CONTINUATION OF CDJ 1973 SC 417

( 1201 ). As far as I can see, no law, so far enacted under Article 31-A and challenged before this court 'has attempted to affect any of the rights in article 19 (1) (a) to (e), except Article 19 (1) (/) and (g) and, therefore, this question did not fall for consideration of this court. But that apart, I cannot understand by what logic the freedom to assemble peaceably and without arms, or for a citizen to move freely throughout India or to reside and settle in any part of the territory of India, has anything to do with the right to acquire and dispose of property or to practice any profession or to carry on any occupation, trade or business Are persons Whose trade and business is taken away, or are deprived of their property not entitled to the guaranteed rights to move freely throughout India or settle in any part of india or to practise any profession or occupation? What else can they do after they are deprived of their property but to find ways and means of seek- ing other employment or occupation and in that endeavour to move through- out India or settle in any part of India? If they are prohibited from exercising these basic rights, they will be reduced to mere serfs for having owned property which the State in furtherance of its policy expropriates. If the law made under the directives has nothing to do with property, how docs the duty to prevent the operation of the economic system from resulting in concentration of wealth and means of production, has any relevance or nexus with the movement of the citizens throughout India or to settle in any part of India? Are those to whom property is distributed in furiherance of the directive principles, ought not to be secured against infringement of those rights in property so distributed by laws made under Article 31-C? it would seem that those for whose benefit legislation deprives others in whom wealth is concentrated themselves may not be protected by Article 19 andarticle 14, if Article 31-G can take away or destroy those rights. Without such a protection they will not have a stake in the survival of democracy, nor can they be assured that economic justice would bemeted out to them. Nor am I able to understand why where an industry or undertaking is taken over, is it necessary to take away the right of the workers in that industry or undertaking to form associations or unions. The industry taken away from the owners has nothing to do with the workers working therein, and merely because they work there they will also be deprived of their rights. I have mentioned a few aspects of the unrelated rights which are abridged by Article 31-C. No doubt, the recognition of/the freedom of Press in the guarantee of freedom of speech and expression under Article 19 ( 1) (a) was highlighted by the learned advocate-General of Maharashtra. Does this mean that if a monopoly of the press is prohibited or where it is sought to be broken up under Article 39 (b) and (c) and the printing presses and undertakings of such a Press are acquired under a law, should the citizens be deprived of their right to start another Press, and exercise their freedom of speech and expression? If these rights are taken away, what will happen to the freedom of speech and expression of the citizens in the country, which is a concomitant or Parlia- mentary democracy ? In the State of Bombay and Another v. F. N. Balsara, it was held under the unamended clause (2) of Article 19 that Section 23 (a) and Section 24 (1) (a) which prohibited "commending" or advertising intoxi- cants to public were in conflict with the right guaranteed in Article 19 (1) (a) as none of the conditions in clause (2) of that Article applied. But the First amendment has added 'incitement to an offence' as a reasonable restriction which the State can provide by law. In any case, the absence of such a law making power is no ground to abrogate the entire right of free speech and expression of the citizens.

( 1202 ) ARTICLE 15 merely confines the right to those who are not women (sic) socially and educationally backward classes of citizens, scheduled castes or scheduled tribes all of whom 'were afforded protective discrimination. Article 16 is again similarly conditioned. Articles 17, 18, 23 and 24 are prohibitions which the State is enjoined to give effect to. Articles 25 to 28 guarantee religious freedom, can be affected by Article 31-C in furtherance of directive principles because these denominations own properties, schools, institutions, etc. , all of which would be meaningless without the right to hold property. Likewise, Articles 29 and 30 would become hollow when articles 19 and 14 are totally abrogated. The only rights left are those in articles 20, 21 and 22, of which Article 22 has abridged by reason of clauses (4) to (7} by providing for preventive detention, which no doubt, is in the larger interest of the security, tranquillity and safety of the citizens and the State. I have pointed out the implications of the contentions on behalf of the respondents to show that if these are accepted, this country under a constitution and a Preamble proclaiming the securing of fundamental rights to its citizens, will be without them. The individual rights which ensure political rights of the citizens in a democracy may have to be subordinated to some extent to the Directive Principles for achieving social objectives but they are not to be enslaved and driven out of existence. Such could not have been contemplated as being within the scope of the amending power.

( 1203 ). Although Article 31-A protected the laws coming within its purview from the rights conferred by Article 19, such a protection could only be against the rights conferred by clauses (f) and (g) of Article 19 (1), as itssubject-matter was expressly stated to be the acquisition' of or extinguishment or modification of rights in any estate as defined in clause (2) thereof, and the taking over or amalgamation or termination, etc. , of rights of manage- ment and certain leasehold interests. Article 31-C protects laws giving effect to the policies in Article 39 (b) and (c ). For achieving these twin objects the rights of the persons that have to be abridged could only be those rights in article 19 which relate to property and trade, business, profession or occupa- tion. Though the expression 'economic system' is used in Article 39 (t), that article has not the object of changing the economic system generally, but is confined to only preventing concentration of wealth and means of production to the common detriment. What this clause envisages is that the State should secure the operation of the economic system in such a way as not to result in the concentration of wealth and means of production to the common detriment. Where there is already concentration of wealth and means of production which is to the common detriment, the law under Article 39 (c) would be only to break up or regulate as may be necessary the concentration of wealth and means of production. All other rights are outside the purview of Article 31-G and in this respect Article 31-A and Article 31-G can be said to be similar in scope and no different. In my view, therefore, the learned solicitor-General has rightly submitted that the law under Article 31-G will only operate on "material resources", "concentration of wealth", and "means of production", and if this is so) the rights in Article 19 (1) (a) to (e) would have no relevace and are inapplicable.

( 1204 ). With respect to the exclusion of Article 31 by Article 31-C, clause (1) of Article 31 is not in fact affected by Article 31-G, because under the latter any rights affected must be by law only. Even if Article 31-C was enacted for making laws in the furtherance of the directive principles in article 39 (b) and (c) affecting property, those laws have to conform to article 31 (1) for they would be laws depriving persons of their property. Article 31-G also contemplates the making of a law to give effect to the directives in Article 39 (b) and (c ). In so far as Article 31 (2) is concerned, section 2 of the Twenty-fifth Amendment has already abridged the right contained in Article 31 (2) and a further abridgment of this right authorised by Article 31-G may amount in a given case to the destruction or abrogation of that right and it may then have to be considered in each case whether a particular law provides for such an amount for the acquisition or requisition- ing of the property in question as would constitute an abrogation or the emasculation of the right under Article 31 (2) as it stood before the constitution (Twenty-fifth) Amendment.

( 1205 ). On the fourth element, I agree with the reasoning and conclusion of my learned brother Khanna,. , whose judgment I have had the advantage of perusing, in so far as it relates only to the severance of the part relating to the declaration, and with great respect I also adopt the reasoning on that aspect alone as an additional reason for supporting my conclusions on the first three elements also.

( 1206 ). If the first part of Article 31-C is read in this manner, then it may be held to be ultra vires the amending power only if those portions of the article which make it ultra vires the amending power are severed from the rest of it. The portions that may have to be severed are the words, "is inconsis- tent with or takes away, or" and the words "article 14" and the part dealing with the declaration by reason of which judicial review is excluded. The severability of these portions is permissible in view of the decision of theprivy council in Punjab Province v. Daulat Singh and Others,and the principles laid down by this court in R. M. D. Chamarbaugwalla v. The Union of India.

( 1207 ). The doctrine that the general words in a statute ought to be construed with reference to the powers of the Legislature which enacts it, and that the general presumption is that the Legislature does not intend to exceed its jurisdiction, is well established. In Re The Hindu Women's Rights to property Act' and in Daulat Singh's case (supra), it has been held that on the general presumption the legislature does not intend to exceed its jurisdiction, and that the court could severe that part of the provision in excess of the power if what remained could be given effect to. In the former case, the Act being a remedial Act seeking to remove or to mitigate what the Legislature presumably regarded as a mischief was given the beneficial interpretation. In the latter case, the provisions of S. 13-A of the Punjab Alienation of Land Act, 1900, which were added by S. 5 of the Punjab Alienation of Land (Second Amend- ment) Act No. X of 1938, providing for the avoidance of benami transactions as therein specified which were entered into either before or after the commencement of the Act of 1938, and for recovery of possession by the alienor would have been ultra vires the Provincial Legislature as contravening sub-section (1) of S. 298 of the government of India Act, 1935, in that in some cases S. 13-A would operate as a prohibition on the ground of descent alone, but it was authorised and protected from invalidity as' regards future transactions by Ss. (2) (a) of S. 298 of the Act of 1935 as amended by S. 4 of the India and Burma (Temporary and Miscellaneous provisions) Act, 1942. As the provisions of S. 31-A would have been ultra vires and void in so far as they purported to operate retrospectively, the Privy council severed the retrospective element by the deletion of the words "either before or' 'in the S. and the rest of the S. was left to operate validly. Lord Thankerton, delivering the opinion of the Privy council, observed at pp. 19-20. "it follows, in the opinion of their Lordships, that the impugned act, so far as retrospective, was beyond the legislative powers of the provincial Legislature and, if the retrospective element were not severable from the rest of the provisions, it is established beyond controversy that the whole Act would have to be declared ultra vires and void. But, happily, the retrospective element in the impugned Act is easily severable, and by the deletion of the words "either before or" from section 5 of the impugned Act, the rest of the provisions of the impugned act may be left to operate validly. "in Chamarbaugwalla's case (supra), Venkatarama Aiyar,. , after referring to the various cases including F. JV. Balsara's case (supra), accepted the principle that when a statute is in part void, it will be enforced as regards the rest, if that is severable from what is invalid. It is immaterial for the purpose of this rule whether the invalidity of the statute arises by reason of its subject-matter being outside the competence of the Legislature or by reason of its provisions contravening constitutional prohibitions. He enunciated seven rules of separa- bility. In F. JV. Balsara's case (supra), apart from S. 23 (a) and (b) and section 24 (1) (a) relating to commendation and incitement from the definition of the word liquor' in S. 2 (24) (a) the words "all liquids consisting of or containing alcohol' ' were severed as these would include medicinal prepara-lions. It will be seen that neither the whole sub-clause (a) was deleted nor the whole of clause (24) was separated. It is only the above words that were severed and held to make the remaining part of the definition valid.

( 1208 ). In Corporatian of Calcutta v. Calcutta Tramways Co. Ltd. the question was whether S. 43 7 (1) (A) of the Calcutta Municipal Act, 1951, was invalid under Article 19 (1) (g)insofaras it made the opinion of the corporation conclusive and non-challengeable in any court. The sub- clause (b) of S. 437 (1) reads. as follows:"any purpose which is, in the opinion of the Corporation (which opinion shall be conclusive and shall not be challenged in any court) dangerous to life, health or property, or likely to create a nuisance. "this court held the portion in the parenthesis as violative of Article 19 (1) (g ). It was contended that the above portion in the sub-clause was inextricably mixed up with the rest and hence cannot be separated. The court held that the third proposition in the Chamarbaugwalla's case (supra), namely, that even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole,avas inapplicable, Wanchoo.. , expressed the view that the parenthetical clause consisting of the words "which opinion shall be conclusive and shall not be challenged in any court" is severable from the rest of the clause referred to above.

( 1209 ). In the case of Kanushwar Prasad v. Staff of Bihar, Rule 4-A of the Bihar government Servants Conduct Rules, 1956, had provided that "no government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service". The court held the rule violative of Article 19 (1) (a) and (b) in so far as it prohibited any form of demonstration, innocent or otherwise, and as it was not possible to so read it as to separate the legal from the unconstitutional portion of the provision, the entire rule relating to participation in any demonstration must bedeclared as ultra vires. The court, however, did not strike down the entire Rule 4-A but severed only that portion which related to demonstration from the rest of it, and the portion dealing with the strike which was upheld continued to exist after severing the above portion. However, in State of Madhya Pradesh v. Ranojirao shinde and Another the doctrine of severability was not applied. In that case the term 'grant' was defined in S. 2 (1) of the Madhya Pradesh abolition of Gash Grants Act, 1963, in a language which was wide without making a distinction between various types of cash grants. This court did not find any basis for severing some out of the several grants included therein and hence expressed the view that it is impermissible to rewrite that clause and confine the definition to such of the cash giants which the legislature might be competent to abolish. The case is, therefore, distin- guishable as the rule is inapplicable to such instances.

( 1210 ). I have considered the validity of Article 31-G by applying the doctrine of severability although neither side dealt with this aspect in relation to Article 31-C because both had taken an extreme position, which if accepted, will either result in the total invalidation or in upholding itsvalidity in entirety. If as the petitioner had contended that by an amendment any of the fundamental rights cannot be damaged or destroyed, the next logical step of the argument on his behalf should have been to establish that the entire Article 31-G is bad on that account, and if not, to what extent it would have been sustained by applying the doctrine of severab'lity particularly when the severability of the declaration part of article 31-G was very much in the forefront during the arguments. Likewise the respondents knowing'what the petitioner's case is, should have examined and submitted to what eirtent Article 31-G is invalid on the petitioner's argument. When a question was asked on 19/02/1973 that "if once it is conceded that a Constitution cannot be abrogated, then what one has to find out is to what extent an amendment goes to abrogation" and the answer was that "the whole of the Constitution cannot "be amended", and also when a question was raised that on the language of Article 31-C it appears to be ineffective, neither side advanced any argument on this aspect. Nor when the question of severability of the declaration portion was mooted on several occasions during the arguments was any submission made by either party as to whether such a severance is, or is not, possible. In the circumstances, the court is left to itself to examine and consider what is the correct position in the midst of these two extremes. In a case of cons- titutional amendment which has been enacted after followhig the form and manner prescribed in Article 368, as I said earlier, it should not be held invalid, if it could be upheld even by severing the objectionable part, where the valid part can stand on its own. It is not always in public interest to confine the consideration of the validity of a constitutional amendment to the arguments, the parties may choose to advance, otherwise we will be constrained to interpret a Constitution only in the light of what is urged before us, not what we understand it to be is the true nature of the impugned amendment. Happily, even if I am alone in this view, the portions indicated by me are severable, leaving the unsevered portion operative and effective so as to enable laws made under Article 31-C to further the directives of State policy enshrined in Article 39 (b) and (c ). In the view I have entertained, the words "inconsistent with or takes away or" and the words "article 14" as also the portion "and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on tlie ground that it does not give effect to such policy" being severable, be deleted from Article 31-C. In the result, on the construction of Article 31-C after severing the portions indicated above, I hold S. 3 of the Twenty-fifth Amendment valid.

( 1211 ). On the validity of the Constitution (Twenty-ninth) Amendment, my Lord the chief justice has come to the conclusion that notwithstanding this amendment the Constitution'bench will decide whether the impugned acts take away fundamental rights or only abridge them and whether they effect reasonable abridgments in public interest, and if they take away, they will have to be struck down. My learned brothers Hegde and mukherjea,. , have in effect come to the same conclusion, when they hold that this amendment is valid, but whether the Acts which were brought into the Ninth Schedule by that Amendment or any provision in any of them abrogate any of the basic elements or essential features of the Consti- tution will have to be examined when the validity of, those Acts is gone into. With respect, I agree in effect with these conclusions which are consistent with the view I have expressed in respect of Articles 31-A and 31-B. I also agree that the contention of the learned Advocate for the petitioner that Article 31-B is intimately connected with Article 31-Ais unacceptable and must be rejected for the reasons given in these judg- ments. The question whether fundamental rights are abrogated or emasculated by any of the Acts or provisions of these Acts included by the impugned Amendment, will be open for examination when the validity of these Acts is gone into, and subject to this reservation, I hold the Constitu- tion (Twenty-ninth) Amendment valid.

( 1212 ). I now state my-conclusions which are as follows- (1) On the construction placed on Articles 12,13 and other provisions of Part III and Article 368, Article 13 (2) does not place an embargo on Article 368, for amending any of the rights in part III, and on this view it is unnecessary to decide whether the leading majority judgment in Golaknath case (supra) is right in finding the power of amendment in the residuary entry 97 of List I of Schedule VII, nor is it called for, having regard to 'the majority decision therein that the power of amendment is to be found in Article 368 itself. (2) Twenty-fourth Amendment.-The word 'amendment' in Article 368 does not include repeal. Parliament could amend Article 368 and article 13 and also all the fundamental rights and though the power of amendment is wide, it is not wide enough to totally abrogate or emasculate or damage any of the funda- mental rights or the essential elements in the basic structure of the Constitution or of destroying 'the identity of the Consti- tution. Within these limits. Parliament can amend every article of the Constitution. Parliament cannot under article 368 expand its power of amendment so as to confer on itself the power to repeal, abrogate the Constitution or damage, emasculate or destroy any of the fundamental rights or essential elements of the basic structure of the Constitution or of destroying the identity of the Constitution, and on the construc- tion placed by me, the Twenty-fourth Amendment is valid, for it has not closed the nature and scope of the amending power as it existed before the Amendment. (3) Twenty-fifth Amendment: (i) S. 2. (a) Clause (2) to Article 31 as substituted.-Clause (2.) of Article 31 has the same meaning and purpose as that placed by this court in the several decisions referred to except that the word 'amount' has been substituted for the word 'compen- sation', after which the principle of equivalent in value or just equivalent of the value of the property acquired no longer applies. The word 'amount' which has no legal concept and, as the amended clause indicates, it means only cash which would be in the currency of the country, and has to be fixed on some principle. Once the court is satisfied that the challenge on 'he ground that the amount or the manner of its payment is neither arbitrary or illusory or where the principles upon which it is fixed are found to bear reasonable relationship to the value of the property acquired, the court cannot go into the question of the adequacy of the amount so fixed or deter- mined on the basis of such principles. (b) Clause (2-B) as added. On the applicability of Article 19 (1) (f) to clause (2) of Article 31 the word 'affect' makes two constructions possible firstly, that Article 19 (1) (f) will not be available at all to an expropriated owner, and this, in other words, means that it totally abrogates the right in such cases, and secondly, clause (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 qndci Article 19 (1) (f ). The second construction which makes the amendment valid is to be preferred, and that clause (2-B) by the adoption of the doctrine of severability in application is restricted to abridgment and not abrogation destroying or damaging the right of reasonable procedure in respect of a law of acquisition or requisition for the effective exercise of the right under article 31 (2) ; for, a reasonable notice, a hearing, oppor- tunity to produce material and other evidence, may be necessary to establish that a particular acquisition is not for public purpose and for providing the value of the property and other matters that may be involved in a particular principle adopted in fixing the amount or for showing that what is being paid is illusory, arbitrary etc. Therefore, in the view taken, and for the reasons set out in this judgment, S. 2 of the Twenty-fifth Amendment is valid. (ii)Section 3 of the Twenty-fifth Amendment.-New Article 31-G is only valid if the words "inconsistent" with or takes away or", the words "article 14" and the declaration portion '"and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy", are severed, as in my view they are severable. What remains after severing can be operative and effective on the interpretation given by me as to the applicability of Articles 19 and 31, so as to enable laws made under Article 31-G to further the directives enshrined in Article 39 (6) and (c ). In the result on the construction of Article 31-C, after severing the portions indicated above, i hold S. 3 of the Twenty-fifth Amendment valid. (4) Twenty-ninth Amendment.-The contention that Articles 31-A and 31-B are inter-connected is unacceptable and is rejected. The Constitution (Twenty-ninth) Amendment is valid, but whether any of the Acts included thereby in Schedule IX abrogate, emasculate, damage or destroy any of the funda- mental rights in Part III or the basic elements or essential features of the Constitution will have to be examined when the validity of those Acts is challenged.

( 1213 ). The petitions will now be posted for hearing before the Constitu- tion bench for disposal in accordance with the above findings. In the circumstances the parties will bear their own costs.

( 1214 ). Paickar,.-The facts leading to this petition have been stated in the judgment delivered by my lord the chief justice and it is not therefore necessary to recount the same.

( 1215 ). In this petition the constitutional validity of the Kerala Land reforms (Amendment) Act, 1969 and the Kerala Land Reforms (Amend- ment) Act, 1971 has been challenged. As the petitioner apprehended that he would not succeed in the challenge in view of the recently passed constitution Amendment Acts, he has also challenged the validity of these acts. They are: (1) The Constitution 24th Amendment Act, 1971; (2) the Constitution 25th Amendment Act, 1971 and (3) The Constitution 29th Amendment Act, 1972. The crucial point involved is whether the constitution is liable to be amended by the Parliament so as to abridge or take away fundamental rights conferred by Part III of the Consti- tution.

( 1216 ). By the 24th Amendment, some changes 'have been made in articles 13 and 368 with the object of bringing them in conformity with the views expressed by a majority of Judges of this court with regard to the scope and ambit of Articles 13 and 368. In Sankari Prasad Singh v. Union of India the Constitutional bench of five Judges, of this court unanimously held that fundamental rights could be abridged or taken away by an amendment of the Constitution under Article 368. In the next case of Sajjan Singh v. State ofrajasthan a majority of three Judges expressed the view that Sankari Prasad's case (supra) was correctly decided. Two Judges expressed doubts about that view but considered that it was not necessary to dissent from the decision as the point was not squarely before the court. In the third case namely Golak Nath v. State of Punjab the view taken in the earlier cases by eight Judges was overruled by a majority of six Judges to five. The majority held that Parliament had no power to amend the constitution under Article 368 so as to abridge or take away the fundamental rights, one of them (Hidayatullah,.), who delivered a separate judgment, expressing the view that this could not be done even by amending Article 368 with the object of clothing the Parliament with the necessary powers. In this state of affairs the Union government was obliged to take a definite stand. It would appear that the Union government and the Parliament agreed with the view taken in Sankari Prasad's case (supra) by the majority in Sajjan Singh's case (supra) and the substantial minority of Judges in Golak nath's case (supra ). They were out of sympathy with the view adopted by the majority in Golak Math's case (supra ). Hence the 24th Amendment. That amendment principally sought to clarify what was held to be implicit in articles 13 and 368 by a majority of Judges of this court over the years, namely: (1) that nothing in Article 13 applied to an amendment to the constitution made under Article 368; (2) that Article 368 did not merely lay down the procedure for a constitutional amendment but also contained the power to amend the Constitution; (3) that the Parliament's power under Article 368 was a constituent power as distinct from legislative power ; (4) that this power to amend included the power to amend by way of addition, variation or repeal of any provision of the Constitution.

( 1217 ). After passing the 24th Amendment the other two amendments were passed in accordance with the Constitution as amended by the 24th amendment.

( 1218 ). In his argument before us Mr. Palkhivala, appearing on behalf of the petitioner, supported the majority decision in Golak JVath case (supra) with supplemental arguments. In any event, he further contended, the power of Parliament to amend the Constitution under Article 368 did not extend to the damaging or destroying what he called the essential features and basic principles of the Constitution and since fundamental rights came in that category, any amendm. ent which damaged or destroyed the core of these rights was impermissible. The argument on behalf of the State of kerala and the Union of India, was that an amendment of the Constitution abridging or taking away fundamental rights was not only permissible after the clarificatory 24th Amendment but also under the unampnded Articles 13 and 368, notwithstanding the refinement in the arguments of Mr. Palkhivala with regard to essential features and basic principles of the constitution. We are, therefore, obliged to go back to the position before the 24th Amendment and consider whether the majority view in Golak Nath case (supra) was not correct. A fuller bench of 13 Judges was, therefore, consti- tuted and it will be our task to deal with the crucial question involved. This course cannot be avoided, it is submitted, because if the fundamental rights were unamendable by the Parliament so as to abridge or take them away, parliament could not increase its power to do so by the device of amend- ing Articles 13 and 308-whether one calls that amendment. clarificatory or otherwise. The real question is whether the Constitution had granted parliament the power to amend the Constitution in that respect, because, if it did not, no amendment of Articles 13 and 368 would invest the Parliament with that power. We have, therefore, to deal with the Constitution as it obtained before the 24th Amendment.

( 1219 ). Since fundamental questions with regard to the Constitution have been raised, it will be necessary to make a few prefatory remarks with regard to the Constitution. The Constitution is not an indigenous product. Those who framed it were, as recognised by this court in The Automobile transport (Rajasthan) Ltd. v. The State of Rajasthan and Others thoroughly acquainted with-the Constitutions and constitutional problems of the more important countries in the world, especially, the English-speaking countries. They knew the Unitary and Federal types of Constitutions and the parliamentary and Presidential systems of government. They knew what constitutions were regarded as "flexible" constitution and what constitutions were regarded as "rigid" constitutions. They further knew that in all modern written constitutions special provision is made for the amendment of the Constitution. Besides, after the government of India Act, 1935 this country had become better acquainted at first hand, both with the Parlia- mentary system of government and the frame of a Federal constitution with distribution of powers between the Centre and the States. All this knowledge and experience went into the making of our Constitution which is broadly speaking and quasi-Federal constitution which adopted the Parliamentary system of government based on adult franchise both at the Centre and in the states.


( 1220 ) THE two words mentioned above 'flexible' and 'rigid' were first coined by Lord Bryce to describe the English constitution and the American constitution respectively. The words were made popular by Dicey in his law of the Constitution first published in 1885. Many generations of lawyers, thereafter, who looked upon Dicey as one of the greatest expositors of the law of the constiuition became familiar with these words. A 'flexible'constitution is one under which every law of every description (including one relating to the constitution) can legally be changed with the same ease and in the same manner by one and the same body. A 'rigid' constitution is one under which certain laws generally known as constitutional or funda- mental laws cannot be changed in the same manner as ordinary laws. See -. Dicey'slaw of the Constitution, 10th edition, 1964, p. 127. It will be noted that the emphasis is on the word 'change' in denoting the distinction between the two types of ("onstitutions. Lord Birkenhead in delivering the judgment of the Judicial Gofanuttee of the Privy council in Mccawley v. The King used the word's 'uncontrolled' and "controlled' for the words 'flexible ' and 'rigid' respectively which were current then. He had to examine the type of constitution Queensland possessed, whether it was a 'flexible' constitution or a 'rigid' one in order to decide the point in controversy. He observed at page 703 'the first point which requires con- sideration depends upon the distinction between constitutions the terms of which may be modified 'or repealed with no other formality than is necessary in the case of other legislation, and constitutions which can only be altered with some special formality and in some cases by a specially convened assembly'. He had to do that because the distinction between the two types of constitutions was vital to the decision of the controversy before the plivy council. M. page 704 he further said 'many different terms have been employed in the text-books to distinguish these two contrasted forms of constitution. Their special qualities may perhaps be exhibited as clearly by calling the one a 'controlled' and the other an 'uncontrolled ' constitution as by any other nomenclature'. Perhaps this was an apology for not using the words "rigid' and "flexible' which were current when he delivered the judgment. In fact. Sir John Simon in the course of his arguments in that case had used the words 'rigid' and "flexible' and he had specifically referred to Dicey's Law of the Constitution. Strong in his text-book on Modern political Constitutions, Seventh revised edition, 1966-reprinted in 1970 says at p. 153 "the sole criterion of a rigid constitution is whether the constituent Assembly which drew up the Constitution left any special directions as to how it was to be changed. If in the Constitution there are j6 such directions, or if the directions explicitly leave the Legislature a free hand, then the Constitution is "flexible'. "

( 1221 ). The above short disquisition into the nature of constitutions was necessary in order to show that when our Constitution was framed in 1949 the fraroers of the constitution knew that there were two contrasted types of democratic constitutions in vogue in the world-one the "flexible' type which could be amended by the ordinary procedure governing the making of a law and the other the "rigid' type-which cannot be so amended but required a special procedure for its amendment. Which one of these did our framers adopt-the 'flexible' or the 'rigid'? On an answer to the above question some important consequences will follow which are relevant to our enquiry.

( 1222 ). Our Constitution provides for a Legislature at the Centre and in the States. At the Centre it is the Parliament consisting of the Lok Sabha and the Rajya Sabha. In the States the Legislature consists of the State assembly and, in some of them, of an Upper Chamber known as the Legis- lative council. Legislative power is distributed between the Centre and the states, Pai liament having the power to make laws with regard to subject- matters contained in List I of the Seventh Schedule and the Statlegislatures with regard to those in List. There is also List III enumerat- ing matters in respect of which both the Parliament and the State Legislatures have concurrent powers to make laws. This power to make laws is given to these bodies by Articles 245 and 248 and the law-making procedure for the parliament is contained in Articles 107 to 122 and for the State Legislatures in Articles 196 to 213. The three Lists in the Seventh Schedule no where mention the 'amendment of the Constitution ' as one of the subject-matters of legislation for either the Parliament or the State Legislatures. On the other hand, after dealing with all important matters of permanent interest to the Constitution in the First XIX parts covering 367 Articles, the Consti- tution makes special provision for the "amendment of the Constitution' in part XX in one single Article, namely, Article 368'. A special procedure is provided for amendment which is not the same as the one provided for making ordinary laws under Articles 245 to 248. The. principle features of the legislative procedure at the Centre are that the law must be passed by both Houses of Parliament by a majority of the members present and voting in the House, and in case of an impasse between the two Houses of parliament, by a majority vote at a joint sitting. All that is necessary is that there should be a quorum which we understand is 10% of the strength of the House and if such a quorum is available the two Houses separately or at a joint meeting, as the case may be, may make the law in accordance with its legislative procedure laid down in Articles 107 to 122. The point to be specially noted is that all ordinary laws which the Parliament makes in accordance with Articles 245 to 248 must be made in accordance with this legislative procedure and no other. Under Article 368 however, a different and special procedure is provided for amending the Constitution. A Bill has to be introduced in either House of Parliament and must be passed by each House separately by a special majority. It should bepassed not only by 2/3rd majority of the members present and voting but also by a majority of the total strength -of the House. No joint sitting of the two houses is permissible. In the case of certain provisions of the Consti- tution which directly or indirectly affect inter-state relations, the proposed amendment is required to be ratified by the Legislatures-which is not a legislative process-of not less than one-half of the States before the Bill proposing the amendment is presented to the President for his assent. The procedure is special in the sense that it is different and more exating or restrictive than the one by which ordinary laws are made by Parliament. Secondly in certain matters the State Legislatures are involved in the process of making the amendment. Such partnership between the Parliament and the State Legislatures in making their own laws by the ordinary procedure is not recognised by the Constitution. It follows from the special provision made in Article 368 for the amendment of the Constitution that our Consti- tution is a "rigid' or 'controlled' constitution because the Constituent assembly has "left a special direction as to how the Constitution is to be changed". In view of Article 368, when the special procedure is successfully followed, the proposed amendment automatically becomes a part of the constitution or, in other words, it writes itself into the Constitution.

( 1223 ). The above discussion will show that the two separate procedures- one for law-making and the other for amending the constitution-were not just an accident of drafting. The two procedures have been deliberately provided to conform with well-known constitutional practices which make such separate provisions to highlight the different procedures-one com- monly known as the legislative procedure and the other the constituent procedure. The word 'constituent' is so well-known in Modern Politicalconstitutions that it is defined in the dictionaries as "able to frame or alter a constitution'. And the power to frame or alter the constitution is known as constituent power. See : The Concise Oxford Dictionary.

( 1224 ) WHERE then in our Constitution lie the legislative power and the constituent power? The legislative power is given specifically by Arti- cles 245 to 248, subject to the Constitution, and these Articles are found under the heading 'distribution of legislative powers'. That alone is enough to show that these articles do not deal with the constituent power. The point is important because the leading majority judgment in Golak math's case (supra) proceeds on the footing that the power lies in Article 248 read with the residuary Entry 97 in List I of the Seventh Schedule. That finding was basic to the decision because unless an amendment of the Consti- tution is equated with a law made by Parliament under one or the other of the entries in List I of the Seventh Schedule it was not easy to invoke the bar of Article 13 (2 ). Mr. Palkhivalasays that he is indifferent as to whet- her the power is found'in Article 248 or elsewhere. But that does not con- clude the question because if we agree with the view that it falls in Arti- cle 248 the decision that an amendment abridging or taking away funda- mental rights, being a law. under Article 248, would be barred by Arti- cle 13 (2) would be unassailable.

( 1225 ). lngolak Nath's case (supra) Subba Rao; G. J,who spoke for himself and h's four learned colleagues held that the power to amend the constitution was not found in Article 368 but in Article 248 read with the residuary Entry 97 of List I of the Seventh Schedule. The five learned judges who were in a minority held that the power is in Article 368. Hidayatullah,. , on the other hand, held that Article 368 did not give the power to any particular person or persons and that if the named autho- rities acted according to the law of the Article, the result of amendment was achieved. And if the procedure could be deemed to be a power at all it was a legislative power, sui generis, to be found outside the three lists in schedule seven of the Constitution. In other words, six learned Judges did not find the power in the residuary Entry 97 of List I, while five found it there. We have, therefore, to see whether the view of Subba Rao, C.. , and his four colleagues who held that the power lay in Article 248 read with the residuary Entry 97 is correct. In my view, with respect, it is not.

