of all the three of them has been the basic assumption, and though all of them may be liable to error, it can be corrected in the manner and by the manner prescribed under the Constitution and subject to such limitations as may be inherent in the instrument.

( 1105 ). This court is not concerned with any political philosophy, nor has it its own philosophy, nor are Judges entitled to write into their judgments the prejudices or prevalent moral attitudes of the times, except to judge the legislation in the light of the felt needs of the society for which it was enacted and in accordance with the Constitution. No doubt, political or social policy may dominate the legal system. It is only when as I said, the Legislatures in giving effect to them translate it into law, and the courts, when such a measure is challenged, are invited to examine those policies to ascertain its validity, it then becomes a legal topic which may tend to dominate sometimes to its detriment.

( 1106 ). The citizen whose rights are affected, no doubt) invokes the aid of the judicial power to vindicate them, but in discharging its duty, the courts have nothing to do with the wisdom or the policy of the Legislature. When the courts declare a law, they do not mortgage the future with intent to bind the interest of the unborn generations to come. There is no everlasting effect in those judgments, nor do they have force till eternity as it were. The concept, on the other hand, is that the law declared in the past was in accord with the settled judgment of the society, the social and economic conditions then existing, and that if those judgments are not likely to subserve the subsequent generations or the requirements and needs of the society 'as it may be then conditioned, they will have to be changed by the process known to law, either by legislative action or judicial re-review where that is possible. The courts, therefore, have a duty, and have indeed the power, to re-examine and re-state the law within the limits of its interpretative function in the fullness of the experience during which it was in force so that it conforms with the socio-economic changes and the jurisprudential outlook of that generation. The words of the law maybe like coats of Biblical Joseph, of diverse colours andvin the context in which they are used they will have to be interpreted and wherever possible they are made to subserve the felt-needs of the society. This purpose can hardly be achieved without an amount of resilience and play in the interpretative process.

( 1107 ). On the desirability of drawing heavily or relying on the provisions of the Constitutions of other countries or on the decisions rendered therein, a word of caution will be necessary. It cannot be denied that the provisions of the Constitutions of other countries are designed for the political, social and economic outlook of the people of those countries for whom they have been framed. The seed of the Constitution is sown in a particular soil and it is the nature and the quality of the soil and the climatic conditions prevalent there which will ensure its growth and determine the benefits which it confers on its people. We cannot plant the same seed in a different climate and in a different soil and expect the same growth and the same benefit therefrom. Law varies according to the requirements of time and place. Justice thus becomes a relative concept varying from society to society according to the social milieu and economic conditions prevailing therein. The difficulty, to my mind, which foreign cases or even cases decided within the Commonwealth where the Common Law forms the basis of the legal structure of that unit, just as it is to a large extent the basis in this country, is that they are more often than not concerned with expounding and interpreting provisions of law which are not in pari materia with those we are called upon to consider. The problems which confront those courts in the background of the State of the society, the social and economic set-up, the requirements of a people with a totally different ethics, philosophy, temperament and outlook differentiate them from the problems and outlook which confront the courts in this country. It is not a case of shutting out light where that could profitably enlighten and benefit us. The concern is rather to safeguard against the possibility of being blinded by it. At the very inception of a constitutional democracy with a Federal structure innovated under the government of India Act, 1935, a note of caution was struck by the chief justice of India against following even cases decided on the constitutions of the Commonwealth units, which observations apply with equal force, if not greater, to cases decided under the American Constitution. Gwyer, C. J" in re: The central Provinces and Berar Act No. XIV of 1938. "which was the very first case under the 1935 Act, observed at p. 38 : "but there are few subjects on which the decisions of other courts require to be treated with greater caution than of federal and provincial powers, for in the last analysis the decision must depend upon the words of the Constitution which the court is interpreting; 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 observation was approved and adopted by Gajendragadkar, C.. (speaking for seven Judges) in Special Reference I of 1964. .

( 1108 ). The American decisions which have been copiously cited before us, were rendered in the context of the history of the struggle against colonialism of the American people, sovereignty of several States which came together to form a Confederation, the strains and pressures which induced them to frame a Constitution for a Federal government and the underlying concepts of law and judicial approach over a period of nearly 200 years, cannot be used to persuade this court to apply their approach in determining the cases arising under our Constitution. For one thing, the decisions of the Supreme court of the United States though were for the benefit of the people and for decades those inconvenient decisions were accepted as law by the government until the approach of the court changed. The restraint of the people, the government and the court, and the patience with which the inconveniences, if any, have been borne, have all contributed to the growth of the law and during this long period the Constitution of the united States has been only amended 24 times. The amending power under the American Constitution is a difficult process in that it is vitally linked with its ratification by the people through their representatives in the State legislatures or in the Conventions. These decisions, therefore, are of little practical utility in interpreting our Constitution which has devised altogether different methods of amendments. No doubt, the rules of construction which our courts apply have been drawn from the English decisions and the decisions of the Privy council, the latter of which declared the law for the country until its jurisdiction was abolished; and even today the decisions of the courts in England, the Commonwealth countries, and the United states of America on matters which are pari materia are considered as persuasive.

( 1109 ). For the proposition that for ascertaining the meaning of the word 'amendment', the object of and the necessity for amendment in a written Constitution must be considered, namely,- (a) it is necessary for changing the Constitution in an orderly manner, as otherwise the Constitution can be wrecked by extra Constitutional method or by a revolution; (b) as the very object is to make changes in the fundamental or organic law, namely, to change the fundamental or basic principles of the Constitution, the power of amendment cannot be said to be confined to only changing non-essential features.

( 1110 ). The Attorney-General has cited from the writings of several authors of whom I may refer to a few passages from the following: Woodrow Wilson in his book on 'constitutional government in the United states', said: “a constitutional government, being an instrumentality for the maintenance of liberty, is an instrumentality for the maintenance of a right adjustment, and must have a machinery of constant adaptation. ". "it is, therefore, peculiarly true of constitutional government that its atmosphere is opinion, the air from which it takes its breath and vigour. The underlying understandings of a constitutional system are modified from age to age by changes of life and circumstances and corresponding alterations of opinion It does not remain fixed in any unchanging form, but grows with the growth and is altered with the change of the nation's needs and purposes. ".

( 1111 ). Roger Sherman Hoar in his book on "constitutional Conventions -Their Nature, Power's and Limitations", speaking of the American Constitution as the one based upon popular sovereignty, says :"the Federal, Constitution was ordained and established by the people of the United States" (. S. Constitution, Preamble) and guarantees to each of the several States "a republican form of government" (U. S. Constitution, Article IV ). This means, in other words, a representative form. It is founded upon the theory that the people are fit to rule, but that it would be cumbersome for them to govern themselves directly. Accordingly, for the facilitation of business, but for no other purposes the people choose from their own number representatives to represent their point of view and to put into effect the collective will. " (page II ). Quoting from Jameson's "works of Daniel Webster", it is again stated at p. 12: "these principles were recognised by our forefathers in framing the various Bills of Rights, which declare in substance that, as all power resides originally in the people, and is derived from them, the several magistrates and officers of government are their substitutes and agents and are at all times accountable to them. The various agents of the people possess only such power as is expressly or impliedly delegated to them by the Constitution or laws under which they hold office; and do not possess even this, if it happen to be beyond the power of such Constitution or laws to grant". A question that naturally arises is, are the above postulates basic to our Constitution ?

( 1112 ). After referring to these passages, the Attorney-General submitted that the people of India have, as expressed in the Preamble, given the power to amend the Constitution to the bodies mentioned in Article 368. These bodies represent the people, and the method to amend any part of the constitution as provided for in Article 368 must alone be followed. In his submission and other method, for example. Constituent Assembly or Referendum would be extra-constitutional or revolutionary. Article 368 restricts only the procedure of the manner or form required for amendment, but not the kind or character of the amendment that may be made. There are no implied limitations on the amending power under Article 368. It is the people who have inscribed Article 368 in the Constitution. In the numerous American cases cited before us, there is a constant reference to the people taking part in the amending process through the Conventions or ratification by the Legislatures which the judiciary has been treating as ratification by the people. In that context the word 'amendment' has been construed widely because when the sovereign will of the people is expressed in amending the constitution, it is as if it were they who were expressing the original sovereign will represented in the convention which drafted the Constitution. There has been even a divergence of opinion among the writers in the U. S. as to whether the entrenched provisions for the representation of the States in the Senate which could not be amended without the consent of the State affected can be amended even where all the States except the State concerned have ratified the taking away or abridging that right. With this or the several aspects of the American Constitution we are not called upon to expound nor have-we any concern with it except with claim of the petitioner that the fundamental rights have been reserved by the people to themselves and the counter-claim by the Attorney-General that it is the people who have inscribed Article 368 by_ investing that Article with the totality of the sovereignty of the people which when exercised in the form and manner prescribed in that Article would amend any provision of the Constitution without any limitations as to the nature or kind of the amendment. The people, the learned Attorney- general submitted, have been eliminated from the amending process because being 'illiterate and untutored they would not be able to take part in that process with proper understanding or intelligence. This to my mind, appears somewhat incongruous. When they can be trusted to vote in much more complicated issues set out in election manifestos involving economic and political objectives and social benefits which accrue by following them, surely they could be trusted with deciding on direct issues like amending the Constitution. But the whole scheme of the Constitution shows it is insulated against the direct impact from the people's vote, as can be seen, firstly, by the electoral system under which it may often happen that a minority of voters can elect an overwhelming majority in Parliament and the Legislatures of the States, while the majority vote is represented by a minority of representatives as is evident from the affidavit filed in respect of the recent elections by the Union of India on 12/03/1973, and secondly, where a President is elected by proportional representation of the members of the Legislatures. This situation could not have been unknown to the framers can be gathered from the speech of Dr. Ambedkar who said: '"constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it Democracy in India is only a topdressing on an Indian soil, which is essentially undemocratic". (C. A. D. , Vol. VII, p. 38 ). In any case this aspect need not concern this court as it deals with what has already been done, but since so much has been said about the people. and the amending power in Article 368 as representing the sovereign will of the people, I have ventured to refer to this topic.

( 1113 ) THERE is no doubt some warrant in support of the proposition that people have reserved to themselves the fundamental rights, as observed by Patanjali Sastri,. , in A. 1!. Gopalan v. State of Madrasto which a reference has been made earlier, and, therefore, it is submitted that these rights cannot be taken away or abridged even by an amendment of the constitution. Neither of these submissions accord with the facts of history though the Preamble which was adopted as a part of the Constitution on 17/10/1949, says so. (See with respect to the adoption of the Preamble as a part of the Constitution, C. A. D. , Vol. X, p. 456 ). To digress somewhat, it appears that the observations in re Berubari Union and exchange of Enclaves" that the Preamble was not part of the Constitution does not icern to have taken note of the fact that the Constituent Assembly had debated it and adopted the resolution, "that the Preamble stand partof the Constitution' '. It appears to me that a comparison with Article V of the U. S. Constitution providing for an amendment of that Constitution, with Article 368 of our Constitution, would show that there is no resemblance between the amending procedure provided in either of them. Such a comparison would, in my view, be misleading, if we were to apply the concepts and dicta of the eminent Judges of the Supreme court of the U. S. in interpreting our Constitution. If we were to accept the contention of the learned Attorney-Genera that the sovereignty is vested in Article 368, then one is led to the conclusion on an examination of the history of the Constitution-making that the people of India had never really taken part in the drafting of the Constitution or its adoption, nor have they been given any part in its amendment at any stage except indirectly through representatives elected periodically for conducting the business of the government of the union and the States. It cannot be denied that the members of the Constituent Assembly were not elected on adult franchise, nor were the people of the entire territory of India represented therein even on the very limited franchise provided for under the Cabinet Mission Plan of 16/05/1946, which was restricted by the property, the educational and other qualification to approximately 15% of the country's population comprising of about 40 million electors. The people of the erstwhile princely States were not elected to the Assembly though the representatives of those States may have been nominated by the rulers. A day before the transfer of power on 15/08/1947, the Indian States were only subject to the paramount of the British crown. On 15/08/1947, all of them, except Hyderabad, Junagadh and Jammu and Kashmir, had voluntarily acceded to the Dominion of India.

( 1114 ). The Objectives Resolution which claims power from the people to draft the Constitution was introduced in the Constituent Assembly on 13/12/1946, when the Constituent-Assembly met for the first time and at a time when the Muslim League boycotted the session (see C. A. D. , vol. I, p. 59). The 4th clause of that Resolution provided that all power and authority of the Sovereign India, its constituent parts and organs of government are derived from the people. The Resolution also said that in proclaiming India as an Independent Sovereign Republic and in drawing up for her future governance a Constitution there shall be guarantee 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 safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes. This Resolution was adopted on 22/01/1947 with utmost solemnity by all members standing. (See C. A. D. , Vol. II, p. 324 ).

( 1115 ). While the claim was so made and at the time when the Resolution was adopted, the legal sovereignty over India remained vested in the British crown and British Parliament, and when that power was transferred, it was transferred to the Constituent Assembly by the Indian Independence Act, 1947, S. 6 and 8 of which conferred on the Constituent Assembly the power to enact a Constitution, as well as the full powers to make laws which were not to be void or inoperative on the ground that they are repugnant to the laws of England, or to the provisions of the Indian Independence Act, or any existing or future Act, of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the legislature of the Dominion of India, shall include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the Dominion [see Ss. (2) of S. 6]. These powers of the legislature of the Dominion, under Ss. (1) of S. 8, for the purposes of making a Constitution, were conferred on the Constituent assembly and reference in the Act to the Legislature of the Dominion was to be construed accordingly.

( 1116 ). It was only in November, 1949, after the work of the framing of the Constitution was completed that the ruling Princes accepted it on behalf of themselves and the people over whom they ruled. The Constitution was not ratified by the' people but it came into force, by virtue of Article 394, on 26/01/1950. Article 395 repealed the Indian Independence Act, 1947 and the government of India Act, 1935.

( 1117 ). Reference may also be made to the fact that during the debates in tile Constituent Assembly it was pointed out by many speakers that that assembly did not represent the people as such, because it was not elected on the basis of adult franchise, that some of them even moved resolutions suggesting that the Constitution should be ratified by the people. Both the claim and the demand were rejected. Dr. Ambedkar explained that, '"the constituent Assembly in making a Constitution has BO partisan motive. Beyond securing a good and workable Constitution it has no axe to grind. In considering the articles of the Constitution it has no eye on getting through a particular measure. The future Parliament if it met as a Constituent assembly, its members will be acting partisans seeking to carry amendments to the Constitution to facilitate to the passing of party measures which they have failed to get through Parliament by reason of some Article of the constitution which the Constituent Assembly has none. That is the difference between the Constituent Assembly and the future Parliament. That explains why the Constituent Assembly though elected on limited franchise, can be trusted to pass the Constitution by simple majority and why the Parliament though elected on adult suffrage cannot be trusted with the same power to amend it". (C. A. D. , Vol. VII, pp. 43-44 ).

( 1118 ). At the final stages of the debate on the amending article, dr. Ambedkar replying to the objection that the Constituent Assembly was not a representative assembly as it has not been elected on an adult franchise, that a large mass of the people are not represented, and consequently in framing the Constitution the Assembly has no right to say that this Constitution should have the finality which Article 304 proposes to give it, said-- "'sir, it may be true that this Assembly is not a representative assembly in the sense that Members of this Assembly have not been elected on the basis of adult suffrage. I am prepared to accept that argument, but the further inference which is being drawn that if the Assembly had been elected on the basis of adult suffrage, it was then bound to possess greater wisdom and greater political knowledge is an inference which I utterly repudiate". (C. A. D. , Vol. IX, p. 1663 ).

( 1119 ). The fact that the preamble professed in unambiguous terms that it is the people of India who have adopted, enacted and "given to themselves this Constitution", that the Constitution is being acted upon unquestioned for the last over twenty-three years and every power and authority is purported to be exercised under the Constitution; and that the vast majority of the people have, acting under the Constitution, elected their representatives to Parliament and the State Legislatures in five general elections, makes the proposition indisputable that the source and the binding force of the Constitution is the sovereign will of the people of India.

( 1120 ). On this assumption no state need have unlimited power and indeed in Federal Politics 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. Gojdba. it', English Law and the Moral Law", p. 54). Evinina 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 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 ion 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 anytheless binding and effective. For that matter some of them receive greater protection today in England than they do in the United States. These basic principles are, I believe, four in number". (A. L. Goodhart, p. 55 ). Then he narrates what these four principles are : First that no man is above the law; the second, that those who govern Great Britain do so in a representative capacity and are subject to change but "'an immortal government tends to be an immoral Government" ; the third, freedom of speech or thought and assembly are essential part of any Constitution which provides that people govern themselves because without them self-government becomes impossible ; and the fourth, which is a basic part of the English Constitution is the independence of the judiciary and it is inconceivable that Parliament should regard itself as free to abolish the principle which has been accepted as a corner-stone of freedom ever since the Act of Settlement in 1701. Professor Goodhart then concludes: “it is therefore, I believe, true to say that it is as wrong in theory as it is in fact to suggest that the British Constitution is a form of enlightened despotism. Those who exercise power in the name of the state are bound by the law, and there are certain definite principles which limit the exercise of the power. "

( 1121 ). Before considering the detailed contentions it is necessary to see what was intended to be achieved by the Twenty-fourth Amendment. I have already set out the changes made in Article 368. These are- (a) In the marginal note, instead of the expression "procedure for amendment of the Constitution", it was substituted by ""power of Parliament to amend the Constitution and procedure there- for". This was to meet any possible doubt that the marginal note only indicated a procedure and not the power of amend- ment, though the majority in Golaknath's case (supra), had held that Article 368 contains both power and procedure ; (b) By the addition of clause (1), three changes were effected, namely, (i) a non obstante clause "notwithstanding anything in this constitution", (ii) "parliament may in exercise of its constituent power"; and (iii) "amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down in this article". It has already been seen that both in Sankari Prasad's and Sajjan Singh's cases (supra), the two Houses of Parliament have been construed as Parliament and not a different body. In Golaknath's case (supra), also all the Judges held that it is only Parliament which makes the amendment. The question whether the power in 'article 368 is a constituent power or a legislative power has of course been debated. The law in its generic terms includes a constituent law, namely, the Constitution itself made by a Constituent assembly as indicated by the words "the Constitution as by law established", or an amendment made in accordance with the provision contained in the Constitution, as well as an ordinary legislative law made by the legislative organs created by the organic instrument. The quality and the nature of the law has been differently described, but broadly speaking the Constitution or the amendments thereof are termed as a Jaw which is made in exercise of its constituent power, though the reach of each may differ. If it is true, as is contended, that both these in the plenitude of power are co-extensive, on any view of the matter, no difficulty is encountered in describing the amending power as the constituent power. Even otherwise without resort to any great subtlety or distinction between the exercise of power by a constituent body and a constituted body inasmuch as both are concerned in the making of the Constitution or in amending it, they can be considered as a constituent power. The amending power is a facet of the constituent power, but not the whole of it. The power under article 368 after the amendment is still described as amending power. The twenty-fourth Amendment makes this explicit because it did not want a doubt to linger that because the same body, namely. Parliament makes both the ordinary law in terms of the grant in Articles 245 to 248 and an amendment in terms of Article 368, it should not be considered that both these are legislative laws within the meaning of Article 13 (2) which was what the majority in Golaknath's case (supra), has held. In the view I have taken that Article 13 (2) was confined only to the ordinary legislative laws and not one made under Article 368, the addition of clause (1) to Article 368 in so far as it declares that when Parliament exercises the power under that provision it exercises its constituent power and makes explicit what was implicit. In my view, the amendment, therefore) makes no change in the pui-'lion which prevailed before the amendment.

( 1122 ) IT has also been seen that the amendment added clause (3) to article 368 that "nothing in Article 13 shall apply to any amendment made under this article", and has added clause (4) to Article 13 that "nothing in this article shall apply to any amendment of this Constitution made under article 368". These additions, having regard to the view I have taken that article 13 (2) does not impose any express limitation on Article 368, unless, of course, there ii a limitation in Article 368 itself on the width of the power which the word "amendment' in the context of that article and the other provisions of the Constitution might indicated again make explicit what was implicit therein.

( 1123 ). The outstanding question then is, what is the meaning of the word 'amendment'-whether it has wide or a restricted meaning, whether the word 'amendment' includes repeal or revision, and whether having regard to the other provisions -of the Constitution or the context of the word 'amendment' in Article 368 itself it has a restricted meaning, and consequently does not confer a power to damage or destroy the essential features of the Constitution.

( 1124 ). 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 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 Wendell Holmes had written, "you can give any conclusion a logical form' ' and one can only lay how true it is. This course, however, should be eschewed, firstly, because of the a prior 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.

( 1125 ). The Attorney-General contends that the word 'amendment' has a clear, precise, definite and unambiguous legal meaning and has been so used in all the written Constitutions of other countries also ever since written constitutions have been innovated. The word 'amendment' according to him has received a well accepted construction which gives it the widest amplitude unrestricted by any limitations thereon. While making this submission, however, he has pointed out that though our Constitution has used different expressions at several places, it does not follow that they do not necessarily mean the same thing. The Advocate for the petitioner on the other hand says that this word has no precise and definite or primary and fundamental meaning and hence the cases on construction cited by the respondents that the court is not concerned with the police of the Legislature are not applicable. On the contrary, he points out, that since the word is ambiguous, the width of the power has to be ascertained by courts from the general scheme and context of the Constitution in which it appears and other relevant indications and principles. He relied on the observations of Lord wright in Jarms v. Commonwealth of Australia cited on behalf of the first respondent that, "a good draftsman would realizes that the mere generality of the word must compel limitation in its interpretation. Tree' in itself is vague and indeterminate. It must take its colour from the context".

( 1126 ). 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 Constitution" 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 is 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 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 constitution". 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).

( 1127 ). A reference was also made in this connection to draft Article 305 as indicating that the word 'amendment' would mean repeal or whittling down. Even assuming that that Article had been incorporated in the constitution, what does the word 'amendment' in that context imply? First, draft Article 305 starts with the non-:obstante clause, "notwithstanding anything contained in Article 304" (present Article 368), and, secondly, the provisions relating to the reservation of seats for the minorities "shall not be amended during a period of ten years from the commencement of this Constitution and shall cease to have effect on the expiration of that period unless continued in operation by an amendment of the Constitution". This clause instead of throwing any light on the width of the power of amendment shows that it is completely restricted in that nothing can be done to affect that provision for ten years which limitation with the non-obstante clause excludes Article 304 altogether during that period. If after that period it is to be extended that article can be amended but this does not mean that it can be repealed, for it is only concerned with either extension of the period or change in the terms or conditions under which the reservation would continue to apply.

( 1128 ). It was contended that the word 'amendment' in Article 368 must be construed as meaning change for the better, improvement, etc. In Golaknath's cast (supra) a similar contention was rejected by some of the learned Judges. Subba Rao, C. J" (speaking for 5 Judges) did not express any view though he said that the argument that Parliament cannot destroy the structure of the constitution but it can modify the provisions thereof within the framework of the original instrument for its better effectuation, has considerable force, but they were relieved of the necessity to express their opinion as the question raised can be answered on a narrower basis. He observed that: "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".

( 1129 ). Hidayatullah,. , at p. 862 said : "I do not take the narrow view of the word 'amendment' as including only minor changes within the general framework. By an amendment new matter may be added, old matter removed or altered. " Wanchoo,. , (speaking for himself and two other Judges), observed at. p. 834: "to say that 'amendment' in law only means a change which results in improvement would make amendments impossible, for what is improvement of an existing law is a matter of opinion and what, for example, the legislature may consider an improvement may not be so considered by others. It is, therefore, in our opinion impossible to introduce in the concept of amendment as used in Article 368 any idea of improvement as to details of the Constitution. The word 'amendment' used in Article 368 must, therefore, be given its full meaning as used in law and that means that by amendment an existing Constitution or law can be changed, and this change can take the form either of addition to the existing provisions, or alteration of existing provisions and 'heir substitution by others or deletion of certain provisions altogether. "After noting that the word "amend" in the VI Schedule, Paragraph 21, where it was preceded by words "by way of addition, variance or repeal" and more or less similar expressions in other Articles of the: Constitution, he observed, "it is very difficult to say why this was done. But the fact that no such words appear in Article 368 does not in our mind make any difference, for the meaning of the word 'amendment' in law is clearly as indicated above by us and the presence or absence of explanatory words of the nature indicated above do not in our opinion, make any difference". Bachawat.. , at pp. 915/916, says :"article 368 indicates that the term 'amend' means 'change'. The proviso is expressed to apply to amendments which seek to make any 'change' in certain articles. The main part of Article 368 thus gives the power to amend or to make changes in the Constitution. A change is not necessarily an improvement. Normally the change is made with the object of making an improvement, but the experiment may fail to. achieve the purpose. Even the plain dictionary meaning of the word 'amend' does not support the contention that an amendment must take an improvement, see Oxford English Dictionary, where the word amend' is defined thus: '4. To make professed improvements (in a measure before Parliament) formally to alter in detail, though practically it may be to alter its principle so as to thwart it'. The 1st, 4th, 16th and 17th amendment Acts made changes in Part III of the Constitution. All the changes are authorised by Article 368". Ramaswami,. , has not specifically dealt with the meaning of the word 'amendment.

( 1130 ). It is obvious from these observations that the attempt to restrict the meaning of the word 'amendment' to 'improvement' has been rejected by five of the learned Judges in Golaknath case (supra ).

( 1131 ). The learned Attorney-General, however, in the written summary of his arguments, said: "the majority of the learned Judges in Golaknath case (supra) rejected the arguments that the expression amendment of a Constitution has a narrow meaning. Thus the petitioner seeks to have the majority judgment overruled on this point". . This statement does not seem to be accurate, unless he has linked the rejection of the argument regarding the existence of implied limitations as recognising that the word amendment has a wide meaning. That implied limitations and the width of the meaning of the word amendment were two different concepts admits of no doubt, because the former flows from the implications of the provisions of the Constitution whether general or specific, while the latter deals with scope and the ambit of the word amendment itself. If the power is wide, even implied limitations can also be abrogated, but it has nothing to do with the existence of the implied limitations. On the other hand, Hidayatullah,. though he dealt with the narrowness or otherwise of the meaning of the word 'amendment', did not deal with the existence or non-existence of implied limitations under our Constitution. Bachawat.. , at pp, 915 and 916, also did not think it necessary to pronounce on implied limitations and like wanchoo,. , has separately considered these two concepts. These instances illustrate what I have said above. Even on this basis there would not be a majority of Judges who have held that there are no implied limitations.

( 1132 ). The learned Advocate-General for Maharashtra submits that when a person proposes an amendment and he if asked whether it is intended to be an improvement, the answer will always be 'yes', because, he cannot very well say that it was not intended to be an improvement; that the meaning of the word 'amendment' in several Dictionaries which relate the word 'amendment' with 'improvement' is euphemistic. This is the reason why the word 'amendment' according to him is used in the earlier sense in common parlance, in public speeches, text-books or articles by learned writers, which is far from saying that an amendment must be only a change for effecting an improvement.

( 1133 ). Bachawat,. , earlier at p. 915 in Golaknath case (supra) referred to the decision Livermore v. E. C. Waiter in support of the submission that an amendment must be an improvement of the Constitution. The following observations in Lioermore's case (supra) were cited by him : "on the other hand, the significance of the term 'amendment' implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed' '. With respect to this passage, Bachawat,. , observed: “now an attack on the eighteenth amendment of the U. S. Constitution based on this passage was brushed aside by the U. S. Supreme court in the decision in the National Prohibition case (Rhode Island v. Palmer) ,253 US 350; 64 L Ed 947, 960, 978 ). The decision totally negatived the contention 'that "an amendment must be confined in its scope to an alteration or improvement of that which is already contained in the Constitution and cannot change its basic structure, include new grants of power to the Federal government nor relinquish in the state those which already have been granted to it"i find from the reference to the rational Prohibition case, and the pages of that report given by Bachawat,. , namely: 64 L Ed 947, 960 and 978, that no observations to that effect have been made at page 978 by Mr. Justice Van devanter. In that case the Supreme court was considering an appeal from a District court which had' rejected the contention that 18th Amendment was not valid on the ground that, "the definition of the word 'amendment' include additions as well as corrections of matters already treated and there is nothing in its immediate context (Article V) which suggests that it was used in a restricted sense". The decree of the court below was affirmed in the national Prohibition case (Rhode Island v. Palmer)at p. 960 the briefs filed by the attorney-General of Rhode Island and others did, however, refer to the passage cited by Bachawat,. , in Livermore v. Waite (supra ). But none of the judges in the National Prohibition case (supra), either referred to the passage in Livermore's case (supra) nor did they deal with the scope of the power of amendment and, therefore, it cannot either be said that the submission was brushed aside, nor can it be said that the National Prohibition case (supra) totally negatived that contention. It may be the opinion of Cooley in his book on "constitutional Law" that the passage in Livermore's case (supra) cited by Bachawat,. , did not support the proposition therein stated. But all arguments in that case against the amendment could not be taken to be negatived, if they were not necessary for the decision. What arguments were brushed aside, no one can say with any amount of definiteness. If the judgment of the Supreme court in National Prohibition case. (supra.) is read with the judgment of the District court whose decree was affirmed, it may be taken to have laid down that the word amendment would include addition of a provision to the Constitution and beyond this nothing more can be inferred from this judgment.