( 1226 ). Article 368 is one single article in Part XX entitled 'the amendment of the Constitution'. It is a special topic dealt with by that part. In other articles like Articles 4, 169, Para 7 of Schedule V and Para 21 of Schedule VI a power is granted to the Parliament to amend specific provisions "by law',. e. by adopting the ordinary procedure of legislation, though it altered certain provisions of the Constitution. The alterations are 'a law' made by the Parliament and, therefore, liable to be struck, unless specifically saved, in case of inconsistency with the provisions of the Constitution. Secondly in every such case a provision is deliberately added explaining that the amendment so made by law is not to be deemed an amendment of the Constitution for the purpose of Article 368. The warning was necessary to emphasize that an amendment of the Constitution in accordance with the procedure laid down in Article 368 was of a special quality-a quality different from amendments made 'by law' by the Parlia- ment. The special quality flowed from the fact that the Parliament and the States which were to participate in the process performed not their ordinary legislative function but a special function known in all Federal or quasi-federal controlled Constitutions as a 'constituent' function. Thedifference between the ordinary function of making law and the function of amending the constitution loses its significance in the case of a sovereign body like the British Parliament or a Parliament like that of New Zealand which has a written Constitution of the Unitary type. These bodies can amend a constitutional law with the same ease with which they can make an ordinary law. The reason is that their Constitutions are 'flexible' consti- tutions. But in countries which have a written Constitution which is a 'rigid' or 'controlled' Constitution the Constitution is 'liable to be amended only by the special procedure, and the body or bodies which are entrusted with the amendment of the Constitution are regarded as exercising consti- tuent power to distinguish it from the power they exercise in making ordi- nary legislation under the Constitution. So far as we are concerned, our constitution gives specific powers of ordinary legislation to the Parliament and the State Legislatures in respect of well demarcated subjects. But when it comes to the amendment of the Constitution, a special procedure has been prescribed in Article 368. Since the result of following the special procedure under the Article is the amendment of the constitution the process which brings about the result is known as the exercise of constituent power by the bodies associated in the task of amending the constitution. It is, therefore, obvious, that when the Parliament and the State Legislatures function in accordance with Article 368 with a view to amend the Constitution, they exercise constituent power as distinct from their ordinary legislative power under Articles 2-1-5 to 248. Article 368 is not entirely procedural. Undoubtedly part of it is procedural. But there is a clear mandate that on the procedure being followed the proposed amendment shall become part of the Constitution, which is the substantive part of Article 368. There- fore, the peculiar or special power to amend the Constitution is to be sought in article 368 only and not elsewhere.

( 1227 ). Then again if the constituent Assembly had regarded the power to amend the Constitution as no better than ordinary legislative power the framers of the Constitution who were well-aware of the necessity to provide for the power to amend the constitution would not have failed to add a specific entry to that effect in one or the other of the lists in the Seventh schedule instead of leaving it to be found in a residuary entry. The very fact that the framers omitted to include it specifically in the list but provided for it in a special setting in Part XX of the Constitution is eloquent of the fact that the power was not to be sought in the residuary entry or the residuary article 248. In this connection it may be recalled that in the Draft Consti- tution Article 304 had a separate provision in Clause 2. Clause I of that article fairly corresponds with our present Article 368. ' In Clause 2 power was given to the States to propose amendments in certain matters and parliament had to ratify such amendments. There was thus a reverse process of amendment. There was no residuary power in the States and the amendment of the Constitution was not a specific subject of legislative power in draft List. This goes to show that in the Draft Constitution, in all but two matters, the proposal for amendment was to be made by the Parlia- ment and in two specified matters by the State Legislatures. If the power for the latter two subjects was to be found in Clause 2 of Article 304 of the draft Constitution it is only reasonable to hold. that the power of Parlia- ment to amend the rest of the Constitution was 'to be found in Article 304 (1) which corresponds to the present Article 368.

( 1228 ). Moreover the actual wording of Article 245 which along with articles 246 to 248 comes under the topic "distribution of legislative powers" is important. Article 245 provides that Parliament may make laws forthe whole or any part of India and the. Legislature of a State may make laws for the whole or any part of the State. Thus Article 245 confers the power to make laws on Parliament and the Legislatures of the State for and within the territory allocated to them. Having conferred the power, Articles 246 to 248 distribute the subject-matters of legislation in respect of which the parliament and the State Legislatures have power to make the laws referred to in Article 245. But there is an important limitation on this power in the governing words with which Article 245 commences. It is that the power was subject to the provisions of the Constitution thereby lifting the Consti- titution above the laws'. That would mean that the Parliament and State legislatures may, indeed, make laws in respect of the areas and subject-matter? indicated, but the exercise must be "subject to the provisions of the constitution' 'which means that the power to make laws does not extend to making a law which contravenes or is inconsistent with any provision of the constitution which is the Supreme law of the land. A law is inconsistent with the provision of the constitution when, being given effect to, it impairs or nullifies the provision of the constitution. Now no simpler way of impairing or nullifying the constitution can be conceived than by amending the text to the provision of the constitution. Therefore, since a law amending the text of a constitutional provision would necessarily entail impairing or nullifying the constitutional provison it would contravene or be inconsistent with the provision of the constitution and hence would be impermissible and invalid under the governing words "subject to the provisions of the constitution" in article 245. It follows that a law amending the constitution if made on the assumption that it falls within the residuary powers of the Parliament under article 248 read with Entry 97 of List I would always be invalid. Then again a law made under Articles 245 to 248 must, in its making, conform with the ordinary legislative procedure for making it laid down for the Parliament in part V, Ch. II and for the State Legislature in Part VI, Ch. III of the constitution and, no other. To say that the power to make law lies in article 245 and the procedure to make it in Article 368 is to ignore not only this compulsion, but also the fundamental constitutional practice followed in our Constitution, as in most modern controlled constitutions, prescribing special procedure for the amendment of the constitution which is different from the procedure laid down for making ordinary laws. The conclusion, therefore, is that the power of amendment cannot be discovered in Article 248 read with the residuary entry. The argument that Article 368 does not speak of the power to amend but only of the procedure to amend in pursuance of the power found elsewhere is clearly untenable. The true position is that the alchemy of the special procedure prescribed in Article 368 produces the constituent power which transports the proposed amendment into the constitution and gives it equal status with the other parts of the constitution.

( 1229 ). Moreover, if an amendment of the constitution is a law made under Article 248 read with Entry 97, List I strange results will follow. If the view taken in Golak Nath's case (supra) is correct, such 'a law' being repugnant to Article 13 (2) will be expressly invalidated so far as Part III of the constitution is concerned. And such a law amending any other article of the constitution will also be invalid by reason of the governing words "subject to the provisions of this constitution' 'by which Article 245 commences. In that event no article of the constitution can be amended. On the other hand, if the law amending an article of the constitution is deemed to be not repugnant to the article which is amended, then every article can be amended including those embodying the fundamental rights without attracting the bar of article 13 (2) which can only come in on a repugnancy. On the argument, therefore, that an amendment is a law made under Article 248 the whole ofthe constitution becomes unamendable, and on the argument that such a law never becomes repugnant to the article amended the whole of the constitution becomes amendable, in which case, we are unable to give any determinate value to Article 13 (2 ). Instead of following this complicated way of tracing the power in Article 248 read with the residuary Entry 97 of list I it would be correct to find it in Article 368 because that is a special article designed for the purposes of the amendment of the constitution which is also the subject heading of Part XX. In my opinion, therefore, the power and the procedure to amend the Constitution are in Article 368.

( 1230 ). The next question which requires to be examined in the nature of this constituent power, specially in the case of 'controlled' or 'rigid' constitutions. A student of Modern Political Constitutions will find that the methods of modern constitutional amendment are: (1) by the ordinary legislature but under certain restrictions; (2) by the people through a referendum; (3) by a majority of all the unions of a Federal State; (4) by special convention; and (5) by a combination of two or more of the above methods which are mentioned in order of increasing rigidity as to the method. Where the power of amending the constitution is given to the legislature by the Constituent Assembly the legislature working under restrictions assumes a special position. Strong in the book, already referred to, observes at page 152. "the constituent assembly, knowing that it will disperse and leave the -actual business of legislation to another body, attempts to bring into the constitution that it promulgates as many guides to future action as possible. If it wishes, as it generally does, to take out of the hands of the ordinary Legislature the power to alter the constitution by its own act, and since it cannot possibly foresee all eventualites, it must arrange for some method of amendment. , in short, it attempts to arrange for the recreation of a constituent assembly whenever such matters are in future to be considered, even though that assembly be nothing more than the ordinary legislature acting under certain restrictions. " (emphasis supplied)

( 1231 ). Authorities are not wanting who declare that such amending power is sovereign constituent power. Orfield in his book. The Amending of the Federal Constitution, (1942), page 155 (1971 Edn.) says that in America the amending body is sovereign in law and in fact, Herman Finer in his book The Theory and Practice of Modern government, fourth edition, 1961 reprinted in 1965, pages 156-157 says "supremacy is shown and maintained chiefly in the amending process. . . . . . . . . . . . . . . . . . Too difficult aprocess, in short, ruins the ultimate purpose of the amending clause. . . . . . . . . . . . . . . . . The amending clause is so fundamental to a constitution that I am tempted to call it the constitution itself". Geoffery Marshall in his Constitutional theory (1971), p. 36 says "there will in most constitutional systems, be an amending process and some 'collection' of persons, possibly complex, in whom sovereign authority to alter any legal rule inheres. . . . . . . . . . . . . . . . . . . . . Cons- titutions unamendable in all or some respects are non-standard cases and a sovereign entity whether (as in Britain) a simple legislative majority, or a complex specially convened majority can be discovered and labelled "sovereign" in almost all systems". Wade in his Introduction to Dicey's law of the Constitution, 10th edition says as follows at page xxxvii "federal government is a system of government which embodies a division of powers between a central and a number of regional authorities. Each of these "in its own sphere is co-ordinate with the others ;and independent of them". This involves a division of plenary powers and such a division is a negation of sovereignty. Yet somewhere lies the power to change this division. Wherever that power rests, there is to be found legal sovereignty". Havingregard to this view of the jurists, it was not surprising that in Sankari prasad's case (supra) Patanjali Shastri,. , speaking for the court, described the power to amend under Article 368 as "sovereign constituent power". By describing the power as "sovereign constituent power" it is not the intention here to declare, if somebody is allergic to the idea, that legal sovereignty lies in this body or that. It is not necessary to do so for our immediate purpose. The word 'sovereign' is used as a convenient qualita- tive description, of the power to highlight its superiority over other powers conferred under the constitution. For example, legislative power is subject to the constitution but the power to amend is not. Legislative activity can operate only under the constitution but the power of amendment operates over the constitution. The word 'sovereign', therefore, may, for our purpose, simply stand as a description of a power which is superior to every one of the other powers granted to its instrumentalities by the constitution.

( 1232 ). The amplitude and effectiveness of the constituent power is not impaired because it is exercised by this or that representative body or by the people in a referendum. One cannot say that the power is less when exercised by the ordinary legislature as required by the constitution or more when it is exercised-say by a special convention. This point is relevant because it was contended that our Parliament is a constituted body-"a creature of the constitution" and cannot exercise the power of amending the constitution to the same extent that a constituent assembly specially con- vened for the purpose may do. It was urged that the sovereignty still con- tinues with the people and while it is open to the people through a conven- tion or a constituent assembly to make any amendments to the constitution in any manner it liked, there were limitations on the power of an ordinary parliament -"a constituted body', which precluded it from making the amendments which damaged or destroyed the essential features and elements of the constitution. We shall deal with the latter argument in its proper place. But for the present we are concerned to see whether the power to amend becomes more or less in content according to the nature of the body which makes the amendment. In my view it does not. Because as explain- ed by Strong in the passage already quoted "in short it (. e. the constituent assembly which framed the constitution) attempts to arrange for the recrea- tion of a constituent assembly whenever such matters are in future to be considered even though that assembly be nothing more than the ordinary legislature acting under certain restrictions". Only the methods of making amendments are less rigid or more rigid according to the historical or politi- cal background of the country for which the constitution is framed. For example Article V of the American Constitution divides the procedure for formal amendment into two parts -proposal and ratification. Amendments may be proposed in two ways: (1) by two-thirds vote of both Houses of congress; (2) by national constitutional conventions called by Congress upon application of two-thirds of the State Legislatures. Amendments may be ratified by two methods: (1) by the legislatures of three-fourths of the states ; (2) by special conventions in three-fourths of the States. Congress has the sole power to determine which method of ratification is to be used. It may direct that the ratification may be by the State legislatures or by special conventions

( 1233 ). One thing which stands out so far as Article V is concerned is that referendum as a process of constitutional amendment has been wholly excluded. In fact it was held by the Supreme court of America in Dodge v. Woolsey "the constitution is supreme over the people of the Unitedstates, aggregately and in their separate sovereignities, because they have excluded themselves from any direct or immediate agency in making amend- ments to it, and have directed that amendments should be made representa- tively for them". In other words, the people, having entrusted the power to amend the constitution to the bodies mentioned in Article V, had completely withdrawn themselves from the amending process. Out of the two combinations of the bodies referred to in Article V-one is a combina- tion of the Congress and the State Legislatures and between them, though they are constituted bodies, they can qualitatively amend the constitution to the same extent as if the proposal made by the Congress was to be rati- fied by convention by 3/4th number of States. As a matter of fact on the proposal made by the Congress all the amendments of the U. S. Constitu- tion, with the exception of the twenty-first which repealed the 18th Amend- ment, have been ratified by State legislatures. Such an amendment accom- plished by the participation of the Congress and the State Legislatures has not been held by the U. S. Supreme court as being any less effective because the Congress had not obtained the ratification from a convention of the States. The question arose in United States v. Sprague. That case was on the 18th (Prohibition) Amendment. The amendment became part of the constitution on a proposal by the Congress and ratification by the State legislatures. Objection was raised to the validity of the amendment on the ground that since the amendment affected the personal liberty of the sub- ject and under Article X the people had still retained rights which had not been surrendered to the Federal Constitution, the ratification ought to have been by the representatives of the people at a special convention and not by the State Legislatures. That objection was rejected on the ground that the Congress alone had the choice as to whether the State Legislatures or the conventions had to ratify the Amendment. Conversely, in Hawke v. Smith which also related to the 18th amendment it was held that the state of Ohio could not provide for the ratification of the 18th Amendment by popular referendum since such a procedure altered the plain Language of article V which provides for ratification by State legislatures rather than by direct action of the people. It will be seen from this case that the State legislature for Ohio, instead of deciding on the ratification itself as it was bound to do under Article V, decided to obtain the opinion of the people by a referendum but such a procedure was held to be illegal because it did not find a place in Article V. This establishes that an amendment of the constitution must be made strictly in accordance with the method laid down in the constitution and any departure from it even for the purpose of ascertaining the true wishes of the people on the question would be inadmissible. An amendment of the constitution must be made only in accordance with the procedure laid down in the Constitution and whatever individuals and bodies may think that it had better be made by a repre- sentative constituent assembly or a convention or the like is of really no relevance.

( 1234 ). Under Article 368 the Parliament is the principal body for amending the constitution except in cases referred to in the proviso. Parlia- ment need not be associated with the State Legislatures in making an amend- ment of the constitution in cases excepted from the proviso. It cannot be lost sight of that Parliament in a very large way represents the will of the people. Parliament consists of two Houses-the Lok Sabha and the Rajya sabha. The Lok Sabha is elected for five years on the basis of adult franchise. The Rajya Sabha is a permanent body-members of which retire by rotation. The Rajya Sabha consists of members elected by the State legislatures who are themselves elected to those Legislatures on the basis of adult franchise. Then again there is a striking difference between the position occupied by the Congress in relation to the President in United states and the position of the Executive in relation to the Parliament and the State Legislatures in India. In America the President is directly elected by the people for a term and is the Executive head of the Federal Govern- ment. The Congress may make laws but the President is not responsible to the Congress. In India, however, in our Parliamentary system of demo- cracy, as in Great Britain, the Executive is entirely responsible to the Legis- lature. The Congress in U. S. A. will not be held responsibe by the people for what the President had done in his Executive capacity The same is true in respect of State Legislatures in America. In India people will hold the parliament responsible for any executive action taken by the Cabinet. While in the context of a constitutional amendment it is facile to decry the position of Parliament as a constituent body, we cannot ignore the fact that in both Great Britain and New Zealand-one with an unwritten constitution and the other with a written constitution-governed by Parliamentary demo- cracy, the constitution could be changed by an ordinary majority.


( 1235 ). Why the power to amend the constitution was given in the main to Parliament is not fully clear. But two things are clear. One is that as in America the people who gave us the constitution completely withdrew themselves from the process of amendment. Secondly, we have the word of Dr. Ambedkar-one of the principal framers of our Constitution that the alternative methods of referendum or convention had been considered and definitely rejected. They decided to give the power to Parliament, and Dr. Ambedkar has gone on record as saying that the amendment of the constitution was deli- berately made as easy as was reasonably possible by prescribing the method of article 368. The Constituent Assembly Debates show that the chief contro- versy was as to the degree of flexibility which should be introduced into the constitution. There may have been several historical reasons for the constituent assembly's preference for Parliament. Our country is a vast continent with avery large population. The level of literacy is low and the people are divided by language, castes and communities not all pulling in the same direction. On account of wide-spread illiteracy, the capacity to understand political issues and to rise above local and parochial interests is limited. A national perspective had yet to be assiduously fostered. It was, therefore, inevitable that a body which represented all India leadership at the Centre should be the choice. Whatever the reasons, the Constituent assembly entrusted the power of amendment to the Parliament and what- ever others may think about a possible better way, that was not the way which the constituent assembly commanded. The people themselves having withdrawn from the process of amendment and entrusted the task to the parliament instead of to any other representative body, it is obvious that the power of the authorities designated by the constitution for amending the constitution must be co-extensive with the power of a convention or a cons- tituent assembly, had that course been permitted by the constitution.

( 1236 ). We have already shown that constituent power is qualitatively superior to legislative power. Speaking about the legislative competence of the Canadian Parliament, Viscount Sankey, L. G. , speaking for the Judicialcommittee of the Privy council observed in British Coal Corporation v. The king'"indeed, in interpreting a constituent or organic statute such as the Act (British North America Act) that construction most beneficial to the widest possible amplitude of its powers must be adopted'. This principle has been again clearly laid down by the Judicial Committee in Edwards v. Attorney-General for Canada. "'their Lordships do not conceive it to be the duty of this Board-it is certainly not their desire-to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs". If that is the measure of legislative power the amplitude of the power to amend a constitution cannot be less.

( 1237 ). The width of the amending power can be determined from still another point of view. The Attorney-General has given to us extracts from nearly seventy-one modern constitutions of the world and more than fifty of them show that those constitutions have provided for their amend- ment. They have used the word 'amend', "revise', or 'alter', as the case may be, and some of them have also used other variations of those words by showing that the constitutional provisions may be changed in accordance with some special procedures laid down. Some have made the whole of the constitution amendable; some others have made some provisions una- mendable ; and two constitutions-that of Somalia and West Germany have made provisions relating to Human Rights unamendable. In some of the constitutions a few provisions are made partially amendable and other provisions only under special restrictions. But all have given what is commonly known as the 'amending power' to be exercised in circumstances of more or less rigidity. The methods or processes may be more rigid or less rigid-but the power is the same, namely, the amending power.


( 1238 ). The raison'detre for making provision for the amendment of the constitution is the need for orderly change. Indeed no constitution is safe against violent extra-constitutional upheavals. But the object of making such a provision in a constitution is to discourage such upheavals and pro- vide for orderly change in accordance with the constitution. On this all the text books and authorities are unanimous. Those who frame a constitution naturally want it to endure but, however gifted they may be, they may not be able to project into the future, when, owing to internal or external pres- sures or the social, economic and political changes in the country, alterations would be necessary in the constitutional instrument responding all the time to the will of the people in changed conditions. Only thus an orderly change is ensured. If such a change of constitution is not made possible, there is great danger of the constitution being overtaken by forces which could not be controlled by the instruments of power created under the con- stitution. Wide-spread popular revolt directed against the extreme rigidity of a constitution is triggered not by minor issues but by major issues. People revolt not because the so-called 'unessential' parts of a constitution are not changed but because the "essential' parts are not changed. The essential parts are regarded as a stumbling block in their progress to reform. It is, therefore, evident that if for any reason, whether it is the extreme rigidity of a constitution or the disinclination of those who are in power to introduce change by amendment, the essential parts looked upon with distrust by the people are not amended, the constitution has hardly a chance tosurvive against the will of the people, lf the constitution is to endure it must necessarily respond to the will of the people by incorporating changes sought by the people. The survival of the American Constitution is generally attributed not so much to the amending Article V of the Constitution but to its vagueness which was exploited by the great judges of the Supreme court of America who by their rulings adapted the constitution to the changing conditions. Legislative enactments, custom and usage also played a part. lfthe constitution were to merely depend upon constitutional amendments there are many who believe that the constitution would not have survived. The reason was the extreme rigidity of the process of amendment. But framers of modern constitutions as of India learning from experience of other countries have endeavoured to make their constitution as precise and as detailed as possible, so that one need not depend upon judicial interpreta- tion to make it survive. Correspondingly they have made it more flexible so that it is amenable to amendment whenever a change in the constitu- tion is necessary.

( 1239 ). A good deal of unnecessary dust was raised over the question whether the amendment of the constitution would extend to the repeal of the Constitution. That is an interesting subject for speculation by purists and theoretical jurists, but politicians who frame aconstitution for the practi- cal purposes of government do not generally concern themselves with such speculations. The pre-eminent object in framing a constitution is orderly government. Knowing that no constitution, however, good it may seem to be when it was framed, would be able to bear the strain of unforeseen developments, the framers wisely provide for the alteration of the Constitu- tion in the interest of orderly change. Between these two co-ordinates, namely, the need for orderly government and the demands for orderly change, both in accordance with the constitution, the makers of the Constitu- tion provide for its amendment to the widest possible limit. If any provi- sion requires amendment by way of addition, alteration or repeal, the change would be entirely permissible. If one were to ask the makers of the Cons- titution the theoretical question whether they contemplated the repeal of the constitution, the answer would be, in all probability, in the negative. They did not toil on the Constitution for years in order that it may be repealed by the agencies to whom the amendment of the Constitution is entrusted. They wished it to be permanent, if not eternal, knowing that as time moved, it may continue in utility incorporating all required changes made in an orderly manner. Declaring their faith in the Constitution they will express their confidence that the Constitution which they had framed with the know- ledge of their own people and their history would be able to weather all storms when it is exposed to orderly changes by the process of amendment. To them the whole-sale repeal would be unthinkable; but not necessary changes in response to the demands of time and circumstance which, in the opinion of the then amending authorities, the current constitutional instru- ment would be able to absorb. This is sufficient for the courts to go on as it was sufficient for the framers of the Constitution. Quibbling on the mean- ing of the word 'amendment' as to whether it also involved repeal of the whole Constitution is an irrelevant and unprofitable exercise. Luckily for us besides the word 'amendment' in Article 368 we have also the uncomplicated word "change' in that article and thus the intention of the framers of the constitution is sufficiently known. Then again the expression 'amendment of the Constitution' is not a coinage of the framers of our Constitution. That is an expression well-known in modern Constitutions and it is commonly accepted as standing for the alteration, variation or change in its provisions.

( 1240 ). Whichever way one looks at the amending power in a Constitu- tion there can be hardly any doubt that the exercise of that power must correspond with the amplitude of the power unless there are express or nece3- sarily implied limitations on the exercise of that power. We shall deal with the question of express and implied limitations a little later. But having regard to the generality of the principle already discussed the meaning of the word 'amendment of the Conititution' cannot be less than 'amendment by way of addition) variattan or repeal of any provision of the Constitution' which is the clarification of that expression accepted by the Constitutional 24th Amendment.

( 1241 ). We shall now see if there are express or implied limitations in article 368 itself. Article 368 is found in Part XX of the Constitution which deals with only one subject, namely, the Amendment of the Constitution. The article provides that when the special procedure directed by it is success- fully followed the Constitution stands amended in terms of the proposal for amendment made in the Bill. Whatever provision of the Constitution may be sought to be amended, the amendment is an Amendment of the Constitu- tion. The range is the whole of this Constitution which means all the provisions of the Constitution. No part of the Constitution is expressly excepted from amendment. Part XX and Article 368 stand in supreme isolation, after the permanent provisions of the Constitution are exhausted in the previous XIX parts. The power to amend is not made expressly subject to any other pro- vision of the Constitution. There are no governing words like "subject to the Constitution" or this or that part of the Constitution. If the framers of the Constitution had thought it necessary to exclude any part or provision of the Constitution from amendment, they would have done so in this part only as was done in the American Constitution. Article V of that Constitution, which was undoubtedly consulted before drafting Article 368, made two specific exceptions. The language structure of Article V has a close resemb- lance to the language structure of our Article 368. Therefore, if any part of the Constitution was intended to be excluded from the operation of the power to amend it would have normally found in place in or below Article 368. As a matter of fact, in the draft Constitution below Article 304, which corres- ponds to the present Article 368, there was Article 305 which excluded cer- tain provisions from amendment, but later on Article 305 itself was deleted. Even Article 368 itself was not safe from amendment because the proviso to article 368 shows that the provisions of the article could be changed. Then again we find that when the people through the Constituent Assembly granted the power to amend, they made no reservations in favour of the pei)pli;. The people completely withdrew from the process of arnendment. In other words, the grant of power was. without reservation. Another. thing which is to be noted is that when the Constituent assembly directed that amend- ments of the Constitution must be made by a prescribed method, they neces- sarily excluded every other method of amending the Constitution. As long as the article stood in its present form the Parliament could not possibly introduce its own procedure to amend the Constitution by calling a constituent assembly, a convention or the like. Altogether, it will be seen that the grant of power under Article 368 is plenary, unqualified and without any limita- tions, except as to the special procedure to be followed.

( 1242 ) THE character of an amendment which can be made in a cons- titution does not depend on the flexibility or rigidity of a Constitution. Once the rigidity of the restrictive procedure is overcome, the Constitution can be amended to the same degree as a flexible Constitution. So far as a flexible constitution like that of Great Britain is concerned, wo know there are nolimits to what the Parliament can do by way of amendment. It can, as pointed out by Dicey, repeal the Act of Union of Scotland by appropriate provisions even in a Dentist's Act. (Law of the Constitution, page 145 ). We know that by the Statute of Westminster the British Parliament removed most of the Imperial fetters from the self-governing colonies and by the independence of India Act,1947 surrendered its Indian Empire. Recently the British Parliament invited inroads on its sovereignty by joining the common Market. Similarlyas we have seen in Mccawley's case (supra) referred to earlier, the Legislature of Queensland, whose Constitution was a flexible constitution, was held competent to amend its constitutional provisions with regard to the tenure of office of the Judges of the Supreme court by a subse- quent Act passed in 1916 on the subject of Industrial Arbitration. To the objection that so important a provision of the Constitution was not permissible to be amended indirectly by a law which dealt with Industrial arbitration, lord Birkenhead made the reply at page 713 : "still less is the Board pre- pared to assent to the argument, at one time pressed upon it, that distinctions may be drawn between different matters dealt with by the Act, so that it becomes legitimate to say of one S. : "this S. is fundamental or organic ; it can only be altered in such and such a manner" ;and of another : "this S. is not of such a kind; it may consequently be altered with as little ceremony as any other statutory provision". Their Lordships therefore fully concur in the reasonableness of the observations made by Isaacs and rich,. , that, in the absence of any indication to the contrary, no such cha- racter can be attributed to one S. of the Act which is not conceded to all, and that if S. 15 and 16 (relating to the tenure of office of the judges) are to be construed as the respondents desire, the same character must be conceded to S. 56, which provides that in proceedings for printing any extract from a paper it may be shown that such extract was bona fide made". This only emphasises that all provisions in a Constitution must be conceded the same character and it is not possible to say that one is more important and the other less important. When a legislature has the necessary power to amend, it can amend an important constitutional provision as unceremoni- ously as it can amend an unimportant provision of the Constitution. Dicey observes in his Law of the Constitution, 10th edition, p. 127: "the 'flexibi- lity' of our Constitution consists in the right of the Grown and the two houses to modify or repeal any law whatever, they can alter the succession to the Grown or repeal the Acts of Union in the same manner in which they can pass an Act enabling a company to make a new railway from Oxford to london".

( 1243 ). As already pointed out what distinguishes a rigid Constitution from a 'flexible' Constitution is that it requires a special procedure for its amendment. It cannot be legally changed with the same ease and in the same manner as ordinary laws. But if the rigid procedure is successfully followed, the power to amend operates equally on all provisions of the Cons- titution without distinction. Indeed, rigid Constitutions may safeguard cer- tain provisions from amendment even by the special procedure. But where no such provision is protected the power of amendment is as wide as that of a Parliament with a flexible Constitution. Rigidity of procedure in the matter of amendment is the only point of primary distinction between a 'rigid' and 'flexible' Constitution and when this rigidity is overcome by following the special procedure, the power of amendment is not inhibited by the fact that a constitutional provision is either important or unimportant. The amending power operates on all provisions as effectively as it does in a flexible Constitution. If the nature of the provision is so important that theconstitution itself provides against its amendment the amending power will have to respect the provision. But if it is not so protected, every provision, important or otherwise, can be amended by the special procedure provided. In that respect the fact that the Gonstitution is a rigid', Gonstitution does not place any additional restraint.

( 1244 ). We have already referred to the principle underlying the Amending provision in a written Constitution. In some Constitutions the special procedure is very 'rigid' as in the American Gonstitution. In others, especially in more modern Constitutions, having regard to the disadvantages of providing too rigid and restrictive procedures, amending procedures hive been made more and more flexible. Our Gonstitution which learnt from the experience of other similar Constitutions made the amending procedure as flexible as was reasonably possible. There are several articles in the Gonstitution which permit the Parliament to make laws which are of a constitutional character. There are some other articles which permit amendments to certain other specified provisions of the Gonstitution by the ordinary legislative procedure. For the rest there is Article 368 which provides a much more flexible procedure than does the American Constitution. The following passages from the book, political Science and Comparative Constitutional Law, Vol. I, written by the great jurist, Johan W. Burgess will show both the rationale for including an amendment clause in a Gonstitution and the need of making the amend- ing procedure as rigid as possible. At page 137 he says "a complete Cons- titution may be said to consist of three fundamental part. The first is the organisation of the State for the accomplishment of future changes in the gonstitution. This is usually called the amending clause, and the power which it describes and regulates is called the amending power. This is the most important part of a Constitution. Upon its existence and truthfulness,. e. its correspondence with real and natural conditions, depends the ques- tion as to whether the State shall develop with peaceable continuity or shall suffer alternations of stagnation, retrogression and revolution. A Gonstitution, which may be imperfect and erroneous in its other parts, can be easily supple- mented and corrected, if only the state be truthfully organised in the Constitu- tion ; but if this be not accomplished, error will accumulate until nothing short of revolution can save the life of the State". Then at pages 150-151 commenting on the disadvantages of the amending procedure of the American constitution he remarks "when I reflect that, while our natural conditions and relations have been requiring a gradual strengthening and extension of the powers of the central government, not a single step has been taken in this direction through the process of amendment prescribed in that article, except as the result of civil war, I am bound to conclude that the organiza- tion of the sovereign power within the Constitution has failed to accomplish the purpose for which it was constructed. . . . . . But I do say this that when a state must have recourse to war to solve the internal questions of its own politics, this is indisputable evidence that the law of its organization within the Gonstitution is imperfect; and when a State cannot so modify and amend its Constitution from time to time as to express itself truthfully therein, but must writhe under the bonds of its Constitution until it perishes or breaks them as under, this is again indisputable evidence that the law of its organization within the Gonstitution is imperfect and false. To my mind the error lies in the artificially excessive majorities required in the production of constitutional changes". These passages express the deep anguish of the jurist and his disappointment with the current process of amendment prescrib- ed in the U. S. Gonstitution. He gives the amending provision supreme importance in the Constitution and wants it to be very much less rigid thanwhat it is, so that the Constitution can correspond with the truth of contem- porary, social and political changes. The whole object of providing for amendment is to make the Constitution as responsive to contemporary condi- tions as possible because, if it is not, the danger of popular revolt, civil war or even revolution in a rapidly changing world may soon overtake the people. That being the political philosophy behind the amending provision it is obvious that the provision must serve the same purpose as in a Parliamentary democracy with a flexible Constitution. ' The latter can adjust itself more readily with changing conditions and thus 'discorage violent revolts. If the object of a constitution is the same, namely, orderly government and orderly change in accordance with the law, it must be conceded that all Constitutions whether flexible or rigid must have the power to amend the Constitution to the same degree ; and if flexible Constitutions have the power to make necessary changes in their most cherished constitutional principles, this power cannot be denied to a Constitution merely because it is a rigid Constitution. The amending power in such a Constitution may, therefore, reach all provisions whether important or unimportant, essential or unessential.

( 1245 ) THE above proposition is supported by several decisions of the supreme court of America and the Supreme courts of the American States, the Constitutions of which are all "rigid'. In Edwards v. Lesueur, it was held that if a State Constitution provides that its General Assembly may at any time propose such amendments to that instrument as a majority of the mem- bers elected to each House deem expedient the substance and extent of amend- ment are left entirely to the discretion of the General Assembly. In Liver- more v. Waite only one of the judges, Judge Harrison, held the view that the word "amendment' in the State Constitution implied such an addition or change within the lines of the original instrument as will effect an improvement or better carrying out of the purpose for which it was framed. But that view is not shared by others. In the State Constitution of California the word "amendment' was used in addition to the word 'revision' and that may have in- fluenced the judge to give the word "amendment' a special meaning. The actual decision was dissented from in Edwards v. Lesueur (supra) referred to above, decided about 10 years letter, and the opinion of Judge Harrison with regard to the meaning of the word 'amendment' was dissented from in Ex-parte Dillon. This case went to the Supreme court of America in Dillon v. Gloss and the decision was affirmed. The challenge was to the Prohibition Amendment (18th) and the court observed at p. 996 '"an examination of Article V dis- closes that it is intended to invest Congress with a wide range of power in proposing amendments. Passing a provision long since expired (that provision expired in 1 08) it subjects this power to only two restrictions: one that the proposal shall have the approval of two-thirds of both Houses, and the other excluding any amendment which will deprive any State, without its consent, of Its equal suffrage in the Senate. A further mode of proposal-as yet never invoked-is provided, which is, that on application of the two-thirds of the states Congress shall call a convention for the purpose. When proposed in either mode, amendments, to be effective, must be ratified by the Legislatures, or by conventions, in three-fourths of the states, "as the one or the other mode of ratification may be proposed by the Congress". Thus the people of the united States, by whom the Constitution was ordained and established, have made it a condition to amending that instrument that the amendment be submitted to representative assemblies in the several states and be ratified inthree-fourths of them. The plain meaning of this is: (a) that all amendments must have the sanction of the people of the United States, the original foun- tain of power, acting through representative assemblies, and (b) that ratifica- tion by these assemblies in three-fourths of the states shall be taken as a deci- sive expression of the people's will and be binding on all". The above passage is important from two points of view. One is that Article V subjects the amending power to no restrictions except the two expressly referred to in the article itself, and the second point which is relevant for our purpose is that the people's ratification may be obtained in one of two ways, namely, by the State Legislatures or by State ' conventions. It was for the Congress to choose between these two ways of ratification. But. . whichever method was chosen, the ratification, whether by the State Legislatures or, by special conven- tions, was the ratification on behalf of the people because they were repre- sentatives assemblies who could give a decisive expression of the people's will. As a matter of fact although several amendments, have been made to the Cons- titution under Article V there has been only one, namely, the 21st Amend- ment which had been referred to State conventions. All other amendments were proposed by the Congress and ratified by the State Legislatures-the ratification being regarded as by people's representatives who could decisi- vely express the people's will. If the State Legislatures in America which have no responsibility for the executive government of the State are deemed to reflect the will of the people there is greater reason to hold. that our Parlia- ment and State Legislatures are no less representative of the will of the people when they participate in the process of amendment of the Constitution.