( 1134 ). The argument of the Advocate-General is that the words "amendment of this Constitution" in sub-para (2) of Para 7 and sub-para (2) of Para 21 of the respective Schedules refers to the words used in sub-para (1) of sub- paras (7) and (21) of the Schedules, and, therefore, the words "amendment of this Constitution" must be read to mean that it is an amendment by way of addition, variation or repeal. It was noticed that in Goloknath case (supra) while Wanchoo, J" could not fatholm the reason why the expression 'by way of addition, variation or repeal' was used in Schedule V. Part 7 and Schedule VI, Para 21, he nonetheless thought the presence or absence of the explanatory words made no difference to the meaning of the word 'amendment'. In other words, according to the learned Advocate- general, the word 'amendment' in Article 368 is synonymous with the expression 'amend by way of addition, variation or repeal' so that the Twenty- fourth Amendment according to this view, and probably to conform with it, used the clarificatory words and means even after this amendment the same meaning as the word 'amendment' had before Article 368 was amended. What an amendment can do has also been stated, by Wanchoo, J" namely, that the existing Constitution can be changed and this change can take the form either of addition to the existing provisions or alteration of the existing provisions and their substitution by others or deletion of certain provisions altogether. Though all this can be done, he said, it may be open to doubt whether the power of amendment contained in Article 368 goes to the extent of completely abrogating the present Constitution and substituting it by an entirely new one.

( 1135 ). It is also not disputed by the learned Attorney-General, the solicitor-General, and the Advocate-General for Maharashtra that an amendment of the Constitution' does not extend to abrogation of the Constitution, and on the contention of the Advocate-General, abrogation means repeal, both words being synonymous, and that the Constitution cannot be substituted by a new Constitution.

( 1136 ). In further explaining his submissions the Attorney-General said that the amending power in Article 368 as it stood before the Twenty-Fourth amendment and as it stands now has always been and continues to be, a constituent power, that is to say, the power to de-constitute or re-constitute the Constitution or any part of it. Such power extends to the addition to or variation of any part of the Constitution. But the amending power does not mean that the Constitution at any point of time would be so amended by way of addition, variation or repeal as to leave a vacuum in the governance of the country. According to him that is the whole object and necessity of the amending power in a Constitution so that the Constitution continues, and a constituent power unless it is expressly limited in the Constitution itself, can by its very nature have no limits, because if any such limit is assumed although not expressed in the Constitution, the whole object and purpose of the amending power will be nullified.

( 1137 ). If amendment does not mean abrogation or repeal as submitted in the note of the Advocate-General, dated February 28, 1973, in which he said, "that repeal and abrogation mean the same thing since 'repeal' has 'abrogation' as one of its meaning and 'abrogation' has 'repeal' as one of its meanings", a question arises, where is the line to be drawn?

( 1138 ) THE learned Attorney-General said that Article 368, clause (e) of the proviso by giving a power to amend the amending power, has conferred a wider power of amendment but that does not imply that the power of amendment had a limited meaning in the unamended article; that the word 'amendment' has only one meaning and it is a wide power and in Article 368 there is a recreation of the Constituent Assembly. If this submission is correct, how can it not extend to abrogation of the Constitution or substituting it by another?


( 1139 ) TO this question the answer of the Attorney-General was that clause (e) of the proviso was added by way of, abundant caution to meet a similar criticism which was directed against Article V of the U. S. Constitution. According to Advocate-General for Maharashtra, clause (e) of the proviso was inserted to meet the assumption of chief justice in the Irish cast (supra) of the State (Ryan and Others) v. Lennon and Others that if amending provision could have been amended, then no limitation can be read. The Hon'ble chief justice has dealt with this aspect in full and I do not, therefore, propose to refer to it except to say that the analogy is inapplicable to the interpretation of Article 368.

( 1140 ). Apart from the power of amendment not extending to the abrogation of the Constitution, it will appear on the submission of respondents, the Union of India and the State of Kerala, that the office of the President cannot be abolished without the concurrence of at least half the States even though Articles 52 and 53 are not included in the proviso to Article 368. The very fact that Article and Article 55 are included in the proviso, it would, according to the Solicitor-General imply that the office of the President cannot be abolished without the concurrence of the States. Wanchoo,. , in Golaknath's case (supra) dealt with a similar contention at p. 844. Though he thought that the supposition was impossible, and I entirely agree with him that it is not likely, yet in such a case, "it would be right to hold that Article 52 could not be altered by Parliament to abolish the office of President. . . . . . . . . . . . . . . . . . it will require ratification". Nor do I think having regard to the basic structure of the Constitution h it possible to abolish the office of the President by resort to article 368 and as assent is necessary, no President true to his oath to protect and defend the Constitution, will efface himself. It would, therefore, appear from this specific instance that an implied limitation is-read into Article 368 by reason of the proviso entrenching Article 54. The learned Advocate-General lays even Article 53 which vests the executive power of the Union in the president by sub-clause (2), vests the Supreme Command of the Defence forces of the Union in the President, would also necessitate an amendment similar to Article 52 by ratification by the states. Yet another instance is, that an implied, power to amend is found in Article 368. When the form and - manner is complied with, the Constitution stands amended, from which pro- vision as well as the fact that Article 368 is in a separate Part entitled amendment of the Constitution', the above conclusion was reached. The petitioner's counsel naturally asks that if The Queen v. Burah, is read as an authority as contended on behalf of Kerala State against the existence of powers which are not conferred by affirmative words and against the existence of limitations, this proposition clearly negatives the respondents' other submission that the source of the amending power must impliedly found in Article 368 although such a power is not to be found affirmatively conferred.

( 1141 ). Though there are naturally some limitations to be found in every organic instrument, as there are bound to be limitations in any institution or any other set up brought into existence by human agencies, and though my lord the chief justice has gone into this aspect fully, it is in my view not necessary to consider in this case the question of the existence or non-existence of implied or inherent limitations, because if the amending power is wide and plenary, those limitations can be overridden as indeed the non-obstante clause in the amended clause (1) of article 368 was intended to subserve that end. What has to be considered is whether the word 'amendment' is wide enough (o confer a plenitude of power including the power to repeal or abrogate.

( 1142 ) THE Advocate-General has further submitted that there is intrinsic evidence in the Constitution itself that the word 'amendment' in Article 368 means 'amend by way of addition, variation or repeal', because if that were not so, sub-para (2) of Para 7 of Schedule V would not have taken out the law made under sub-para (1) empowering Parliament to "amend by way of addition, variation or repeal" any of the provisions of the Schedule from the operation of Article 368. The same meaning should also be given to Para 21 of Schedule. The learned Attorney-General has referred to several Articles in which the word "amendment' has been used, as also to several others in which that word or its variation has been used in continuation with other words. But those expressions do not show that the word 'amendment' is narrow or limited. In every case where an amendment has been made in the constitution, he says, something has been added, something substituted, something repealed and re-enacted and certain parts omitted. The Constitution (First Amendment) Act is given as an instance of this, nor according to him does anything turn on the fact that S. 291 of the government of India Act, 1935, was amended just about a few weeks before article 368 was finalised, and in which the word 'amendment' was substituted for the words "amend byway of addition, variation or repeal'. According to him what this court must consider is that since Article 368 arranges to recreate the Constituent Assembly and exercise the same power as the constituent Assembly, it should be read in a wide sense.

( 1143 ). If the power of amendment is limitless and Parliament can do all that the petitioners contend it can do under Article 368, the respondents say it should not be assumed that power will be abused, but on the other hand the presumption is that it will be exercised wisely and reasonably, and the only assurance against any abuse is the restraint exercised by the people on the legislative organs. But the recognition of the truism that power corrupts and absolute power corrupts absolutely has been the wisdom that made practical men of experience in not only drawing up a written Constitution limiting powers of the legislative organs but in securing to all citizens certain basic rights against the State. If the faith in the rulers is so great and faith in the people to curb excessive exercise of power or abuse of it is so potent, then one ' needs no elaborate Constitution, because all that is required is to make Parliament omni-potent and omni sovereign. But this the framers did not do and hence the question will be whether by an amendment under Article 368, can Parliament effect a metamorphosis of power of making itself the supreme sovereign. I do not suppose that the framers were unaware of the examples which must be fresh in their minds that once power is wrested which does not legitimately belong to a limited legislature, the efforts to dislodge it must only be by a painful process of struggle, bloodshed and attrition-what in common parlance would be a revolution. No one suggests this will be done, but no one should be complacent that this will not be possible, for if there is power it can achieve even a destructive end. It is against abuse of power that a constitutional structure of power relationship with checks and balances is devised and safeguards pro- vided for whether expressly or by necessary implication. And the question is whether there are any such in our Constitution, and if so, whether they can be damaged or destroyed by an amending power?

( 1144 ). The petitioner's counsel, Advocate-General and the Attorney- general have furnished us with the extracts from various dictionaries, and the learned Attorney-General has further referred us to a large number of constitutions in which the word 'amendment" or words used for amending the Constitution have been employed, to show that there is no difference or distinction between these words and the word 'amendment'. In all these constitutions, subject to which I said of the inappropriateness of comparing other world Constitutions made for different people with their differing social, political and economic outlook, the words used are either 'amendment' or a combination of that word with others or a totally different word. In some of the Constitutions given in the compilations made available to us where the word 'amendment' alone is used, the exercise of the power of amendment was inextricably linked with the ratification by the people in whom the sovereignty rests, either by referendum or by convention or by the Legislatures. The Constitutions of other countries which have been referred to specifically by the learned Attorney-General are of Liberia, Trinidad and Tobago, 'Somalia, Jordan, Kuwait, Lebanon, Vietnam democratic Republic, Belgium, Costa Rica, Cuba and Nicaragua. I have examined the relevant provisions of these Constitutions regarding the amendatory process. These Constitutions have used different words than the words used in our Constitution. When the word 'amendment' or 'amend' is used, it has been invariably used with the words 'alter' or 'repeal', or 'revise' or 'variation, addition or repeal' or 'modification' or 'suspension', or 'addition' or 'deleting' or 'partially amend' or 'general amendment' or 'specific, partial or complete', or 'wholly or partially amend' or by a combination of one or more of these expressions. In one of the Constitutions, namely, Trinidad and Tobago, the word 'alteration' was defined to include 'amendment, modification or modification or that provision, the suspension or repeal of that provision and the making of a different provision in lieu of the provision'.

( 1145 ). In some of the other Constitutions not referred to by the attorney-General where the amending process is not referable to the voters by referendum or to be ratified in a convention with the word 'amend', the words 'alter', 'add', 'supplement', 'repeal' or similar words have been used to indicate the plenitude of power of amendment. S. 29 (4) of the Ceylon Constitutional Order, 1946, which was the subject-matter of decisions in Liyanage v. The Queenand The Bribery Commissioner v. Ranasinght cases, and had been debated in this court by counsel on either side, provides that in the exercise of its powers under the S. "parliament may amend or repeal, any of the provisions of this Order, or of any other Order". But this sub-section entrances by Ss. (2) certain matters -from being amended because as the Privy council observed that "they represented a solemn balance of rights between the citizens of Ceylon". In the Constitution of Finland the words used are adoption, amendment or abrogation of a fundamental law. The Irish Constitution, 1937, provided by Article 46 (1) that any provision of the Constitution may be amended, whether by way of variation, addition, or repeal in the manner provided by the Article, and the Constitution of Malaya has defined the word in clause (6) of Article 159 that 'amendment' includes addition and repeal. Even the Constitution of the Islamic Republic of Pakistan has used the words amended or repealed. The Constitution of the Union of South Africa has used the words repeal or alter and the Constitution of the United States of Brazil has an entrenched provision in clause (6) of Article 217 that the Bills tending to abolish the Federation and the republic shall not be admitted to consideration.

( 1146 ) THESE references not only do not show that the word 'amendment' has been used by itself to denote the plenitude of power but on the other hand show that these prescribe a procedure in which the people have been associated or a Constituent Assembly has to be called or fresh elections are required to be held to consider the amendments. In some of these Constitutions there was also a difference made between total and partial amendments and where the word 'alteration' has been used, it has been defined as to what is included therein. No assistance can, therefore, be derived from the constitutions either referred to by the Attorney-General or by the ones to which I have referred, and if at all, they only show that the word 'amendment' has not, as contended, unambiguous, precise or wide connotation.

( 1147 ). It is said that the words "amend by way of addition, variation or repeal" by reference to clause (2) of Para 7 and Para 21 of the Fifth and sixth Schedule respectively, mean the same as amendment, and consequently article 368 empowers the repeal of any provision of the Constitution. If the word "repeal" means abrogation, then an amendment under Article 368 can even abrogate any provision of the Constitution, short of abrogating the entire Constitution and substituting a new one. In my view, the phrase "by way of" call it a padding, call it explanatory, is idiomatic and difficult to render into exact phraseology. An idiom is an accepted phrase, construction or expression contrary to the usual pattern of the language or having a meaning different from the literal. As the Words and Phrases-Permarunt edition, Vol. 5, p. 1111, would show that "by way of" may be taken to mean "as for the purpose of", "in character of", "as being" and was so intended to be construed in an Act providing that certain companies should pay an annual tax for the use of the State, "by way of" a licence for their corporate franchise The illustration given should show that in fact the payment of a licence fee is not a tax, but it is so considered to ,,be by way of tax. In my view, therefore, the substitution of the word "amendment" by the expression "amend by way of addition, variation or repeal" makes no difference as it bears the same meaning as the word "amendment".

( 1148 ). In its ordinary meaning the word "amend" as given in Shorter oxford Dictionary is to make alterations. In some of the Dictionaries it is given as meaning "to alter, modify, rephrase, or add to or substract from". Judicial and Statutory Definitions of Words and Phrases, Second Series, Vol. I- the word "amend" has been treated as synonymous with correct, reform, and rectify. It is also stated that "amendment" of a statute implies its survival and not destruction. The word "amend" in legal phraseology, does not generally mean the same. thing as "repeal", because there is a distinction between a "repeal" but it does not follow that "amendments of statute may not often be accomplished by repeals of some of its parts" and though "amendment may not directly amount to repeal, it may have such a consequential effect". Grawford in his book on ''the Construction of Statutes", 1940, pp. 171-171 which is quite often referred to and used in this court, states that "a law is amended when it is in whole or in part permitted to remain and something is added to, or taken from it, or it is in some way changed or altered in order to make it more complete, or perfect, or effective. It should be noticed, however, that an amendment is not the same as a repeal, although it may operate as a repeal to a certain degree. A repeal is the abrogation or destruction of a law by a Legislative Act. Hence we may see that it is the effect of the Legislative Act which determines its character". The first part of this definition may be compared with the meaning indicated by Wanchoo,. , Golaknath case (supra) at p. 833 to which a reference has already been made.

( 1149 ). Both the learned Advocate for the petitioner and the Attorney- general have referred to the decisions of the State courts of the United states for the meaning of the word 'amend in support of their respective contentions, but these decisions which are rendered in the context of the constitutions of the respective States in America where ratification by the people is a condition for amending the Constitution do not carry the matter any further. Even in these cases the word "amendment' has been used in contradistinction with the word 'revision'. Words and Phrases-Permanent edition, Vol. 37 says: "the term 'repeal' is synonymous with abolish, rescind and annul. An amendment has been distinguished from alteration or change. It is said that an amendment keeps alive while a 'repeal' destroys". See State ex. rel. Strut v. Baker. It is, therefore, apparent from the meaning of the word 'amendment' that it does not include 'repeal 'or 'abrogation' nor is it the same as revision. 1149-A. I would now refer to certain provisions of the Constitution where the words "amend" or "repeal" have been used to indicate that the ambit of the power of amendment does not extent to repeal, A repeal of a provision of a law is difference from the repeal of the law itself. The Constitution itself has made a distinction between the amendment of the law and repeal of the law. This becomes clear if we refer to Article 372 (2) in which power has been given to the President by order to make such adaptations and modifications of any law whether by way of repeal or amendment, as may be necessary or expedient, to bring it in conformity with the provisions of the constitution. See also Article 372 (2) (b ). Clause (2) of Article 252 provides that any Act passed by Parliament in respect of two or more States may be amended) or revealed by an act of Parliament. In this clause the word 'repeal' is used in contradistinction to 'amendment' as clearly implying that amendment does not include repeal of the Act itself. Even in Article 372 (1), this distinction is brought out where a law in force immediately before the commencement of the Constitution was to continue in force until "altered or repealed or amended" by a competent authority. Similarly in Article 35 (b) also any law in force immediately before the commencement of the Constitution in the territory with respect to any of the matters specified therein and to any adaptations and modifications that may be made therein under article 372 continue in force until "altered or repealed or amended" by parliament. See proviso to clause (2) of Article 254 and clause (5) of article 350. It may also be noticed that before the repeal of Article 243, clause (2) thereof provided that the President may make regulations for the peace and good government of territories in Part D of the First Schedule and any regulation so made may repeal or amend any law made by Parliament or any existing law, it will, therefore, be observed that even where power has been given to a competent Legislature or any other competent authority over a law in force to continue by virtue of the above referred provisions, the framers have used the word 'repeal' of a law in contradistinction to the word 'amend' of a law. It may be contended with some force that where the framers intended to give full and plenary powers to competent Legislatures to deal with laws in force, they were meticulous enough to use two distinct words. If the word 'amend' or 'amendment' in its generic connotation meant "repeal', then this word would not have been used in contradistinction with the word amendment or amend in some articles, and only the word 'amend' or 'amendment' in others. In so far as the laws in force are concerned, it would appear that the intention was not to add to them, though the word 'alter' could imply also a variation. Nonetheless it is apparent that the word 'amendment' as used in Article 368 does not connote a plenitude of power. This is also clear from Ss. (2) of S. 6 of the Indian Independence act, 1947 which, as already seen, even in the context of the power to be possessed by the Constituent Assembly, uaea the word 'repeal' or 'amend' to indicate the plenitude of the power of abrogation and repeal. S. 32, 37, 74, 82 and 107 (2) of the government of India Act also use the word ‘amendment' in the sense of change and not repeal of the law. On the other hand. S. 106 (2) of government of India Act and Article 372 (1) use the word "repeal'. In the former, power is given to repeal a law, a. 'd in the latter it was provided that notwithstanding the repeal of enactments referred to in Article 395 to which included the Indian Independence Act, etc.) all the laws iii force and also be replaced in the sense that they could be abrogated. Further in clauses (3) and (4) of Article 109, the council of State is empowered to make amendments in money bill which the House of the People may or may not accept and if/it does not, it will be passed without any such amendment. The council of States, cannot reject the bill altogether but can only make a change therein.

( 1150 ). The argument that if wide construction is given to the word "amendment' all fundamental rights can be taken away by the requisite majority, whereas much less significant matters require the concurrence, of not less than one-half of the States under the proviso is based on the misconception that unlike in the United States where there is a dual citizen- ship-one as a citizen of United States and tlie other as a citizen of the particular State in the Union, we have only one citizenship and that is as a citizen of India and it is Parliament and Parliament alone which can legislate in respect of that right. No State has the legislative power to affect that right, and, therefore, have not been given a power of ratification where the fundamental rights are sought to be amended under article 368. This aspect is not, however, determinative of the extent of the power of amendment under Article 368. The word 'amendment', read with the other provisions indicates that it is used in the sense of empowering a change; in contradistinction to destruction which a repeal or abrogation would imply. Article 368 empowers only a change in the Constitution as is evident from the proviso which requires that where the provisions specified in clauses (a) to {e) have to be -amended they have to be ratified by the resolution of not less than one-half of the Legislatures of the States. This proviso furnishes a key to the meaning of the word 'amendment' that they can be changed without destroying them just in the same way as the entire constitution cannot be abrogated and new Constitution substituted therefor. In this view, I agree with my Lord the chief justice, for the reasons given by him, that the amplitude of the power of amendment in Article 368 cannot be enlarged by amending the amending power under proviso (e) to article 368.

( 1151 ). What follows from this conclusion is the next question to be considered. It is submitted that an amendment should not alter the basic structure of the Constitution or be repugnant to the objectives set out in the preamble and cannot be exercised to make the Constitution unidentifiable by altering its basic concept governing the democratic way of life accepted by the people of this country. If the entire Constitution cannot be abrogated, can all the provisions of the Constitution leaving the Preamble, or one article, or a few articles of the original Constitution be repealed and in their place other provisions replaced, whereby the entire structure of the Constitution, the power relationship inter se three Departments, the federal character of the State and the rights of the citizens vis-a-vis the State, are abrogated and new institutions, power relationships and the fundamental features substituted therefor? In my view, such an attempt would equally amount to abrogation of the Constitution, because any such exercise of the power will merely leave the husk and will amount to the substitution of an entirely new Constitution, which it is not denied, cannot be done under article 368.

( 1152 ). The Preamble to the Constitution which our founding fathers have, after the Constitution was framed, finally settled to conform to the ideals and aspirations of the people embodied in that instrument, have in ringing tone declared the purposes and objectives which the Constitution was intended to sub serve. How far the Preamble can be resorted to for interpreting the Constitution has been the subject of debate. It was contended that it is not a. part of the Constitution, and as we have been shown, that this conception found approval of this court in re: Berubari union and Exchange of Enclaves (supra) but the court did not appear to have noticed that it was adopted by the Constituent Assembly as part of the constitution. That observations of Gajendragadkar, G. J,, must be under- stood in the context of his assumption that the Preamble is not a part of the constitution. After referring to Story that the Preamble is "a key to open the mind of the makers' ' and a passage from Willoughby that it has never been regarded as source of any substantive power, etc. , the learned Chief justice concluded thus: “what is true about the powers is equally true about the prohibitions and limitations. Besides, it is not easy to accept the assumption that the first part of the Preamble postulates a very serious limitation on one of the very important attributes of sovereignty itself. As we will point out later, it is universally recognised that one of the ' attributes of sovereignty is the power to cede parts of national territory, if necessary. At the highest it may perhaps be arguable that if the terms used in any of the articles in the Constitution are ambiguous or are capable of two meanings, in interpreting them some assistance may be sought in the objectives enshrined in the Preamble. Therefore, Mr. Chatterjee is not right in contending that the Preamble imports any limitation on the exercise of what is generally regarded as a necessary and essential attribute of sovereignty. "It may be pointed out that the passage from Story and Willoughby cited therein have not been fully extracted. For a proper appreciation of the views of these authors it is necessary to examine the relevant passages in full. Story says, "it is an admitted maxim. . . . . . . . . . . . . . . . . . that the Preamble of a statute is a key to open the mind of the makers as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute. . . . . . . . . . . . . . . . . . . . . . . . the will and intention of the Legislature is to be regarded and followed. It is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the Preamble. There does not seem any reason why, in a fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble. . . . . . . . . . . . . . . . . . . . . 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. . . . . . . . . . . . . . . . . . We have the strongest assurances, that this Preamble was not adopted as a mere formulary; but as a solemn promulgation of a fundamental fact, vital to the character and operations of the government". (Story, Constitution of United States, Vol. I, pp. 443-446).

( 1153 ). It is clear from the above views of Story that : (a) the Preamble is a key to open the mind of the makers as to the mischiefs, which are to be remedied; (b) that it is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; (c) even where the words are clear and unambiguous, it can be used to prevent an obvious absurdity or to a direct overthrow of the intention expressed in the Preamble, and it would be much more so, if they were ambiguous; (d) there is no reason why, in fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as stated in the Preamble; (e) the Preamble can never be resorted to, to enlarge the powers expressly given, nor to substantively create any power or to imply a power which is otherwise withdrawn from the Constitution; (f) its true function if to expound the nature, extent, and application of the powers actually conferred by the constitution.

( 1154 ). The passage extracted from Willougbby no doubt shows that preamble may not be resorted to as a source of Federal Authority but in dealing with its value and use the learned author has stated thus: “special significance has at various times been attached to several of the expressions employed in the Preamble to the Constitution. These depressions are- (1) The use of the phrase 'we, the People of the United States', as indicating the legislative source of the Constitution. (2) The denomination of the instrument as a 'constitution'. (3) The description of the federation entered into as 'a more perfect union'. (4) The enumeration of 'the common defence' and 'general welfare' among the objects which the new government is established to promote" (Willoughby, Vol. I, p. 62 ). These American authors, therefore, recognise the use of the Preamble to ascertain the essential concepts underlying the Constitution.

( 1155 ). The English cases show that the Preamble can be resorted to as a means to discover the legislative intent of which one may be cited. In the attorney-General v. Prince Earnest Augustus of Hanover" the House of Lords considered the question whether and to what extent Preamble of a statute can be relied upon to construe the enacting part of the statute. Viscount Simond (with whom Lord Tucker agreed), observed at p. 461 : "for words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive to be my right and duty to examine every word of a statute in its context, and I use 'context' in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its Preamble, the existing state of the law, other statutes in Rari materia. and mischief which I can, by those and other legitimate means, discern the statute was intended to remedy". Referring to the observations in Powell v. Kempton Park Racecourse co. Ltd that "the Preamble cannot be made use of to control the enactments themselves where they are expressed in clear and unambiguous terms'. Viscount Simond said at p. 463: "it is often difficult to say that any terms are clear and unambiguous until they have been studied in their context. That is not to say that the warning is to be disregarded against creating or imagining an ambiguity in order to bring in the aid of the Preamble. It only means that the elementary rule must be observed that no one should profess to understand any part of the statute or of any other document before he had read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous. . . . . . I would suggest that it is better stated by saying that the context of the Preamble is not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it. And I do not propose to define that expression except negatively by saying. . . that it is not to be found merely in the fact that the enacting words go further than the Preamble has indicated. Still less can the Preamble affect the meaning of the enacting words when its own meaning is in doubt. "

( 1156 ). On this aspect Lord Normand said at pp. 467-468 "when there is a Preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is, therefore, clearly permissible to have recourse to it as an aid to construing the enacting provision. The Pre- amble is not, however, of the same weight as an aid to construction of a section of the Act as are other relevant enacting words to be found elsewhere in the act or even in plated Acts. . . . . . It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the Preamble may legitimately prevail. . . . . . . . . it is the court's business in any case of some difficulty, after informing itself of. . . . . . the legal and factual context including the Preamble, to consider in the light of this knowledge whether the enacting words admit of both the rival constructions put forward. . . . . . . . . If they admit of only one construction, that construction will receive effect even if it is inconsistent with the Preamble, but if the enacting words are capable of either of the constructions offered by the parties, the construction which fits the Preamble may be preferred". Lord Sommervell said at p. 474, that, "the word 'unambiguous' must mean unambiguous in their context' '. Lord Thring, one of the great draftsmen of England in his book on "practical Legislation", Ch. IV, pp. 92-93, made this pertinent observation as to Preambles. He said, "a preamble may also be used to limit the scope of certain expressions in the Act, and sometimes a preamble is inserted for political reasons when the object of an Act is popular, and admus of being stated in a telling sentence or sentences". In Sajjan Singh's case (supra) at p. 968, Mudholkar,. , while taking note of the contention that it has been said that the Preamble is not a part of the Constitution observed : ' 'but, I think, that if upon a comparison of the Preamble with the broad features of the Constitution it would appear that the Preamble is an epitome of those features or, to put it differently, if these features are an amplification or concretisation of the concepts set out in the Preamble it may have to be considered whether the Preamble is not a part of the Constitution. While considering this question it would be of relevance to bear in mind that the preamble is not of the common run such as is to be found in an Act of a legislature. It has the stamp of deep deliberation and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it?" With great respect, I agree with the view expressed by him.

( 1157 ). These observations of the House of Lords, of the learned writers and of the Judges referred to above clearly point to the fact that the Preamble will furnish a guide to the construction of the statute where the words are ambiguous or even whose the words are unambiguous to aid a construction which will not lead to an absurdity. Where the preamble conveys a clear and definite meaning, it would prevail over the enacting words which are relatively obsecure or indefinite or if the words are capable of more than one construction, the construction which fits the Preamble may be preferred.

( 1158 ). In Re'. Berubari Union and Exchange of Enclaves can (supra) he court failed to refer to and consider the view of Story that the Preamble can be resorted to, to expound the nature, the extent and the application of the powers or that the Preamble can be resorted to, to prevent obvious absurdity or to a direct overthrow of the intention expressed therein. It may also be observed that the court in that case did categorically say that the first part of the Preamble is not a serious limitation. If the court had taken a definite view that the Preamble was Hot a source of limitation, the observation that, "it is not easy to accept the assumption that the first part, of the Preamble postulates a very serious limitation on one of the very important attributes of sovereignty" (emphasis -supplied) was not necessary, because it implies that certain parts of the Preamble can be established to be a source of serious limitation if such exists, In any case though the advisory opinion is entitled to the greatest respect, it is not binding when any concrete issue arises for determination, particularly when the width of the power of amendment had not fallen for consideration in that case, nor was it in fact considered at all.