( 1246 ). But reverting to the consideration of the charactar of "an amend- ment of the Constitution", we find from decided American cases that there are no limits except those expressly laid down by the Constitution. In Ex-parte mrs. D. C. Kerby decided by the Oregon Supreme court in 1922 which. concerned an amendment restoring the death penalty which had been aboli- shed by a previous amendment to the Bill of Rights of the State Constitution, the following observations in State v. Cox were quoted with approval. "the Constitution, in prescribing the mode of amending that instrument, does not limit the power conferred to any particular portion of it, and except other provisions by declaring them not to be amendable. The general assembly, in amending the Constitution, does not act in the exercise of its ordinary legislative authority of its general power; but it possesses and acts in the character and capacity of a convention, and is, quo ad hoc, a convention expressing the supreme will of the sovereign people and is unlimited in it (r) powers save by the Constitution of the United States. Therefore, every change in the fundamental law, demanded by the public will for the public good, may be made, subject to the limitation above named".

( 1247 ). In Downs v. City of Birmingham the Supreme court of Alabama held that an amendment to State Constitution may extend to a change in form of the State's government, which may be in any respect except that the government must continue to be a republican form of government as required by the U. S. Federal Constitution, which was inviolable, and that rights acquired under the Constitution are subject to Constitutional provisions permitting amendments to the Constitution, and no right can be acquired under the State Constitution which cannot be abridged by an amendment of the Constitution and such a rule extends to contract and property rights.

( 1248 ). In Schneiderman v. United States of America, which was a denaturaliza- tion case on the ground of non-allegiance to the "priniciples" of the American constitution, Murphy,. , delivering the opinion of the court said, pp. 1808- 1809: "the constitutional fathers, fresh from a revolution, did not forge a political strait-jacket for the generations to come. Instead they wrote Article V and the First Amendment, guaranteeing freedom of thought, soon followed. Article V contains procedural provisions for constitutional change by amendment without any present limitation whatsoever except that no State may be deprived of equal representation in the Senate without its consent. Cf. National Prohibition Cases (Rhode Island v. Palmer), This provision and the many important and far-reaching changes made in the Constitution since 1787 refute the idea that attachment to any particular provision or provisions is essential, or that one who advocates radical changes is neces- sarily not attached to the Constitution".

( 1249 ). In Ullmann v. United States, Frankfurter,. , delivering the opinion of the Supreme court on the privilege against self-incrimination (Fifth Amendment) which, by the way, is recognised by our Constitution as a fundamental right, quoted with approval Chief Judge Macgruder who said "if it be thought that the privilege is out-moded in the conditions of this modern age then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion".

( 1250 ). Recently in Whitehill v. Elkins, Douglas,. , delivering the opinion of the court, observed at p. 231 "if the Federal Constitution is our guide, a person who might wish to "alter our form of government may not be cast into the outer darkness. For. the Constitution prescribes the method of 'alteration' by the amending process in Article V; and while the procedure for amending it is restricted, there is no restraint on the kind of amendment that may be offered. "

( 1251 ). It is unnecessary to multiply cases to appreciate the width of the amending power in a 'rigid' Constitution. Even the dictionaries bring out the same sense. The word 'amend ' may have different nuances of meaning in different contexts, like "amend once conduct", "amend a letter or a document", "amend a pleading", "amend a law" or "amend a Constitu- tion". We are concerned with the last one, namely, what an amendment means in the context of a Constitution which contains an amending clause. In the Oxford English Dictionary, Vol. I the word 'amend' is stated to mean "to make professed improvements in (a measure before Parliament); formally, to alter in detail, though practically it may be to alter its principle so as to thwart it".

( 1252 ). Sutherland in his Statutes and Statutory Construction, third edition, vol. I, p. 325 has explained an "amendatory act", as any change of the scope or effect of an existing statute, whether by addition, omission, or substitution of provisions, which does not wholly terminate its existence, whether by an act purporting to amend, repeal, revise, or supplement, or by an act independent and original in form.

( 1253 ). In Words and Phrases, Permanent Edition, Vol. 3, p. 447 it is generally stated that the word 'amendment' involves an alteration or change, as by addition, taking away or modification. It is further explained that the words 'amend', 'alter', and 'modify' are in general use and their meaning is not uncertain. Each means to change. A broad definition of the word "amendment' would include any alteration or change. Furtheron (458) it is explained in the context of a Constitution that an 'amendment' of a Constitution, repeals or changes some provision in, or adds something to, the instrument amended. Then citing Downs v. City of Birmingham, (supra) already referred to, it is stated that every proposal which effects a change in a Constitution or adds to or takes away from it is an 'amendment', and the proposal need not be germane to any other feature of the Consti- tution, nor to the feature which is amended.

( 1254 ). Similarly citing State v. Fulton, it is explained that the word 'amendment', when used in connection with the Constitution, may refer to the addition of a provision on a new and independent subject, complete in itself and wholly disconnected from other provisions, or to some particular article, or section, and is then used to indicate an addition to, the striking out, or some change in that particular section.

( 1255 ). In Standard Dictionary of Funk and Wagnalls 'amendment' is defined as an act of changing a fundamental law as of a political Constitution or any change made in it according to a prescribed mode of procedure; as to alter the law by amendment, an amendment of the Constitution.

( 1256 ). In a Dictionary of the Social Sciences edited by Julius Gould and william L. Kolb compiled under the auspices of the UNESCO p. 23, the word 'amendment' has been explained. "the term 'amendment', whenever used, has the core denotation of alteration or change. Historically the change or alteration denoted was for the sake of correction or improvement. In the realities and controversies of politics, however, the nature of correction or improvement becomes uncertain, so that alternation or change remains the only indisputable meaning as the term is applied. Probably the most funda- mental type of formal amendment is that which is constituted by the alter- ation of the formal language of written Constitutions. The importance of the amending procedure in a time of serious social change has been stated by c.. , Friedrich. A well drawn Constitution will provide for its own amend- ment in such a way as to forestall as far as is humanly possible revolutionary upheavals, that being the case the provisions for amendment form a vital part of most modern. Constitutions. (Constitutional government and Democracy - boston 1941 p. 135 ). I twill be thus seen that having regard to the object of providing an amendment clause in a modern Constitution, amendment must stand for alteration and change in its provisions.

( 1257 ). That this was intended is clear from the wording of Article 368. The main part of the Article speaks only of "an amendment of this constitution". It shows how a proposal for amendment becomes part of the constitution. The language structure of Article 368 recalls the language structure of Article V of the American Constitution. There also the words used are "amendment to this Constitution", and nothing more. No such supplementary words like "by addition, alteration or repeal" are used. Yet we have seen that so far as Article V is concerned an amendment under article V involves alteration and change in the Constitution. Article 368 has a proviso which begins with these words "provided that if such amendment seeks to make any change in: (a) Article 54, Article 55, Article 73, Article 162 or Article 241, or (b) Ch. IV of Part V Ch. V of the Part VI, or Ch. I of Part XI, or (c) any of the Lists in the Seventh Schedule or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the legislatures etc. etc". The proviso, therefore, clearly implies that an amendment under Article 368 seeks to make a change in the provisions of the constitution. If the amendment seeks to make a change in the provisions referred to in sub-clauses (a) to (e) then only the amendment which makes such a change in these provisions requires ratification by the State legislatures. Otherwise, the amendment, making a change in other provisons does not require ratification. We have already observed that the meaning of the word 'change' is uncomplicated and can be easily felt and understood. The noun 'change' according to the Shorter Oxford English Dictionary means "'substitution or succession of one thing in place of another ; substitution of other conditions ; variety". It also means alteration in the state or quality of anything; variation, mutation. . There can be no doubt, therefore, that, having regard to the importance of the amending clause in our Constitution, an amendment contemplates changes in the provisions of the Constitution which are capable of being effected by adding, altering or repealing them, as found necessary, from time to time. As a matter of fact it is impossible to conceive of even the simplest form of amendment without adding, altering or repealing. If you add some words to a provision of the Constitution you thereby alter. the provision. If you substitute a few words, you alter and repeal. Mr. Palkhivala admitted that he had no objection whatsoever to an amendment improving the Constitution so that it can serve the people better. He said that it was open to the Parliament to improve the content of the constitution by making necessary changes. All that would necessarily imply amendment by wey of addition, variation or repeal of a provision of the constitution which is just what the 24th Amendment seeks to do. As a matter of fact any amendment to the Constitution which the representatives of the people want to make is professedly an improvement. No proposer of an amendment of a Constitution, whatever his opponents may say to the contrary, will ever agree that his proposal is retrogressive. Therefore, improvement or non-improvement cannot be the true test of an amendment. Alteration and change in the provisions is the only simple meaning, which the people for whom the Constitution is made, will understand.

( 1258 ). Having seen the importance of the amending clause in a Consti- tution, the philosophy underlying it and the amplitude of its power, it will be improper to try to cut down the meaning of the word 'amendment' in the expression 'amendment of the Constitution' by comparing it with the same word used in other provisions of the Constitution or other statutes in a different context. Not that such a comparison will in any way serve the object with which it is made, but it will amount to comparing, in effect, two words-one operating on a higher plane and the other on a lower. The word amendment in the expression "amendment of the Constitution" operates on a higher plane and is substantialy different in connotation from the same word used on a lower plane in some other provision of the Constitution or any other statute in an entirely different context. To say that the word 'amendment' in 'amendment of the Constitution' is used in a low key because padding words like amendment "by way of addition, variation or repeal" are used elsewhere in the Constitution would be to ignore the status of the word 'amendment' when used in the context of amending the Constitution. Indeed the expression "amendment by way of addition, variation or repeal" would also amount to "amendment'. But it is more appropriately used when some distinct provisions of a statute are under consideration and even the extreme limit of a repeal of such provisions is contemplated. In the case of an amendment of the Constitution this extreme limit of the repeal of the constitution is not, as already pointed out, ordinarily contemplated. In the present case the comparison was principally made with "amend by way of addition, variation or repeal" in sub-paragraphs 1 of para 7 and 21 in the fifth and Sixth Schedules respectively. In both these cases. Parliament is authorized from time to time, by law, to make the amendment in any of theprovisions of the two schedules. The authority is not only to add to the provision or vary the provision but even repeal the provision. Having pro- vided that way in sub-paragraph (1) the framers of the Constitution added sub- para (2) in each case, but for which, what was done in accordance with sub- para (1) was likely. to be misunderstood as an amendment of the Constitution as discribed in Article 368. Textually the provisions in the Schedules would stand amended. But this amendment is carried out 'by law'. On the other hand, if even a word in any provision of the Constitution is changed in accor -. dance with Article 368, it is not described as an amendment of the provision but an amendment of the Constitution with all its wide connotations.

( 1259 ). In Articles' and 169 (2) we have just the word 'amendment' for amending certain provisions of the Constitution by law, and both of them show in their context, without even the use of the padding words, that such an amendment would be really by way of addition, alteration and repeal. Then again such amendments are expressly taken out of the class of "amend- ment of the Constitution for the purposes of Article 368" but for which they would have amounted textually to an amendment.

( 1260 ). Referense was also made to the amendment made by the consti- tuent assembly in S. 291 of the government of India Act, 1935 where similar padding words were used along with the word 'amend'. Here again it will be seen that the amendment was not an amendment of the Constitution but an authorization of the governor-General to amend, by Order, certain provisions relating to the provincial Legislatures which were liable even to be repealed. No implications can be drawn with regard to the power under article 368 by a reference to another statute where a particular phraseology is adopted in its own context. On the other hand this may be contrasted with the wording of S. 308 (later repealed) which provided for 'the amend- ment of the Act and the Orders in council' on the proposals made by the federal and State legislatures. The Act referred to is the government of india Act, 1935. No padding words are used in the S. although the context shows that amendment would inevitably involve, adding, altering or repealing certain provisions of the government of India Act or Orders in- council.

( 1261 ). The structure of Article 368 is now changed by the 24th Amend- ment and the expanded expression "amendment by way of addition, varia- tion or repeal, any provision of this Constitution" is adopted. The language structure of the original Article 368 was, however, different and there was no reference to "the provisions" of the Constitution therein. The article commenced with the wards "an amendment of this Constitution" without reference to any provisions. Reference to "provisions of the Constitution" having been eschewed, to pad the expression "amendment of the constitu- tion" by the words "by way of addition, variation or repeal" would have been inappropriate; because such padding was likely to give the impression that the intention was to amend by addition to and, alteration and repeal of, the Constitution, considered as a whole. Neither the alteration nor the repeal of the Constitution, as as a whole, could have been intended and hence the padding words would not have commended' themselves to the Draftsmen. And because that was not the intention, we have to take the first step of legally construing "this Constitution" as "every provision of the Constitution" and then import the padding words with reference to the provision. Such a construction is perfectly permissible having regard to the general mean- ing of the word "amendment". Since doubts were expressed in the leadingmajority judgement of five judges in opposition to the view of the other six judges, who agreed that the word 'amendment' was wide in its application, the 24th Amendment had to clarify the position.

( 1262 ) ARTICLE V of the American Constitution used only the words 'amendment to the Constitution' without any padding like "by way of addition, variation or repeal" and yet no body questions the fact that after 1789, when the Constitation was framed, there have been several additions, alterations and repeals. ' Actually the 18th Amendment was repealed by the 21st.

( 1263 ) WE thus come to the conclusion that so far as the wording of article 368 itself is concerned, there is nothing in it which limits the power of amendment expressly or by necessary implication. Admittedly it is a large power, whether one likes it or not, it is not the function of the court to invent limitations where there are none. Consequences of wreckless use of the power are political in character with which we are not concerned. Conse- quences may well be considered in fixing the scope and ambit of a power, where the test of the statute creating the power is unclear or ambiguous. Where it is clear and unambiguous, courts have to implement the same with- out regard to consequences good or bad, just or unjust. In Vacher's case lord Shaw observed at page 126 "were they (words) ambiguous, other sections or Ss. might have to be invoked to clear up their meaning; but being unambiguous, such a reference might distort that meaning and so produce error. And of course this is a fortiori the case, if a reference is suggested, not to something within, but to considerations extraneous to, the act itself. If, for instance, it be argued that the mind of Parliament "looking before and after," having in view the past history of a question and the future consequences of its language, must have meant something different from what is said, then it must be answered that all this essay in psychological dexterity may be interesting, may help to whittle language down or even to vaporize it, but is a most dangerous exercise for any interpreter like a court of law, whose duty is loyally to accept and plainly to expound the simple words employed".

( 1264 ) WE have to see next whether there are express limitations on the amending power elsewere in the Constitution. The only provision to which our attention is drawn in Article 13 (2 ). The article, before its amendment by the 24th Amendment, was as follows:13. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contra- vention of this clause shall, to the extent of the contravention be void. (3) In this article, under the context otherwise requires,- (a) "law" includes any Ordinance, order, bye-law, rule, regula- tion, notification, custom or usage having in the territory of india the force of law; (b) "laws in force" includes laws passed or made by a Legislature or otherwise competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. It is obvious from Article 13 (1) and (2) that the intention was to make the fundamental rights paramount and invalidate all laws which were inconsistent with the fundamental rights. On the commencement of the constitution of India there could not possibly be a vacuum with regard to laws and, therefore, by Article 372 (1) all the laws in force in the territory of india immediately before the commencement of the Constitution were continued in force until altered or repealed or amended by a competent legislature or other competent authority. Such laws which were in force before the commencement of the Constitution and were continued under article 372 (1) were, in the first instance, declared void to the extent of their inconsistency with the provisions of Part III containing the fundamental rights. As to future laws provision was made under clause (2) which commanded that the State shall not make a law which takes away or abridges the rights conferred by Part III and further added that any law made in contravention of the clause would be void to the extent of the contravention.

( 1265 ) IT was contended before us that an amendment of the Constitution under Article 368 was a law made by the State and, therefore, to the extent that it contravened clause (2) it would be void. The submission was similar to the one made in Golak Nath's case (supra) which was upheld by the majority of six judges. In the leading majority judgment it was held that it was a law which was made under Article 248 read with the residuary Entry 97 of List I of the Seventh Schedule and, therefore, would be void if it took away or abrided any of the fundamental rights. Hidayatullah,. , who agreed with the conclusion did not agree that the power to amend was traceable to the residuary article referred to above. Nevertheless he held "it was indistinguishable from the other laws of the land for the purpose of article 13 (2)". The other five judges who were in. the minority agreed substantially with the view taken in Sankari Prasad's case (supra) and by the majority in Sajjan Singh's case (supra) that this was not a law within the mean- ing of Article 13 (2) because, in their opinion, an amendment of the constitu- tion under Article 368 was an act in exercise of the constituent power and, was, therefore, outside the control of Article 13 (2 ).

( 1266 ) MR. Palkhivala submitted that he was not interested in disputing where the power to amend actually lay. Even assuming, he contended, the power to amend was to be found in Article 368, the worst that could be said against him was that the amendment was a constitutional law and in bis submission even such a law would be taken in by Article 13 (2 ). In this connection he argued that there were certain laws made in the Indian States or even other laws which could be properly described as constitutional laws which continued in force after the commencement of the Constitution and came within the category described in Article -. 13 (1) and, therfore, there was no reason why an amendment of the constitution which was also a constitutional law should not come within the prohibition of Article 13 (2 ). The Indian Independence Act, 1947 and the Goverment of India Act, 1935 which were the two main constitutional statutes in accordance with which the country had been governed had been specifically repealed byarticle 395. No other statute of similar competence and quality survived our Constitution. It may be that certain statutes of the States and other constitutional documents may have continued in force as laws under Arti- cle 13 (1) but it would be wrong to conclude therefrom that an amendment of the Constitution, also being a constitutional law, would be deemed to have; been included in the word law' in Article 13 (2 ). We must be clear as to what 'constitutional law ' means in a written constitution. Jennings in his the Law and the Constitution (fifth edition), pp. 62-65 points out that there is a fundemental distinction between constitutional law and the rest of the law and that the term 'constitutional law' is never used in the sense of including the law of the constitution and the law made under it. In the context of the question in issue, we are concerned with our Constitution which is the supreme fundemental law, on the touchstone of which the validity of all other laws-those in force or to be made by the State-is to be decided and since an amendment of the supreme law takes an equal place, as already pointed out, with the rest of the provisions of the constitution we have to see whether an amendment of such quality and superiority is sought to be invalidated by Article 13 (2 ). Other laws in force at the time of the com- mencement of the Constitution consisting of State treaties or State statutes were not laws of this superior category. In fact Article 372 (1) itself shows that if they were to continue in force they were to do so subject to the other provisions of this constitution and were liable to be altered or repealed or amended by a compenent legislature or other competent authority. All such laws ' though vaguely described as constitutional were made absolutely subordinate to the Constitution. In that respect they were no better than any other laws which were continued in force after the commencement of the constitution and to the extent that they were inconsistent with the fundamen- tal rights, they stood on the same footing as any other laws which continue in force after the commencement of the Constitution. Their status was entirely subordinate to the Constitution. On the other hand, the stature of a constitutional amendment, as already seen, is the stature of the Constitution itself and, therefore, it would be wrong to equate the amendment of the constitution with a so-called constitutional law or document which survived after the commencement of the Constitution under Article 372 (1 ).

( 1267 ) AN amendment of the Constitution cannot be regarded as a law as understood in the Constitution. The expressions 'law',. 'by law', 'make a law', are found scattered throughout the Constitution. Some Articles, as shown by Bachawat,. , in Golak Nath's case (supra) at pp. 904, 905 are exprsessly continued until provision is made by law. Some articles of the Constitu- tion continue unless provision is made otherwise by law; some continue save as otherwise provided by law. Some Articles are subject to the provi- sions of any law to be made and some are expressed not to derogate from the power of making laws. Articles 4, 169, Para 7 of the Fifth Schedule and para 21 of the Sixth Schedule empower the Parliament to amend the provi- sions of the First, Fourth, Fifth and Sixth Schedules by law. A reference to all these articles will show that in all these articles the expression law' means a law made by the Parliament in. accordance with its ordinary legis- lative procedure. On the other hand, it is a point worthy of note that article 368 scrupulously avoids the Use of the word 'law'. After the pro- posal for amendment, introduced in Parliament in the form of a bill, is passed by the two Houses separately with the requisite majority and is assented to by the President with prior ratification by the requisite number of states in certain cases mentioned in the proviso, the proposed amendment writes itself into the Constitution as a part of it. It is not passed, as alreadypointed out, as any other law is passed by the ordinary procedure by compe- tent legislatures. The ratification by the State Legislatures by a resolution is not a legislative act. The whole procedure shows that the amendment is made by a process different from the one which is compulsory for any other laws made by the Parliament or the State Legislatures, and hence advisedly the term law' seems to have been avoided. In doing this the framers of the Constitution might have been influenced by the view -held by many jurists in America that Article V of the American Constitution to which Article 363 confoims to some extent in its language structure don't regard an amendment of the constitution as a legislative act. Finer called it, as we have already seen the Constitution itself. "in proposing a consti- tutional amendment, the legislature is not exercising its ordinary legislative function". Corpus Jurissecundum, Vol. 16, pp. 48-49. "'under Article V of the American Consititiition the proposal by the congress for amendment and the ratification by the States are not acts of legislation". Burdick- the Law of the American Constitution pp. 40-42. "ratification by the states is not alegislative act"-Weaver: Constitutional Law and its Administation, p. 50.

( 1268 ) SECONDLY, we find in several places in our Constitution the two words 'constitution' and the "law' juxtaposed which would have been unnecessary if the word law' included the Constitution also. For example, in the oath of the President mentioned in Article 60 and of the governor of a State in Article 159 it would have been sufficient for him to swear that he would ''preserve, protect and defend the law" instead of swearing that he would "preserve, protect and defend the Constitution and the law". Similarly the Attorney-General under Article 76 and the Advocates-General of the States under Article 165 need have merely sworn that he would "discharge the functions conferred on him bylaw" instead of that "he would discharge the functions conferred by and under this Constitution or any other law for the time being in force". Similar is the case with the oaths prescribed in the Third Schedule for the judges of the Supreme court and the High courts and the Comptroller and Auditor-General. Indeed it is quite possible to urge that the Constitution has been specially mentioned in order to emphasize it-' importance. But that is the very point. Its im- portance lies in its supremacy over all kinds of other laws-a special position which the framers of the Constitution, thoroughly acquainted with federal and quasi-federal constitutions of the more important countries in the world, must have always known. In any case they knew that the Constitu- tion was distinct from other laws. On that footing it would be only rea- sonably expected that if an amendment, not being of the nature of an ordinary law, was intended to be included in the word law' in Article 13 (2), it would have been specifically mentioned in the definition of the word "law' given in clause 3 (1) of Article 13. The definition is an inclusive definition. It does not mention enacted law or statute law in the definition, apparently because no-body needs to be told that an act of a legislature is law. But it includes such things like an ordinance, order, bye-law, rules regulation, notification, custom or usage in order to clarify that although, the aforesaid are not enactments of a legislature, they were still law' falling within the definition. An objection seems to have been anticipated that ordinances, orders, bye-laws etc. , not being the acts of a legislature, are not laws. That apparently was the reason for their specific inclusion. If, therefore, an amendment of the Constitution was intended to be regarded as law', not being an ordinary statute of the legislature, it had the greatest claim to be included specifically in the definition. Its omission is, there- fore, very significant.

( 1269 ) THE significance lies in the fact that the Constitution or its amendment is neither a law in force within the meaning of Article 13 (1) continued under Article 372 (1); nor can it be regarded as a law made by the State within the meaning of Article 13 (2 ). The bar under Article 13 (2) is not merely against law but a law made by the State. A fundemental right conferred by Part III could not be taken away or abridged by law made by the "state".-To leave no doubt as. to what the 'state' means, part III, containing the fundamental rights, opens with the definition of the word 'state' in Acticle 12. According to that definition the State includes the government and the Parliament of India and the government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the government of India. The definition thus' includes all governmental organs within the territories of India and these governmental organs are either created under the Consti- tution or under the Jaws adopted by the Constitution under Article 372. In other words, they are all organs or agencies operating under the Consti- tution owing superior obligation to the Constitution. It would be, therefore, wrong to identify 'state' in Article 13 (2) with anything more than the instru- ments created or adopted by the Constitution and which are required to work in conformity with the Constitution. Nor can the word 'state' be regarded as standing for a Nation or a conglomeration of all the govern- mental agencies. The nation is an amorphous conception. The bar under article 13 (2) is against concrete instrumentalities of the State, instrument- alities which are capable of making a law in accordance with the Consti- tution.

( 1270 ) BY its very definition as discussed earlier, a body or set of bodies exercising, as indicated in the Constitution, sovereign constituent power whether in a 'flexible' or a 'rigid' Constitution is not a governmental organ owing supreme obligation to the Constitution. The body or bodies operate not under the Constitution but over the Constitution. They do not, therefore, while amending the Constitution, function as governmental organs and, therefore, cannot be regarded as the State for the purposes of Part III of the Constitution.


( 1271 ) WE thus reach the conclusion that an amendment of the Consti- tution is not a law made by the State and hence Article 13 (2) would not control an amendment of the Constitution.

( 1272 ) THE same conclusion is arrived at by a slightly different ap- proach. Article 13 (2) speaks of a law which becomes void to the extent it takes away or abridges a fundamental right as conferred by certain articles or provisions in Part III of the Constitution. Thus it embodies the doctrine of ultra vires well-known in English law. In other words, it is a law about which one can' predicate voidability with reference to the provisions of the Constitution. This is possible only when it is a law made by the organs of the State. When an amendment is made, we have already shown, it becomes part of the Constitution, taking an equal status with the rest of the provisions of the Constitution. Voidability is predicated only with reference to a superior law and not an equal law. There is no superior law with reference to which its voidability can be determined. Indeed, if the amend- ment cannot entirely fit in with some other provisions of the Constitution the courts might have to reconcile the provisions, as was done in Sri Venkataramana v. The State of Mysore, in which the fundamental right under Article 26 (b)WAS read subject to Article 25 (2) (b) of the Constitution. The point, however, is that courts have no jurisdiction to avoid one provision of the law with reference to another provision of the same law. It becomes merely a matter of construction. It follows, therefore, that an amendment of the Constitution not being liable to be avoided with reference to a superior law is not a law about which you can predicate avoidability and, hence, stands outside the operation of Article 13. (2 ).

( 1273 ) IF the fundamental rights in Part III were unamendable, noth- ing would have been easier than to make a specific provision about it in part XX which dealt specifically with the subject of the amendment of the constitution. That was the proper place. Article V of the American constitution clearly, indicated the two subjects which were unamendable. Draft Constitution shows that, as a matter of fact, there was Article 305 under the subject "amendment of the Constitution" and that Article had specifically made some parts of the Constitution unamendable. Later, article 305 was deleted and the main amending article in the Draft Consti- tution, namely. Article 304 appeared in the garb of Article 368 of the constitution with some additional subjects in the proviso.

( 1274 ) IN adopting the distinction between the 'constitution' and 'the law' the frarners of the Constitution did not create any. new concept of the law being subordinate to the Constitution. That was a concept which was well-recognized in Federal Constitutions specially providing for the amend- ment of the Constitution by a special procedure.

( 1275 ) NO body disputes that law in its widest sense includes consti- tutional law as it does natural law, customary law or ecclesiastical law. The point is whether in our Constitution 'law' includes an "amendment of the constitution". As already shown our Constitution has maintained a meti- culus distinction between ordinary law made by the legislature by ordinary legislative procedure and an. amendment of the Constitution under Arti- cle 368. This is highlighted even when certain provisions of the Consti- tution are amended by ordinary law. As already shown Articles 4, 169 and paras 7 and 21 of the Fifth and Sixth Schedules respectively permit the parliament to make 'by law certain amendments in the constitution, but in every case it is further provided that such an amendment made 'by law' shall not be deemed to be an amendment of the Consti- tution for the purposes of Article 368. When such a distinction is main- tained between law' and 'an amendment of the Constitution'. the same can- not be impaired by reference to the word law' used by the Privy council in a more comprehensive sense in Mccawley's case (supra) and Rana Singhe's case, in the former the Constitution was a flexible constitution. In the latter, though it was a controlled constitution the provision with regard to the amendment of the Constitution namely S. 29 (4) of the ceylon (Constitution) order in council was part of S. 29 which specifi- cally dealt with the making of laws and came under the subject heading of legislative power and procedure. In both cases the Legislature was sove- reign and as often happens in legislatures, principally modelled after the british Parliament, the distinction between constitutional law and ordinary law becomes blurred and the use of the word law' to describe a consti- tutional law is indeterminate. We are, however, concerned with our Consti- tution and cannot ignore the distinction maintained by it in treating ordinary laws as different from the amendment of the Constitution under Article 368. The forms of oath in the Third Schedule referring to "constitution as by law established" prove nothing to the contrary because as "by law established"merely means Constitution "as legally established". There is no indication therein of any intended dichotomy between "law" and "the Constitution".

( 1276 ) REFERENCE was made to the constituent assembly debates and to the several drafts of the. Constitution to show how the original provision which culminated in Article 13 underwent changes from time to time. They hardly prove anything. The fact that initially Article 13 was so worded as not to override the amendment of the fundamental rights, but later the drafting Committee dropped that' provision does not prove that the framers of the Constitution were of 'the view that Article 13 (2) should reach an amendment of the Constitution if it abridged fundamental rights. It had been specifically noted in one of the notes accompanying the first draft that article 13 (2) would not control an amendment of the Constitution and, therefore, any clarification by a special provision to the effect that funda- mental rights are amendable was not necessary except by way of abundant caution. That was apparently the reason for deleting that part of Article 13 which said that Article 13 should not come in the way of an amendment to the Constitution by which fundamental rights were abridged or taken away. Neither the speeches made by the leaders connected with the draft- ing of the Constitution nor their speeches (the same constituent assembly had continued as the provisional Parliament) when the first amendment was passed incorporating serious inroads into the fundamental rights conferred by Articles 15, 19 and 31 show that the fundamental rights were intended or understood to be unamendable-rather the contrary.

( 1277 ) THE further argument that fundamental rights are inalienable natural rights and, therefore, unamendable so as to abridge or take them away does not stand close scrutiny. Articles 13 and 32 show that they are rights which the people have "conferred" upon themselves. A good many of them are not natural rights at all. Abolition of untouchability (Arti- cle 17); abolition of titles (Article 18); protection against double jeopardy [article 20 (2)]; protection of children against employment in factories (Article 24) ; freedom as to attendance at religious instruction or religious worship in certain educational institutions (Article 28) are not natural rights. Nor are all the fundamental rights conceded to all as human beings. The several freedoms in Article 19 are conferred only on citizens and not non-citizens. Even the rights conferred are not in absolute terms. They are hedged in and restricted in the interest of the general public, public,order, public morality, security of the State and the like which shows that social and political considerations are more important in our organized society. Personal liberty is cut down by provision for preventive detention which, having regard to the conditions prevailing even in peace time, is permitted. Not a few members of the constituent assembly resented the limitations on freedoms on the ground that what was conferred was merely a husk. Prior to the Constitution no such inherent inalienability was ascribed by law to these rights, because they could be taken away by law.

( 1278 ) THE so-called natural rights which were discovered by philos- phers centuries ago as safeguards against contemporary political and social oppression have in course of time, like the principle of laissez faire in the economic sphere, lost their utility as such in the fast changing world and are recognized in modern political constitutions only to the extent that organized society is able to respect them. That is why the Constitution has specifically said that the rights are conferred by the people on themselves and are thus, a gift of the Constitution. Even in the most advanced andorderly democratic societies in the world in which political equality is to a large extent achieved, the content of liberty is more and more recognized to be the product of social and economic justice without which all freedoms become meaningless. To claim that there is equal opportunity in a society which encourages or permits great disparties in wealth and other means of social and political advancement is to run in the face of facts of life. Free- doms are not intended only for the fortunate few. They should become a reality for those whose entire time is now consumed in finding means to keep alive. The core philosophy of the Constitution lies in social, economic and political justice-one of the principal objectives of our Constitution as stated in the Preamble and Article 38, and any move on the part of the society or its government made in the direction of such justice would inevit- ably impinge upon the "sanctity" attached to private property and the fundamental right to hold it. The Directive Principles of State Policy,our Constitution commands should be fundamental in the governance of the country, require the state to direct its policy towards securing to the citizens adequate means of livelihood. To that and the ownership and control of the material resources of the community may be distributed to serve the common good, and care has to be taken that the operation of the economic system does not result in the concentration of ''wealth and means of production To the common detriment. See: Articles 37 to 39. This mandate is as important for the State as to maintain individual freedoms and, therefore, in the final analysis it is always a continuous endeavour of a state, having the common good of the people at heart, so to harmonize the directive Principles and the fundamental rights that, so far as property rights are concerned, the unlimited freedom to hold it would have to undergo an adjustment to the demands of the State policy dictated by the Dire- tive Principles. Deprivation of property in one form or other and even expropriation would, in the eyes of many, stand justified in a democratic organization as long as those who are deprived do not earn it by their own effort or otherwise fail to make adequate return to the society in which they live. The attribute of 'sacredness' of property vanishes in an egalitarian society. And once this is accepted and deprivation and expropriation are recognized as inevitable in the interest of a better social organization in which the reality of liberty and freedom can be more widely achieved, the claim made on behalf of property that it is an immutable and inalienable natural right loses its force. One cannot lift parts of the Constitution above it by ascribing ultra-constitutional virtues to them. The Constitution is a legal document and if it says that the whole of it is amendable, we cannot place the fundamental rights out of bounds of the amending power. It is essential to note in the present case that though the plea was generally made on behalf of all fundamental rights, the fundamental right with which we are concerned, principally, is the right to property. It will be sufficient to note here that in modern democracies the tendency is not to recognize right to property as an inalienable natural right. We can do no better than quote here a few passages from W. Friedmann's Legal Theory, fifth edition, 1967 :"the official doctrine of the modern Roman Catholic Church from Rerum Novarum (1891) onwards, and of most neo-scholastic philosophers, is that the right of private property is a dictate of natural law. But St. Thomas Aquinas and Suarez strongly deny the natural law character of the right of private property and regard it (rightly as i believe) merely as a matter of social utility. " p. 357. "when faced with the solution of concrete legal problems, we find time and again that natural law formulae may disguise hut not solvethe conflict between values, which is a problem of constant and painful adjustment between competing interest, purposes and policies. How to resolve this conflict is a matter of ethical or political evaluation which finds expression in current legislative policies and to some extent in the impact of changing ideas on judicial interpretations. And, of course, we all have to make up our minds as responsible human beings and citizens what stand we will take, for example in the tension between state security and individual freedom. The danger is that by giving our faith the halo of natural law we may claim for it an absolute character from which it is only too easy to step to the condemnation or suppression of any different faith",. "the time is past when Western beliefs can be regarded as a measure of all things. Nor will the natural law hypothesis aid much in the solution of the agonising problem of the limits of obedience to positive law. ""the main forces in the development of modern democratic thought have been the liberal idea of individual rights protecting the individual,'and the democratic idea proper, proclaiming equality of rights and popular sovereignty. The gradual extensi6n of the idea of equality from the political to the social and economic field has added the problems of social security and economic planning. The imple- mentation and harmonisation of these principles has been and continues to be the main problem of democracy. ""but democratic communities have universally, though with vary- ing speed and intensity, accepted the principle of social obligation as limiting individual right. ""but modern democracy, by the same process which has led to the increasing modification of individual rights by social duties towards neighbours and community, has every-where had to temper freedom of property with social responsibilities attached to property. The limitations on property are of many different kinds. The State's right of taxation, its police power and the power of expropriation-subject to fair compensanon-are examples of public restrictions on freedom of property which are now universally recognized and used. Another kind of interference touches the freedom of use of property, through the growing number of social obligations attached by law to the use of industrial property, or contracts of employment. ""the degree of public control over private property depends largely on the stringency of economic conditions. Increasing pros- perity and availability of consumer goods has led to a drastic reduction of economic controls, and a trend away from socialisation in Europe. But in the struggling new democracies such as India, poor in capital and developed-resources, and jealous of their newly-won sovereignty, public planning and control over vital resources are retarded as essen- tial. The Constitution of the West German Republic of 1949, which reflects a blend of American, British and post-war German ideas on the economic aspects of democracy, lays down that land, minerals and means of production may be socialised or be subjected to other forms of public control by a statute which also regulates compensation. Such compensa- tion must balance the interests of the community and those of the indivi- dual and leave recourse to law open to the person affected. This still permits wide divergencies of-political and economic philosophy, butin the recognition of social control over property, including socialisation as a legitimate though not a necessary measure, it reflects the modern evolution of democratic ideas. Between the capitalistic democracy of the United States and social democracy of India there are many shades and variations. But modern democracy looks upon the right of property as one conditioned by social responsibility by the needs of. society, by the "balancing of interests" which looms so large in modern jurisprudence, and not as preordained and untouchable private right. "

( 1279 ) NOR is it correct to describe the fundamental rights, including the right to property, as rights "reserved" by the people to themselves. The Constitution does not use the word "reserved". It says that the rights are "conferred" by the people upon themselves, suggesting thereby they were a gift of the Constitution. The Constitution had, therefore, a right to take them away. This is indirectly recognised in Golak Nath's case (supra) where the majority has conceded that all the fundamental rights could be taken away by a specially convened constituent assembly. When rights are reserved by the people, the normal mode, as in the several states of america, is a referendum, the underlying principle being that ultimately it is the people, who had given the Constitution and the rights therein, that could decide to take them away. In our Constitution the. people having entrusted the power to the Parliament to amend the whole of the constitution have withdrawn themselves from the process of amendment and hence clearly indicated that there was no reservation. What the constitution conferred was made revocable, if necessary, by the amendatory process. In my view, therefore. Article 13 (2) does not control the amend- ment of the Constitution. On that conclusion, it must follow that the majority decision in Golak Nath's case (supra) is not correct.

( 1280 ) NO reference was made to any other provision in the Constitu- tion as expressly imposing a limitation on the Amending power.

( 1281 ) IT was next contended that there are implied or inherent limita- tions on the amendatory power in the very structure of the Constitutiion, the principles it embodies, and in its essential elements and features (described briefly as essential features ). They are alleged to be so good and desiraible that it could not have been intended that they were liable to be adversely affected by amendment. Some of the essential features of the Constituition were catalogued as follows: (1) The supremacy of the Constitution ; (2) The sovereignty of India ; (3) The integrity of the country ; (4) The democratic way of life; (5) The Republican form of government; (6) The guarantee of basic human rights referred to in the Preamble and elaborated as fundamental rights in Part III of the Constitution; (7) A secular State; (8) A free and independent judiciary; (9) The dual structure of the Union and the States; (10) The balance between the legislature, the executive and the judi- ciary; (11) A Parliamentary form of government as distinct from Presidential form of government; (12) The amendability of the Constitution as per the basic scheme of article 368.

( 1282 ) THESE, according to Mr. Palkhivala, are some of the essential features of the Consrittition and they cannot bo substantially altered by the amendatory process,

( 1283 ) A question of very wide import is raised by the submission. So far as the present case is concerned, the 24th Amendment does no more than give effect to Parliament's acceptance of the view taken in Sankari prasad's case (supra)', the majority in Sajjan Singh's case (supra) and the minority in the Golak Nath's case (supra) with regard to the nature of the amend- ing power in relation to fundamental rights. It is clarificatory of the original Article 368. What was implicit in Article 368 is now made explicit and the essence of Article 368 is retained. Therefore, there can be no objection to the 24th Amendment on the-ground that any essential feature of the Constitution is affected.

( 1284 ) THE 25th Amendment introduces some abridgement of the fundamental right to property. Right to property has been subject to abridgement right from the Constitution itself [see Article 31 (4) and (6)] and the 25th Amendment is a further inroad on the right to property. In golak Nath's case (supra), the first, fourth and the seventeenth amendments were held by the majority as having contravened Article 13 (2 ). Neverthe- less the amendments were not struck down but permitted to continue as if they were valid. Since I have come to the conclusion that Article 13 (2) does not control an amendment of the Constitution, it must be held that all previous amendments to the Constitution, so far made, could not be challendged on the ground of repugnancy to Article 13 (2 ). It follows that any amendment of the Constitution cannot be challenged on that ground and that would be true not only of the 24th Amendment but also the 25th amendment, and the 29th Amendment.

( 1285 ) THE question still survives whether the 25th Amendment and the 29th Amendment are invalid because as contended by Mr. Palkhivala. an essential feature of the Constitution has been substantially affected. The argument proceeds on the assumption that in the absence of any express limitation on the power of amendment, all the provisions in the Constitution are liable to be amended. He agrees, on this assumption, that even funda- mental rights may be some what abridged if that is necessary. In this connection, he referred to the first amendment by which Articles 15 and 19 were amended and in both these cases the amendment did abridge the fundamental rights. Similarly he conceded that Articles 31-A and 31-B were amendments where by the rights in landed estates were extinguished or substantially affected, but that was in the interest of agrarian reform, a fact of supreme importance in the Indian polity which could not have been ignored for long and to which the Ruling party was committed for a long time. Thus although there had been amendments which abridged fundamental rights, these amendments in his submission did not go to the length of damaging or destroying the fundamental rights. According to him they had not reached the 'core' of the rights. In other words, his submission is that there are some very good and desirable things in the constitution. One of them is fundamental rights, and though these funda- mental rights could be abridged some what, it was not permissible to affectby amendment the core of the fundamental rights, including the core of the right to property. For this argument he relies on the basic scheme of the Constitution as first promulgated and contends that any Amendments made thereafter, including the 24th Amendment, would not affect his argu- ment, because, according to him, every one of them must be evaluated on the principles and concepts adopted in that basic scheme. His further sub- mission was that if such a core of a fundamental right is damaged or destroyed by an amendment, such an amendment is illegal and, therefore, liable to be struck down by this court as the guardian of the Constitution. It neces- sarily follows from the submission that Mr. Palkhivala wanted this court to decide whether by any particular amendment the core of an essential feature like a fundamental right has been damaged or destroyed-undoubtedly a terrifying responsibility for this court to undertake. It may appear as very odd that while the framers of the constitution did not thik it necessaty to expressly exclude even one. provision of the Constitution from being amended, they still intended that this court, as the guardian of the Constitution, should make parts of it unamendable by implying limitations on the amending power. Indeed this court is a guardian of the Constitution in the sense that it will not permit its contravention by any of its instrumentalities, but it cannot constitute itself a guardian against change constitutionally effected.

( 1286 ) THOUGH the argument had a wide sweep, namely, that the several essential features catalouged by Mr. Palkhivala were not liable to be dama- ged or destroyed, in the ultimate result the case really boils down to whether the core of the fundamental right to property has been damaged or destroyed principally by the 25th Amendment and, if so, whether there was any implied or inherent limitation on the amending power which prohibited such an amendment. The several essential features listed by Mr. Palkhivala do not come into the picture in the present case. It is not the case that by the recent 25th Amendment either the sovereignty of India is affected or the Republican form of government has been destroyed. One of the several essential features listed by him is fundamental rights. Amongst fundamental rights also most are untouched by the amendment. The 25th Amendment deals principally with property rights and Articles 14, 19 and 31 in relation to them. By that amendment chiefly two things are sought to be accomplished: (1) There shall be no right to receive 'compensation', as judicially interpreted, for a State acquisition for a public purpose, but only to receive an 'amount' (2) A law made to achieve the aims of equitable distribution of community resources or for the prevention of concentration of wealth and means of pro- duction shall not be challenged on the ground of repugnancy to Articles 14, 19 and 31. Since it is not the practice of this court to decide questions which are not in immediate controversy it would not be proper to pronounce whether this or that particular so-called essential features can or cannot be damaged or destroyed by amendment. But since it is argued on behalf of the State that there can be no limitations on the amending power except those expressly provided in the Constitution and since that will affect our decision as to the 25th Amendment, we shall have to deal briefly with the question of implied and inherent limitations with special reference to fundamental rights including property rights.

( 1287 ) WHATEVER one may say about the legitimacy of describing all the rights conferred in Part III as essential features, one thing is clear. So far as the right to property is concerned, the Constitution, while assuring that no-body shall be deprived of property except under the authority of law and that there shall be a fair return in cage of compulsory acquisition [article 31 (1)AND (2)], expressly declared its determination, in the interest of the common good, to break up concentration of wealth and means of production in every form and to arrange for redistribution of ownership and control of the mat- erial resources of the community. See: Article 39 (b) and (c ). If anything in the Constitution deserves to be called an essential feature, this determination is one. That is the central issue in the case before us, however dexterously it may have been played down in the course of an argument which painted the gloom resulting by the denial' of the fundamental rights under Articles 14, 19 and 31 in the implementation of that determination. The Constitution had not merely stopped at declaring this determination but actually started its implementation from the commencement of the Constitution itself by inc;orp- rating clauses (4) and (6) under Article 31, the first two clauses of which spelt out the fundamental right to property. Apart from what Pandit Jawaharlal nehru said about the Article in the Constitution Assembly Debates-and what he said was not at all sympathetic to Mr. Palkhivala's argument before us- the fundamental right to receive compensation under clause (2), as then framed, was completely nullified by clauses (4) and (6) in at least one instance of concentration of wealth and material resourcess viz. , Zamindaris and landed estates. These clauses were deliberately inserted in the original article 31 leaving no manner of doubt that Zamindaris and Estates were sought to be abolished on payment of even illusory compensation. The various states had already passed laws or were in the process of passing laws on the subject, and specific provision was made in the two clauses securing such laws from challange on the ground that they were not acquired by the State for a public purpose or that adequate compensation was not paid. The first case under the Bihar Land Reforms Act, 1950, State of Bihar v. Kameshwar Singh shows that the law was highly unjust (from the prevailing point of view of 'justice') and the compensation payable was in some cases purely illusory. And yet by virtue of Article 31 (4) there could be no challenge to that Act and other similar laws on those grounds. By over- sight, challenge to such laws under Articles 14 and 19 had not been expressly excluded, and so when the case was pending in this court, the first amendment act was passed inserting Articles 31-A and 31-B by which, to take no chances, a challenge based on all fundamental rights in Part III was wholly excluded. The course taken by the Constitution and its first Amendment leaves no doubt that Zamindaris and Estates were intended to be expropriated from the very beginning and no 'core' with regard to payment of compensation was sought to be safeguarded. By the time the 4th Amendment was made in 1955, it became apparent that the challenge to any scheme of redistribution or break- ing up of concentration of property was confined generally to Articles 14, 19 and 31, and hence Article 31-A was amended. By the amendment all inter- mediaries, including small absentee landlords, were permitted to be eliminated and challenge to Article 31-A was excluded only under Articles 14, 19 and 31. In short, rights in landed agricultural property were extinguished without a thought to the necessity of paying fair compensation. In a real sense con- centration of wealth in the form of agricultural lands was broken and com- munity resources were distributed. On the other hand, a protectionist econo- mic system, reinforced by controls, followed in the realm of trade and indus- try with a view to achive greater production of goods and services led to other forms of concentration of wealth ana' means of production in the wake of independence. So comes the 25th Amendment, the object of which is the same viz. implementation of Article 39 (b) and (c ). It has made clear that owners of property when it is acquired for a public purpose are not entitled tocompensation as interpreted by this court, and any law made with the aforesaid object cannot be challenged on the grounds arising out of Articles 14, 19 and 31. In principle, there is no difference in Article 31-A and the new Arti- cle 31-C inserted by the 25th Amendment. In trying to support his arguments on the core principle of essential features Mr. Palkhivala tried to play down the role of Article 31 (4) -and (6) and Article 31-A excusing them on the ground that they related to very accessary agrarian reforms to which the majority party in the Constituent Assembly was for years before the Constitution, committed. But that is not alegal argument. Article 31 (4), (6)andarit- cle 31-A. clearly show that community interests were regarded as supreme and those articles were only a step in the implementation of the directive principle in Article 39 (b) and (c ). (Compare the observations of Das,. , in 1952 SCR 889 at pages 996 to 999 ). The Constitution definitely refused to accept the 'core' principle with regard to property rights, if property was required to be expropriated in the common interest in pursuance of the Directive Principles. The mood of the majority party is reflected in the speech of Pandit Govind vallabh Pant, the then Chief Minister of Uttar Pradesh. Speaking in the constituent Assembly on Article 31 and after justifying the provision of article 31 (4) and (6) in relation to laws regarding Zamindaris and agricultural estates (there were 20 lakh Zamindars, according to him, in U. P. alone) he said "i presume that if at any time this legislature chooses to nationalize industry, and take control of it, whether it be all the industries or any parti- cular class of it, such as the textile industry or mines, it will be open to it to pass a law and to frame the principles for such purpose, and those principles will be invulnerable in any court. They will not be open to question, because the only condition for disputing them, as has been pointed out by Shri Alladi, (K,rishnaswamylyer)one of the most eminent jurists which our country has ever produced, is this, that it should be a fraud on. the Constitution". It shows that Article 31 (4), (6) were the first step as applied to land legislation, in the direction of implementing the directive principle of Article 39 (b) and (c), and it was only a matter of time when the Principles would be applied to other types of concen- tration of wealth and its distribution. As Mahajan,. , observed in State of Bihar v. Kameshwar Singh (supra) at pages 929-30, our Constitution raised the obliga- tion to pay compensation for compulsory acquisition of property to the status of a fundamental right. As the same time by. specifically inserting clauses (4) and (6) in Article 31, it made the issues of public purpose and compensation pres- cribed in Article 31 (2) non-justiciable insome specified laws dealing with concentration and distribution of wealth in the form of landed agricultural property. This clearly negatived the idea of protecting contcentration of wealth in a few hands as an essential feature of the Constitution. Hidayatullah,. , was saying practically the same thing when he remarked in Golak Nath's case (supra) that it was an error to include property rights in Part III and that they were the weakest of fundamental rights,

( 1288 ) I have already discussed the amplitude of power conferred by the amending clause of the Constitution. In countries like America and Australia where express limitations have been imposed in the amending clause itself there is substantial authority for the view that even these express limitations can be removed by following the procedure laid down in the amending clause. Acc- ording to them this could be done in two steps the first being to amend the amending clause itself. It is not necessary for us to investigate the matter further because. Article 368 does not contain any express limitation. On the other hand, the power is wide enough even to amend the provisions of Article 358. In other words. Article 368 containsunqualified and plenary powers to amend the provisions of the Constitution including the Amending clause. Prima facia, to introduce implied prohibitions to cut down a clear affirmative grant in a Constitution would be contrary to the settled rules of construction. (See the dissenting judgment of Issacs and Rich,. , Mccawley v. The King, approved by the Privy council ).

( 1289 ) WHEN such an amending clause is amended without affecting the power of amendment will principally involve the Amending procedure. It may make amendment easier or more difficult. The procedure may also differ substantially. Parliament may be eliminated from the process leaving the amendment to the States. The proviso might be dropped, enlarging the role of the Parliament. On the other hand, the parliament and State Assemblies may be divested of the function by providing for a referendum plebiscite or a special convention. While, thus the power remains the same, the instrumentalities may differ from time to time in accor- dance with the procedure prescribed. Hidayatullah,. , with respect, was right in pointing out that the power to amend is not entrusted to this or that body. The power is generated when the prescribed procedure is followed by the instrumentalities specified in the Article. Since the instrumentalities are liable to be changed by a proper amendment it will bo inaccurate to say that the Constituent Assembly had entrusted the power to any body. If the authority which is required to follow the procedure is the Parliament for the time being, it may be convenient to describe Parliament as the authority to whom the power is granted or entrusted, but strictly that would be inaccurate, because there is no grant to any body. Whichever may be the instrumentality for the time being. the power remains unqualified.

( 1290 ) IF the theory of implied limitations is sound the assumption made being that the same have their origin in the rest of the constitutional provisions including the Preamble and the fundamental rights-then these limitations must clog the power by whatever agency it is exercised. The rest of the Constitution does not change merely because the procedure pres- cribed in Article 368 is changed. Therefore, the implied limitations should continue to clog the power. Logically, if Article 368 is so amended as to provide for a convention or a referendum, the latter will be bound to respect the implied liinitations a. conclusion which Mr. Palkhivala is not prepared to accept. He agrees with the jurists who hold that a convention or a referen- dum will not bo bound by any limitations. The reason given is that the people directly take part in a referendum or, through their elected represen- tatives, in a convention. Even in Golak Nath's case. (supra) it was accepted that any part of the constitution including the fundamental rights could be amend- ed out of existence by a Constituent Assembly.


( 1291 ) THE argument seems to be that a distinction must be made between the power exercised by the people and the power exercised by Parlia- ment. In fact Mr. Palkhivala's whole thesis is that the Parliament is a creature of the Constitution and the limitation is inherent in its being a constituted authority. We have already examined the question and shown that where the people have withdrawn completely from the process of amendment, the Constituent body to whom the power is entrusted and exercise the power to the same extent as a Constituent Assembly and that the power does not vary according to the Agency to whom the power is entrusted. Therefore, this reason also viz. that Parliament is a constituted body and, therefore, it suffers from inherent limitations does not hold good.

( 1292 ) FROM the conclusion that the power of Amendment remains unqualified by whomesoever it is exorcised, it follows that there can be no implied or inherent limitations on the Amending power. If a special con- vention admittedly does not suffer from limitations, any other constitutent body cannot be subject to it.

( 1293 ) THE leading majority judgment in Golak Nath's case (supra) had seen some force in this doctrine of implied limitations (808), but did not find it necessary to decide 'on the issue. To remove all doubts on that score the 24th Amendment is 'how suitably amended. Its first clause says that parliament may amend any provision of the Constitution notwithstanding anything in it. Therefore, in the matter of amendment Parliament may not, now, be inhibited by the other express provisions of the Constitution, which would mean that it may also ignore all implications arising there- from.

( 1294 ) WHERE power is granted to amend the amending power, as in our Constitution, there is no limit to the extent this may be done. It may be curtailedled or 'enlarged'. This is well illustrated in Ryan v. Lennox. Under the Irish State Constitution Act of 1922, the Parliament (Oireachtas) had been given power to amend the Constitution under Article 50 of the act. Under that Article, amendments during the first eight years of the constitution, could be validly made without having recourse to a referendum unless specially demanded by the persons, and in the manner specified in article 47, but amendments made after that period had to be approved in every case by a referendum and the people. By a constitutional amendment of 1928 (Amendment No. 10) the compulsion of Article 47 was got rid of, and by an amendment of 1929 (Amendment No. 16) made within the eight years period already referred to, the period of 8 years was extended to 16 years. The result was that the Constitution now authorized the Parliament to amend by ordinaiy legislation its Constitution for the period of 16 years from the commencement of the Constitution without being required to have recourse to a referendum. In 1931 by a further Amendment (Amendment no. 17) extensive alterations were made by which inter alia, personal liberty was curtailed, denying trial by Jury or by the regular courts. Ryan who was one of the victims of the new law applied to the High court for a writ of habeas corpus on the ground that the several amendments were invalid, especially No. 16 by which the period of 8 years had been extended to 16 years. If Amendment No. 16 was invalid, that would have automati- cally resulted in Amendment No. 17 being invalid, having been made after the first period of 8 years. The High court (three Justices) unanimously held that all the Amendments were valid. In appeal to the Supreme court that decision was confirmed by a majority, Kennedy, chief justice) dissenting. One of the chief contentions directed against Amendment No. 16 was that the Parliament could not have 'enlarged' its power from 8 to 16 years to change the Constitution without a referendum by ordinary legislation. This contention was rejected by the majority. Kennedy, C.. , took a diff- erent view of the amendment. Ho held that Article 50 did not provide for the amending of the amendatory power, conceding that otherwise the power could have been so 'enlarged'. Since there is no dispute in our case that by reason of clause (c) of proviso of Article 368 power is given to amend the amendatory power, it was open to Parliament to 'enlarge' the power byamendment. If it is assumed--and we have shown there is no ground to make such an assumption that there was some implied limitation to bederived from other provisions of the Constitution, that limitation, if any, is now removed by the non-obstante clause in Clause 1 of the amended Art- icle 368.

( 1295 ) IT is of some interest to note here that in a case which later went to the Privy council, Moore v. Attorney-General for the Irish State and in which a constitutional amendment made by the Irish Parliament in 1933 (Amendment No. 22) was challenged, Mr. Greene (Later Lord Greene) conceded before the Privy council that Amendment No. l6 of 1929 was valid and their Lordships observed (494) "mr. Wilfied Gleene for the petitioners rightly conceded that Amendment No. 16 was regular and that the validity of these subsequent amendments could not be attacked on the ground that they had not been submitted to the people by referendum". The question of validity of Amendment No. 16 was so vital to the petitioner's case that it is impossible to believe that a counsel of the standing of Lord Greene would not have challenged the same and, in the opinion of their Lordships, 'rightly'. According to Keith the judgment of Kennedy, C.. , in Ryan's cast (supra) was wrong. See: Letters on Imperial Relations: Indian Reform Constitu- tional and International Law, 1916-1935, page 157.

( 1296 ) THE importance of Ryan's case (supra) lies in the fact that though article 50 of the Irish Free State Constitution did not expressly say that article 50 itself is liable to be amended, no less than five judges of the Irish courts held it could be amended though the amendment resulted in the 'enlargement' of the power of the Irish Parliament to amend the constitution. How wide the power was further established in Moore's case (supra) which held that Amendment No. 22 was valid, though by this Amendment even the royal Prerogative regarding appeals to the Privy council was held to have been abrogated by the combined operation of the Statute of Westminster and the' Constitutional Amendment, in spite of Article 50 having been origin- ally limited by the terms of the Scheduled Treaty of 1922. In our case article 368 authorizes its own amendment and such an amendment can enlarge the powers of the Parliament, if such was the need.

( 1297 ) APART from reasons already given, we will consider, on first principles, whether the constituent body is bound to respect the so-called 'essential feature' of the fundamental rights especially that of right to pro- perty. The fact that some people regard them as good and desirable is no adequate reason. The question really is whether the constituent body considers that they require to be amended to meet the challenge of the times. The philosophy of the amending clause is that it is a safety-valve for orderly change and if the good and desirable feature has lost its appeal to the people the constituent body would have undoubtedly the right to change it.

( 1298 ) INDEED, if there are some parts of the Constitution which are made expressly unamendable the constituent body would be incompetent to change them, or if there is anything in the provisions of the Constitution embodying those essential features which by necessary implication prohibit their amendment those provisions will also become unamendable. The reason is that in law there is no distinction between an express limitation and a limitation which must be necessarily implied. Secondly, it is an accepted rule of construction that though a provision granting the power does not contain any limitation that may not be conclusive. That limitation may be found in other parts of the statute. But we have to remember that Arti- cle 368 permits the amendment of all the provisions of the Constitutionexpressly. And if that power is to be cut down by something that is said in some other provision of the Constitution the latter must be clear and specific. As far back as 1831 Tindal, C.. , delivering the unanimous opinion of the judges in the House of Lords in Warburton v. Loveland observed at page 500 "no. rule of construction can require that, when the words of one part of a statute convey aclear meaning. . . . . . . . . . . . . . . . . . . . . . . . it shall be necessary to introduce another part of the statute which speaks with less perspicuity, and of which the words may 'be capable of such construction as by possibility to diminish the efficacy of the other provisions of the Act". To control the true effect of Article 368 "you must have a context even more plain or at least as plain as the words to be controlled". See:jessel 'm. . R. in Bentley v. Rotherham. Neither the text nor the context of th articles embodying the fundamental rights shows that they are not exposed to Article 368. More- over, when we are concerned with a power under a statute, it is necessary to remember the following observations of Lord Selborne in Reg. v. Burah, at pp. 904 and 905, "the established courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly 'do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were crated, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited it is not for any court of Justice to inquire further, or to enlarge constructively those conditions and restrictions". Similarly earl Loreburn in Attorney-General for the Province of Ontario v. Attorney-General for the Dominion of Canada. observed at page 583 "in the interpretation of a completely self-governing Constitution founded upon a written organic instrument such as the British North America Act, if the text is explicit the text is conclusive, alike in what it directs and what it forbids. When the text is ambiguous, as, for example, when the words establishing two mutually exclusive jurisdictions are wide enough to bring a particular power within either, recourse must be had to the context and scheme of the Act". The only course which is open to courts is to determine the extent of power expressly granted after excluding what is expressly or by necessary implication excluded. That is the view of the Privy council in Webb v. Outrim the effect of which is summarized by Issacs,. , in The Amalgamated Society of Engi- neers v. The Adelaide Steamship Company Limited and Others at p. 150 as follows:". . . . . . . . . . . . . . . we should state explicitly that the doctrine of Implied prohibition' against the exercise of a power once ascertained in accor- dance with ordinary rules of construction, was definitely rejected by the privy council in Webb v. Outrim (supra ). "

( 1299 ) HAVING regard to the rules of construction relating to power referred to above, we have to see if either the provisions relating to the fundamental right to property or any related provisions of the Constitution contain words of prohibition or limitation on the amending power. Right to property is sought to be safeguarded under Article 31, and article 19 deals with freedoms having relation to property, profession, trade and business. We find nothing in these provisions to suggest thatrights to property cannot be abridged by an amendment of the Constitution. On the other hand. Article 31 (1) suggests that one can be deprived of property under the authority of law. The right to receive compensation under clause (2) of Article 31, as it stood at the time of the commencement of the Constitution, had been considerably cut down by several provisions contained in the other clauses of that Article. Article 31 (4) and (6) not only envisaged breaking-up of concentration of landed property in the hands of Zamindars ans the like but also expropriation without payment of just compensation. That necessarily called for the exclusion of articles 14, 19 and 31, because no scheme for expropriation or exting- uishment of rights in property would succeed without their exclusion. Thereafter there 'has been a spate of amendments curtailing property rights and none of them seems to have been challenged on the ground that there was something in the provisions themselves (apart from the fact that they affect a 'transcedental' fundamental right) suggesting an implied or inherent limitation on the amending power. The last sentence from lord Loreburn's judgment quoted above embodies a well-known rule of construction which is useful when the text of a statute is ambiguous. Where the text's clear and unambiguous there can be no recourse to the context or the scheme of the Act; nor can the context or the scheme be utilized to make ambiguous what is clear and unambiguous. Moreover the rule does not permit in cases of ambiguity recourse to the scheme and context which is unhelpful in resolving the ambiguity. It does not authorise investing the scheme and context with an effect of delimiting the power referred to in the 'ambiguous 'text, if the scheme and the context do not contain words which expressly or by necessary implication have the effect. All this is important in connection with, the construction of the word 'amendment in Article 368. We have already shown that the word 'amendment'' used in the context of a Constitution is clear and unambiguous. Therefore, the scheme and the context are irrelevant. The scheme and the context on which reliance is placed before us consist principally of the alleged dominating status of the Preamble and the alleged transcedental character of the fundamental rights neither of which helps us in the legal interpretation of the word "amendment'. They are being pressed into service merely to create an ambiguity where there is none. Actually the context and scheme are here used to cut down the ambit and scope of the expression 'amendment of the Constitution' by investing them with that effect where neither expressly nor by necessary implication do they contain any prohibition or limitation on the Amending power. Therefore, as. a matter of construction no implied limitations can be inferred from the preamble or the fundamental rights which, being as much part of a legal document as any other provision of the Constitution, are subject to equal consideration in the matter of legal construction. To be relevant, the scheme and context must say or reasonably suggest something with regard to Amending power.

( 1300 ) MR. Palkhivala sought to draw support lor his doctrine of implied limitations from the Preamble. According to him the Preamble sets out the objectives of the Constitution and, therefore, any tampering with these objectives would destroy the identity of the Constitution, and since an amendment of the Constitution, howsoever made, must preserve the identity of the Constitution the objectives of the Preamble should be treated as permanent and unamendable. On that basis he further con- tended that since the fundamental rights are mostly an elaboration of the objectives of the Preamble, it was implied that the fundamental rightsor at least, the essence of them was not liable to be damaged or destroyed by an amendment.

( 1301 ) THE submission that the fundamental rights are an elaboration of the Preamble is an over-statement and a half truth. According to the preamble the people of India have given unto themselves the Constitution to secure to all its citizens : (a) JUSTICE social, economic and political ; (b) liberty of thought, expression, belief, faith and worship; (c) EQUALITY of status and of opportunity; and to promote among the citizens; (d) fraternity assuring the dignity of the individual and the unity of the Nation. There is no doubt that the Constitution is intended to be a vehicle by which the goals set out in it are hoped to be reached. Indeed, being a part of the Constitution, strictly speaking, it is amendable under article 368. But we will assume that the people of India will not be rash enough to amend the glorious words of the Preamble; and as long as the preamble is there the governments will have to honour the Preamble and the Constitution will have to continue as a vehicle which would lead us to the goals. But to say that the fundamental rights are an elaboration of these goals would be a caricature. Most of the fundamental rights may be traced to the principles of LIBERTY and EQUALITY mentioned in the preamble. But whereas the concepts of LIBERTY and EQUALITY are mentioned in absolute terms in the Preamble the fundamental rights including the several freedoms are not couched in absolute terms. They reflect the concepts of LIBERTY and EQUALITY in a very attenuated form with several restrictions imposed in the interest of orderly and peaceable government.

( 1302 ) THE pre-eminent place in the Preamble is given to JUSTICE social, economic and political, and it is obvious that without JUSTICE the other concepts of LIBERTY, EQUALITY and FRATERNITY would be illusory. In a democratic country whose institutions are informed by JUSTICE-social, economic and political, the other three concepts of LIBERTY, EQUALITY and FRATER- nity will be automatically fostered. Social and political Justice takes care of Liberty; and Justice, social and economic, takes care of equality of status and of opportunity. Therefore, even in the Directive principles the supreme importance of Justice-social, economic and political- is highlighted in Article 38, in which the State is given a mandate to strive to promote the welfare of the people by securing and protecting a social order in which Justice-social, economic and political shall inform all the institutions of the National life. Where genuine and holiest efforts are made in the implementation of this mandate the content and ambit of the concepts of liberty and Equality are bound to increase and expand. As Wade has pointed out in his Introduction to Dicey's Law of the Constitution, at page LXXXII "liberty today involves the ordering of social and economic conditions by governmental authority, even in those countries where political, if not economic equality of its citizens, has been attained. Without expan- sion of that authority, which Federal States must find more difficult to achieve than a unitary State like the United Kingdom, there is inevit- ably a risk that the constitution may break down before a force which is not limited by considerations of constitutional niceties". Again he points out at pages XXIV and XXV that the modern House of Commons is a forum in which both parties put forward incessant demands for the remedying of some social or economic-ill of the body politic. . . . . . . . . . . . . . . . . . and the changing conditions have all been brought about by the action of Parlia- ment. In doing that, Wade says, it could not be denied that legislationhas shifted the emphasis on individual liberty to the provision of services for the public good. In the terms of our Constitution especially the preamble and Article 38, the shift of emphasis is from individual Liberty to Justice-social, economic and political.