( 1159 ). I will now consider the question which has been strenuously contended, namely that there are no essential features, that "every feature in the Constitution is essential, and if this were not so, the amending power under the Constitution will apply only to now essential features which it would be difficult to envisage was the only purpose of the framers in inscribing Article 368 and that, therefore, there is no warrant for such a concept to be read into the Constitution. The argument at first flush is attractive, but if we were to ask ourselves the question whether the Constitution has any structure or is structureless or is a "jelly fish" to use an epithet of the learned Advocate for the petitioner, the answer would resolve our doubt. If the Constitution is considered as a mechanism, or call it an organism or a piece of constitutional engineering, whichever it is, it must have a structure, or a composition or a base or foundation. What it is can only be ascertained, if we examine the provisions which the Hon'ble chief Justice has done in great detail after which he has instanced the features which constitute the basic structure. I do not intend to cover the same field once again There is nothing vague or unascertainable in the preamble and if what is stated therein is subject to this criticism it would be equally true of what is stated in Article 39 (b) and (c) as these are also objectives fundamental in the governance of the country which the State is enjoined to achieve for the amelioration and happiness of its people. The elements of the basic structure are indicated in the Preamble and translated in the various provisions of the Constitution. The edifice of our Constitution is built upon and stands on several props, remove any of them, the Constitution collapses. These are: (1) Sovereign Democratic Republic; (2) Justice, social, economic and political; (3) Liberty of thought, expression, belief, faith and worship; (4) Equality of status and of opportunity. Each one of these is important and collectively they assure away of life to the people of India which the Constitution guarantees. To withdraw any of the above elements the structure will not survive and it" will not be the same Constitution, or this Constitution, nor can it maintain its identity if something quite different is substituted in its place, which the sovereign will of the people alone can do. There can be a Democratic republic in the sense that people may be given the right to vote for one party or only one candidate either affirmatively or negatively, and are not given the choice to choose another opposed to it or him. Such a republic is not what has been assured to our people and is unthinkable by any one foresworn to uphold, defend, protector preserve or work the Constitution. A democratic republic that is envisaged is the one based on a representative system in which people holding opposing view to one another can be candidates and invite the electorate to vote for them. If this is the system which u the foundation of a democratic republic, it is unthinkable that it can exist without elements (2) to (4) above either collectively or separately. What is democracy without social, economic and political justice, or what value will it have, where its citizens have no liberty of thought, belief, faith or worship or: where there is no equality of status and of opportunity? What then are the essential features Or the basic elements comprising the structure of our Constitution need not be considered in detail as these will fall for consideration in any concrete case where they are said to have been abrogated and made non-existent. The fact that a complete list of these essential elements constituting the basic structure are not enumerated, is no ground for denying that these exist. Are all the elements which make a law void and unconstitutional ever required to be concatenated for the recognition of the validity or invalidity of laws judged on the anvil of the Constitution? A sovereign democratic republic, Parliamentary democracy, the three organs of the State, certainly in my view constitute the basic structure. But do the fundamental rights in Part III and Directive Principles in Part IV constitute the essential elements of the basic structure of our Constitution in that the constitution will be the Constitution without them? In other words, if Parts iii and IV or either of them are totally abrogated, can it be said that the structure of the Constitution as an organic instrument establishing sovereign democratic republic as envisaged in the preamble remains the same? In the sense as I understand the sovereign democratic republic, it cannot; without either fundamental rights or directive principles, what can such a government be if it does not ensure political, economic, or social justice?

( 1160 ) 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 millennium 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 permeations 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 principles of State Policy. These are the. conscience of 'the Constitution. The Fundamental Rights and Directive Principles had their roots deep in the struggle for independence. 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. "

( 1161 ) THE demand for fundamental rights had its inspiration in the Magna Carta and the English Bill of. Rights, the French Revolution, the American Bill of Rights incorporated in the Constitution of the United States in 1791. For the first time, the Indian National Congress which was formed in 1885, made a demand for them in the constitution of India Bill, 1895 and these demands were reiterated from time to time. Annie Besant's commonwealth of India Bill contained a demand for 7 fundamental rights. The' Simon Commission rejected these demands for inclusion 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 :"it is obvious that our first care should be to have our fundamental rights guaranteed in a manner which will not permit their withdrawal under any circumstances. . ,. . . . . . . . . . . . "the Karachi Resolution of March, 1931, on Fundamental Rights on economic and social change added a new dimension to constitutional rights because till then State's negative obligations were alone being emphasised. By that resolution "the demand now equally emphasised the State's positive obligations to provide its people with the economic and social conditions in which their negative rights would have actual meaning". (Granville Austin, p. 56 ). The Sapru Committee also incorporated these fundamental right and for the first time divided them into justiciable and non-justiciable rights. During the Constituent Assembly Debates, Pt. Jawabar Lal Nehru in dealing with the confusion existing in the minds of the members in respect of the fundamental rights, said: "there is this confusion, this overlapping, and hence I think a great deal of difficulty has been brought into the picture. A fundamental rights should be looked upon, not from the point of view of any particular difficulty of the moment, but as something that you want to make permanent in t/u Constitution. The other matter should be looked upon- however important it might be-not from this permanent and fundamental point of view, but from the more temporary point of view", (emphasis supplied ). Dr. Radhakrishnan described the declaration of basic freedoms as a "pledge to our own people and a pact with the civilised world". (Constituent Assembly debates, Vol. II, p. 273). Dr. Ambedkar speaking on the Objectives Resolution, said that "when one reads that part of the Resolution, it reminds one of the declaration of the Rights of Man which was pronounced by the French constituent Assembly. I think I am right in suggesting that, after the lapse of practically 450 years, the Declaration of the Rights of Man and the principles which are embodied in it has become part and parcel of our mental main-up. I say they have become not only the part and parcel of the mental make-up of modern man in every civilised part of the world, but. also in our own country which is so orthodox, or archaic in its thought and its social structure, hardly anyone can be found to deny its validity. To repeat it now as the Resolution does, is to say the least, pure pedantry. These principles have become the silent immaculate premise of our outlook. It is therefore unnecessary to proclaim as forming a part of our creed. The Resolution suffers from certain other lacuna. I find that this part of the Resolution, although it enunciates certain rights, does not speak of remedies. All of us are aware of the fact that rights are nothing unless remedies are provided whereby people can seek to obtain redress when rights are invaded". The reference to the remedy that was absent in the Objectives Resolution, was made good by the inclusion of Article 32, with respect to which he said: "an article without which this Constitution would be a nullity. . . . . . . . . I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance. . . . . . . . . . . . . . . . It is remedy that makes aught real. If there is no remedy there is no right at ail. . . . . . . . . . . . . . . " (emphasis supplied) (Constituent Assembly Debates, Vol. VII, p, 953 ). Although he said while dealing with appropriateness of the English high prerogative writs as affording an effective remedy that these could be amended he did not say that either the judicial review could be abrogated or taken away by an amendment or the court itself can be abolished. Nor was any question raised by any one in this regard. Dr. Ambedkar's observations cannot be read to suggest that by an amendment of the Constitution, Article 32 could be abrogated, for if it were to, his observations could be in clear conflict with the express language of clause 4 of Article 32. The guarantee in clause (4) of Artic 32 could be conceived of only against amending power, for no ordinary law can suspend a right given by the Constitution unless permitted by the Constitution itself. When clause (4) of Article 32 does not even permit suspension of the right under Article 32 except as otherwise provided in the Constitution, that is, by Article 359, it is highly unthinkable that by an amendment this right could be abrogated. This pivotal feature of the Fundamental Rights demonstrates that this basic structure cannot be damaged or destroyed. When a remedy cannot be abrogated, it should follow that the fundamental rights cannot be abrogated for the reason that the existence of a remedy would be meaningless without the rights. There is nothing else in the debates which would suggest that any of the members ever entertained any notion of abrogation of any of the fundamental rights. It was in the light of (he make-up of the members and the dedicated way in which they spoke of these rights that these rights were cherished by the people. It could not be imagined that any one would have suggested anything to the contrary. In respect of the Directive Principles, though every one recognised these as of great importance, Shri B. N. Rau made several attempts to persuade the Drafting Committee to make the fundamental rights subordinate to the Directive Principles but he did not succeed. Sir Alladi Krishnaswami Ayyar an eminent lawyer, had in his note of 14/03/1947, made a distinction between the Directive principles and Fundamental Rights and said that it is impossible to equate those though it could not be denied that they were important. There can be no doubt that the object of the Fundamental Rights is to ensure the ideal of political democracy and prevent authoritarian rule, while the object of the directive Principles of State Policy is to establish a welfare State where there is economic and social freedom without which political democracy has no meaning. What is implicit in the Constitution is that there is a duty on the courts to interpret the Constitution and the laws to further the Directive principles which under Article 37, are fundamental in the governance of the country. As My Lord, the chief justice has put it, to say that the Directive principles give a directive to take away fundamental rights, seems a contradiction in terms. There is no rationale in the argument that the Directive principles can only be given effect to, if fundamental rights are abrogated. If that were the desiderate then every government that comes into power and which has to give effect to the Directive Principles of State policy in securing the welfare of its citizens, can say that since it cannot give effect to it so long as fundamental rights subsist, they must be abrogated. I do not think there is any such inherent postulate in the Constitution. Some of these rights, though limited, were subsisting from even the British days under the laws then in force,-yet there were others which were repressive like the Bengal regulation III of 1818, Madias Regulation II of 1819, Bombay Regulation XXV of 1827, the Indian Criminal Law Amendment Act XIV of 1908, etc. , which were used to suppress the freedom of the people and detain persons on political grounds when they were found inconvenient to the rulers. The demand for securing fundamental rights since then became an Article of faith, which, as Dr. Ambedkar said, became part and parcel of the mental make-up and the silent immaculate premise of their outlook. The outlook of the framers of the Constitution could not have provided for such a contingency where they can be abrogated, nor in any view, is it necessary concomitant of the Jeffersonian theory that no one can bind the succeeding generations who by the will of the majority of the people of the country, can bind themselves. One of the views in America since then held and which still persists, was expressed by Justice Hugo Black, one of the eminent Judges of the Supreme court in these terms: "i cannot consider the bill of Rights to be an out-worn 18th century 'straight-jacket'. Its provisions may be thought out-dated abstractions by some. And it is true that they are designed to meet ancient evils. But they are the same against all human evils that have emerged from century to century whenever excessive power is sought by the few at the expense of many". In 1895, the famous Jurist Maitland, even where Parliament was Supreme, said of Magna Charta that, "this document becomes and rightly becomes the sacred text, the nearest approach to an irrepealable 'fundamental statute' that England has ever had". [Pollock and Maitland, (1898), Volume I, p. 173. ]

( 1162 ). In the frame of mind and with the recognition of the dominant; 'mental make-up and the silent immaculate premise of our outlook' which became the outlook of the people, the framers of our Constitution could not have provided for the freedoms inherent as a part of the right of civilised man to be abrogated or destroyed. The interest of the community and of the society will not be jeopardised and can be adjusted without abrogating, damaging, emasculating or destroying these rights in such a way as to amount to abrogation of the Fundamental Rights. The Advocate-General of Mysore said that even if fundamental rights are totally abrogated, it is not as if the people will be without any rights. They will be subject to ordinary rights under the law. I must repudiate this contention, because then the clock will be put back to the same position as existed when Britain ruled India and against which rule our leaders fought for establishing freedom, dignity and basic rights. In this view, my conclusion is that Article 13 (2) inhibits only a law made by the ordinary legislative agency and not an amendment under Article 368; that parliament could under Article 368 amend Article 13 and also the Fundamental rights, and though the power of amendment under Article 368 is wide, it is not Wide enough to totally abrogate or what would amount to an abrogation or emasculating or destroying in a. way 'as would amount to abrogation of any of the fundamental rights or other essential elements of the basic structure of the Constitution and destroy its identity. Within these limits. Parliament can amend every article. In this view of the scope of the amending power in Article 368, I hold the Twenty-fourth Amendment valid, for it has the same amending power as it existed before the amendment.

( 1163 ). The Twenty-fifth Amendment, as the objects and reasons of the bill showed, was enacted mainly to get over the decision in the caw of r. C. Cooper v. Union of India,[hereinafter referred to as the 'bank Nationalisation can (supra ). ] The previous decisions of this court beginning from the state of West Bengal v. Mrs. Bela Banerjee, on account of which the Constitution (Fourth Amendment) Act, 1955, was enacted and the subsequent cases in P. Vajravelu Mudaliar v. Special Deputy Collector, Madras and Another, Union of India v. The Metal Corporation of India Ltd. and Another, State of Gujarat v. Shantilal Mangadas and Others, have been examined by my learned brother Hegde, in his judgment just pronounced, in the light of contentions urged by the respondents, as such I do not find it necessary to refer to them or set out the ratio of these decisions again.

( 1164 ). It will be observed from the amendment in clause (2) of Article 31 enacted by section 2 of the above amendment that: (1) the word 'amount' has been substituted for the word 'compensation' ; and (2) that the words "or that the whole or any part of such "amount is to be given otherwise than in cash" have been added. The effect of the amendment is that the law now need not provide for giving 'compensation' in. the sense of equivalent in value or just equivalent of the value of the property acquired and that the whole or part of the amount may be paid otherwise than in cash. The question then arises that if the word "amount" which has no legal concept, and as the amended clause indicates, means only cash, which would be in the currency of the country, can the lowest amount of the current coin be fixed, and if fixed, will it amount to payment in lieu of the property acquired?

( 1165 ). Ever since the Constitution (Fourth Amendment) Act, this court has consistently held that where what is given in lieu of expropriating property of a citizen is illusory, arbitrary, or cannot be regarded as compensation, and bears no reasonable relation to the property acquired, the court can go into it, and, secondly, where principles are fixed for determining the compensation, it can examine the question whether they are relevant to the subject- matter of the acquisition. That position has not in any way been affected by the amendment by merely substituting the word 'amount' for 'compensation' so that if the amount is illusory or arbitrary, and is such that it shocks the conscience of any reasonable man, and bears no reasonable relation to the value of the property acquired, the court is not precluded from examining it.

( 1166 ). 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 Advocate-General of Maharashtra was frank chough 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 toy 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 80 fixed on the basis of such principles.