( 1303 ) THE absolute concepts of Liberty and Equality are very difficult to achieve as goals in the present day organized society. The fundamental rights have an apparent resemblance to them but are really no more than rules which a civilized government is expected to follow in the governance of the country whether they are described as funda- mental rules or not. England developed these rules in its day to day government under the rule of law and does not make a song and dance about them. British rulers of India tried to introduce these rules in the governance of this country, as proof of which we can point out to the vast mass of statutes enacted during the British period which have been continued, practically without change, under our Constitution. No body can deny that when Imperial interests were in jeopardy, these rules of good government were applied with an unequal hand, and when the agitation for self rule grew in strength these rules were thrown aside by the rulers by resorting to repressive laws. It was then that people in this country clamoured for these elementary human rights. Tod them their value in our social and political life assumed such importance that when the constitution was framed we decided that these rules of civilized govern- ment must find a place in the Constitution, so that even our own govern- ments at the Centre and the States should not overlook them. That is the genesis of our fundamental rights. The importance of these rights as conferred in the Constitution lies not in their being something extraordinary but in the bar that the Constitution imposed against laws which contravened these rights and the effective remy supplied under Article 32. Indeed the framers of the Constitution took good care not to confer the funda- mental rights in absolute terms because that was impractical. Knowing human capacity for distorting and misusing all liberties and freedoms, the framers of the Constitution put restrictions on them in the interest of the people and the State thus emphasizing that fundamental rights. e. , rules of civilized government are liable to be altered, if necessary, for the common good and in the public interest.

( 1304 ) AND yet, as we have seen above, even in U. K. individual liberty as it was understood a generation or two ago is no longer so sacrosanct, especially, in relation to ownership of property. Several statutes in the economic and social field have been passed which while undoubtedly impinging upon the individual liberties of a few have expanded social and egonomic justice for the many. If U. K. had stood staunchly by its Victorian concept of laissez faire and individual liberty, the progress in social and economic justice which it has achieved during the last half a century would have been difficult. Even so, though very much more advanced than our country, U. K. cannot claim that it has fully achieved social and economic justice for all its citizens. But there is no doubt that the parties which form the governments there have always this goal in view though their methods may be different. In a country like ours where we have, on the one hand, abject poverty on a very large scale and great concentration of wealth on the other, the advance towards social and economic justice is bound to be retarded if the old concept of individual liberty is to dog our footsteps. In the ultimate analysis, liberty or freedoms which are so much praised by the wealthier sections of the community are the freedom to amass wealth and ownproperty and means of production, which, as we have already seen, our constitution does not sympathise with. If the normal rule is that all rules of civilized government are subject to public interest and the common weal, those rules will have to undergo new adjustments in the implementation of the Directive Principles. A blind adherence to the concept of freedom to-own disproportionate wealth will not take us to the important goals of the Rreamble, while a just and sympathetic implementa- tion of the Directive Principles has at least the potentiality to take us to those goals, although on the way, a few may suffer some diminution of the unequal freedom they now enjoy. That being the philosophy under- lying the Preamble the Fundamental Rights and the Directive Principles taken together, it' will be incorrect to elevate the fundamental rights as essentially an elaboration of the objectives of the Preamble. As a matter of fact a law made for implementing the Directive Principles of Arti- cle 39 (b) and (c), instead of being contrary to the Preamble, would be in conformity with it because while it may cut down individual liberty of a few, it widens its horizon for the many.

( 1305 ) IT follows that if in implementing such a law the rights of an individual under Articles 14, 19 and 31 are infringed in the course of securing the success of the scheme of the law, such an infringement will have to be regarded as a necessary consequence and, therefore, secondary. The Pre- amble read as a whole, therefore, does not contain the implication that in any genuine implementation of the Directive Principles, a fundamental right will not suffer any diminution. Concentration and control of community resources, wealth and means of production in the hands of a few individuals are, in the eyes of the Constitution, an evil which must be eradicated from the social organization, and hence, any fundamental right, to the extent that it fosters this evil, is liable to be abridged or taken away in the interest of the social structure envisaged by the Constitution. The scheme of the fundamental rights in Part III itself shows that restrictions on them have been placed to guard against their exercise in an evil way.

( 1306 ) NOR is there anything in the Preamble to suggest that the power to amend the fundamental right to property is cut down. Actually there is no reference to the right to property. On the other hand, while declaring the objectives which inspired the framers of the Constitution to give unto them- selves the Constitution which, they hoped, would be able to achieve them, they took good care to provide for the amendment of "this Constitution". It was clearly implied that if the operative parts of the Constitution failed to put us on the road to the objectives, the Constitution was liable to be appro- priately amended. Even the Preamble, which, as we know, had been adopted by the Constituent Assembly as a part of the Constitution (Constituent assembly Debales, Vol. X, p. 456) was liable to be amended. Right to property was, perhaps, deliberately not enthroned in the Preamble because that would have conflicted with the objectives of securing to all its citizens, justice, social, economic and political, and equality of opportunity, to achieve which Directive Principles were laid down in Articles 38 to 51. Moreover the Preamble, it is now well settled-can neither increase or decrease the power granted in plain and clear words in the enacting parts of a statute. See: The Berubari Union and Exchange of Enclave at pp. 281-282. Further, the legislature may well-intend that the enacting part do extend beyond the apparent ambit of the Preamble. See: secretary of State v. Maharajah of bobhili As a matter of fact if the enacting part is clear and unambigousit does not call for construction. In Sprague's case (supra) the Supreme court of America had been called upon to construe Article V, the amending clause, so as to cut down the amending power by implications arising out of certain other provisions of the Constitution itself. Replying to the argument the court observed , "the United State asserts that Article V is clear in statement and in meaning contains no ambiguity and calls for no resort to rules of construction. A mere reading demonstrates that this is true". These observations apply with greater force to our amending clause namely article 368, for in Article V of the American Constitution there was some room for play of argument on the basis of alternative methods permitted for the ratification of the proposed amendment. On the basis of the alternative methods provided in Article V-One by the State Legislature and the other by the State convention-It was argued that the State convention was the appropriate method to the exclusion of the State Legislature, because the prohibition amendment (18th Amendment) directly affected personal liberty. Where personal liberty was involved, it was submitted, the people alone through their convention could ratify an amendment, especially, as under Article X the people had reserved to themselves the powers which were not expressly conferred on the federal Constitution. This argument was rejected by the Supreme court on the ground that the language of article V was clear and unambiguous and though alternative methods were provided for, the ultimate authority as to which alternative method should be adopted was the Congress and if the Congress chose the method of ratifica- tion by the State Legislature there was an end of the matter. The court observed : "in the Constitution words and phrases were used in their normal and ordinary as distinct from technical meaning. When the intention is clear, there is no room for construction and no excuse for interpolation". By interpolation the court specifically meant an addition in the nature of a proviso to Article V limiting the power of the Congress as to the choice of the body it would make for the purposes of ratification.

( 1307 ) REFERENCE was made to certain cases with a view to show that though there were no words suggesting and limitation on a power, implied limitations or prohibitions are noticed by courts. In a recent Australian case of Victoria v. The Commonwealth the question arose as to the power of the Commonwealth Parliament under S. 51 (11) of the Constitution to make laws with respect to taxation under the Pay-roll Tax Assessment Act, 1941-1969. It was unanimously held by the court that the Commonwealth parliament had the power. During the course of aguments, the question arose) which has been troubling the Australian courts for years, whether there were implied limitations on Commonwealth legislative power under the Constitution in view of the fact. that the Preamble to the Constitution recited that the people had agreed "to unite in one indissoluble federal commonwealth under the Grown". In Amalgamated Engineers case (supra), already referred to, which had been regarded for a long time as the. final word on the question, the alleged implied prohibition or limitation had been rejected. The question was held to be a question of construction with regard to the extent of power and if the power was ascertained from the express words, there could be no further limitation thereon by implication. But in the case referred to above, while three Judges accepted that view as still good, the other four were of the contrary opinion. Whichever view is correct that really makes no difference to the question before us. We are concerned with the amending power. In the Australian case the Judgeswere concerned with legislative power and that had to be ascertained within the four corners of the Constitution by which the power had been created and under which it had to be exercised. There was room for construction on the basis of the words and structure of the Constitution, especially, the preamble which was not liable to be amended by the Commonwealth. On the other hand, since the power to amend our Constitution is a superior power it cannot be bound by any provision of the Constitution itself, the obvious reason being that even such a provision is amendable under the constitution. In re The Initiative and Referendum Act it was held by the privy council that the British North America Act, 1867, S. 92, head i, which empowers a Provincial legislature to amend the Constitution of the province, "exepting as regards the office of Lieutenant-Governor," excludes the making of a law which abrogates any power which the Grown possesses through the Lieutenant-Governor who directly represents the Grown. By the Initiative and Referendum Act the legislative assembly of Manitoba-A province in Canada-compelled the Lieutenant-Governor to submit a proposed law to a body of voters totally distinct from the Legislature of which he is the Constitutional head, and would render him powerless to pre- vent it from Incoming an actual law if approved by those voters. It was held that this directly affected the office of the Lieutenant-Governor as part of the Legislature and since the amendment to the Constitution had the effect of affecting that office which was expressly excepted from the amending power the law was void. It is thus seen that there was no question of an implied limitation. In the other case cited before us namely Don John Francis douglas Liyanage and Others v. The Queen, no question of amending the constitution arose. There by an ordinary act of the Legislature made in 1962 under S. 29 (1) of the Ceylon (Constitution and Independence) orders in council, 1946-47 an attempt was made to partially vest in the legislature and the executive the judicial powers of the judges which vested in them under a separate Imperial Charter, viz. the Charter of Justice, 1833 the effective operation of which was recognized in the Constitution of 1946-47. It was held that the Act was ultra vires the Constitution. Some more cases like Ranasinghe's case Taylor v. Attorney General of Queensland Mongal singh v. Union of India were cited to show that constitutional laws permit implications to be drawn where necessary. Nobody disputes that proposition. courts may have to do so where the implication is necessary to be drawn. In Ranasinghe's case (supra) the Privy council is supposed to have expressed the opinion on a construction of S. 29 of the Ceylon (Constitu- tion) Order in council, 1946 that Ss. (2)and (3) are unamendable "under the Constitution". In the first place, the observation is obiter, and it is dciubtful if their Lordships intended to convey that even under S. 29 (4), they were unamendable. A plain reading of the latter provision show they were amendable by a special majority. Secondly, in an earlier portion of the judgment Provision 29 (2) and (3) are described as 'entrenched', the plain dictionary meaning of which is that they are not to be repealed except under more than stringent conditions. See also Wade's Introduction to dicey, pages XXXVI to. Jennings in his Constitution of Ceylon ( 1949) points out at page 22 that the limitations of 29 (2) and (3) can be altered or abridged by the special procedure under S. 29 (4 ). Similarly wheare in Constitutional Structure of the Commonwealth 1960 reprinted in 1963, pages 83-84.-In any event, that was a pure matter of construction on a reading of Ss. (1) to (4) of S. 29 together. In Taylor's case (supra)THE question for consideration was as to the interpretation of the expression 'constitution of such legislature' in S. 5 of the Colonial Laws Valida- tion Act, 1865. At the time in question the Legislature consisted of a lower house and an upper house and it was held that the expression 'constitution of such legislature' was wide enough to include the conversion of a bicameral legislature into a unicameral one. Isaacs,. , also held 'legislature' in the particular context meant the houses of legislature and did not include the crown. In Mongol Singh's case (supra) it was merely held that if by law made under Article 4 of our Constitution a state was formed, that state must have legislative, executive and judicial organs which are merely the accoutrements of a state as understood under the Constitution. The connotation of a "state" included these three organs. That again was a matter of pure cons- truction. None of the cases sheds any light on the question with which we are concerned viz. whether an unambiguous and plenary power to amend the provisions of the Constitution, which included the Preamble and the fundamental rights, must be frightened by the fact that some superior and transcedental character has been ascribed to them.

( 1308 ) ON the other hand, in America where implied limitations were sought to be pressed in cases dealing with constitutional amendments, the same were rejected. In Sprague's case (supra), the Supreme Court rejected the conten- tion of implied limitation supposed to arise from some express provision in the constitution itself. Referring to this case Dodd in Cases in Constitutional law, 5th edition, pages 1375-1387 says "this case it is hoped puts an end to the efforts to have the court examine into the subject-matter of constitutional amendment". In The National Prohibition cases decided earlier, the Pro- hibition Amendment ( 18th) was challenged, as the briefs show, on a host of alleged implied limitations based on the constitution, its scheme and its his- tory. The opinion of the court, did not accept any of them, in fact, did not even notice them. American jurists are clearly of the opinion that the supreme Court had rejected the argument of implied limitations. See for example Cooley Constitutional law, 4th edition, 46-47 ; Burdick Law of American constitution, pp. 45 to 48.

( 1309 ) THE argument that essential features (by which Mr. Palkhivala means "essential features, basic elements or fundmental principles") of the constitution, though capable of amendment to a limited extent are not liable to be damaged or destroyed is only a variation on the argument pre- viously urged before this court on the basis of the so-called "spirit of the constitution" which had been rejected as far back as 1952. See : State of Bihar v. Kameshwar Singh (supra ). That case arose out of the Bihar Land Reforms act, 1950 which was pending in the Bihar Legislature at the time of the commencement of the constitution. After it became law it was reserved for the consideration of the President who gave assent to it. Thus it became one of the laws referred to in Article 31 (4) of the Constitution and in virtue of that provision it could not be called in question on the ground that contra- vened the provisions of Clause 2 of Article 31. Under that law Zamindari was abolished and the lands vested in the State. The Zamindars received what was described as illusory compensation. As there was danger of chall- enge under Articles 14, 19 and 31, the constitution was amended to incorpo- rate Article 31-A and Article 31-B to take effect from the date of the com- mencement of the constitution and this Act along with similar other Acts were included in the Ninth Schedule. In Sankari Prasad's case (supra) the amend- ment was held valid and when. the case came before this court the argumentsbecame lirnited in scope. Mr. P. R. Das who appeared for the Zamindars tried to skirt the bar under Article 31 (4) by relying on Entry 36, List II and entry 42 in List III arguing that the law in so far as it did not acquire the zamindaries for a public purpose or make provision for adequate compensa- tion was incompetent under those entries. Dr. Ambedkar who appeared for other Zamindars took a different stand. In the words of Patanjali sastri, C.. , "he maintained that a constitutional prohibition against compulsory acquisition of. property without public necessity and payment of compensation was dedscible from what he called the 'spirit of the constitu- tion', which, according to him, was a valid test for judging the constitution- ality of a statute. The Constitution, being avowedly one for establishing liberty, justice and equality, and a government of afree people with only limited powers, must be held to contain an implied prohibition against taking private property without just com- pensation and in the absence of a public purpose. (Emphasis is supplied ). He relied on certain American decisions and text books as supporting the view that a constitutional prohibition can be derived by implication from the spirit of the constitution where no express prohibition has been enacted in that behalf. Articles 31-A and 31-B barred only objections based on alleged infringe- ments of the fundamental rights conferred by Part III, but if, from the other provisions thereof, it could be inferred that there must be a public purpose and payment of compensation before private property could be compulsorily acquired by the State, there was nothing in the two articles aforesaid. to preclude objection on the ground that the impugned Acts do not satisfy these requirements and are, therefore, unconstitutional". (Emphasis supplied ). This argument was rejected in these words "in the face of the limitations on the State's power of compulsory acquisition thus incorporated in the body of the Cons- titution, from which 'estates' alone are excluded, it would, in my opinion, be contrary to elementary canons of statutory construction to read, by implication, those very limitations into Entry 36 of List II, alone or in conjunction with entry 42 of List III, of the Seventh Sche- dule, or to deduce them from 'the spirit of the Constitution', and that too, in respect of the very properties excluded". The argument was that having regard to the Preamble and the fundmental rights which established liberty, justice and equality and a government of a free people with only limited powers, taking of private property without just com- pensation and in the absence of a public purpose was unconstitutional, and this conclusion should be drawn by implied prohibition in pite of Arti- cle 31 (4), 31-A and 31-B expressly barring challenge on those very grounds. In other words, an express provision of the Constitution validating a State law was sought to be nullified on the basis of 'essential' features and basic principles' underlying the Preamble and the fundamental rights, but the attempt was negatived. I see no distinction between Dr. Ambedkar's argu- ment in the above case and the case before us, because the plenary power of amendment under Article 368 is sought to be limited by implications supposed to arise from those same 'essential features and basic principles'.

( 1310 ) A Legislature functioning under a constitution is entitled to make a law and it is not disputed that such a law can be amended in any way the legislature likes by addition, alteration or even repeal. This power to amend is implicit in the legislative power to make laws. It can never be suggested that when the legislature amends its own statute either direc- tly or indirectly it is inhibited by any important or essential parts of that statue. It can amend the important, desirable, parts as unceremoniously as it can any other unimportant parts of the statute. That being 80, one does not see the reasonableness of refusing this latitude to a bodywhich is specifically granted the unqualified power to amend the Constitu- tion. While the legislature's power to amend operates on each and every provision of the statute it is difficult to see why the amending clause in a constitution specifically authorising the amendment of the constitution should. stand inhibited by any part of the constitution. Essential parts and unessential parts of a constitution should make no difference to the amending power [compare passage from Mccawley's case (supra) already quoted at p. 43-4]. That alegislature can repeal an act as a whole and the constituent boby does not repeal the constitution as a whole is not a point of distinction. A legislature repeals an act when it has outlived its utility. But so far as a constitution is concerned it is an organic instrument continu- ously growing in utility and the question of its repeal never arises as long as orderly change is possible. A constitution is intended to last. Legislative acts do not have that ambition. It is the nature and character of the cons- titution as a growing,' organic, permanent and sovereign instrument of government which exclude the repeal of the constitution as a whole and not the nature and character of the amending power.

( 1311 ) SINCE the "essential features and basic principles' referred to by mr. Palkhivala are those culled from the provisions of the constitution it is clear that he wants to divide the constitution into parti-one of provisions con- taining the essential features and the other containing non-essential features. According to him the latter can be amended in any way the Parlia- ment likes, but so far as the former provisions are concerned, though they may be amended, they cannot be amended so as to damage or destroy the core of the essential features. Two difficulties arise, who is to decide what are essential provisions and non-essential provisions? According to mr. Palkhivala it is the court which should do it. If that is correct, what stable. standard will guide the court in. deciding which provision is essential and which is not essential? Every provision, in one sense, is an essential pro- vision because if a law is made by the Parliament or the State Legislatures contravening even the most insignificant provision of the constitution, that law will be void. From that point of view the courts acting under the cons- titution will have to look upon its provisions with an equal eye. Secondly, if an essential provision is amended and a new provision is inserted, which in the opinion of the constituent body, should be presumed to bemore essential than the one repealed, what is the yardstick the court is expected to employ? It will only mean that whatever necessity the constituent body may feel in introducing a change in the constitution, whatever change of policy that body may tike to introduce in the Constitution, the same is liable to be struck down if the court is not satisfied either about the neces- sity or the policy. Clearly this is not a function of the courts. The diffi- culty assumes greater proportion when an amendment is challenged on the ground that the core of essential feature is either damaged or destroyed. What is the standard? Who will decide where the core lies and when it is reached? One can understand the argument that particular provi- sions in the constitution embodying some essential features are not amendable at all. But the difficulty arises when it is conceded that the provision is liable to be amended, but not so as to touch its 'core'. Apart from the difficulty in determining where the 'core' of an 'essen- tial feature' lies, it does not appear to be suffiently realized what fan- tastic results may follow in working the constitution. Suppose an amend- ment of a provision is made this year. The mere fact that an amendment is made will not give any body the right to come to this court to have the amendment nullified on the ground that it affects the core of an essentialfeature. It is only when a law is made under the amended provi- sion and that law affects some individual's right, that he may come to this court. At that time he will first show that the amendment is bad because it affects the core of an essential feature and if he succeeds there he will automatically succeed and the law made by the Legislature in the confidence that it is protected by the amended constitution will be ren- dered void. And such a challenge to the amendment may come several years after the amendment which till then is regarded as a part of the constitution. In other words, every amendment, however innocuous it may seem when it is made/is liable to be struck down several years after the amendment although all the people have arranged their affairs on the strength of the amended constitution. And in dealing with the challenge to a particular amendment and searching for the core of the essential feature the court will have to do it either with reference to the original constitution or the constitution as it stood with all its amendments up-to date. The former procedure is clearly absurd because the constitution has already undergone vita] changes by amendments in the meantime. So the challenged amendment will have to be assessed on the basis of the constitution with all its amendments made prior to the challenged amendment. All such prior amendments will have to be accep- ted as good because they are not under challenge, and on that basis judges will have to deal with the challenged amendment. But the other amendments are also not free from challenge in subsequent proceedings, because we have already seen that every amendment can be challenged several years after it is made, if a law made under it affects a private individual. So there will be a continuous state of flux after an amend- ment is made and at any given moment when the court wants to deter- mine the core of the essential feature, it will have to discard, in order to be able to say where the core lies, every other amendment because these amendments also being unstable will not help in the determination of the core. In other words, the courts will have to go by the original constitu- tion to decide the core of an essential feature ignoring altogether all the amendments made in the meantime, all the transformations of rights that have taken place after them, all the arrangements people have made on the basis of the validity of the amendments and all the laws made under them without question. An argument which leads to such obnoxious results can hardly be entertained. In this very case if the core argument were to be. sus- tained several previous amendments will have to be set aside because they have undoubtedly affected the core of one or the other fundamental right. Prospective overruling will be the order of the day.

( 1312 ) THE argument of implied limitations in effect invites us to assess the merits and demerits of the several provisions of the Constitution as a whole in the light of social, political and economic concepts embodied there- in and determine on such an assessment what is the irreducible minimum of the several features of the Constitution. Any attempt by amendment, it is con- tended, to go beyond such irreducible minimum-also called the 'core' of essential features-should be disallowed as invalid. In other words, we are invited to resort to the substantive due process ' doctrine of the Supreme court of America in the interpretation of a 'constitutional Amendment. That doctrine was rejected long ago by this court [gopalan's case] (supra) even in its application to ordinary legislation. See 1950 SCR 88 (Kania, C.. 110) (Das,. , 312 ). The argument does not have anything to do with the meaning of the expression 'amendment of the Constitution' because it is conceded for the purpose of this argument that 'amendment of this Constitution' means'amendment of all provisions by way of addition, alteration or repeal'. What is contended, is that by the very implications of the structure, general princi- ples and concepts embodied in the Constitution, an amendment can go only thus far and no further. In other words, the scope of amendment is circums- cribed not by what the constituent body thinks, but by what the Judges ultima- tely think is its proper-limits. And these limits, it is obvious, will vary with in- dividual Judges and, as in due process, the limits will be those fixed by a majo- rity of Judges at one time, changed, if necessary, by a bigger majority at an- other. Every time an amendment is made of some magnitude as by the Twenty- fifth Amendment we will have, without anything to go on, to consider how, in our opinion, the several provisions of the Constitution react on one another, their relative importance from our point of view, the limits on such imponderable concepts as liberty, equality, justice, we think proper to impose, whether we shall give prepondarence to Directive Principles in one case and fundamental rights in another-in short) determine the 'spirit of the Constitution' and decide how far the amendment conforms with that 'spirit'. We are no longer, then, construing the words of the Constitution which is our legitimate pro- vince but determining the spirit of the Constitution-a course deprecated by this court in Gopalan's case (supra) at pp. 120-121. When concepts of social or economic justice are offered for our examination in their interaction on pro- visions relating to right to property-matters traditionally left to legislative policy and wisdom, we are bound to founder "in labyrinths to the character of which we have no sufficient guides. "

( 1313 ) IT is true that Judges do judicially determine whether certain restrictions imposed in a statute are reasonable or not. We also decide questions involving reasonableness of any particular action. But Judges do this because there are objective guides. The Constitution and the legisla- tures specifically leave such determination to the higher courts, not because they will be always right, but because the subject-matter itself defies defini- tion and the legislatures would sooner abide by what the judges say. The ' same is true about limits of delegated legislation or limits of legislative power when it encroaches on the judicial or any other field. Since the determina- tion of all these questions is left to the higher judiciary under the Constitu- tion and the law, the judges have to apply themselves to the tasks, however difficult they may be, in order to determine the legality of any particular legislative action. But all this applies to laws made under '-the Constitution and have no relevance when we have to deal with a constitutional Amend- ment. The Constitution supplies the guides for the assessment of any statute made under it. It does not supply and guides to its own amendment which is entirely a matter of policy.

( 1314 ) THE 'core' argument and the division into essential and non- essential parts are fraught with the greatest mischief and will lead to such insuperable difficulties that, if permitted, they will open a Pandora's box of endless litigation creating uncertainty about the provisions of the Constitution which was intended to be clear and certain. Every single provision embodies a concept, a standard, norm or rule which the framers of the Constitution thought was so essential that they included it in the Constitution. Every amendment thereof will be liable to be assailed on the ground that an essen- tial feature or basic principle was seriously affected. Our people have a 'reputation of being a litigious lot. We shall be only adding to this.

( 1315 ) WHEN an amendment is successfully passed, it becomes part of the Constitution having equal status with the rest of the provisions of the constitution. If such an amendment is liable to be struck down on theground that it damages or destroys an essential feature, the power so claimed should, a fortiori, operate on the Constitution as it stands. It will be open to the court to weigh every essential feature like a fundamental right and, if that feature is hedged in by limitations, it would be liable to be struck down as damaging an essential feature. Take for example personal liberty, a fundamental right under the Constitution. If the court holds the opinion that the provision with regard to preventive detention in Article 22 damages. the core of personal liberty it will be struck down. The same can be said about the freedoms in Article 19. If this court feels that the provision with regard 'to, say State monopolies damages the fundamental right of trade of a citizen, it can be struck down. In other words, if an amendment which has become part of the Constitution is liable to be struck down because it damages an essential feature it should follow that every restriction originally placed on that feature in the Constitution would necessarily come under the pruning knife of the courts.

( 1316 ) IN short, it the doctrine of unamendability of the core of essen- tial features is accepted, it will mean that we add some such proviso below article 368. ""nothing in the above Amendment will be deemed to have authorised an Amendment of the Constitution, which has the effect of damag- ing or destroying the core of the essential features, basic principles and fundamental elements of the Constitution as may be determined by the courts". This is quite impermissible.

( 1317 ) IT is not necessary to refer to the numerous authorities cited before us to show that what are described as some of the essential features are not unamendable. It will be sufficient to refer to only a few. Bryce in his book: "the American Commonwealth". New and' revised edition, Vol. I says at pages 366-67 with reference to Article V of the American Constitution "but looking at the Constitution simply as a legal document, one finds nothing in it to prevent the adoption of an amendment providing a method for dissolving the existing Federal tie, whereupon such method would be applied so as to form new Unions, or permit each State to become an abso- lutely sovereign and independent commonwealth. The power of the people of the United States appears competent to effect this. should it ever be desired, in a perfectly legal way, just as the British Parliament is legally compe- tent to redivide Great Britain into the sixteen or eighteen independent king- doms which existed within the island in the eighth century". Randall in his revised edition, 1964, The Constitutional Problems under Lincoln, says at page 394 with reference to Article V "aside from the restriction concerning the "equal suffrage' of the States in the Senate, the Constitution, since 1808, has contained no unamendable part, and it designates no field of legislation that may not be reached by the amending power. An amendment properly made becomes 'valid, to all intents and purposes, as part of this Constitu- tion', having as much force as any other article. There is no valid distinc- tion between 'the Constitution itself and the amendments. The Constitu- tion at any given time includes all up to the latest amendments, and excludes portions that have not survived the amending process. We should think not of 'the Constitution and its amendments,' but of "the Constitution as amended'. This is especially true when we reflect that certain of the amendments supplant or construe portions of the original document". Cooley in his. book, The General Principles of Constitutional Law in the United states of America, fourth edition, says at pages 46-47 "article V of the constitution prohibits any amendment by which any State 'without its con- sent shall be deprived of its equal suffrage in the Senate'. Beyond thisthere appears to be no limit to the power of amendment. This, at any rate, is the result of the decision in the so-called National Prohibition case (supra ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The amendment was attacked on the grounds that it was legislative in its character, an invasion of natural rights and an encroachment on the fundamental principles of dual sovereignty, but the contention was overruled. The decision totally negatived the contention that 'an Amend- ment 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 relin- guish to the State those which already have been granted to it'. Quick and garran writing in the 'annotated Constitution of the Australian Common- wealth' (1901) observe as follows at p. 989 with regard to the amending clause of the Constitution namely S. 128. 'it may be concluded that there is no limit to file power to amend the Constitution, but that it can only be brought into action according to certain modes prescribed. We will con- sider the modes and conditions of Constitutional reforms further; meanwhile it is essential to grasp the significance and comprehensiveness of the power itself. For example, the Constitution could be amended either in the direc- tion of strengthening or weakening the Federal government ; strengthening it, by conferring on it new and additional powers; weakening it, by taking away powers. The Constitution could be amended by reforming the struc- ture of the Federal Parliament and modifying the relation of the two Houses ; by increasing or diminishing the power of the Senate in reference to Money bills; by making the Senate subject to dissolution at the same time as the house of Representatives. It is even contended by some daring interpreters that the Constitution could be amended by abolishing the Senate. It could certainly be amended by remodelling the Executive Department, abolishing what is known as Responsible government, and introducing a new system, such as that which prevails in Switzerland, according to which the administra- tion of the public departments is placed in the hands of officers elected by the Federal legislature. The Constitution could be amended by altering the tenure of the judges, by removing their appointment from the Executive, and authorizing the election of judges by the Parliament or by the people. The constitution could be amended in its most vital part, the amending power itself, by providing that alterations may be initiated by the people, according to the plan of the Swiss Popular Initiative ; that proposed alterations may be formulated by the Executive and submitted to the people that proposed alterations may, with certain constitutional exceptions, become law on being approved of by a majority of the electors voting, dispensing with the neces- sity of a majority of the States".

( 1318 ) ON a consideration, therefore, of the nature of the amending power, the unqualified manner in which it is given in Article 368 of the constitution it is impossible to imply any limitations on the power to amend the fundamental rights. Since there are no limitations express or implied on the amending power, it must be conceded that all the Amendments which are in question here must be deemed to be valid. We cannot question their policy or their wisdom.

( 1319 ) COMING to the actual amendments made in the Constitution by the Twenty-fifth Amendment Act, we find in the first place that the original clause (2) of Article 31 is recast to some extent by deleting any reference to 'compensation' in cases of compulsory acquisition and requisition for a public purpose. The fundamental right now is not to receive "compensation'' which this court construed to mean 'a. just equivalent' but to receive an "amount"which the legislature itself may fix or which may be determinened in accord- ance with the principles as may be specified by law. Then again the "'amount" may be given in cash or in such manner as the law may specify. The principal objection to the amendment is that the clause arms the legis- lature with power to fix any amount which it considers fit and such fixation may be entirely arbitrary having no nexus whatsoever with the property oi which a person is actually deprived. In similar cases, it is submitted, the amount fixed may be more in one and very much less in another depending entirely on the whim of the legislature. Conceivably the amount may be illusory having regard to the value of the property. The principles for determining the amount may equally be arbitrary and unrelated to the depri- vation. Therefore, it is contended, the amendment is bad. it is difficult to understand how an amendment to the Constitution becomes invalid because the Constitution authorizes the legislatures to fix an "'amount" or to specify the principles on which the "amount" is to be determined instead of fixing the "compensation" 6r specifying the principles for determining "compensa- tion". Even compensation ultimately is an "amount". All that the amend- ment has done is to negative the interpretation put by this court on the con- cept of compensation. Clause (2) recognizes the fundamental right to receive an amount in case of compulsory acquisition or requisition and all that it wants to clarity's that the fundamental right is not to receive compensation as interpreted by this court but a right to receive an amount in lieu of the deprivation which the legislature thinks fit. It is not the case that if a fair amount is fixed for the acquisition or fair principles to determine it are laid down, the amendment would still be invalid. The contention is that it becomes invalid because there is a possibility of the abuse of the power to fix the amount. There is no power which cannot be abused. All Constitutions grant power to legislatures to make laws on a variety of subjects and the mere possibility of the power being used unwisely, injurously or even abused is not a valid ground to deny legislative power. See Bank of Toronto v. Lambe If that is the position with regard to legislative power, there does not appear to be any good reason why the possibility of abuse of it by the legislature should inhibit an amendment of the Constitution which gives the power. Whether a particular law fixes an amount which is illusory or is otherwise a fraud on power denying the fundamental right to receive an amount specifically conferred by clause (2) will depend upon the law when made and is tested on the basis of clause (2 ). One cannot anticipate any such matters and strike down an amendment which, in all conscience, does not preclude a fair amount being fixed for payment in the circumstances of a particular acquisition or requisition. The possibility of abuse of a power given by an amendment of the Constitution is not determinative of the validity of the amendment.

( 1320 ) THE new clause (2-B) inserted in Article 31 having the conse- quence of excluding the application of Article 19 (1) (f) to a law refeired to in clause (2) of Article 31 is merely a re-statement of the law laid down by this court after the Constitution came into force. The mutual exclusiveness of Article 19 (1) (f) and Article 31 (2) had been recognized by this court in a series of cases. See Sitabati Debi and Another v. State of West Bengal and Ano- ther. That principle is now embodied in the new amendment.

( 1321 ) THE only substantial objection to the Twenty-fifth Amendmentis based on the new Article 31g inserted in the Constitution by S. 3 of the Twenty-fifth Amendment Act. The new article is as follows :"31c. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abri- dges 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. "

( 1322 ) IGNORING the proviso for the moment, one finds that the main clause of the article falls into two parts. The first part provides that a law of a particular oescription shall not be deemed to be void on the ground that it affects injurously somebody's fundamental rights under Articles 14, 19 and 31. The second part provides that if such a law contains a particular declaration, courts shall not entertain a particular kind of objection.

( 1323 ) IN the first place, it should be noted that what is saved by Arti- cle 31g is a law. e. a law made by a competent legislature. Secondly since article 31g comes under the specific heading 'right to property' in Part III dealing with fundamental rights it is evident that the law must involve right to property. That it must of necessity do so in apparent from the descrip- tion of the law given in the article. The description is that the law gives effect to the policy of the State towards securing the principles specified in clauses (b) and {e) of Article 39. That Article is one of the several articles in Part IV of the Constitution dealing with Directive Principles of State Policy. Article 37 provides that though the Directive Principles we not enforceable by any court, they are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. It follows from this that the Govern- ments and Legislatures are enjoined to make laws giving effect to the directive Principles. We are immediately concerned with the Directive principles contained in Article 39 (b) and (c) namely, that the State shall direct its policy towards securing (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good ; and (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. In short clause (b) contemplates measures to secure what is known as equitable distribution of community resources and clause (c) contemplates measures for preventing concentration of wealth and means of production in a few private hands. Read along with Article 38 and other principles in this Part, they justify the conclusions of Granville Austin in his indian Constitution: Cornerstone of'a National-that our Constitution is informed by social democratic principles. Seel pages 41-52 of the book. The final conclusion he came to is expressed in this way :"by establishing these positive obligations of the state, the members of the Constituent Assembly made it the responsibility of future Indian governments to find a middle way between individualliberty and the public good, between preserving the property and the privilege of the few and bestowing benefits on the many in order to liberate the powers of all men equally for contributions to the common good. " page 52. The philosophy which informs the Constitution looks on concentration of wealth and means of production as a social evil because such concentra- tion, resulting in the Concentration of political and economic power in the hands of a few private individuals, not only leads to unequal freedom, on the one hand, but results, on the other, in undermining the same in the case of many. In such conditions it is widely believed that the goals of Equality and Justice, social, economic and political, become unreal, and since the Constitution itself directs that laws may be made to inhibit such conditions it is inevitable that these laws aimeli at the reduction of unequal freedoms enjoyed by a few will impair to sqme extent their fundamental rights under Articles 14, 19 and 31. That would be justified even on the 'core' theory of Mr. Palkhivala because he admits the possibility of an abridgement of a fundamental right in similar cases. Therefore, article 31 1-C provides, even as Article 31-A provided many years ago, that such laws should not be called in question on the grounds furnished by articles 14, 19 and 31. If a law is made with a view to giving effect to the Directive Principles mentioned in Article 39 (b) and 39 (c) the law is in conformity with the direct mandate of the Constitution and must be deemed to be Constitutional. The effect of the first part of Article 31-C is the same as if, a proviso had been inserted below Article 13 (2) or each of the several articles 14, 19 and 31 excluding its application to the particular type of law mentioned in Article 31-G. If the law does not genuinely purport to give effect to the specified Directive Principles it will not be secure against the challenge under Articles 14, 19 and 31. Indeed since the Directive principles are couched in general terms they may present some difficulty in judging whether any individual law falls within the ambit of the description given in Article 31-C but such a difficulty is no reason for deny ing the validity of the amendment courts had no difficulty in deciding whether any particular law did fall under Article 31-A or not.

( 1324 ) THE real difficulty is raised by the second part of the Article 31-G which provides "no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy". The contention is that if any law makes a declaration as stated, that is conclusive of the fact that it is covered by article 39 (b) or (c) and courts will be debarred from entertaining any objec- tion on the ground that it is not so covered. In other words, it is submitted, the declaration when made in a law whether genuinely falling under Art- icle 39 (b) or (c) or not, will conclude the issue and the courts will be debarred from questioning the declaration. The result is, according to the submission, that the legislatures may with impunity make a law contraven- ing provisions of the Constitution and by the simple device of a declaration insert the law as an exception to Articles 14, 19 and 31 -. e. , in other words amend the Constitution which the legislature cannot do. The Constitution, it is pointed out may be amended only in the way prescribed in Article 368 and no other and, therefore Article 31-C authorising an amendandment in a way other than the one laid down in Article 368, which still forms part of the onstitution with full force, is invalid.

( 1325 ) ON behalf of the Union, however, it is claimed that the new Arti- cle 31-G doe not have the effect attributed to it on behalf of the petitioners. It is, submitted, that Article 3-1c does not prevent judicial review as to whether the law referred to therein is of the description it maintains it is. If on a consideration of its true nature and character the court considers that the legislation is not one having a nexus with the principles contained in Article 39 (b) and ( (c), it will not besaved under Article 31-C. The sole purpose of the declaration, according to the submission, is to remove from the scope of judicial review a question of a political nature the reason for it being, as explained in Beauharanis v. Illinois. "the legislative remedy in practice might 'not mitigate the evil or might itself give rise to new problems which would only manifest once again the paradox of reform. It is the price to be paid for the trial and error inherent in legislative efforts to deal with obstinate social issues".

( 1326 ) IT appears to us that the approach suggested on behalf of the union is the correct approach to the interpretation of Article 31-C.

( 1327 ) THE State's functional policy is to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political shall inform all the institu- tions of the national life. (Article 38 ). That is the goal of the State policy. As practical steps, the State is commanded in the next following articles from articles 39 to 51 to direct its policy towards securing some aims which, being well known concepts of social democratic theory, are described as 'principles'. See for example the marginal note of Article 39. Compendiously these are described as Directive Principles of State Policy under the heading of Part IV.

( 1328 ) WE are concerned with Article 39 (b) and (c ). The State is commanded, in particular, to direct its policy towards securing two aims, one described in (b) and the other in {c ). In directing its policy towards secur- ing the aims, the State will evidently have to make laws. A description of such a law is given in the first part of Article 31-C-as a law giving effect to the policy of the State towards securing the principles (aims) specified in article 39 (b) or (c ). If a law truly answers that description it will be secure against a challenge under Articles 14, 19 and 31 ; otherwise not. When such a challenge is made, it will be the obvious duty of the court to ascertain on an objective consideration of the law whether it falls within the description. What the court will have to consider is whether it is a law which can reasona- bly be described as a law giving effect to the policy of the State towards securing the aims of Article 39 (b) or (c ). That is an issue which is distinct from the other issue whether the law does not give effect to the policy of the state towards securing the said aims. A law reasonably calculated to serve a particular aim or purpose may not actually serve that aim or purpose; and it is this latter issue which is excluded from judicial review. In doing so the declaration does no more than what the courts themselves have been always, saying viz. that they are not concerned with the wisdom or policy of the legislation. Prohibition laws "for example in U. S. A. and elsewhere though made in order to give effect to the policy of the State to secure the eradication of the evil of drink did not have that effect. That may have been so because the law was inadequate or because the law gave rise to problems which were unforeseen. But that did not impair the genuineness of the law as being reasonably calculated to achieve a certain result. The two ques- tions are different. One involves the process of identification of the type of legislation by considering its scope and object, its pith and substance. The other involves a process of evaluation by considering its merits and defects,the adequacy or otherwise of the steps taken to implement it or their cap- ability of producing the desired result. A law made to give effect to the state's policy of securing eradication of the drink evil can be properly identified as such, if such indentification is necessary to be made by a court in order to see the application of a constitutional provision. But it is an entirely different proposition to say that the law does not actually give effect to the State's policy of securing the eradication of drink. That would require an enquiry which courts cannot venture to undertake owing to lack of adequate means of knowledge and sources of information. An enquiry like that of a Commission, will lead to debatable questions as to the adequacy of the provisions of the law, its deficiencies, the sufficiency and efficiency of tha executive side of the government to implement it effectively, the problems that arise in the coure of implementation of the law and the like, all of which do not legitimately fall within the ambit of an enquiry by a court. The problems are problems of legislative policy. It is for the legislature to decide what should go into the law to give effect to its policy towards securing its purpose. The legislature will have to consider the divergent views in the matter and make its own choice as to how it can effectuate its policy. The courts are not concerned with that aspect of the matter and even if a law is considered a failure, courts, cannot refuse to give effect to the same. The declaration does not more than forbid such an enquiry by the courts which the courts themselves would not have undertaken. The declaration is only by way of abundant caution.

( 1329 ) NO other ground is precluded from judicial raview under article 31-C. It was rightly cocended on behalf of the union that the court in deciding whether the law falls within the general description given of it in article 31-C will be competent to examine the true nature and character of the legislation, its design and the primary matter dealt with) its object and scope. See e. g. Charles Russel v. The Queen. If the court comes to the con- clusion that the above object of the legislation was merely a pretence and the real object was descrimination or something other than the object speci- fied in Article (b) and (c ). Article 31-C would not be attracted and the validity of the Statute would have to be tested independently of Article 31-G. Similarly as observed in Attorney-General v. Queen Insurance Co. "if the legislation 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".

( 1330 ) IN that view of the true nature of Article 31-C it can be laid that the amendment is invalid.

( 1331 ) THE Twenty-fifth Amendment Act is, therefore, valid.

( 1332 ) BY the Twenty-ninth Amendment, the two Kerala Acts challenged in this petition were included in the Ninth Schedule. Like other Acts includ- ed in that Schedule they are immune from challenge by reason of the protection given to the Schedule by Article 31-B. It was sought to be argued that unless the Acts related to agrarian reform, implicit in the words 'with- out prejudice to the generality of the provisions contained in Article 31-A' with which Article 31-B opens, the protection was 'not available. That argument has been rejected previously. See for example N. B. Jeejeebhoy v. Assistant Collector, Thana Actually the argument does not amountto a challenge to the validity of the Amendment, but an attempt to show that in spite of the Amendment, the two laws would not be saved by Article 31-B. The Twenty-ninth Amendment is not different from several similar amendments made previously by which Statutes were added from time to time to the Ninth schedule and whose validity has been upheld by this court. The Twenty-ninth amendment is, therefore, valid.

( 1333 ) MY conclusions are: (1) The power and the procedure for the amendment of the constitution were contained in the unamended Article 368. An amendment of the Constitution in accordance with the procedure pres- cribed in that Article is not a'law' within the meaning of Article 13. An Amendment of the Constitution abridging or taking awa" a funda- mental right conferred by Part III of the Constitution is not void as contravening the provisions of Article 13 (2 ). The majority decision in Golak Nath v. State of Punjab (supra) is, with respect, not correct. (2) There were no implied or inherent limitations on the am- ending power under the unamended Article 368 in operation over the fundamental rights. There can be none after its amendment. (3) The Twenty-fourth, the Twenty-fifth and the Twenty-ninth amendment Acts are valid.

( 1334 ) THE case will now be posted before the regular bench for disposal in accordance with law.

( 1335 ) KHANNA,.-QUESTIONS relating to the validity of the Constitution (Twenty-fourth Amendment) Act, Constitution (Twenty-fifth Amend- ment) Act and Constitution (Twwnty-ninth Amendment) Act, as well as the question whether the Parliament acting under Article 368 of the constitution can amend the provisions of Part III of the Constitution so as to take away or abridge fundamental rights arise for determination in this petition under Article 32 of the Constitution. A number of other important questions, to which reference would be made hereafter, have also been posed during discussion, and they would be dealt with at the appropriate stage. Similar questions arise in a number of other petitions, and the counsel of the parties in those cases have been allowed to intervene.

( 1336 ) THE necessary facets may now be set out, while the details which have no material bearing for the purpose of this decision can be omitted. Kerala Land Reforms Act, 1963 (Act 1 of 1964) as originally enacted was inserted as item No. 39 in the Ninth Schedule to the Constitution. The said Act was' subsequently amended by Kerala Land Reforms (Amendment) act, 1969 (Act 35 of 1969 ). The petitioner filed the present writ petition on 21/03/1970 challenging the constitutional validity of the Kerala Land reforms Act, 1963 (Act I of 1964) as amended by the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969 ). The aforesaid Act was also challenged in a number of petitions before the Kerala High court. A Full bench of the Kerala High court as per its decision in V. N. Narayamn Nair v. State of Kerala upheld the validity of the said Act, except in respect of certain provisions. Those provisions were declared to be invalid. The state of Kerala came up in appeal to this court against the judgment ofthe Kerala High court in so far as that court had held a number of provi- sions of the Act to be invalid. This court dismissed the appeals of the state as per judgment, dated 26/04/1972. Appeals filed by private parties against the judgment of the Kerala High court upholding the validity of the other provisions too were dismissed. Some Writ Petition filed in this court challenging the validity of the above mentioned Act were also disposed of by this court in accordance with its decision in the appeals filed by the state of Kerala and the private parties.

( 1337 ) THE Kerala High court as per judgment, dated 21/10/1970, declared some' other provisions of the Kerala Land Reforms Act as amended by Act 35 of 1969 to be invalid and unconstitutional. After the above judgment of the High court the Kerala Land Reforms Act was amended by ordinance 4 of 1971. which was promulgated on 30/01/1971. The Kerala land Reforms (Amendment) Bill, 1971 was thereafter introduced in the legislative Assembly to replace the Ordinance. The Bill was passed by the legislative Assembly on 26/04/1971 and received the assent of the president on 7/08/1971. It was thereafter published as the Kerala land Reforms Act, 1971 (Act 25 of 1971) in the Gazette Extraordinary on 11/08/1971. By the Constitution (Twenty-ninth Amendment) Act, 1972 which was assented to by the President on 9/06/1972 the Kerala Land reforms (Amendment) Act, 1969 (Act 35 of 1969) and Kerala Land Reforms (Amendment) Act, 1971 (Act 25 of 1971) were included in the Ninth schedule to the Constitution. 1337-A. The writ petition was amended twice. The first amendment was made with a view to enable the petitioner to impugn the constitutional validity of the Kerala Land Reforms (Amendment) Act (Act 2 5 of 1971 ). The second amendment of the petition was made with a view to include the prayer to declare the Twenty-fourth, Twenty-fifth and Twenty-ninth amendments to the Constitution as unconstitutional, ultra vires, null and void.

( 1338 ) IT may be mentioned that the Twenty-fourth Amendment related to the amendment of the Constitution. S. 2 of the Amendment Act added clause (4) in Article 13 as under:" (4) Nothing in this article shall apply to any amendment of this constitution made under Article 368. "s. 3 of the Amendment Act read as under:"3. Article ' 368 of the Constitution shall be re-numbered as clause (2) thereof, and (a) for the marginal heading to that article, the following marginal heading shall be substituted, namely:-"power of Parliament to amend the Constitution and procedure therefor,"; (b) before clause (2) as so re-numbered, the following clause shall be inserted, namely:" (1) Notwithstanding anything in this Constitution, parliament may in exercise of its constituent power amend by way of addition, variation or repeal any pro- visions of this Constitution in accordance with the pro- cedure laid down in this article," ; (c) in clause (2) as so re-numbered, for the words "it shall be presented to the President for his assent and upon such assent being given to the Bill," the words "it shall be pre- sented to the President who shall give his assent to the bill and thereupon" shall be substituted ; (d) after clause (2) as so re-numbered, the following clause shall be inserted, namely : -" (3) Nothing in Article 13 shall apply to any amend- ment,inade under this article. "we may not set out Articles 13 and 368 as they existed both before and after the amendment made by the Twenty-fourth Amendment Act: Before the Amendment

( 1339 ) THE Constitution (Twenty-fifth Amendment) Act, 1971 amendedarticle 31 of the Constitution. The scope of the amendment would be clear from S. 2 of the Amendment Act which reads as under :-"2. In Article 31 of the Constitution,- (a) for clause (2), the following clause shall be substituted, namely:-" (2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of the property for an amount which may be fixed by such law or which may be determined in accor- dance with such principles and given in such manner as may be specified in such law; and no such law shall be called in question in any court on the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amount is to be given otherwise than in cash:provided that in making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1) of Article 30, the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause" ; (b) after clause (2-A), the following clause shall be inserted, namely:-" (2-B) Nothing in sub-clause (f) of clause (1) of Arti- cle 19 shall affect any such law as is "referred to in clause (2 ). ":"the Constitution (Twenty-fifth Amendment) Act also added Article 31-G after Article 31-B as under :"31-C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a declaration that it is for giving 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. "

( 1340 ) THE Constitution (Twenty-ninth Amendment) Act, as mentioned earlier, inserted the following as Entries Nos. 65 and 66 respectively in the ninth Schedule to the Constitution :

( 1341 ) THE question as to whether the fundamental rights contained in Part III of the Constitution could be taken away or abridged by amend- ment was first considered by this court in the case of Sri Sankari Prasad Singh deo v. Union of India and Anr. In that case the appellant challenged the first Amendment of the Constitution. The First Amendment made changes in Articles 15 and 19 of the Constitution. In addition, it provided for insertion of two Articles' 31-A and 31-B, in Part. Article 31-A provided that no law providing for acquisition by the State of any estate or of any such rights therein or the extinguishment or modification of any such right, shall be deemed to be void on the ground that it was inconsistent with or took away or abridged any of the rights conferred by any provisions in part. The word ""estate" was also defined for the purpose of Article 31-A. Article 31-B provided for validation of certain Acts and Regulations which were specified in the Ninth Schedule to the Constitution. The said Schedule was added for the first time in the Constitution. The Ninth Schedule at that time contained 13 Acts, all relating to estates, passed by various legislatures of the Provinces or States. It was provided that those Acts and regulations would not be deemed to be void or ever to have become void on the ground that they were inconsistent with or took away or abridged any of the rights conrerred by any provision of Part. It further provided that notwithstanding any judgment, decree or order of any court or tribunal to the contrary, all such Acts and Regulations, subject to the power of any competent Legislature to repeal or amend them, would continue in force.

( 1342 ) THE attack on the validity of the First Amendment was based primarily on three grounds. Firstly, that amendments to the Constitution made under Article 368 were liable to be tested under Article 13 (2); secondly, that in any case as Articles 31-A and 31-B inserted in the constitution by the First Amendment affected the powers of the High court under Article 226 and of this court under Articles 132 and 136, the Amendment required ratification under the proviso to Arti- cle 368 ; and thirdly, that Articles 31-A and 31-B were invalid on the ground that they related to matters covered by the State List. This court rejected all the three contentions. It held that although "law" would ordinarily include constitutional law, there was a clear demarca- tion between ordinary law made in the exercise of legislative power and constitutional law made in the exercise of constituent power. In the context of Article 13, "law" must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to constitution made in the exercise of constituent power. Article 13 (2), as such, was held not to affect amendments made under Article 368. This court further held that Articles 31-A and 31-B did not curtail the power of this court and of the High court and as such did not require ratification under the proviso contained in Article 368. Finally, it was held that articles 31-A and 31-B were essentially amendments to the Constitution and the Parliament had the power to make such amendments. In conse- quence, the First Amendment to the Constitution was held to be valid.

( 1343 ) THE second case in which there arose the question of the power of the Parliament to amend fundamental rights was Sajjan Singh v. State of Rajasthan. In this case the Seventeenth Amendment made on 29/06/1964, was challenged. By the Seventeenth Amendment changes were made in Article 31-A of the Constitution and 44 Acts were included inthe Ninth Schedule to the Constitution to give them complete protection from. attack under any provision of Part III of the Constitution. One of the contentions advanced in Sajjan Singh's case (supra) was that, as Article 226 was likely to be affected by the Seventeenth Amendment, it required ratifica- tion under the proviso to Article 368 and that the decision in Sankari Prasad's case (supra) which had negatived such a contention required reconsideration. It was alu urged that the Seventeenth Amendment was legislation with respect to land and the Parliament had no right to legislate in that respect. It was further argued that as the Seventeenth Amendment provided that acts put in the Ninth Schedule would be valid in spite of the decision of the courts, it was unconstitutional. This court by a majority of 3 to 2 upheld the correctness of the decision in Sankari Prasad's case (supra ). This court further held unanimously that the Seventeenth Amendment did not require ratification under the proviso to Article 368. The Parliament, it was held, in enacting the amendment was not legislating with respect to land and that it was open to Parliament to validate legislation which had been declared invalid by courts. By a majority of 3 to 2 the court held that the power conferred by Article 368 included the power to take away fundamental rights guaranteed by Part III and that the power to amend was a very wide power which could not be controlled by the literal dictionary meaning of the word "amend". The word "'law" in Article 13 (2), it was held, did not include an amendment of the Constitution made in pursuance of Article 368. The minority, however, doubted the correctness of the view taken in Sankari Prasad's case (supra) to the effect that the word "law" in Article 13 (2) did not include amendment to the Constitution made under Article 368.

( 1344 ) THE correctness of the decision of this court in Sankari Prasad's case (supra) and of the majority in Sajjan Singhs's case (supra) was questioned in the case of. C. Golak Nath and Ors. v. State of Punjab and Anrs. The case was heard by aspecial bench consisting of 11 judges. This court in that case was concerned with the validity of the Punjab Security of Land tenures Act, 1953 and of the Mysore Land Reforms Act. These two Acts had been included in the Ninth Schedule to the Constitution by the constitution (Seventeenth Amendment) Act, 1964. It was held by Subba rao, C.. , Shall, Sikri, Shelat and Vaidialingam,. (Hidayatullah.. con- curring) that fundamental rights cannot be abridged or taken away by the amending procedure in Article 368 of the Constitution. An amendment of the Constitution, it was observed, is "law" within the meaning of article 13 (2) and is, therefore, subject to Part III of the Constitution. Subba Rao, C.. who gave the judgment on his own behalf as well as on behalf of Shah, Sikri, Shelat and Vaidialingam,. gave his conclusions as under:" (1) The power of the Parliament to amend the Constitution is derived from Articles 245, 246 and 248 of the Constitution and not from article 368 thereof which only deals with procedure. Amendment is a legislative process. (2) Amendment is 'law' within the meaning of Article 13. of the constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void. (3) The Constitution (First Amendment) Act, 1951, Constitution (Fourth Amendment) Act, 1955, and the Constitution (Seventeenthamendment) Act, 1964, abridge the scope of the fundamental rights. But, on the basis of earlier decisions of this court, they were valid. (4) On the application of the doctrine of 'prospective over-ruling'. as explained by us earlier, our decision will have only prospective operation and, therefore, the said amendments will continue to be valid. (5) We declare that, the Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the constitution so as to take away or abridge the fundamental rights enshrined therein. (6) As the Constitution (Seventeenth Amendment) Act holds the field, the validity of the two impugned Acts, namely, the Punjab security of Land Tenures Act X of 1953, and the Mysore Land Reforms act X of 1962, as amended by Act XIV of 1965, cannot be questioned on the ground that they offend Articles 13, 14 or 31 of the Constitution. "hidayatullah,. summed up his conclusions as under:" (i) that the Fundamental Rights are outside the amendatory process if the amendment seeks to abridge or take away any of the rights; (ii) that Sankari Prasad's case (supra) [and Sajjan Singh's case (supra) which followed it] conceded the power of amendment over Part III of the Constitution on an erroneous view of Articles 13 (2) and 368; (iii) that the First, Fourth and Seventh Amendments being part of the Constitution by acquiescence for a long time, cannot now be chal- enged and they contain authority for the Seventeenth Amendment; (iv) that this court having now laid down that Fundamental rights cannot be abridged or taken away by the exercise of amendatory process in Article 368, any further inroad into these rights as they exist today will be illegal and unconstitutional unless it complies with Part III in general and Article 13 (2) in particular; (v) that for abridging or taking away Fundamental Rights, a constituent body will have to be convoked; and (vi) that the two impugned Acts, namely, the Punjab Security of land Tenures Act, 1953 (X of 1953) and the Mysore Land Reforms act, 1961 (X of 1962) as amended by Act XIV of 1965 are valid under the Constitution not because they are included in Schedule IX of the constitution but because they are protected by Article 31 -A and the president's assent. "as against the view taken by the majority, Wanchoo, Bachawat, ramaswami, Bhargava and Mitter,. gave dissenting judgments. According to them. Article 368 carried the power to amend all parts of the Constitu- tion including the fundamental rights in Part II I of the Constitution. An amendment, according to the five learned Judges, was not ""law" for the purpose of Article 13 (2) and could not be tested. under that Article. The learned Judges accordingly reaffirmed the correctness of the decision in the cases of Sankari Prasad and Sajjan Singh. Some' of the conclusions arrived at by Wanchoo,. , who gave the judgment on. his own behalf as well as on behalf of Bhargava and Mitter,. , may be reproduced as under: (i) The Constitution provides a separate part headed "amendment of the Constitution' and Article 368 is the only Article in that part. There can, therefore, be no doubt that the power to amend the Consti- tution must be contained in Article 368. (ii) There is no express limitation on power of amendment in article 368 and no limitation can or should be implied therein. If the constitution makers intended certain basic provisions in the Consti- tution, and Part HI in particular, to be not "amendable there is no reason why it was not so stated in Article 368. (iii) The power conferred by the words of Article 368 being unfet- tered, inconsistency between that power and the provision in Article 13 (2) must be avoided. Therefore in keeping with the unfettered power in article 368 the word 'law' in Article 13 (2) must be read ai meaning law passed under the ordinary legislative power and not a constitutional amendment. (iv) Though the period for which Sankari Prasad case (supra) ha (r) stood unchallenged is not long, the effects which have followed on the passing of State laws on the faith of that decision, are so overwhelming that the decision should not be disturbed, otherwise chaos will follow. This is the fittest possible case in which the principle of stare decisis should be applied. (v) The doctrine of prospective overruling cannot be accepted in this country. The doctrine accepted here is that courts declare law and that a declaration made by a court is the law of the land and takes effect from the date the law came into force. It would be undesirable to give up that doctrine and supersede it with the doctrine prospective overruling. The main conclusions of Bachawat,. were as under: (i) Article 368 not only prescribe the procedure but also gives the power of amendment. (ii) The power to amend the Constitution cannot be said to reside in Article 248 and List I, Item 97, because if amendment could be made by ordinary legislative process Article 368 would be meaningless. (iii) The contention that a constitutional amendment under Article 368 is a law within the meaning of Article 13 must be rejected. (iv) There is no conflict between Articles 13 (2) and 368. The two Articles operate in different fields, the former in the field of law, the latter in that of constitutional amendment. (v) If the First, Fourth, Sixteenth and Seventeenth Amendment Acts are void they do not legally exist from their inception. They cannot bevalid from 1951 to 1967 and invalid thereafter. To say that they were valid in the past and will be invalid in the future is to amend the Constitution. Such a naked power of amendment is not given to the Judges and, therefore, the doctrine of prospective overruling cannot be adopted. We may now set out some of the conclusions of Ramaswami,. as under: (i) In a written Constitution the amendment of the Constitution is a substantive constituent act which is made in the exercise of the sovereign power through a predesigned procedure unconnected ordinary legislation. The amending power in Article 368 issui generis and cannot be compared to the law making power of Parlia- ment pursuant to Article 246, read with Lists I and. It follows that the expression law" in Article 13 (2) cannot be construed as includ- ing an amendment of the Constitution which is achieved by Parliament in exercise of its sovereign constituent power, but must mean law made by Parliament in its legislative capacity under Article 246, read with list I and List III of the VII th Schedule. (ii) The language of Article 368 is perfectly general and empowers parliament to amend the Constitution without any exception whatsoever. The use of the word "fundamental' to describe the rights in Part iii 'and the word "guaranteed' in Article 32 cannot lift the fundamental rights above the Constitution itself. (iii) There is no room for an implication in the construction of article 368. If the Constitution-makers wanted certain basic features to be unamendable they would have said so. (iv) It cannot be assumed that the Constitution-makers intended to forge a political strait-jacket for generations to come. Today at a time when absolutes are discredited, it must not be too readily assumed that there are basic features of the Constitution which shackle the amend- ing power and which take precedence over the general welfare of the nation and the need for agrarian and social reform. (v) If the fundamental rights are unamendable and if Article 368 does not include any such power it follows that the amendment of, say, article 31 by insertions of Articles 31-A and 31-Bean only be made by a violent revolution. It is doubtful if the proceedings of anew constituent Assembly that may be called will have any legal validity for if the Constitution provides its own method of amendment, any other method will be unconstitutional and void. (vi) It was not necessary to express an opinion on the doctrine of prospective overruling of legislation.

( 1345 ) BEFORE dealing with Article 368, we may observe that there are two types of constitutions, viz. , rigid and flexible. It is a frequently-held but erroneous impression that this is the same as saying non-documentary or documentary. Now, while it is true that a non-documentary constitution cannot be other than flexible, it is quite possible for a documentary consti- tution not to be rigid. What, then, is that makes a constitution flexible or rigid? The whole ground of difference here is whether the process of constitutional law-making is or is not identical with the process of or- dinary law-making. The Constitution which can be altered or amen- ded without any special machinery is a flexible constitution. The Consti- tution which requires special procedure for its alteration or amendment is a rigid constitution Lord Birkenhead, L. C. adopted similar test in the Australian (Queensland) case of Mccawley v. The King though he used the nomen- clature controlled and uncontrolled constitutions in respect of rigid and flexible constitutions. He observed in this connection:"the difference of view, which has been the subject of careful analysis by writers upon the subject of constitutional law, may be traced mainly to. the spirit and genius of the nation in which a particularconstitution has its birth. Some communities, and notably Great Britain, have not in the framing of constitutions felt it necessary, or thought it useful, to shackle the complete independence of their successors. They have shrunk from the assumption that a degree of wisdom and foresight has been conceded to their generation which will be, or may be, wanting to there successors, in spite of the fact that those successors will possess more experience of the circumstances and necessities amid which their lives are lived. Those constitution framers who have adopted the other view must be supposed to have believed that certainty and stability were in such a matter the supreme desiderata. Giving effect to -this belief, they have created obstacles of varying difficulty in the path of those who would lay rash hands upon the ark of the Constitution. "

( 1346 ) LET us now deal with Article 368 of the Constitution. As amendments in Articles 13 and 368 of the Constitution were made in purported exercise of the powers conferred by Article 368 in the form it existed before the amendment made by the Twenty-fourth Amendment, we shall deal with the Article as it was before that amendment. It may be mentioned in this context that Article 4, Article 169, Fifth Schedule, para 7 and Sixth Schedule, Para 21 empower the Parliament to pass laws amending the provisions of the First, Fourth, Fifth and Sixth Schedules and making amendments of the Constitution consequential on the formation of new States or alteration of areas, boundaries, or names of existing States, aswell as on abolition or creation of legislative councils in States. Fifth schedule contains provisions as to administration of controlled areas and scheduled tribes while Sixth Schedule contains provisions as to the administra- tion of tribal areas. It is further expressly provided that no such law would be deemed to be an amendment of the Constitution for the purpose of Article 368. There are a number of Articles which provide that they would continue to apply till such time as a law is made in variance of them. Some of those Articles are :10, 53 (3), 65 (3), 73 (2), 97, 98 (3), 106, 120 (2), 135, 137, 142 (1), 146 (2), 148 (3), 149, 171 (2), 186, 187 (3), 189 (3), 194 (3), 195, 210 (2), 221 (2), 225, 229 (2), 239 (1), 241 (3), 283 (1) and (2), 285 (2), 287, 300 (1), 313,345 and 373.

( 1347 ) THE other provisions of the Constitution can be amended by recourse to Article 368 only

( 1348 ) ARTICLE 368 finds its place in Part XX of the Constitution and is the only article in that pare. The part is headed "amendment of the constitution". It is not disputed that Article 368 provides for the procedure of amending the Constitution. (Question, however, arises as to whether article 368 also contains the power to amend the Constitution. It may be stated in this connection that all the five Judges who gave the dissenting judgment in the of Golaknath case, namely, Wanchoo, Bachawat, Rama- swami, Bhargava and Mitter.. expressed the view that Article 368 dealt with not only the procedure of amending the Constitution but also contained the power to amend the Constitution. The argument that the power to amend the Constitution was contained in the residuary power of Parliament in article 248, read with Item 97 of List I was rejected. Hidayatullah,. agreed with the view that amendment to the Constitution is not made under power derived from Article 248, read with Entry 97 of List 1. According to him, the power of amendment was sui generis. As against that, the view taken by Subba Rao,g.. , Shah, Sikri, Shelat and Vaidialingam,. , was thatarticle 368 merely prescribed the various steps in the matter of amendment of the Constitution and that power to amend the Constitution was derived from Articles 245, 246 and 248. , read with Item 97 of List 1. It was said that the residuary power of Parliament can certainly take in the power to amend the Constitution.

( 1349 ) AMENDMENT -of the Constitution, according to the provisions of Article 368, is initiated by the introduction of a Bill in either House of Parliament. The Bill has to be passed in each House by a majority of total membership of that House and by a majority of not less than two- thirds members of the House present and voting. After it has been so passed, the Bill is to be presented to the President for his assent. When the president gives his assent to the Bill, the Constitution, according to article 368, shall stand amended in accordance with the terms of the Bill. There is a proviso added to Article 368, with respect to amendment of certain articles and other provisions of the Constitution, including Article 368. Those provisions can be amended only if the Bill passed by the two Houses of Parliament by necessary majority, as mentioned earlier, is ratified by the legislatures of not less than one-half of the States by resolutions to that effect. In such a case, the Bill has to be presented to the President for his assent only after the necessary ratification by the State Legislatures. On the assent being given, the Constitution stands amended in accordance with the terms of the Bill.