( 1167 ). Clause (2-B) makes sub-clause (f) of Article 19 (1) inapplicable to clause (2) of Article 31. In the Bank Nationalisation case (supra), by a majority, of ten to one, this court held after an exhaustive review of all the cases beginning from A. K. Gopalan's case (supra), that, "if the acquisition ii for a public purpose, substantive reasonableness of the restriction which includes deprivation, may unless otherwise established, be presumed, but enquiry into reasonableness of the procedural provisions will not be excluded. For instance, if a tribunal is authorised by an Act to determine compensation for property compulsorily acquired, without hearing the owner of the property, the Act would be liable to be struck down under Article 19 (1) (f)"

( 1168 ). Thus, it will appear that where the acquisition is for a public purpose, what is sought to be excluded by clause (2-B) is the reasonableness of the procedural provisions by making Article 19 (1) (f) inapplicable. Notwithstanding this amendment, it is apparent that the expropriated owner still continues to have the fundamental rights that his property will not be acquired save by the authority of law and for a public purpose. These propositions have been admitted by the learned Solicitor-General. The question whether an acquisition is for a public purpose is justiciable. Only the adequacy of the amount is not. If so, bow can the expropriated owner establish that the acquisition is not for public purpose unless there are some procedural requirements to be complied with under the Law? A notice will have to be served; he will have to be given an opportunity to contest the acquisition. Clause (2-B) provides that "nothing in sub-clause (f) of clause (1) of Article 19 shall affect any such law as is referred to in clause (2)". Does this mean that the Fundamental. Right to reasonable restriction of procedural nature under Article 19 (1) (f) which was availably against any I law of acquisition or requisition of property as held in the Aim nationalisation case (supra), is abrogated or destroyed? The answer to this question would depend upon what is the meaning to be given to the word "affect". Two constructions are possible: one is that Article 19 (1) (f) will not be available at all to an expropriated owner under a law of acquisition made under Article 31 (2) or to put it in another way, any law made under Article 31 (2) for acquisition or requisitioning of any property abrogates articles 19 (1) (f ). Secondly, clause (2-B) was intended to provide that the law of acquisition or requisition will not be void on the ground that it abridges or affects the right under Article 19 (1) (f ). In choosing either of these constructions, regard must be had to that construction which would not result in the amendment being held invalid and void. Applying this approach, the second construction is more in consonance with the amendment because what the amendment provides for is that Article 19 (1) (f) shall not effect any such law and this would imply that the bar against the application of Article 19 (1) (f ). to such a law may vary from a slight or partial encroachment to total prohibition or inapplicability. But since an amendment cannot totally abrogate a fundamental right, it can only be read by the adoption of the doctrine of "lever ability in application" and, accordingly clause (2-B) must be held to be restricted only to the abridgement of, as distinct From abrogation. , destroying or damaging the right under article 19 (1) (f) As I said earlier, the right to a reasonable procedure in respect of a law of acquisition or requisition for the effective exercise of the rights under Article 31 (2), for a reasonable notice, a hearing opportunity to produce material and other evidence may be necessary to establish that a particular acquisition is not for a public purpose and for proving the value of the property and other matter as that may be involved in a particular principle adopted in fixing the amount or for showing that what is being paid is illusory, arbitrary, etc.

( 1169 ). That apart, there is nothing in clause (2-B), to prohibit principles of natural justice which are part of the law of the land wherein the rule of law reigns supreme, from being applicable when the liberty of the individual or his property is affected by a law. I cannot read a sinister design in that amendment requiring the legislative organs to abrogate the rule of law in this country or deny to its citizens the benefit of the maxim 'audi alteram partem' that no man shall be condemned unheard, a concept of natural justice, "deeply quoted in our ancient history", which as Byles,. , in Cooper v. The Wadsworth Board of Works, expressed in the picturesque aphorism, "the laws of God and man both give the party an opportunity to make his defence, if he has any".

( 1170 ). There is one other aspect that has been stressed by the learned advocate for the petitioner, which is more in the nature of the dire con- sequences that would ensue if the amendment is upheld, namely, that the citizens' right to property has now been transferred into the State's right to confiscation, that acquisition under the Land Acquisition Act and under other similar laws can be for the benefit of even Limited Companies in the private sector, and that religious freedoms guaranteed by Articles 25 to 30 can be virtually stifled by the taking away of the properties held by religious and charitable purposes. If Parliament under the law can do any of the things which are referred, this court cannot prevent the consequences of a law so made. I have spelt out what can be done. The law made for acquisition under clause (2) of Article 31 has still to satisfy that it is being taken for a public purpose. The question whether acquisition for a private person or company is for public purpose may be open to challenge and determined by courts in an appropriate action, As for the principles applicable in the Bill for the acquisition of Bardoli lands for determining the amount payable for acquisition, as admitted by both the learned Solicitor- general for the Union and the Advocate-General of Maharashtra will be applicable, then at any rate that will nut be a case of confiscation, because an owner will at any rate get the amount paid by him together with the loss of interest for the years he bad it. The plea that religious freedoms will be stifled also is not sustainable, because it has beer. already held by this court in Khajamia Wakf Estates, ect. v. The State of Madras, that Article 26 (c) and (d) of the Constitution provide that religious denominations shall have the right to own and acquire property and administer them according to law. But that does not mean that the properties owned by them cannot be acquired by the State. In the view I have taken, and for the reasons set out above, I hold S. 2 of the Twenty-fifth Amendment valid.

( 1171 ). S. 3 of the Twenty-fifth Amendment has caused me considerable difficulty because on the one hand the amendment is designed to give effect to Article 39 (b) and (c) of the Directive Principles of the State policy in the larger interest of the community, and on the other the basic assumption underlying it is that this cannot be done without taking away or abridging any of the rights conferred by articles 14. 19 and 31, and that such a law, where '. t contains a declaration that it is to give effect to the above policy, shall not be called in question in any court on the ground that it does not give effect to such policy. The predominant articulate as well as inarticulate premise is not to hold invalid an amendment made under article 368, if it conforms to the form and manner prescribed therein and is within the ambit of the amending power, but if the inexorable conclusion on a close scrutiny leads to a different conclusion it has to be so held. Article 31-C is as follows :"notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy: provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. "


( 1172 ). The learned Advocate fur the petitioner submits that Article 31-C subverts seven essential features of the Constitution: (t) it destroys the supremacy of the Constitution by giving a blank charter to Parliament and all the State Legislatures to defy and ignore the Constitution; (ii) it sub- ordinates the Fundamental Rights to Directive Principles of State Policy and thus destroys one of the foundations of the Constitution; (iii) the "manner and form" of amendment laid down in Article 368 is virtually abrogated, inasmuch as while the Fundamental Rights still remain ostensibly on the statute Book and Article 368 remains unamended, the Fundamental Rights can be effectively silenced by a law passed by a simple majority in the legislature; (IP) ten Fundamental Rights which are vital for the survival of democracy, the rule of law, and the integrity and unity of the Republic, are in effect abrogated. Seven of these ten Fundamental Rights are unconnected with property; (b) Judicial Review and enforceability of fundamental Rights another essential feature of the Constitution is destroyed, in that the court is prohibited from going into the question whether the impugned law does or does not give effect to the Directive Principles; (vi) the State Legislatures which cannot otherwise amend Article 368 are permitted to supersede a whole series of Fundamental Rights with the result that Fundamental Rights may prevail in some States and not in others, depending upon the complexion of the State government; and (en) the protection to the minorities and their religious, cultural, linguistic and educational rights can be seriously affected on the ground that the law was intended to give effect to the Directive Principles.

( 1173 ). On behalf of the respondent-State of Kerala-the Advocate- general of Maharashtra submitted "that Article 31-C was introduced because of the reversal of Gujarat v. Shantilal (supra) in the Bank Nationalisation case (supra) which reverted, in substance, to the concept of full compensation", and in order to "exclude judicial review where the law provided for securing the principles provided in clause (b) or (c) of Article 39". There is, according to him, no delegation of power under Article 31-G on the State Legislatures to alter or amend the Constitution, but it merely removes the restrictions on the legislative power of the State Legislatures and Parliament imposed by the fundamental rights contained in Articles 14, 19 and 31 of the Constitution, which rights have been conferred by Part III and the contravention of which would have rendered any law void. In his submission what it amounts to is only removal of the restriction which can only be effected by making article 13 inapplicable. Answering the question whether a law containing a declaration as envisaged in Article 31-C, the major portion of which has no connection with clause (b) or clause (c) of Article 39 would protect the law, it was submitted "that on the principle laid down by the Supreme court in Akadasi Padhan v. State of Orissa the answer must be in the negative", and that the proper construction to be put on the declaration referred to in Article 31-C is that the impugned law must satisfy the condition precedent that it is designed to secure the principles specified in clause (b) or clause (c) of Article 39, if it does not give effect to the principles, Akadasi's case (supra) would justify the court in reading the provision relating to declaration as not covering a case) where only a few S. are in furtherance of article 39 (b) and (c) while others are unrelated to it. Another way of arriving at the same conclusion, according to him, is that Article 31-G postulates that there must be some nexus, however remote, between law and the directives of State policy embodied in Article 39 (b) and (c)", and that "if no reasonable person could come to the conclusion that the impugned provisions of an Act protected by Article 31-C and the declaration made under it bad any connection with Article 39 (b) and (c), the court could hold that the act showed that the Legislature had proceeded on a mistaken view of its power, and that, therefore, the court was not bound to give effect to the erroneous assumptions of the Legislature". The observations of Das Gupta in the Provincial Transport Service v. State Industrial court, were cited. Answering the contention that since the principles in Article 39 (6) and (c) are widely expressed and as such there would always be some connection between them and practically any kind of law, the Advocate-General of Maharashtra said that the principles in Article 39 (6) and (c) were designedly widely expressed but "that is not an objection to a law implementing those directives" because "public interest is a very wide concept and several rights are made subject to public interest", and that should not be the objection for upholding the validity of law. This answer appears to be vague and uncertain, for what is conceded in the earlier part if withdrawn in the latter.

( 1174 ). The submission of the learned Solicitor-General is firstly, that article 31-C protects only law and not mere executive action ;secondly, the law referred to therein must be made either by Parliament or State Legislature and does not include within itself ordinance, order, rule, regulation, notification, custom or usage in accordance with the procedure prescribed in Article 368; thirdly, the intention of the founding fathers who bad enacted clauses (4) and (6) of Article 31 to give effect to the Directive Principles of state policy set out in Article 39 (6) and (c), as the experience shows, could not be given effect to because of the constitutional hurdles which necessitated the Constitution (First Amendment) Act by which Articles 31-A and 31-B was added under which the operation of Part III as a whole was excluded. According to him, the significance of this total exclusion of Part III is that it brings out in an unmistakable manner the true relationship between the provisions of Part IV and Part III of the Constitution, namely, that the liberty of the individual valuable as that is, will not operate as unsurmountable barrier in the path of legislative efforts towards the achievement of the goal of a society envisaged in Part IV and whenever and to whatever extent such a problem arose the amending process would be able to resolve it. He cited the observations of Das,. , in The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh and Others, that, "a fresh outlook which places the general interest of the community' 'above the interest of the individual pervades our Constitution'', and of Hidayatullah,. , in his dissenting judgment in Sajjan Singh's can (supra) that, "the rights of society are made paramount and they are placed above those of the individual". These two observations, if I may say so, are torn out of context, particularly those of Hidayatullah,. , where after stressing fact that Article 19 by clauses (2) to (6) allows the curtailment of rights in the public interest, which goes to show that Part III is not static and visualises change and progress, but at the same time it preserves the individual rights, he said after citing the observation above referred, that, "this is as it should be". It is further the case of the Union of India that the only laws which will receive t he protection of Article 31-G must disclose a nexus between the law and the objectives set out in Article 39 (b) and (c) which is a condition precedent for the applicability of Article 31-C and as such the question is justiciable and the only purpose of the declaration is to remove from the scope of judicial review questions of a political nature. As an example the learned Solicitor- general instanced a law dealing with divorce which could not be protected by a declaration nor can a law not attracting Article 31-C be protected by a declaration by merely mixing it with other laws really falling within article 31-C with those under that Article. In such a case, therefore, the court will always be competent to examine "the true nature and character of the legislation in the particular instance under discussion-its design and the primary matter dealt with-its object and scope. (1882) 7 AC at pp. 838-840". It was further averred that if a legislation enacted ostensibly under one of the powers conferred by the Constitution, is in truth and fact, really to accomplish an unauthorised purpose, the court would be entitled to tear the veil and decide according to the real nature of the statute, as in attorney-General v. Queen Insurance Company, and that except Articles 14, 19 and 31 the rest of the relevant provisions of the Constitution will apply and the court is entitled to go into and consider the challenge of infringement of other rights, and that there, are only three safeguards against the evil of discrimination, namely: (a) the innate good sense of the community and of the legislature and the administrator; (6) the proviso to Article 31-C requiring the President's assent; (c) the power of judicial review of the courts to the extent not excluded, and of these, "the first safeguard is the only real safeguard ultimately and there is no real substitute for the character of the citizens". What is still open to the court to examine is whether there is any violation of the provisions of Articles 15, 16, 286 and Part XIII (Articles 301, 303 and 304). The exclusion of article 14, without excluding Articles 15, 16 etc. , is only to enable the legislatures and the Parliament to evolve new principles of equality in the light of the objectives set out in the Directive Principles without discrimination. The exclusion of Article 19 is on the footing that laws which are to give effect to the directives set out in Part IV must constitute reasonable restrictions on the individual's liberty and the exclusion of Article 31 (2) is to introduce the considerations of social justice in the matter of acquisition.

( 1175 ). Insofar as the question whether Article 31-C amounts to delegation of amending power to State Legislatures or to Parliament in its ordinary legislative capacity is concerned, the Solicitor-General submits that a class of legislation or a legislative field may be identified or categorised in several ways for instance, with reference to the period within which the law is passed [article 31 (4) and Article 31 (6)] or the topic of the legislation [article 21 (2) (sic) and Article 31 -A] ; or the objective or purpose of the legislation [article 15 (4) j for the advancement of the backward class of citizens; Article 31 (5) (ii)for promotion of health and Article 33 for proper discipline in the forces etc. Article 31-C likewise carves out a legislative field with reference to the object of the legislation and in this respect it is similar to Articles 15 (4), 31 (b) (ii) and 33. Each of these articles creates a legislative field to achieve a social objective and for this purpose modifies the operation of some fundamental rights contained in Part. Even assuming that article 31-C involves an element of delegation of the amending power, be contends there is no violation of Article 368 and the absence of non-obstante clause or the label cannot make any difference and since Article 368 empowers its own amendment, it follows that the Article 31-C, if there is a partial substitution of an amending machinery and procedure, will operate as a partial modification of Article 368.

( 1176 ). It is contended that Article 31-C is similar to the legislative device adopted in Articles 31-A and 31-B, which was added by the Constitution (First Amendment) Act, 1950, the first of which declared that "not with- standing anything in the foregoing provisions of this Part (. e. Part III), no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or a bridges any of the rights conferred by, any provisions of this Part", namely. Part. Article 31-B is also in similar terms and gives complete protection to the Acts specified in the Ninth Schedule from any of the provisions of Part.