( 1350 ) THE words in Article 368 "the Constitution shall stand amended in accordance with terms of the Bill", in my opinion, clearly indicate that the said article provides not merely the procedure for amending the Consti- tution but also contains the power to amend Article 368. The fact that a separate Part was provided with the heading "amendment of the constitution" shows that the said part was confined not merely to the pro- cedure for making the amendment but also contained the power to make the amendment. It is no doubt true that Article 248, read with Item 97 of List I has a wide scope, but in spite of the width of its scope, it cannot, in my opinion, include the power to amend the Constitution. The power to legislate contained in Articles 245, 246 or 248 is subject to the provisions of the Constitution. If the argument were to be accepted that the power to amend the Constitution is contained in Article 248, read with item No. 97, list I, it would be difficult to make amendment of the Constitution because. the amendment would in most of the cases be inconsistent with the article proposed to be amended. The only amendments which would be permillible in such an event would be ones like those contemplated by Articles 4 and 169 which expressly provide for a law being made for the purpose in variance of specified provisions of the Constitution. Such law has to be passed by ordinary legislative process. Article 368 would thus become more or less a dead letter.

( 1351 ) ARTICLE 248, read with Entry 97, List I contemplates legislative process. If the amendment of the Constitution were such a legislative process, the provision regarding ratification by the Legislatures of not less than one-half of the States in respect of certain amendments of the Consti- tution would be ' meaningless because there is no question of ratification of a legislation made by Parliament in exercise of the power conferred by article 248, read with Entry 97, List 1. It is noteworthy that ratification is by means of resolutions by State Legislatures. The passing of resolutions can plainly be not considered to be a legislative process for making a law. The state governors also do not come into the picture for the purpose of ratifica- tion. The State Legislatures in ratifying, it has been said, exercise aconstituent function. Ratifying process, according to Orfield, is equivalent to roll call of the States. Ratification by a State of constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of ' the assent of the States to the proposed amendment (see the Amending of the Federal Constitution, p. 62-63 ).

( 1352 ) THE fact that- the marginal note of Article 368 contained the words "procedure for Amendment of the Constitution" would not detract from the above conclusion as' the marginal note cannot control the scope of the article itself. As mentioned earlier, the words in the article that "the constitution shall stand amended inaccordance with the terms of the Bill" indicate that the power to amend the Constitution is also contained in article 368. The existence of such a power which can clearly be discerned in the scheme and language of Article 368 cannot be ruled out or denied by invoking the-marginal note of the article.

( 1353 ) THE various subjects contained in entries in List I, List II and list III of Seventh Schedule to the Constitution were enumerated and specified at great length. Our Constitution in this respect was not written on a tabula rasa. On the contrary, the scheme of distribution of legislative lists in the government of India Act) 1935 was to a great extent adopted in the Constitution. Referring to the said distribution of Lists and the residuary provisions in the government of India Act, Gwyer, C.. observed in the case In re The central Provinces and Berar Sales of Motor Spirit and lubricants Taxation Act, 1938. "the attempt to avoia a final assignment of residuary powers by an exhaustive enumeration of legislative subjects has made the Indian constitution Act unique among Federal Constitutions in the length and detail of its Legislative Lists. "our Constitution-makers made list of the legislative entries still more exhaustive and the intention obviously was that the subjects mentioned should be covered by one or other of the specific entries, so that as few subjects as possible and which did not readily strike to the Constitution- makers should be covered by the residuary Entry 97 in List 1. The Consti- tution-makers, in my opinion, could not have failed to make an entry in the lists in the Seventh Schedule for amendment of the Constitution if they had wanted the amendment of Constitution to be dealt with as an ordinary legislative measure under Articles 245, 246 and 248 of the Constitution. The fact that they provided separate Part in the Constitution for amendment of the Constitution shows that they realised the importance of the subject of amendment of the Constitution. It is difficult to hold that despite their awareness of the importance of constitutional amendment, they left it to be dealt with under and spelt out of Entry 97, List I which merely deals with "'any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists. "

( 1354 ) THE residuary entry is essential in a federal Constitution and the sole object of the residuary entry is to confer on the federal legislature or the State Legislatures, as the case may be, the power to make ordinary laws under and in accordance with the Constitution in respect of any matter, not enumerated in any other list for legislation. By the very nature of things, the power to amend the Constitution cannot be in the residuary entry in a federal constitution because the power to amend the Constitutionwould also include the power to alter the distribution of subjects mentioned in different entries. Such a power can obviously be not a legislative power.

( 1355 ) IT was originally intended that the residuary power of legislation should be vested in the States. This is clear from the Objective Resolution which was moved by Pt. Nehru in the Constitutent Assembly before the partition of the country on 13/12/1946 (see Constituent Assembly debates, Vol. I, p. 59 ). After the partition, the residuary power of legis- lation was vested in the Centre and was taken out of the State List. If the intention to vest residuary powers in States had been. eventually carried out, no argument could possibly have been advanced that the power to amend the Constitution was possessed by the States and not by the Union. The fact that subsequently the Constitutent Assembly vested the residuary power in the Union Parliament subject to ratification by State Legislatures in certain cases, would not go to show that the residuary clause included the power to amend the Constitution.

( 1356 ) I am therefore of the view that Article 368 prescribes not only the procedure for the amendment of the Constitution but also confers power of amending the Constitution.

( 1357 ) IRRESPECTIVE of the source of power, the words in Article 368 that "the Constitution shall stand amended" indicate that the process of making amendment prescribed in Article 368 is a self-executing process. The article shows that once the procedure prescribed in that article has been complied with, the end product is the amendment of the Constitution.

( 1358 ) QUESTION then arises as to whether there is any power under article 368 of amendment of Part III so as to take away or abridge funda- mental rights. In this respect we find that Article 368 cantains provisions relating to amendment of the Constitution. No words are to be found in article 368 as may indicate that a limitation was intended on the power of- making amendment, of Part III with a view to take away or abridge fundamental rights. On the contrary, the words used in Article 368 are that if the procedure prescribed by that article is complied with, the Constitution shall stand amended. The words "the Constitution shall stand amended" plainly cover the various articles of the Constitution, and I find it difficult in the face of those clear and unambiguous words to exclude from their opera- tion the articles relating to fundamental rights in Part III of the Constitu- tion. It is an elemental rule of construction that while dealing with a consti- tution every word is to be expounded in its plain, i obvious and common sense unless the context furnishes some ground to control, qualify or enlarge it and there cannot be imposed upon the words any; recondite meaning or any extraordinary gloss (see Story on Constitution of the United States, Vol. I, para 451 ). It has not yet been created into a legal maxim of constitutional construction that words were meant to conceal thoughts. If framers of the constitution had intended that provisions relating to fundamental rights, in part III be not amended, it is inconceivable that they would not have inserted a provision to that effect in Article 368 or elsewhere. I cannot persuade myself to believe that the framers of the Constitution deliberately used words which cloaked their real intention when it would have been so simple a matter to make the intention clear beyond any possibility of doubt.

( 1359 ) IN the case of The Queen v. Burah Lord Solborne observed:"the established courts of justice, when a question arises whetherthe prescribed limits have been exceeded, must. of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instruments by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express conditioner restriction by which that power is limited,. . . . '. . . . . it is not for any court of Justice to inquire further, or to enlarge cons- tructively those conditions or restrictions. "although the above observations were made in the context of the legislative power, they have equal, if not greater, relevance in the context of the power of amendment of the Constitution.

( 1360 ) IT also Cannot be said that even though the framers of the constitution intended that Part III of the Constitution relating to funda- mental rights should not be amended, by inadvertent omission they failed to make an express provision for the purpose. Reference to the proceedings, dated 17/09/1949, of the Constitutent Assembly shows that an amendment to has effect was moved by Dr. P. S. Deshmukh. This amend- ment which related to insertion of Article 304-A after Article 304 (which corresponded to present Article 368) was in the following words:"notwithstanding anything contained in this Constitution to the contrary, no amendment which is calculated to infringe or restrict or diminish the scope of any individual rights, any rights of a person or persons with respect to property or otherwise, shall be permissible under this Constitution and any amendment which is or is likely to have such an effect shall be void and ultra vires of any Legislature. "the above amendment, which was subsequently withdrawn, must have been incorporated in the Constitution if the framers of the Constitution had inten- ded that no amendment of the Constitution should take away or abridge the fundamental rights in Part III of the Constitution.

( 1361 ) BEFORE the Constitution was framed, Mr. B. N. Rau, Constitu- tional Adviser, sent a questionnaire along with a covering letter on 17/03/1947 to the members of the central and Provincial Legislatures. Question 27 was to the effect as to what provision should be made regarding the amend- ment of the Constitution. The attention of the members of the central and provincial Legislatures was invited in this context to the provisions for amend- ment in the British, Canadian, Australian, South African, U. S. , Swiss and irish Constitutions, Some of those Constitutions placed limitations on the power of amendment and contained express provisions in respect of those limitations. For instance. Article 5 of the United States contained a proviso "that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article and that no State, without its consent, shall be deprived of its equal suffrage in the Senate". It is in- conceivable that, despite the awareness of the fact that in the Constitutions of other countries where restriction was sought to be placed on the power of amendment an express provision to that effect had been inserted, the framers of our Constitution would omit to insert such a provision in Article 368 or in some other article if, in fact, they wanted a limitation to be placed on the power of amendment in respect of articles relating to fundamental rights. On the contrary, there is clear indication that the Drafting Committee was conscious of the need of having an express provision regarding limitation onthe power of amendment in case such a limitation was desired. This is clear from Article 305 of the Draft Constitution which immediately followed article 304 corresponding to Article 368 of the Constitution as finally adopted. Article 305 of the Draft Constitution, which was subsequently dropped, was in the following terms :"305. Notwithstanding anything contained in Article 304 of this constitution, the provisions of this Constitution relating to the reserva- tion of seats for the Muslims, the Scheduled Castes, the Scheduled tribes or the Indian Christians either in Parliament or in the Legislature of any State for the time being specified in Part I of the First Schedule shall not be amended during a period of ten years from the communce- ment of this Constitution and shall cease to have effect on the expira- tion of that period unless continued in operation by an amendment of the Constitution. "article 305 of the Draft Constitution reproduced above makes it manifest that the Drafting Committee made express provision for limitation on the power of amendment in case such a limitation was desired. The fact that in the Constitution as ultimately adopted, there was no provision either in article 368 or in any other article containing a limitation on the power of amendment shows that no such limitation was intended.

( 1362 ) THE speech of Dr. Ambedkar made on 17/09/1949 while dealing with the provision relating to Amendment of the Constitution also makes it clear that he divided the various articles of the Constitution into three categories. In one category were placed certain articles which would be open to amendment by Parliament by simple majority. To that category belonged Articles 2 and 3 of the Draft Constitution relating to the creation and reconstitution of the existing States as well as some other articles like those dealing with upper chambers of the State Legislatures. The second category of articles were those which could be amended by two-thirds majority of members present and voting in each House of Parliament. The third category dealt with articles which not only required two-thirds majority of each House of Parliament but also the ratification of not less than half of the Legislatures of the States. There was nothing in the speech of dr. Ambedkar that apart from the three categories of articles, there was a fourth category of articles contained in Part III which was not amendable and as such, could not be the subject of amendment.

( 1363 ) IT may be mentioned that according to the report of the Consti- tuent Assembly Debates, the speech of Dr. Ambedkar delivered on Septem- ber 17, 1949 contains the following sentence :"if the future Parliament wishes to amend any particular article which is not mentioned in Part III or Article 304, all that is necessary for them is to have two-thirds majority. " (Vol. IX, p. 1661 ). The words "part III" in the above sentence plainly have reference to the third category of articles mentioned in the proviso to draft Article 304 (present Article 368)which required two-thirds majority and ratification by at least half of the State Legislatures. These words do not refer to Part III of the Constitution, for if that were so the sentence reproduced above would appear incongruous in the context of the entire speech and strike a dilcor- dant note against the rest of the speech. Indeed, the entire tenor of the above speech, as also of the other speeches delivered by Dr. Ambedkar in the Constituent Assembly, was that all the articles of the Constitution were subject to the amendatory process.

( 1364 ) ANOTHER fact which is worthy of note is that the Constitution (First Amendment) Act, 1951 was passed by the Provisional Parliament which had also acted as the Constitutent Assembly for the drafting of the constitution. By the First Amendment, certain fundamental rights con- tained in Article 19 were abridged and amended. Speeches in support of the First Amendment were made by Pt. Nehru and Dr. Ambedkar. It was taken for granted that the Parliament had by adhering to the procedure prescribed in Article 368 the right to amend the Constitution, including part III relating to fundamental right S. Dr. Shyama Prasad Mukherjee who opposed the First Amendment expressly conceded that Parliament had the power to make the aforesaid amendment. If it had ever been the intention of the framers of the Constitution that the provisions relating to fundamental rights contained in Part III of the Constitution could not be amended, it is difficult to believe that Pt. Nehru and Dr. Ambedkar who played such an important role in the drafting of the Constitution would have supported the amendment of the Constitution or in any case would have failed to take note of the fact in their speeches that Part III was not intended to be amended so as to take away or abridge fundamental rights. Pt. Nehru in the course of his speech in support of the First Amendment after referring to the need of making the Constitution adaptable to changing social and economic conditions and changing ideas observed:"it is of the utmost importance that people should realise that this great Constitution of ours, over which we laboured for so long, is not a final and rigid thing, which must either be accepted or broken. A Constitution which is responsive to the people's will, which is respon- sive to their ideas, in that it can be varied here and there, they will respect it all the more and they will not fight against, when we want to change it. Otherwise, if you make them feel that it is unchangeable and cannot be touched, the only thing to be done by those who wish to change it is to try to break it. That is 'a dangerous thing and a bad thing. Therefore, it is a desirable and a good thing for people to realise that this very fine Constitution that we have fashioned after years of labour is good in so far as it goes but as society changes, as conditions change we amend it in the proper way. It is not like the unalterable law of the Medes and the Persians that it cannot be changed, although the world around may change. "

( 1365 ) THE First Amendment is contemporaneous practical exposition of the power of amendment under Article 368. Although as observed elsewhere, the provisions of Article 368 in my view are plain and umambigu- ous and contain no restrictions so far as amendment of Part III is concerned, even if it maybe assumed that the matter is not free from doubt the First amendment provides clear evidence of how the provisions of Article 368 were construed and what they were intended and assumed to convey by those who framed the Constitution and how they acted upon the basis of the said intention and assumption soon after the framing of the Constitution. The contemporaneous practical exposition furnishes considerable aid in resolving the said doubt and construing the provisions of the article. It would be pertinent to reproduce in this context the observations of chief justice Fuller while speaking for the US Supreme court in the case of William Mcpherson v. Robert R. Blacker :"the framers of the Constitution employed words in their natural sense; and where they are plain and clear, resort to collateral aids tointerpretation is unnecessary and cannot be indulged in to narrow or enlarge the text; but where there is ambiguity or doubt, or where two views may well be entertained, contemporaneous and subsequent practical construction are entitled to the greatest weight. Certainly, plaintiffs in error cannot reasonably assert that the clause of the Consti- tution under consideration so plainly sustains their position as to entitle them to object that contemporaneous history and practical construction are not to be allowed their legitimate force, and, conceding that their argument inspires a doubt sufficient to justify resort to the aids of inter- pretation thus afforded we are of opinion that such doubt is thereby resolved against them, the contemporaneous practical exposition of the constitution being too strong and obstinate to be shaken or controlled. "

( 1366 ) I may also reproduce in this context the following passage from pages 49-50 of Willoughby's Constitution of the United States, Vol. I :"in Lithographic Company v. Sarony the court declared: 'the construction placed upon the Constitution by the first Act of 1790 and the Act of 1802 by the men who were contemporary with its formation, many of whom were members of the Convention who framed it, is of itself entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive,"

( 1367 ) SO far as the question is concerned as to whether the speeches made in the Constituent Assembly can be taken into consideration, this court has in three cases, namely,. C. Golak Nath and Ors. v. Staff of Punjab and anrs. (supra), H. H. Maharajadhiraja Madhav Rao Jiwaji Rao Scidia Bahadur and ors. v. Union of India and Union of India v. H. S. Dhillon taken the view that such speeches can be taken into account. In Golak Nath's cast (supra) Subba rao, C.. , who spoke for the majority referred to the speeches of Pt. Jawahar- lal Nehru and Dr. Ambedkar on page 791. Reference was also made to the speech of Dr. Ambedkar by Bachawat,. in that case on page 924. In the case of Madhav Rao, Shah,. who gave the leading majority judgment relied upon the speech of Sardar Patel, who was Minister for Home Affairs, in the constituent Assembly (see Page 83 ). Reference was also made to the speeches in the Constituent Assembly by Mitter,. on pages 121 and 122. More recently in H. S. Dhilion's case (supra) relating to the validity of amend ment in Wealth Tax Act, both the majority judgment as well as the minority judgment referred to the speeches made in the Constitutent Assembly in support of the conclusion arrived at. It can, therefore, be said that this court has now accepted the view in its decisions since Golak Nath's case (supra) that speeches made in the Constituent Assembly can be referred to while dealing with the provision of the Constitution.

( 1368 ) THE speeches in the Gonstitutent Assembly, in my opinion, can be referred to for finding the history of the Constitutional provision and the background against which the said provision was drafted. The speeches can also shed light to show as to what was the mischief which was sought to be remedied and what was the object which was sought to be attained in draft- ing the provision. The speeches cannot, however, form the basis for con- struing the provisions of the Constitution. The task of interpreting the provision of the Constitution has to be done independently and the reference to the speeches made in the Gonstitutent Assembly does not absolve thecourt from performing that task. The draftsmen are supposed to have expressed their intentions in the words used by them in the provisions. Those words are final repositories of the intention and it would be ultimately from the words of the provision that the intention of the draftsmen would have to be gathered.

( 1369 ) THE next question which arises for consideration is whether the word "law" in Article 13 (2) includes amendment of the Constitution. According to Article 13 (2), the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. 'state" has bepn defined in Article 12 to include, unless the context other- wise requires, the government and Parliament of India and the government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the government of india. The stand taken on behalf of the petitioners' is that amendment of the Constitution constitutes "law" for the purpose of Article 13 (2 ). As such, no amendment of the Constitution can take away or abridge the fundamental rights conferred by Part III of the Constitution. Reference has also been made to clause (1) of Article 13, according to which all laws in force in the territory of India immediately before the commencement of this Constitution in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. It is urged that word "law" in article 13 (2) should have the same meaning as that word in Article 13 (1) and if law in Article 13 (1) includes constitutional law, the same should be its meaning for the purpose of Article 13 (2 ). Our attention has also been invited to Article 372 (1) of the Comtitution which provides that notwith- standing the repeal by this Constitution of the enactment referred to in article 395 but subject to the other provisions of the Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. According to Explanation I to Article 372, the expression "law in force" shall include a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitu- tion and not previously repealed notwithstanding that it or parts of it may not be then in operation either at all or in particular areas. The same is the definition of "law in force" in Article 13 (3 ).

( 1370 ) I find it difficult to accept the contention that an amendment of constitution made in accordance with Article 368, constitutes law for the purpose of Article 13 (2 ). The word "law" although referred to in a large number of other articles of the Constitution finds no mention in Article 368. According to that article, the Constitution shall stand amended in accor- dance with the terms of the Bill after it has been passed in compliance with the provisions of that article. Article 368 thus contains an indication thai what follows as a result of the compliance with Article 368 is an amend ment of the Constitution and not law in the sense of being ordinary legislation. In a generic sense, "law" would include constitutiona laws, including amendment of the Constitution, but that does not seen to be the connotation of the word "law" as used in Article 13 (2) o the Constitution. There is a clear distinction between statutory law mad in exercise of the legislative power and constitutional law which is made i exercise of the constitutent power and the distinction should not be lost sigl of. A Constitution is the fundamental and basic law and provides the auth rity under which ordinary law is made. The Constitution of West Germanyit may be stated, is called the basic law of the Federal Republic of germany. A Constitution derives its authority generally from the people acting in their sovereign capacity and speaking through their representa- tives in a Constituent Assembly or Convention. It relates to the struc- ture of the government, the extent and distribution of its powers and the modes and principles of its operation, preceding ordinary laws in the point of time and embracing the settled policy of the nation. A statute on the other land is law made by the representatives of the people acting in their legislative capacity, subject to the superior authority, which. . is the constitution. Statutes are enactments or rules for the government of civil conduct or for the adminstration or for the defence of the government. They relate to law and order, criminal offences, civil disputes, fiscal matters and other subjects on which it may become necessary to have law. Statutes are quite often tentative, occasional, and in the nature of temporary expe- dients (see Constitutional Law and Its Administration, by S. P. Weaver, p. 3 ). Article 13 (2) has reference to ordinary piece of legislation. It would also, in view of the definition given in clause (a) of Article 13 (3) include any ordi- nance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. The Constitution has thus made it clear in matters in which there could be some doubt as to what would constitute "law". If it had been the intention of the framers of the Constitution that the "law" in Article 13 would also include constitutional law including laws relating to the amendment of Constitution, it is not explained as to why they did not expressly so state is clause (a) of Article 13 (3 ). The Constitution itself contains indications of the distinction between the Constitution and the laws framed under the Constitution. Article 60 provides for the oath or affirmation to be made and subscribed by the President before entering upon office. The language in which that oath and affirmation have been couched, though not crucial, has some bearing. The form of the oath or affirmation is as under:"i, A. B. do swear in the name of God solemnly affirm that I will faithfully execute the office of President (or discharge the functions of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India. "the facts that both the words "the Constitution and. the law" have been used in the above form tends to show that for the purpose of the Constitution the law and the Constitution are not the same.

( 1371 ) IT may be mentioned that Articles 56 (1) (b) and 61 (1) which deal with impeachment of the President refer only to "violation of the constitution". There is no reference in those articles to violation of law. Article 69 which prescribes the oath for the Vice-President refers to "alle- giance to the Constitution as bylaw established". The words "as by law established" indicates the legal origin of the Constitution. Article 143, to which our attention has been invited, gives power to the President to refer to the Supreme court a question of law or fact of such importance that it is expedient to obtain the opinion of this court. It is pointed out that ques- tion of law in that article would include a question relating to constitutional law. This no doubt is so but this is due to the fact that words "queitions of law or fact" constitute a well known phrase in legal terminology and have acquired a particular significance. From the use of those words in Article 143 it cannot be inferred that the framers of the Constitution did not make a dis- tinction between the Constitution and the law.

( 1372 ) ARTICLES 245, 246 and 248 deal with the making of laws. The words"shallnotmake any law" in Article 13 (2) seem to echo the words used in Articles 245, 246 and 248 of the Constitution which deal with the making of laws. The words "make any law" in Article 13 as well as the above three articles should carry, in my opinion, the same meaning, namely, law made in exercise of legislative power. In addition to that, the law in article 13 in view of the definition in Article 13 (3) shall also include special provisions mentioned in clause (3 ).

( 1373 ) IT has already been mentioned above that there is no question in the case of a law made by the Parliament of its ratification by the resolu- tions passed by the State Legislatures. The fact that in case of some of the amendments made under Article 368 such ratification is neceessary shows that an amendment of the Constitution is not law as contemplated by Arti- cle 13 (2) or Articles 245, 246 and 248.

( 1374 ) ARTICLE 395 of the Constitution repealed the Indian Independence act, 1947 and the government of India Act, 1935, together with all enact- ments amending or supplementing the latter Act, but not including the abolition of Privy council Jurisdiction Act, 1949. The law in force men- tioned in Article 372 (1) has reference not to any constitutional law in the sense of being a law relating to the Constitution of either the territory of erstwhile British India or the territory comprised in the Indian States. So far as the territory of British India was concerned, the law before 26/01/1950 relating to the constitution was contained in the government of India act, 1935 and the Indian Independence Act, 1947. Both these Acts were repealed by Article 395 when the Constitution of India came into force. As regards the territory comprised in Indian States, the law relating to their constitutions in so far as it was inconsistent with the provisions of the Consti- tution of India also came to an end before 26/01/1950 when the said constitution came into force. The only constitution which was in force since that date was the Constitution of India and it applied to the whole of india, including the erstwhile Indian States and the British India. The various notifications which were issued before 26/01/1950 mentioned that with effect from that date "the Constitution of India, shortly to be adopted by the Constitutent Assembly of India shall be the Constitution for the States as for other parts of India and shall be enforced as such" (see white Paper on Indian States, pages 365 to 371 ). It would thus appear that hardly any law containing the constitutions of territory of erstwhile Indian states remained in force after the coming into force of the Constitution of india with all its exhaustive provisions. If the law in force contemplated by article 372 (1) must be such as was continued after 26/01/1950, it would follow that Article 372 does not relate to the constitutional law in the sense of being law relating to the constitution of a territory.

( 1375 ) ALTHOUGH the law in force referred to in Article 372 (1) would not include law relating to the Constitutions of the territory of erstwhile british India or the Indian States, it did include law relating to subjects dealt with by the Constitutions in force in those territories. Such a law which partakes of the nature of either a statutory law or an Order made under the organic provisions of those constitutions, continued in force under Article 372 (1 ). Astatutory law or Order is obviously of an inferior character and cannot have the same status as that of a constitution. Article 372 (1) in the very nature of things deals with laws made under the provisions of Constitutions which were in force either in the erstwhile British India or the territory comprised in Indian States. The opening words of Article 372 (1) "notwith- standing the repeal by this Constitution of the enactments referred to inarticle 395" indicate that the laws in force contemplated by Article 372 are those laws which were framed under the repealed Indian Independence Act, 1947 and the government of India Act, 1935 or similar other legislative enactments or Orders made under the provisions of constitutions of erstwhile indian States. Such legislative enactments or Orders were inferior in status to a Constitution. I am, therefore, of the view that the word "'law" in Arti- cle 372 has reference to law made under a Constitution and not to the provi- sions of a Constitution itself. .

( 1376 ) ARTICLE 3 72 (1) is similar to the provisions of S. 292 of the government of India Act, 1935. As observed by Gwyer, C. J" in the case of the United Provinces v. Mst. Atica Begum and Others. such a provision is usually inserted by draftsmen to negative the possibility of any existing law being held to be no longer in force by reason of the repeal of the law which authorized its enactment. The question with which we are concerned is whether law in Arti- cle 13 or Article 372 could relate to the provisions of the Constitution or provi- sions relating to its amendment. So far as that question is concerned, I am of the opinion that the language of Articles 372 and 13 shows that the word "law" used therein did not relate to such provisions. The Constitution of India was plainly not a lay in force at the time when the Constitution came into force. An amendment of the Constitution in the very nature of things can be made only after the Constitution comes into force. As such, a law providing for amendment of the Constitution cannot constitute law in force for the purpose of Article 13 (1) or Article 372 (1 ).

( 1377 ) THE language of Article 13 (2) shows that it was not intended to cover amendments of the Constitution made in accordance with Article 368. It is difficult to accede to the contention that even though the framers of the constitution put no express limitations in Article 368 on the power to make amendment, they curtailed that power by implication under Article 13 (2 ). In order to find the true scope of Article 13 (2) in the context of its possible impact on the power of amendment, we should read it not in isolation but along with Article 368. The rule of construction, to use the words of Lord wright M. R. in James v. Commonwealth of Australia is to read the actual words used "not in vacuo but as occurring in a single complex instrument in which one part may throw light on another". A combined reading of article 13 (2) and Article 368, in my view, clearly points to the conclusion that extinguishment or abridgement of fundamental rights contained in part III of the Constitution is not beyond the amendatory power conferred by Article 368. The alleged conflict between Article 13 (2) and Article 368 is apparent and not real because the two provisions operate in different fields and deal with different objects.

( 1378 ) THE Constitution itself treats the subject of ordinary legislation as something distinct and different from that of amendment of the Constit- ution. Articles 245 to 248, read with Seventh Schedule deal with ordinary legislation, while amendment of Constitution is the subject-matter of Arti- cle 368 in a separate Part. Article 368 is independent and self-contained. Article 368 does not contain the words "subject to the provisions of this constitution" as are to be found at the beginning of Article 245. The absence of those words in Article 368 thus shows that an amendment of the constitution made under that article has a status higher than that of legis- lative law and the two are of unequal dignity. If there is any limitation on power of amendment, it must be found in Article 368 itself which is the solefountain head of power to amend, and not in other provisions dealing with ordinary legislation. As stated on pages 24-26 in the Amending of Federal constitution by Orfield 'limitation on the scope of amendment should be found written in the amending clause and the. other articles of the Constitu- tion should not be viewed as limitations'. The very fact that the power of amendment is put in a separate Part (Part XX) and has not been put in the Part and Ch. (Part XI, Ch. 1) dealing with legislative powers shows that the two powers are different in character and operate in separate fields. There is also a vital difference in the Procedure for pasting ordinary legislation and that for bringing about a constitutional amendment under article 368. The fact that an amendment Bill is passed by each House of parliament and those two Houses also pass ordinary legislation does not obliterate the difference between the constituent power and the legislative power nor does it warrant the conclusion that constituent power is a species of legislative power.

( 1379 ) OUR attention has been invited on behalf of the petitioners to the proceedings of the Constituent Assembly on 29/04/1947. Sardar patel on that day made a move in the Constituent Assembly that clause (2) beaccepted. Clause (2) which provided the basis for clauses (1) and (2) of Article 13 as finally adopted was in the following words: "all existing laws, notification, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this part of the Constitution shall stand abrogated to the extent of such inconsistency, nor shall the Union or any unit make any law taking away or abridging any such right. " mr. K. Santhanam then moved an amendment for substituting the conclud- ing words of clause (2) by the following words: "nor shall any such right be taken away or abridged except by an amendment of the constitution. " the above amendment was accepted by Sardar Patel. Motion was there- after adopted accepting the amended clause which was in the following words:"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. "

( 1380 ) IN October 1947 the Constitutional Adviser prepared the Draft constitution, sub-clause (2) of Clause 9 of which was as under:" (2) Nothing in this Constitution shall be taken to empower the state to make any law which curtails or takes away any of the rights conferred by Ch. II of this Part except by way of amendment of this Constitution under S. 232 and any law made in contravention of this Ss. shall, to the extent of the contravention, be void. "minutes of the Drafting Committee of 13/10/1947 show that it was decided to revise Clause 9. Revised Clause 9 was put in the appendix as follows:"9. (1) All' laws in force immediately before the commencement of this Constitution in the territory of India, in so far as they are incon- sistent with any of the provisions of. this Part, shall, to the extent of such inconsistency, be void. (2) 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 Ss. shall, to the extent of the contravention' be void. (3) In this section; the expression 'law' includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law in the territory of India or any Part thereof. "on 21/02/1948, Dr. Ambedkar forwarded the Draft Constitution of India to the President of,the Constituent Assembly along with a covering letter. Clause 9 in this Draft Constitution was numbered as Clause 8. Sub- clause (2) of Clause 9 was retained as sub-clause (2) of Clause 8. A proviso was also added to that sub-clause, but that is not material for the purpose of the present discussion. The Constitution was thereafter finally adopted and it contained Article 13,-the provisions of which have been reproduced earlier.

( 1381 ) IT has been argued on behalf of the petitioners that the members of the Drafting Committee who were eminent lawyers of India, deliberately revised Clause 9 of the Draft Constitution prepared by the Constitutional adviser with a view to undo the effect of the amendment moved by mr. Santhanam which had been accepted by the Constituent Assembly, because the members of the Drafting Committee wanted that the fundamental rights should not be abridged or taken away by the amendment of the constitution.

( 1382 ) I find it difficult to accept the above argument. It is inconceiv- able that the members of the Drafting Committee would reverse the decision which had been taken by the Constituent Assembly when it accepted the amendment moved by Mr. Santhanam and adopted the motion for the passing of clause containing that amendment. It would appear from the speech of Mr. Santhanam that he had moved the amendment in order to remove doubt. Although there is nothing in the minutes to show as to why the members of the Drafting Committee did not specifically incorporate mr. Santhanam's Amendment in the revised clause, it seems that they did so because they took the view that it was unnecessary. . In his letter, dated 21/02/1948, Dr. Ambedkar, Chairman of the Drafting Committee wrote to the President of the Constituent Assembly :"in preparing the Draft the Drafting Committee was of course ex- pected to follow the decisions taken by the Constituent Assembly or by the various Committees appointed by the Constituent Assembly. This the Drafting Committee has endeavoured to do as far as possible. There were however some matters in respect of which the Drafting committee felt it necessary to suggest certain changes. All such changes have been indicated in the draft by underlining or side lining the relevant portions. Care has also been taken by the Drafting Committee to insert a footnote explaining the reasons for every such change. "it is, therefore, plain that if it had been decided to make a material change in the draft article with a view to depart from the decision of the Constituent assembly, the change would have been indicated by underlining or sidelining the relevant provision and also by inserting a footnote explaining reasons for the change. In the absence of any underlining, sidelining or footnote, it can be presumed that members of the Drafting Committee did not intend to make a change. A very material fact which should not be lost sight of in thiscontext is the note which was put in October 1948 under the draft Article 8. It was stated in the Note:"clause (2) of Article 8 does not override the provisions of Arti- cle 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 jin this clause shall' the words 'affect the provisions of Article 304 of this Constitution or' be inserted. " (See Shiva Rao's "the Framing of india's Constitution" Vol. IV page 26)THE above note and other such notes were made by the Constitutional adviser and reproduced fully the views of the Drafting Committee and/or of the Special Committee. (See Shiva Rao's " The Framing of India's Constitution", vol. I page 4 ). It would thus appear that there is no indication that the members of the Drafting Committee wanted to deviate from the decision of the Constituent Assembly by making the provisions relating to fundamental rights unamendable. On the contrary, the note shows that they accepted the view embodied in the decision of the Constituent Assembly.