( 1177 ). In so far as Article 31-A was concerned, ii authorised a law for the acquisition of an estate as defined in clause (2 ). Article 31-B 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 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 far payment of full compensation and those who wanted the right in Article 31 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 bad 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 was applicable and even when the appeals were pending in this court, the Constitution (First Amendment) Act, 1950, was passed and Article 31-A and Article 31-B 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:” I would beg to them not to press this matter. It is not with any great satisfaction or pleasure that we have produced this long schedule. "These debates animated as they were, make interesting reading and one gets the impression that what was being done was what the original framers had intended to do but could not give effect to the object because of lacunae in the language of the Article. The Prime Minister said: “if there is one thing to which we as a party have been committed in the past generation or so it is the agrarian reforms and the abolition of the Zamindari system. ""Shri Hussain Imam (Bihar) : 'with compensation'. " ' 'Shri Jawaharlal Nehru: 'with adequate and proper compensation not too much'. " "Shri Hussain Imam: 'adequate is quite enough'. "Shri Shyama Prasad Mukherjee, representing the opposite view, pointed out the dangers inherent in the amendment, not because be was against the agrarian reforms but because of the precedent this would create. He said: "by this amendment to the Constitution you are saying that whatever legislation is passed it is deemed to be the law. Then why have your fundamental rights? who asked you to have these fundamental rights at all? You might have said: Parliament is supreme and Parliament may from time to time pass any law in any mailer it liked and that will be the law binding on the people". In referring to a few excerpts, I merely want to show what was the object of the amendment and what were the fears entertained in respect thereof.

( 1178 ). The First Amendment was challenged in Sankari Prasad's case (supra), but this court held it valid. The question, as we have seen earlier, was whether Article 13 (2) imposed a bar on Article 368 from amending fundamental rights? It was held that it did not, but no contention was urged or agitated before it that even apart from Article 13 (2), the amending power did not extend to the abrogation of fundamental rights. In Sajjan Singh's case (supra) principal point which was urged was that the impugned Constitution (Seventeenth Amendment) Act was invalid for the reason that before presenting it to the President for his assent the procedure prescribed by the proviso to Article 368 bad not been followed) though the Act was one which fell within the scope of the proviso. It was, however, not disputed before the court that Article 368 empowered parliament to amend any provision of the Constitution including the provisions in respect of fundamental rights enshrined in Part. Hidayatullah and Mudholkar did, however, express doubts as to whether it is competent for Parliament to make any amendment at all to Part III of the Constitution. Mudholkar,. . further raised the question whether the Parliament could go to the extent it went when it enacted the First Amendment Act and the Ninth Schedule and has now added 44 agrarian law to it? Or was Parliament incompetent to go beyond en- acting Article 31-A in 1950 and now beyond amending the definition of estate?. Even in Golaknath cast (supra) the question raised before us was not conclusively decided. In this state of law to say that since Article 31-C is similar to Article 31-A and Article 31-B and since the latter were held to be valid in Sankari Prasad case (supra), fundamental rights could be abrogated by an amendment, would not be justified. It may be observed that both in Sajjan Singh case (supra) and Golaknath case (supra) one of the grounds which was taken into consideration was that if the amendment was held invalid, millions of people will be affected and since in the latter case 'the majority had held that Parliament could not by amendment under article 368 effect fundamental rights, the doctrine of prospective overruling or acquiescence was resorted to. But since the crucial question of the extent of the power of amendment has been mooted in this case before the largest bench constituted so far and has been fully argued, this aspect can be reconsidered. In this regard, Gajendragadkar, C.. , while considering the question of start decisis, observed in Sajjan Singh cast (supra) :"it is true that the Constitution does not place any restriction on our power to review our earlier decisions or even to depart from them and there can be no doubt that in matters relating to the decision of constitutional points which have a significant impact on the fundamental rights of citizens, we would be prepared to review our earlier decisions in the interest of public good. The doctrine of start decisis may not strictly apply in this context and one can dispute the position that the said doctrine should not be permitted to perpetuate erroneous decisions pronounced by this court to the detriment of general welfare. Even so, the normal principle that judgments pronounced by this court would be final, cannot be ignored and unless considerations of substantial and compelling character make it necessary to do so, we should be slow to doubt the correctness of previous decisions or to depart from them. "

( 1179 ). I have already pointed out that two of the learned Judges did doubt the power of Parliament to amend fundamental rights and since then this question has not remained unchallenged either on the ground of Article 13 (2) preventing such amendments or on other grounds urged before us. In these circumstances, it is not correct to say that just because the validity of Articles 31-A and 31-C was sustained by this court, though in Golaknath cast (supra) it may have been on the grounds of expediency. Article 31-C must also on that account be sustained. However, an analogy of other Articles like Article 33, Article 15 (4) and Article 16 (4) is sought to be put forward in support of the contention that a similar device has been adopted in Article 31-C. I find that in none of the articles to which the learned Solicitor-General has drawn our attention) is there a total abrogation of any of the rights as sought to be affected by Article 31-G. Article 33 for example, restricts or abrogates fundamental rights in Part III only in respect of the discipline of Armed Forces or forces charged with the maintenance of public order and nothing more. It does not extend to discrimination in recruitment to the service nor to any other rights possessed by the citizens in the Armed Forces which are unrelated with the proper discharge of their duties and the maintenance of discipline among these forces. Article 15 (4) which was referred to as an example of empowerment based on objective or purpose of legislation, has no analogy with article 31-C. In the first place. Article 15 is an exception to the classification which would have been permissible under Article 14, for instance on the basis of religion, race, caste, sex and place of birth and hence Article 15 prohibits such a classification in the case of citizens, and Article 16 makes a like provision in the case of public employment with the addition of "descent". The restriction is only to a limited extent from out of an area which permits the making of wide variety of classification. Clause (4) of Article 15 was added by the Constitution (First Amendment) Act, 1950, to enable a state to make provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and the scheduled tribes. Clause (4) of Article 16 likewise enables the State to make pro- vision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. The effect of these amendments is to permit the making of classification for favourable treatment on the ground that the persons so favoured were Scheduled Castes, Scheduled Tribes, etc. , which would otherwise have been permissible under Article 14 to the extent of its reasonable relationship with the objects of the law, had the same not been prohibited by Article 15 (1) and Article 16 (2 ). These, provisions do not in any way abrogate the right in Article 14 and I do not think the analogy between these provisions and Article 31-C is apt.

( 1180 ). The Directives under Article 39 (i) and (c) are wide and indeterminate. They affect the whole gamut of human activity vis-a-vis the society. The State is enjoined to ensure that ownership and control of the material resources of the community are so distributed as best to subserve the common good and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. These objectives are ends which may be implemented by a party in power through legislative action by resort to any one of the diverse philosophies, political ideologies and economic theories. The implementation of these objectives is the means. These theories and ideologies both political, economic and sociological may vary and change from generation to generation and from time to time to suit the social conditions, existing during any particular period of history. We have in the world to-day countries adopting different political systems, according to the historical development of economic thought, the philosophy and ideology which is considered best to subserve the common good of that particular society. There is no standardisation, and what is good for one country may not be suitable to another. The accelerating technological advance and the exploitation of these developments and discoveries indicate the economic thought prevalent in that society. The various theories are, therefore, related to the development and the practical means which are adopted for achieving the ends. In a developing country such as ours, where millions are far below the standard of sustenance and have not the means of having the normal necessities of life, there is further a deeper philosophical question of the kind of society and the quality of life which has to be achieved. It is, therefore, the duty of the State to devise ways and means of achieving the ends. A government which comes to power with a particular political philosophy and economic theory as having been endorsed by the electorate, has to give effect to that policy in the manner which it considers best to subserve the end. Any legislation to give effect to the principles and policy to achieve these ends is the legislative judgment which is not within the province of courts to examine as to whether they in fact subserve these ends as "otherwise there would be a conflict between the judges and Parliament as to whether something was good for the country or not, and the whole machinery of justice was not appropriate for that consideration' '[see Liyanage's case (supra) at p. 267]'. The government and parliament or the government and Legislature of a State have within the sphere allotted to each other, the undoubted right to embark on Legislative action which they think will ensure the common good, namely, the happiness of the greatest number' and so they have the right to make mistakes and retrace any steps taken earlier to correct such mistakes when that realisation dawns on them in giving effect to the above objectives. But if the power to commit any mistake through democratic process is taken away as by enabling an authoritarian system, then it will be the negation of Parliamentary democracy. The State, therefore, has the full freedom to experiment in implementing its policy for achieving a desired object. Though the courts, as I said, have no function in the evaluation of these policies or in determining whether they are good or bad for the community, they have, however, in examining legislative action taken by the State in furthering the ends, to ensure that the means adopted do not conflict with the provisions of the constitution within which the State action has to be confined. It is, there- fore, necessary to keep in view the wide field of governmental activity enjoined in Article 39 (b) and (c) in determining the reach of the means to achieve the ends and the impact of these means on the Fundamental Rights which Article 31-G affects.

( 1181 ). The impugned Article 31-C enables Parliament and the State legislatures to make laws unfettered by Articles 14, 19 and 31 in respect of the wide and undefined field of objectives indicated in Article 39 (b) and (c ). All these objectives before the amendment had to be achieved by the exercise of the Legislative power enumerated in VII Schedule which would ordinarily be exercised within the limitations imposed by the Constitution and the fundamental rights. The amendment removes these limitations, though the law made must still be within the legislative powers conferred under the VII schedule, and enables Parliament and the State Legislatures, subject to one- tenth quorum of its members present and by a simple majority, to enact laws which contravene the fundamental rights conferred under Articles 14, 19 and 31 and which Parliament by complying with the form and manner provided under Article-368, could alone have effected. Whether one calls this removing restrictions on the legislative organs or of conferring complete sovereignty on them within the wide field inherent in Article 39 (b) and (c) is in effect one and the same. It is contended that in conferring this power by Article 31-C on Parliament and the State Legislatures, acting under Articles 245 to '248, parliament has abdicated its function under Article 368 and has permitted amendments being made without complying with the form and manner pro- vided thereunder.

( 1182 ). It is not necessary in the view I am taking to consider the question whether Article 31-C delegates the power of amendment to the State legislatures and Parliament or that it does not indicate the subject-matter of legislation as in Article 31-A but merely purports to enable the legislative organs to choose the subject-matter from a field which, as I said, is as wide and indeterminate as the term "operation of the economic system' 'would denote. I would prefer to consider Article 31-G as lifting the bar of the articles specified therein, and in so far as the subject matter of the legislation is concerned, though the field is wide, any of the modes to give effect to the directives can only be a mode permissible within the legislative power conferred on the respective legislative organ under the Schedule VII to the constitution.

( 1183 ). If Parliament by an amendment of the Constitution under Article 368, cannot abrogate) damage or destroy the basic structure of the Constitution or any of the essential elements comprising that basic structure, or run counter to defeat the objectives of the constitution declared in the preamble and if each and every fundamental light is in essential feature of the Constitution, the 'question that may have to t)e considered is whether the amendment by the addition of Article 31-G as a fundamental right in part III of the Constitution has abrogated, damaged or destroyed any of the fundamental rights.

( 1184 ). Article 31-G has 4 elements: (i)it permits the Legislature to make a law giving effect to Article 39 (b) and Article 39 (c) inconsistent with any of the rights conferred by Articles 14, 19 and 3! ; (ii) it permits the Legislature to make a law giving effect to Article 39 (b) and Article 39 (c) taking away any of the rights conferred by Articles 14, 19 and 31 ; (iii) it permits the legislature to make a law giving effect to Article 39 (A) and (c) abridging any of the rights conferred by Articles 14, 19, 31 ; and (iv) it prohibits calling in question in any court such a law if it contains a declaration that it is for giving effect to the policy of State towards securing the principles specified in clauses (b) and (c) of Article 39 on the ground that it does not give effect to such a policy of the State.


( 1185 ). The first element seems to have been added by way of abundant caution, for it takes in the other two elements, namely, taking away and abridging of the rights conferred by Articles 14, 19 or 31. However, it would be ultra vires the amending power conferred by Article 368, if it comprehends within it the damaging or destruction of these fundamental rights. The second element, namely, taking away of these fundamental rights would be ultra virus that amending power, for taking away of these fundamental rights is synonymous with destroying them. As far the third element, namely, abridging of these rights, the validity will have to be examined and considered separately in respect of each of these fundamental rights, for an abridgment of the fundamental rights is not the same thing as the damaging of those rights. An abridgment ceases to be an abridgment when it tends to effect the basic or essential content of the right and reduces it to a mere right only in name. In such, a case it would amount to the damaging and emasculating the right itself and would be ultra vires the power under article 368. But a right may be hedged in to a certain extent but not so as to affect the basic or essential content of it or emasculate it. In so far as article 31-G authorises or permits abridgment of the rights conferred by article 19, it would be infra vires the amending power under Article 368 as thereby the damaging or emasculating of these rights is not authorised. It will, therefore, he necessary to examine what exactly Article 14 and Article 19 guarantee.

( 1186 ). The guarantee of equality contained in Article 14 has incorporated the principle of "liberty" and equality" embodied in the Preamble to the Constitution. The prohibition is not only against the Legislature but also against the executive and the local authorities. Two concepts are inherent in this guarantee-one of 'equality before law' a negative one similar to that under the English Common Law; and the other 'equal protection of laws', a positive one under the United States Constitution. The negative aspect is in the prohibition against discrimination and the positive content is the equal protection under the law to all who are situated similarly and are in like circumstances,

( 1187 ). The impact of the negative content on the positive aspect has not so far been clearly discerned in. the decisions of this court which has been mostly concerned with the positive aspect. Again, Subba Rao,. , In his dissenting judgment in Lachhmandas on behalf of Firm Tilak Ram Ram Bun v. State of Punjab while holding that the Patiala Recovery of State Dues Act did not offend Article ,14-of the Constitution, said at p. 395: "it shall also be remembered that a citizen is entitled to a fundamental right of equality before the law and that the doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to the said doctrine. Over emphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the article of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality : the fundamental right to equality 'before the law and equal protection of the laws may be replaced by the doctrine of classification. "in Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar and Others, Das, C.. , summed up the principle enunciated in several cases referred to by him and consistently adopted and applied in subsequent cases, thus: “it is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be found on different bases, namely geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure. "


( 1188 ). In subsequent cases a further principle has been recognised by which Article 14 was also not to be violated by the two laws dealing with the same subject-matter, if the sources of the two laws are different. I am not for the present concerned whether this latter principle is likely to mislead but would refer only to the various aspects of the classification recognised in this court so far. It may, however, be pointed out that though the categories of classification are never closed, and it may be that the objectives of Article 39 (b) and (c) may form a basis of classification depending on the nature of the law, the purpose for which it was enacted and the impact which it has on the rights of the citizens, the right to equality before the law and equal protection of laws in article 14 cannot be disemboweled by classification.

( 1189 ). The lifting 5f the embargo of Article 14 on any law made by parliament or the Legislature of a State under Article 31-G, by providing that no law made by these 'legislative organs to give effect to the policy of the state towards securing the principles specified in clauses (b) and (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges the right conferred therein, would, in my view, abrogate that right altogether. I have held that Parliament cannot under article 368 abrogate, damage or destroy, any of the fundamental rights though it can abridge to an extent where it does not amount to abrogation, damage or destruction. The question is, whether the words "inconsistent with or takes away, or' 'if severed, will achieve the purpose of the amendment? In what way can the abridgment of Article 14 be effected without robbing the content of that right? Can a law permitted under Article 31-C affect persons similarly situated unequally or would equal protection of laws not be available to persons similarly situated or placed in like circumstances? while Article 39 (A) and (c) can provide for a classification) that classification must have a rational relation to the objectives sought to be achieved by the statute in question.

( 1190 ). In so far as the abridgment of the right conferred by Article 14 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 31-A because the courts had held invalid under Article 14, 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 from being applied to laws under Article 31-G is not apparent or easy to comprehend. No law under Article 31-C could possibly be challenged under Article 14 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 (A) and (c ). Any rational principles of classification devised for giving effect to the policies adumbrated in Article 39 (b) and (c) will not be difficult to pass the test of equal protection of the laws under Article 14. The exclusion of Article 14 in Article 31-A was confined to the aspect of acquisition and compensation in respect of land reforms laws, but, however, the laws under Article 31-A were not immune from attack under Article 14, if the measures of agrarian reforms were tainted with arbitrariness. Though this question has not been finally decided by this court in any of the cases under Article 31-A, it was raised in Balmadies plantations Ltd. and Others v. State of Tamil Nadu where the appellants contended that it would not be open to the government under S. 17 of the Gudalurjanmam 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, 19 and 31 of the Constitution This court, however, did not find it necessary to deal with this aspect of the matter, because it was admitted that no notice about the termination of the lessee's rights had been issued under S. 17 of the Act to any of the appellants, and that question can only arise after the Act came into force. It was further observed by one of us, Khanna,. , speaking for the court :"even after the Act comes into force, the government would have to apply its mind to the question as to whether in its opinion it is in public interest to terminate the rights of the plantation lessees. Till such time as such a notice is given, the matter is purely of an academic nature. In case the government decides not to terminate the lease of the plantation lessee's, any discussion in the matter would be an exercise in futility. If on the "contrary, action is taken by the government under section 17 in respect of any lease of land for purposes of the cultivation of plantation crop, the aggrieved party can approach the court for appropriate relief. "It may be mentioned that in that case S. 3 of the Act, in so far as it related to the transfer of forests in Janmarn estates to the government was concerned, was held to be violative of the Constitution. It cannot, therefore, be said that this aspect of the matter is not res Integra. On the other hand, it lends support to the view that the law can be challenged.

( 1191 ). The decisions of this court in Nagpur Amendment Trust v. Vithal Rao and the other two cases following it also do not affect my view that article 14 is inapplicable to matters dealing with compensation under laws enacted to give effect to policies of Article 39 (b) and (c ). In the above case it was the State which was given the power to acquire property for the same public purpose under two different statutes, one of them providing for lesser compensation and the other providing for full compensation. My Lord the chief Justice, delivering the judgment of the Constitution bench of seven judges, while holding that these provisions contravened Article 14, observed at p. 506: "it would not be disputed, that different principles of compensation cannot be formulated for lands acquired on the basis that the owner is old or young, 'healthy or ill, tall or short, or whether the owner has inherited the property or built it with his own efforts, or whether the owner is a politician or an advocate. Why is this sort of classification not sustainable? Because the object being to compulsorily acquire for a public purpose, the object is equally achieved whether the land belongs to one type of owner or another type. "There was no question in the above case of either distribution of ownership and control of material resources or the breaking up of concentration of wealth or the means of production which is an object different from that envisaged in Article 31 (2 ). If in two given cases similarly circumstanced the property of one is taken under Article 31-G and that of the other under article 31 (2), then it will amount to discrimination and the Nagpur improvement trust cast (supra), will apply. In a case of this nature, the objection is not so much to Article 14 being applied, but of adopting methods which run counter to Article 39 (b) and (c), because the person who though similarly situated as that of the other is certainly favoured for reasons unconnected with Article 39 (b) and (c). It cannot, therefore, be said that article 14 has been misapplied or was hindrance to the furtherance of the directive principles in Article 39 (A) and (c), which is professed to be the object of implementation in such a case. If no such abuse is to be presumed, then there is no warrant for the apprehension that Article 14 will hinder the achievement of the said Directives.

( 1192 ). The sweep of Article 31-C is far wider than Article 31-A, and article 14 is excluded in respect of matters where the protection was most needed for the effectuation of a genuine and bonafide desire of the State contained in the directives of Article 39 (b) and (e ). For instance, persons equally situated may be unequally treated by depriving some in that class while leaving others to retain their property or in respect of the properly alloyed to be retained or in distributing the material resources thereby acquired unequally, showing favour to some and discriminating against others. To amplify this aspect more fully, it may be stated that in order to further the directives, persons may be grouped in relation to the properly they own or hold, or the economic power they possess or in payment of compensation at different rates to different classes of persons depending on the extent or the value of the property they own or possess, or in respect of classes of persons to whom the material resources of the country are distributed. The object of clauses (b ). and (c) of Article 39 is the breaking up of concentration of wealth or the distribution of material resources. If full compensation is paid fur the property taken in furtherance of the objectives under Article 39 (6) and (c), the very objective sought to be implemented would fail, as there would in fact be no breaking up of concentration of wealth or distribution of material resources. It is, therefore, clear that the very nature of the objectives in such that Article 14 is inapplicable, firstly, because in respect of compensation there cannot be a question of equality, and secondly, the exclusion thereof is not necessary because any law that makes a reasonable classification to further the objectives of Article 39 (b) and (c) would undoubtedly fulfill the requirements of Article 14. The availability of article 14 will not really assist an expropriated owner or holder because the objectives of Article 39 (A) and (c) would be frustrated if he is paid full compensation. On the other hand, he has no manner of interest in respect of equality in the distribution of the property taken from him, because he would have no further rights in the property taken from him. The only purpose which the exclusion of Article 14 will serve would be to facilitate arbitrariness, inequality in distribution or to enable the conferment or patronage, etc. This right under Article 14 will only be available to the person or class of persons who would be entitled to receive the benefits of distribution under the law In fact the availability of Article 14 in respect of laws under article 31-C would ensure 'distributive justice' or 'economic justice', which without it would be thwarted. In this view of Article 31-C vis-a-vis article 14 any analogy between Article 31-C and Article 31-A which is sought to be drawn is misconceived, because under the latter provision the exclusion of article 14 was necessary to protect the subject matter of legislation permissible thereunder in respect of compensation payable to the expropriated owner. There is another reason why there can be no comparison between Article 31-A and Article 31-C, because in Article 31-A the exclusion of Article 14 was confined only to the acquisition, etc. of the property and not to the distribution aspect which is not the subject-matter of that Article whereas, as pointed out already, the exclusion of Article 14 affects distribution which is the subject-matter of Article 39 (A) and {c ).

( 1193 ). It is not necessary to examine in detail the mischief that the abridgment or taking away of Article 14 will cause. It is not an answer to say that this may not be done and abuse should not be presumed. This may be true, but what I am concerned with is the extent of the power the legislative organs will come to possess. Once the power to do all that which has been referred above is recognised, no abuse can be presumed. But if the power does not extend to destruction, damage or abrogation of the right, the question of abuse, if any, has no relevance. It cannot be presumed that parliament by exercising its amending power under Article 368, intended to confer a right on Parliament and the Legislatures of the States to discriminate persons similarly situated or deprive them of equal protection of laws. The objectives sought to be achieved under Article 39 (b) and (c) can be achieved even if this Article is severed.


( 1194 ). In respect of-the exclusion of Article 19 by Article 31-C a question was asked by one of us during the course of arguments addressed by the learned advocate-General for Maharashtra on 12/01/1973, the thirty-fifth day, as to, what is the social content of the restriction on freedom of speech and freedom of movement which are not already contained in the restrictions to which those rights are subject? The learned Advocate-General said he would consider and make his submissions. On 1/03/1973, he made his submissions on the understanding that the question was asked in the context of article 31-G which excludes the operation of whole of Article 19 and not only article 19 (1 ) (f) and Article 19 (1) (g ). The learned Advocate-General characterised the question as raising a matter of great importance. In my view, what was implied in the question was the core of the issue before us, as to whether there can be any justification for imposing more restrictions on such valuable rights as freedom of movement and freedom of speech than what the framers of the Constitution had already provided for in Article 19 (2) to (6). After referring to the history and objects and reasons for enacting Constitution, First, Fourth and Seventeenth Amendments, and after referring to the decisions of this court all of which relate to acquisition of property and have nothing to do either with freedom of speech or freedom of movement, he considered and answered the question posed under the following heads as under:" (i) Generally, with reference to reasonable restrictions to which the fundamental right conferred by Article 19 (1) (a) to (g) are subject under article 19 (2) to (6); (ii) the reasonable restrictions to which the right to freedom of speech and the right to move throughout the territory of India should be made subject under Article 19 (2) and (5) respectively. "

( 1195 ). Under the first head he submitted the proposition that the social content of the restrictions to which the fundamental rights under Article 19 (1) (a) to (g) are subject is narrower than all relevant social 'considerations to which the fundamental rights could be made subject. The reasons given were again the historical ones particularly the fact that the Constituent assembly had rejected the suggestion made by Shri B N. Rau that in case of conflict between fundamental rights and the directives, the directives should prevail, otherwise necessary social legislation might be hampered. This meant that the special content of the Directive Principles was wider than the social content of permissible restrictions on fundamental rights. For, if this were not so, no question of giving primacy to Directive Principles in the case of conflict with fundamental rights could arise as the social content of fundamental rights and the Directive Principles would be the same. Since the constitution gave primacy to fundamental rights over the Directives, making fundamental rights enforceable in a court of law and the directives not so enforceable, the social content of the restrictions on fundamental rights was placed in the framework of the enforcement f rights by citizens or any person. This enforcement of individual fundamental rights naturally disregarded the injury to the public good caused by dilatory litigation which can hold up large schemes of necessary social legislation affecting a large number of people. To prevent this social evil, the First and the Fourth Amendments to the constitution were enacted.

( 1196 ). The social content of restrictions which can be imposed under article 19 (2) to (6) naturally does not take in the injury to the public good by dilatory litigation holding up large schemes of social legislation. The fundamental lights conferred by Article 19 (1) (a) to (g) are not mutually exclusive but they overlap For example, the right to move peaceably and without arms conferred by article 19 (1) (b)may be combined with the right to freedom of speech and expression, if those who assemble peaceably carry placards or deliver speeches through microphones. Again, the right to carry,. on business under Article 19 (1) (g)would overlap the right to hold, acquire and dispose of property, for ordinarily, business cannot be carried on without the use of property. This consideration must be borne in mind in considering the question why Article 31-G excluded the challenge to the law protected by Article 31-C under the whole of Article 19, instead of excluding a challenge only under Article 19 (1) (f) which relates to property; and article 19 (1) (g) which relates to business, which would ordinarily require the use of property.

( 1197 ). Under the second head, he submitted that it is well settled that the right to freedom of speech includes the freedom of the "press, and there- after referred to 'press in a Democracy'-Chapter X of Modern Democracies by Lord Bryce, and long extracts were given from the above chapter, dealing with the change which had come over the Press and the dictatorship of a syndicated Press. The First Amendment of the U. S. Constitution was also referred. He thereafter submitted that our Constitution guarantees a freedom of speech and expression and by judicial construction that freedom has been held to include freedom of the Press. But according to him the freedom of speech as an individual right must be distinguished from the freedom of the press and since ordinarily people asserting their individual right to the freedom of speech are not carrying on any trade or business and a law of acquisition has no application to individual exercise of the right to the freedom of speech and expression. Article 31-C can equally have no application to such individual right to the freedom of speech and expression. But different considerations apply when the freedom of speech and expression includes the Press, the running of which is clearly a business

( 1198 ). Article 19 (1) (a) is so closely connected with Article 19 (1) (g) and (f) that if the last two sub-articles are excluded by a law relating to the acquisition of property, it is necessary to exclude Article 19 (1) (a) to prevent an argument that the rights are so inextricably mixed up that to impair the right to carry on the business of running a Press or owning properly necessary for running the Press is to impair the right to freedom of speech. Again, the right to freedom of movement throughout the territory of India has been clubbed together by Article 19 (5) with the right to reside and settle in any part of the territory of India, conferred by Article 19 ( 1 ) (c) and the right to acquire, hold and dispose of property conferred by Article 19 ( 1) (f) for the purpose of imposing reasonable restrictions in the interest of general public or for the protection of the interest of any Scheduled Tribe.

( 1199 ) AFTER referring to the observations of Patanjali Astri and Mukherjea,. ,in Gopalan's case (supra), the learned Advocate-General submitted that those observations show that if, a law of land acquisition was to be protected from challenge under Article 19 (1) (f), it was necessary to protect it from challenge under Article 19 (1) (d) and (e) to foreclose any argument that the rights under Article 19 (1 ) (d) , (e) and (f) are so closely connected that to take away the right under Article 19 (1) (/) is to drain the rights under Article 19 (1) (d) and (e) of their practical content. For these reasons. Parliament in enacting the First, Fourth and Seventeenth Amendments rightly excluded the challenge under the whole of Article 19 to the laws protected by those amendments and not merely a challenge under Article 19 (1) (/) and (g ). In the result, it was submitted that Article 31-G only contemplates the process of giving primacy to the Directive Principles of state Policy over fundamental rights, first recognised in Article 31 (4) and (6) and then extended by Article 31-A and 31-B and Schedule IX as first enacted and as subsequently amplified by the Fourth and the Seventeenth amendments all of which have been held to be valid. Directive Principles are also fundamental and the amending power is designed to enable future parliament and State Legislatures to provide for the changes in priorities which take place after the Constitution was framed and the amending power is extended to enacting Article 31-C.

( 1200 ). I have set out in detail what according to the learned Advocate- general is the basis and the raison d'etre fur excluding Article 19 by Article 31-C. This able analysis surfaces the hidden implications of article 31-C in excluding Article 19. On those submissions the entire fundamental rights guaranteed to the citizens are in effect abrogated. Article 14 is taken away; Article 19 (1) (a) to (g) is excluded on the ground that each of them have their impact on one or the other of the rights in part III and since these rights are not mutually exclusive and any property and trade or business affected by legislation under Article 31-G which necessarily must deal with property, if the directives in Article 39 (6) and (c) are to be given effect, will in turn, according to the learned Advocate- general, come into conflict not only with Article 19 (1) (f) and (g), but with the other sub-clauses (a) to (e) of clause (1) of that Article.