( 1383 ) APART. . from that, I am of the view that if the preservation of the fundamental rights was too vital and important a desideratum, it would seem logical that a proviso would have been added in Article 368 expressly guaranteeing the continued existence of fundamental rights in an unabridged form. This was, however, not done. 1383-A. The next question which should engage our attention is about the necessity of amending the Constitution and the reasons which weighed with the framers of the Constitution for making provision for amendment of the Constitution. A Constitution provides the broad outlines of the administration of a country and concerns itself with the problems of the government. This is so whether the government originates in a forcible seizure of power or comes into being as the result of a legal transfer of power. At the time of the framing of the Constitution many views including those emanating from conflicting extremes are presented. In most ca$es the Constitution ii the result of a compromise between conflict- ing views. Those who frame a Constitution cannot be oblivious of the fact that in the working of a Constitution many difficulties would have to be encountered and that it is beyond the wisdom of one generation to hit upon a permanently workable solution for all problems which may be faced by the State in its onward march towards further progress. Sometimes a judicial interpretation may make a Constitution broad-based and put life into the dry bones of a Constitution so as to make it a vehicle of a nation's progress. Occasions may also arise where judical interpretation might rob some provision of a Constitution of a part of its efficacy as was contemplated by the framers of the Constitution. If no provision were made for the amendment of the Constitution, the people would be left with no remedy or means for adapting it to the charging need of times and would per force have recourse to extra-constitutional methods of changing the constitution. The extra-constitutional methods may sometimes be bloodless but more often they extract a heavy toll of the lives of the citizens and leave a trail of smouldering bitterness. A State without the means of some change, as was said by Burke in his Reflections on Revolution, is without the means of its conservation. Without such means it might even risk the loss of that part of the Constitution which it wished the most religiously topreserve. According to Dicey, twelve unchangeable Constitutions of France have each lasted on an average for less than ten years, and have frequently perished by violence. Louis Phillipe's monarchy was destroyed within seven years of the time when Tooqueville pointed out that no power existed legally capable of altering the articles of the Charter. On one notorious instance at least-and other examples of the same phenomenon might be produced from the annals of revolutionary France-the immutability, of the Constitution was the ground or excuse for its violent subversion. To quote the words of dicey:"nor ought the perils in which France was involved by the immuta- bility with which the statesmen of 1848 invested the Constitution to be looked upon as-exceptional; they arose from a defect which is inherent in every rigid constitution. The endeavour to create laws which cannot be changed is an attempt to hamper the exercise of sovereign power; it therefore tends' to bring the letter of the law into conflict with the will of the really supreme power in the State. The majority of the french electors were under the Constitution the true sovereign of france; but the rule which prevented the legal re-election of the president in effect brought the law of the land into confict with the will of the majority of the electors, and produced, therefore, as rigid Consti- tution has a natural tendency to produce, an opposition between the letter of the law and the wishes of the sovereign. If the inflexibility of French Constitutions has provoked revolution, the flexibility of English constitutions has, once at least, saved them for violent overthrow. "the above observations were amplified by Dicey in the following words:"to a student, who at this distance of time calmly studies the history of the first Reform Bill, it is apparent,, that in 1832 the supreme legislative authority of Parliament enabled the nation to carry through a political revolution under the guise of a legal reform. The rigidity, in short, of a Constitution tends to check gradual innovation; but, just because it impedes change, may, under unfavour- able circumstances occasion or provoke revolution. "according to Finer, the amending clause is so fundamental to a Consti- tution that it may be called the Constitution itself (see The Theory and Practice of Modern government, p. 156-157 ). The amending clause, it has been said, is the most important part of a Constitution. Upon its existence and truth- fulness,. e. its correspondence with real and natural conditions, depends the question as to whether the state shall develop with peaceable continuity or shall suffer alterations of stagnation, retrogression, and revolution. A constitution, which may be imperfect and erroneous in its other parts, can be easily supplemented and corrected, if only the state be truthfully organised in the Constitution; but if this be not accomplished, error will accumulate until nothing short of revolution can save the life of the state (see Political science and Comparative Constitutional Law, Vol. I by Burgess, p. 137 ). Burgess further expressed himself in the following words :"it is equally true that development is as much a law of state life as existence. Prohibit the former, and the latter is the existence of the body after the spirit has departed. When, in a democratic political society, the well-matured, long and deliberately formed will of the undoubted majority can be persistently and successfuly thwarted, in the amendment of its organic law, by the will of the minority, there is just as much danger to the state from revolution and violence as there is from thecaprice of the majority, where the sovereignty of the bare majority is acknowledged. The safeguards against too radical change must not be exaggerated to the point of dethroning the real sovereign. " (Ibid. p. 152 ). Justifying the amendment of the Constitution to meet the present condi- tions, relations and requirements. Burgess said we must not, as Mirabeau finely expressed it, lose the grande morale in the petite morale.

( 1384 ) ACCORDING to John Stuart Mill, no Constitution can expect to be permanent unless it guarantees progress as well as order. Human societies grow and develop 'with the lapse of time, and unless provision is made for such Constitutional readjustments as their internal development requires, they must stagnate (or retrogress (see Political Science and government by. W. Garner, pp. 536-537 ).

( 1385 ) WILLIS in his book on the Constitutional Law of the United States has dealt with the question of amendment of the Constitution in the following words:"why should change and growth in constitutional law stop with the present? We have always had change and growth. We have needed change and growth in the past because there have been changes and growth in our economic and social life. There will probably continue to be changes in our economic and social life and there should be changes in our Constitutional law in the future to meet such changes just as much as there was need of change in the past. The Fathers in the Consti- tutional Convention expected changes in the future: otherwise they would not have provided for amendment. They wanted permanency of our Constitution and there was no other way to obtain it. The people of 1789 had no more sovereign authority than do the people of the present. "pleading for provision for amendment of a Constitution and at the same time uttering a note of caution against a too easy method of amendment, willis wrote:"if no provision for amendment were provided, there would be a constant danger of revolution. If the method of amendment were made too easy, there would be the danger of too hasty action all of the time. In either case there would be a danger of the overthrow of our political institutions. Hence the purpose of providing for amendment of the Constitution is to make it possible gradually to change the Consti- tution in an orderly fashion as the changes in social conditions make it necessary to change the fundamental law to correspond with such social change. "

( 1386 ) WE may also recall in this connection th (r) words of Harold Laski in his tribute to Justice Holmes and the latters approach to the provisions of the U. S. Constitution. Said Laski :"the American Constitution Was not made to compel the twentieth- century American to move in the swaddling-clothes of his ancestors' ideas. The American Constitution must be moulded by reason to fit new needs and new necessities. . . . . . . . . . . . The law must recognise change and growth even where the la wyer dislikes their implications. He may be skeptical of their implications; he has not the right to substitute his own pattern of Utopia for what they seek to accomplish. "

( 1387 ) ACCORDING to lvor Jennings, flexibility is regarded as a merit and rigidity a defect because it is impossible for the framers of a Constitution to foresee the conditions in which it would apply and the problems which will arise. They have not the gift of prophecy. A Constitution has to work not only in the environments it was drafted, but also centuries later (see Some characteristics of Indian Constitution, p. 14-15 ). It has consequently been observed by Jennings :"the real difficulty is that the problems of life and society are infinitely variable. A draftsman thinks of the problems that he can foresee, but he sees through a glass, darkly He cannot know what problems will arise in ten, twenty, fifty or a hundred years. "any restriction on legislative power may do harm, because the effect of that restriction in new conditions cannot be foreseen. "

( 1388 ) THE machinery of amendment, it has been said, should be like a safety valve, so devised as neither to operate the machine with too great facility not to require, in order to set it in motion, an accumulation of force sufficient to explode it. In arranging it, due consideration should be given on the one hand to the requisites of growth and on the other hand to those of conservatism. The letter of the Constitution must neither be idolized as a sacred instrument with that mistaken conservatism which clings to its own worn-out garments until the body is ready to perish from cold, nor yet ought it to be made a plaything or politicians, to be tampered with and degraded to the level of an ordinary statute (see Political Scence and government by. W. Garner, p. 538 ).

( 1389 ) THE framers of our Constitution were conscious of the desira- bility of reconciling the urge for change with the need of continuity. They were not oblivious of the phenomenon writ large in human history that change without continuity can be anarchy; change with continuity can mean progress; and continuity without change can mean no progress. The constitution-makers have, therefore kept the balance between the danger of having a non-amendable constitution and a constitution which is too easily amendable. It has accordingly been provided that except for some not very vital amendments which can be brought about by simple majority, other amendments can be secured only if they are passed in each House of parliament by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of each House present and voting. Provision is further made that in respect of certain matters which affect the interest of the States the amendment must also be ratified by the Legislatures of not less than one-half of the States by reso- lution to that effect. It can, therefore, be said that while a provision has been made for amendment of the Constitution, the procedure for the bringing about of amendment is not so easy as may make it a plaything of politicians to be tampered with and degraded to the level of ordinary statute. The fact that during the first two decades after the coming into force of constitution the amending Bills have been passed without much difficulty with requisite majority is a sheer accident of history and is due to the fact that one party has happened to be in absolute majority at the Centre and many of the States. This circumstance cannot obliterate the fact that in normal circumstances when there are well balanced parties in power and in opposition the method of amending the Constitution is not so easy.

( 1390 ) ANOTHER circumstance which must not be lost sight of is that no generation has monopoly of wisdom nor has any generation a right to placefetters on future generations to mould the machinery of government and the laws according to their requirements. Although guidelines for the organization and functioning of the future government may be laid down and although norms may also be prescribed for the legislative activity, neither the guidelines should be so rigid nor the norms so inflexible and unalterable as should render them to be incapable of change, alteration and replacement even though the future generations want to change, alter or replace them. The guidelines and norms would in such an event be looked upon as fetters and shackles upon the free exercise of the sovereign will of the people in times to come and would be done away with by methods other than constitutional. It, would be nothing short of a presumptous and vain act and a myopic obsession with its own wisdom for one generation to distrust the wisdom and good sense of the future generations and to treat them in a way as if the generations to come would not be sui juris. The grant of power of amendment is based upon the assumption that as in other human affairs, so in constitutions, there are no absolutes and that the human mind can never reconcile itself to fetters in its quest for a better order of things. Any fetter resulting from the concept of absolute and ultimate inevitably gives birth to the urge to revolt. Santayana once said: "why is there sometimes a right to revolution ? Why is there sometimes a duty to loyalty ? because the whole transcendal philosophy, if made ultimate, is. false, and nothing but a selfish perspective hypostasized, because the will is absolute neither in the individual nor in the humanity. . . . . . . . . . . . " (see German Philosophy andpolittcs, (1915) 645-649 quoted by Frankfurter,. in "mr. Justice Holmes" 1931, Ed. , page 117 ). What is true of transcendental philosophy is equally true in the mundane sphere of a constitutional provision. An unamendable constitution, according to Mulford, is the worst tyranny of time, or rather the very tyranny of time. It makes an earthly providence of a convention which was adjourned without day. It places the sceptre over a free people in the hands of dead men, and the only office left to the people is to build thrones out of the stones of their sepulchres, (see Political Science and Govern- ment by. W. Garner, pages 537, 538 ).

( 1391 ) ACCORDING to Woodrow Wilson, political liberty is the right of those who are governed to adjust government to their own needs and interest. Woodrow Wilson in this context quoted Burke who had said that every generation sets before itself some favourite object which it pursues as the very substance of liberty and happiness. The ideals of liberty cannot be fixed from generation to generation; only its conception can be, the large image of what it is. Liberty fixed in unalterable law would be no liberty at all. government is a part of life, and, with life, it must change, alike in its objects and in its practices; only this principle must remain unaltered, -this principle of liberty, that there must be the freest right and opportunity of adjustment. Political liberty consists in the best practicable adjustment between the power of the government and the privilege of the individual; and the freedom to alter the adjustment is as important as the adjustment itself for the ease and progress of affairs and the contentment of the citizen (see Constitutional government in the United States by Woodrow Wilson, p. 4-6 ).

( 1392 ) EACH generation, according to Jefferson, should be considered as a distinct nation, with a right by the will of the majority to bind themselves ' but none to bind the succeeding generations, more than the inhabitant of another country. The earth belongs in usufruct to the living, the dead have neither the power nor the right over it. Jefferson even pleaded for revisionor opportunity for revision of constitution every nineteen years. Said the great American statesman:"the idea that institutions established for the use of the nation cannot be touched or modified, even to make them answer their end, because of rights gratuitiously supposed in those employed to manage them in the trust for the public, may perhaps be a salutary provision against the abuses of a monarch, but is most absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine and suppose that preceding, generations held the earth more freely than we do, had a right to impose laws on us, unalterable by ourselves, and that we, in the like manner, can make laws and impose burdens on future generations, which they will have no right to alter ; in fine that the earth belongs to the dead and not the living. "the above words were quoted during the course of the debate in the constituent Assembly (see Constituent Assembly Debates,vol. XI p. 975 ).

( 1393 ) THOMAS Paine gave expression to the same view in the following words:"there never did, there never will, and there never can, exist a parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the 'end of time ', or of commanding for ever how the world shall be governed, or who shall govern it; and therefore all such clauses, acts or declarations by which the makers of them attempt to do what they have neither the right nor the power to do, nor take power to execute, are in themselves null and void. Every age and generation must be as free to act for itself in all cases as the ages and generations which preceded it. The vanity and presumption of- governing beyond the grave is the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation a property in the generations which are to follow. "we may also reproduce the words of Pt. Nehru in his speech to the constituent Assembly on 11/11/1948:"and remember this, that while we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop a Nation's growth, the growth of living vital organic people, Therefore it has to be flexible. "

( 1394 ) IF it is not permissible under Article 368>o so amend the Consti- tution as to take away or abridge the fundamental rights in Part III, as has been argued on behalf of the petitioners, the conclusion would follow that the only way to take away or abridge fundamental rights, even if the overwhelming majority of people, e. g. 90 per cent of them want such an amendment, is by resort to extra-constitutional methods like revolution. Although, in my opinion, the language of Article 368 is clear and contains no limitation on the power to make amendment to so as take away or abridge fundamental rights, even if two interpretations were possible, one according to which the abridgement or extinguishment of fundamental rights is permissible in accordance with the procedure prescribed by Article 368 and other according to which the only way of bringing about such a result is an extra-constitutional method like revolution, the court, in my opinion, shouldlean infavour of the first interpretation. It hardly needs much argument to show that between peaceful amendment through means provided by the constitution and the extra-constitutional method with all its dangerous potentialities the former method is to be preferred. The contrast between the two methods is so glaring that there can hardly be any difficulty in making our choice between the two alternatives.

( 1395 ) THE aforesaid discussion would also reveal that the consequences which would follow from the acceptance of the view that there is no power under Article 368 to abridge or take away fundamental rights would be chaotic because of the resort to extra-constitutional methods. As against that the acceptance of the opposite view would not result in such conseque- nces. Judged even in this light, I find it difficult to accede to the contention advanced on behalf of the petitioner.

( 1396 ) I may at this stage deal with the question, adverted to by the learned counsel for the petitioners, as to how far the consequences have to be taken into account in construing the provisions of the Constitution. In this connection, I may observe that it is one of the well-settled rules of con- struction that if the words of a statute are in themselves precise and unambi- guous, no more is necessary than to expound those words, in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature. It is equally well-settled that where alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system (see Collector of Customs, Baroda v. Digvijaysinhji spinning and Weaving Mills Ltd ). These principles of construction apply with greater force when we are dealing with the provisions of a constitution.

( 1397 ) I have kept the above principles in view and am of the opinion that as the language of Article 368 is plain and unambiguous, it is not possible to read therein a limitation on the power of Parliament to amend the provisions of Part III of the Constitution so as to abridge or take away fundamental rights. Apart from that, I am of the view that if two construc- tions were possible, the construction which I have accepted would, as men- tioned above, avoid chaotic consequences and would also prevent the intro- duction of uncertainty, friction or confusion into the working of our Constitution.

( 1398 ) IT is also, in my opinion, not permissible in the face of the plain language of Article 368 to ascertain by any process akin to speculation the supposed intention of the Constitution-makers. We must act on the principle that if the words are plain and free from any ambiguity the Consti- tution-makers should be taken to have incorporated their intention in those word.

( 1399 ) IT seems inconceivable that the framers of the Constitution in spite of the precedents of the earlier French Constitutions which perished in violence because of their non-amendability, inserted in the Constitution a Part dealing. with fundamental rights which even by the unanimous vote of the people could not be abridged or taken away and which left with people no choice except extra-constitutional methods to achieve that object. The mechanics of the amendment of the Constitution, including those relating to extinguishment or abridgement of fundamental rights, in my opinion,are contained in the Constitution itself and it is not necessary to have recourse to a revolution or other extra-constitutional methods to achieve that object.

( 1400 ) CONFRONTED with the situation that if the stand of the petitioners was to be accepted about the inability of the Parliament to amend Part III of the Constitution except by means of a revolution or other extra-constitu- tional methods, the learned counsel for the petitioners has argued that such an amendment is possible by making a law for convening a Constituent assembly or for holding a referendum. It is urged that there would be an element of participation of the people in the convening of such a Constituent assembly or the holding of a referendum and it is through such means that pail III of the Constitution can be amended so as to take away or abridge fundamental rights. The above argument, in my opinion, is untenable and fallacious. If Parliament by a two-thirds majority in each House and by following the procedure, laid down in Article 368 cannot amend Part III of the Constitution so as to take away or abridge fundamental rights, it is not understood as to how the same Parliament can by law create a body which can make the requisite amendment. If it is not within the power of Parlia- ment to take away or abridge fundamental rights even by a vote of two-thirds majority in each House, would it be permissible for the same Parliament to enact legislation under Entry 9 7, List I of Seventh Schedule by simple majority for creating a Constituent Assembly in order to take away or abridge fundamental rights? Would not such a Constituent Assembly be a creature of statute made by the Parliament even though such a body has the high-sounding name of Constituent Assembly? The nomenclature of the said Assembly cannot conceal its real nature as being one created under a statute made by the Parliament. A body created by the Parliament cannot have powers greater than those vested in the Parliament. It is not possible to accept the contention that what the Parliament itself could not legally do, it could get done through a body' created by it. If something is impermis- sible, it would continue to be so even though two steps are taken instead of one for bringing about the result which is not permitted. Apart from the above if we were to hold that the Parliament was entitled under Entry 97, List i to make a law for convening a Constituent Assembly for taking away or abridging fundamental rights, some startling results are bound to follow. A law made under Entry 97, List I would need a simple majority in each house of the Parliament for being brought on statute book, while an amend- ment of the Constitution would require a two-third majority of the members of each House present and voting. It would certainly be anamolous that what Parliament could not do by two-thirds majority, it can bring about by simple majority. This apart, there are many articles of the Constitution, for the amendment of which ratification by not less than half of the State Legis- latures is required. The provision regarding ratification in such an event would be set at naught. There would be also nothing to prevent Parliament while making a law for convening a Constituent Assembly to exclude effective representation or voice of State Legislatures in the covening of constituent Assembly.

( 1401 ) THE argument that provision should be made for referendum is equally facile. Our Constitution-makers rejected the method of referendum. In a country where there are religious and linguistic minorities, it was not considered a proper method of deciding vital issues. The leaders of the minority communities entertained apprehension regarding this method. It is obvious that when passions are roused, the opinion of the minority in a popular referendum is bound to get submerged and lose effectiveness.

( 1402 ) IT also cannot be said that the method of bringing about amend- ment through referendum is a more difficult method. It is true that in australia over 30 amendments were submitted to referendum, out of which only four were adopted and two of them were of trivial nature. As against that we find that the method of referendum for amending the Constitution has hardly provided much difficulty in Switzerland. Out of 64 amendments proposed for amending the federal constitution, 49 were adopted in a popular referendum. So far as the igethod of amendment of the Constitution by two-third majority in either Mouse of the central Legislature and the ratifica- tion by the State Legislatures is concerned, we find that during first 140 years since the adoption of the United States Constitution, 3,113 proposals of amendment were made and out of them, only 24 so appealed to the congress as to secure the approval of the Congress and only 19 made sufficient appeal to the State Legislatures to secure ratification (See Constitutional Law of united States by Willis p. 128 ). It, therefore, cannot be said that the method of referendum provides a more effective check on the power of amendment compared to the method of bringing it about by prescribed majority 'in each house of the Parliament.

( 1403 ) APART from that I am of the view that it is not permissible to resort to the method of referendum unless there be a constitutional provision for such a course in the amendment provision. In the case of George S. Hawkes v. Harvey C. Smith as secretary of State of Ohio the U. S. Supreme court was referred in the context of ratification by the States of the eighteenth Amendment to the Constitution of the Ohio State which contain- ed provision for referendum. It was urged that in the case of such a State ratification should be by the method of referendum. Repelling this contention the court held:"referendum provisions of 'state Constitutions and statutes cannot be applied in the ratification or objection of amendments to the Federal constitution without violating the requirement of Article 5 of such Con- stitution, that such ratification shall be by the legislatures of the several states, or by conventions therein, as Congress shall decide. "the same view was reiterated by the U. S. Supreme court in State of Rhode island v. A. Mitchell Palmer secretary of State and other connected cases better known as National Prohibition Cases.

( 1404 ) ARGUMENT has been advanced on behalf of the petitioner that there is greater width of power for an amendment of the Constitution if the amendment is brought about by a referendum compared 'to the power of amendment vested in the two Houses of Parliament or Federal Legislature even though it is required to be passed by a prescribed majority and has to be ratified by the State Legislatures. In this respect we find that different constitutions have devised different methods of bringing about amendment. The main methods of modern constitutional amendment are- (1) by the ordinary legislature, but under certain estrictions; (2) by the people through a referendum; (3) by a majority of all the units of a federal state; (4) by a special convention. In some cases the system of amendment is a combination of two or more of these methods.

( 1405 ) THERE are three ways in which the legislature may be allowed to amend the Constitution, apart from the case where it may do so in the ordinary course of legislation. The simplest restriction is that which requires a fixed quorum of members for the consideration of proposed amendments and a special majority for their passage. The latter condition operated in the now defunct Constitution of Rumania. According to Article 146 of the constitution of USSR the Constitution may be amended only by a decision of the Supreme Soviet of USSR adopted by a majority of not less than two- thirds of the votes in each of its chambers. A second sort of restriction is that which requires a dissolution and a general election on the particular issue, so that new legislature,, being returned with a mandate for the proposal, is in essence, a constituent assembly so far as that proposal is concerned. This additional check is applied in Belgium, Holland, Denmark and Norway (in all of which, however, also a two-thirds Parliamentary majority is required to carry the amendment after the election) and in Sweden. A third method of constitutional change by the legislature is that which requires a majority of the two Houses in joint session, that is to say, sitting together as one House, as is the case, for example, in South Africa.

( 1406 ) THE second method is that which demands a popular vote or referendum or plebiscite. This device was employed in, French during the revolution and again by Louis Napoleon, and in Germany by Hitler. This system prevails in Switzerland, Australia, Eire, Italy, France (with certain presidential provisos in the Fifth Republic) and in Denmark.

( 1407 ) THE third method is peculiar to federations. The voting on the proposed measure may be either popular or by the legislatures of the states concerned. In Switzerland and Australia the referendum is in use; in the united States any proposed amendment requires ratification by the legisla- tures, or special conventions of three-fourth of the several states.

( 1408 ) THE last method is one in which a special body is created ad hoc for the purpose of constitutional revision. In some of the states of the united States, for example, this method is in use in connection with the constitution of the states concerned. Such a method is also allowed if the federal Congress proposes this method for amendment of the United States constitution. This method is prevalent in some of the states in Latin america also (see Modern Political Constitutions by C. F. Strong, pp. 153-154 ).

( 1409 ) THE decision as to which method of amending the Constitution should be chosen has necessarily to be that of the Constituent Assembly. This decision is arrived at after taking into account the national requirements, the historical background, conditions prevailing in the country and other factors or circumstances of special significance for the nation. Once a method of amendment has been adopted in a Constitution, that method has to be adhered to for bringing about the amendment. The selection of the method of amendment having been made by the Constituent Assembly it is not for the court to express preference for another method of amendment. Amendment brought about by one method prescribed by the Constitution is as effective as it would have been if the Constitution had prescribed another method of bringing about amendment unless there be something in the constitution itself which restricts the power of amendment. Article 138 of the Italian Constitution makes provision for referendum to bring about amendment of the Constitution. It has, however, been expressly provided in the article that referendum does not take place if a law has been approved in its second vote by a majority of two-thirds of the members of each chamber. The Italian Constitution thus makes a vote of majority oftwo-thirds of the members of each chamber at the second voting as effective as a referendum. Article 89 of the Constitution of the French Fifth Republic likewise makes provision for referendum for amendment of Constitution. It is, however, provided in that article that the proposed amendment is not submitted to a referendum when the President of the Republic decides to submit it to Parliament convened in Congress; in that case the proposed amendment is approved only if it is accepted by three-fifth majority of the votes cast.

( 1410 ) WE may at this stage advert to Article 5 of the United States constitution which reads as under :"the Congress,. whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislature of two-thirds of the several States, shall call a convention for proposing amendments, which in either case, shall be valid to all intents and purposes, as part of this Constitution when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; Provided that no amend- ment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth S. of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate. "the above article makes it clear that there are two methods of framing and proposing amendments. (A) Congress may itself, by a two-thirds vote in each house, prepare and propose amendments. (B) The legislatures of two-thirds of the States may require Congress to summon a Constitutional Convention. Congress shall there- upon do so, having no option to refuse; and the Convention when called shall draft and submit amendments. No provision is made as to the election and composition of the Convention, matters which would therefore appear to be left to the discretion of Congress.

( 1411 ) THERE are the following two methods of enacting amendments framed and proposed in either of the foregoing ways. It is left to Congress to prescribe one or other method as Congress may think fit. (X) The legislatures of three-fourths of the States may ratify any amendments submitted to them. (Y) Conventions may be called in the several States, and three-fourths of these conventions may ratify.

( 1412 ) EXCEPT for Twenty-first Amendment, on all the occasions on which the amending power has been exercised, method A has been employed and method X for ratifying -. e. no drafting conventions of the whole Union or ratifying conventions in the several States have ever been summoned. The consent of the President is not required to a Constitutional amendment (see American Commonwealth by James Bryce, pp. 365-366 ).

( 1413 ) THERE is one provision of the Constitution which cannot be changed by this process. It is that which secures to each and every State equal representation in one branch, of the legislature because according toproviso to Article V, no States without its consent shall be deprived of its equal suffrage in the Senate.

( 1414 ) THE question as to whether the width of power of amendment is greater in case the amendment is passed by a people's convention compared to the width of the power if it is passed by the prescribed majority in the legislatures arose in the case of United States v. Sprague decided by the supreme court of the United States. In that case the Constitutional validity of the Eighteenth Amendment was assailed on the ground that it should have been ratified by the Conventions because it took away the powers of the States and conferred new direct powers over individuals. The trial court rejected all these views and yet held the Eighteenth Amendment unconstitutional on theories of "political science", the "political thought" of the times, and a "scientific approach to the problem of government". The united States Supreme court on appeal upheld the Eighteenth Amendment. After referrring to the provisions of Article 5 Roberts,. , who gave the opinion of the court, observed :"the choice, therefore, of the mode of ratification, lies in the sole discetion of Congress. Appellees, however, pointed out that amend- ments may be of different kinds, as e. g. , merer changes in the character of federal means or machinery, on the one hand, and matters affecting the liberty of the citizen on the other. They say that the framers of the Constitution expected the former sort might be ratified by legis- latures, since the States as entities would be wholly competent to agree to such alterations, whereas they intended that the latter must be referred to the people because not only of lack of power in the legislatures to ratify, but also because of doubt as to their truly representing the people. "repelling the contention on behalf of the appellees, the court observed :"if the framers of the instrument had any thought that amend ments differing in purpose should be ratified in different ways, nothing would have been simpler than so to phrase Article 5 as to exclud implication or speculation. The fact that an instrument drawn wit' such meticulous care and by men who so well understood how to mak language fit their thought does not contain any such limiting phras affecting the exercise of discretion by the Congress in choosing one c the other alternative mode of ratification is persuasive evidence the no qualification was intended. "the court referred to the Tenth Amendment which provided that "tl powers not delegated to the United States by the Constitution nor prohibit by it to the States, are reserved to the States respectively or to the people' the argument that the language of the Tenth Amendment demonstrates th the people reserved to themselves powers over their personal liberty, that t legislatures were not competent to enlarge the powers of Federal government in that behalf and that the people never delegated to the Congress the unre ricted power of chosing the mode of ratification of a proposed amendme was described by the court to be complete non sequitur. The fifth Article was observed, does not purport to delegate any governmental power to united states, nor to without any from it. On the contrary, that article a grant of authority by the people to Congress, and not to the United Sta the court further observed:"they (the people) deliberately made the grant of powercongress in respect to the choice of the mode of ratification of amend- ments. Unless and until that Article be changed by amendment, congress must function as the delegated agent of the people in the choice of the method of ratification. "

( 1415 ) I am, therefore, of the view that there is no warrant for the proposition that as the amendments under Article 368 are brought about by the prescribed majority of the two Houses of Parliament and in certain cases are ratified by the State Legislatures and the. amendments are not brought about through referendum or passed in a Convention, the power of amendment under Article 368 is on that account subject to limitations.

( 1416 ) ARGUMENT has then been advanced that if power be held to be vested in Parliament under Article 368 to take away or abridge fundamental rights, the power would be, or in any case could be, so used as would result in repeal of all provisions containing fundamental rights. India, it is urged, in such an event would be reduced to a police state wherein all cheri- shed values like freedom and liberty would be non-existent. This argument, in may opinion, is essentially an argument of fear and distrust in the majority of representatives of the people. It is also based upon the belief that the power under Article 368 by two-thirds of the members present and voting in each House of Parliament would be abused or used extravagantly. I find it difficult to deny to the Parliament the power to amend the Consti- tution so as to take away or abridge fundamental right by complying with the procedure of Article 368 because of any such supposed fear or possibility of the abuse of power. I may in this context refer to the observations of marshall, C.. , regarding the possibility of the abuse of power of legislation and of taxation in the case of The Providence Bank v. Alpheus Billings. :"this vital power may be abused; but the Constitution of the united Stated was not intended to furnish the corrective for every abuse of power which may be committed by the State governments. The interest, wisdom, and justice of the representative body, and its relations with its constituents furnish the only security where there is no express contract against unjust and excessive taxation, as well as against unwise legislation generally. "

( 1417 ) THAT power may be abused furnishes no ground for denial of its existence if government is to be maintained at all, is a proposition, now too well established (see the unanimous opinion of US Supreme court in Ex parte john L. Rapier. Same view was expressed by the Judical Committee in the case of Bank of Toronto and Lambe while dealing with the provisions of section 92 of the British North America Act relating to the power of Quebec legislature.

( 1418 ) APART from the fact that the possibility of abuse of power is no ground for the denial of power if it is found to have been legally vested, I find that the power of amendment under Article 368 has been vested not in one individual but in the majority of the representatives of the people in parliament. For this purpose, the majority has to be of not less than two- thirds of the members present and voting in each House. In addition to that, it is required that the amendment Bill should be passed in each House by a majority of the total membership of that House. It is, therefore, not possible to pass an amendment Bill by a snap vote in a House wherein a small numberof member are present to satisfy the requirement of the rule of quorum. The condition about the passing of the Bill by each House, including the rajya Sabha, by prescribed majority ensures that it is not permissible to get the Bill passed in a joint sitting of the two Houses (as in the case of ordinary legislation) wherein the members of the Rajya Sabha can be out voted by the members of the Lok Sabha because of the latter's greater numerical strength. The effective voice of the Rajya Sabha in the passing of the amend- ment Bill further ensure that unless the prescribed majority of the repre- sentatives of the States agree the bill cannot be passed. The Rajya sabha under our Constitution is a perpetual body ; its members are elected by the members of the State Assemblies and one-third of them retire every two years. We have besides that the provision for the ratification of the amendment by not less than one-half of the State Legislatures in case the amendment relates to certain provisions which impinge upon the rights of the States. The fact that a prescribed majority of the people's represen- tatives is required for bringing about the amendment is normally itself a guarantee that the power would not be abused. The best safeguard against the abuse or extravagant use of power is public opinion and not a fetter on the right of people's representatives to change the Constitution by following the procedure laid down in the Constitution itself. It would not be a correct approach to start with a distrust in the people's representatives in the Parliament and to assume that majority of them would have an aversion for the liberties of the people and would act against the public interest. To quote the words of Justice Holmes in Missouri Kansas and Texas Rly. v. May. "great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts. "

( 1419 ) L. B. Orfield has dealt with the question of the abuse of power in his book "the Amending of Federal Constitution", in the following words on page 123:" 'abuse' of the amending power is an anomalous term. The pro- ponents of implied limitations resort to the method of reductio ad absurdum in pointing out the abuses which might occur if there were no limitations on the power to amend. . . . . . . . . The amending power is a power of an altogether different kind from the ordinary governmental powers. If abuse occurs, it occurs at the hands of a special organization of the nation and of the States representing an extraordinary majority of the people, so that for all practical purposes it may be said to be the people, or at least the highest agent of the people, and one exercising sovereign powers. Thus the people merely take the consequences of their own acts. "it has already been mentioned above that the best safeguard against the abuse of power is public opinion. Assuming that under the sway of some overwhelming impulse, a climate is created wherein cherished values like liberty and freedom lose their significance in the eyes of the people and their representatives and they choose to do away with all fundamental rights by amendment of the Constitution, a restricted interpretation of Article 368 would not be of much avail. The people in such an event would forfeit the claim to have fundamental rights and in any case fundamental rights would not in such an event iave the people from political enslavement, socialstagnation or mental servitude. I may in this context refer to the words of learned Hand in his eloquent address on the Spirit of Liberty:"i often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution no law no court can even do much to help it. While it lies there it needs no Constitution, no law, no court to save it. And what is this liberty which must lie in the hearts of men and women? it is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society. where freedom is the possession of only a savage few ; as we have learned to our sorrow. " (see pages 189-190 Spirit of Liberty edited by lrving billiard ). Similar idea was expressed in another celebrated passage by Learned Hand in the Contribution of an Independent Judiciary to Civilization '. "you may ask what then will become of the fundamental principles of equity and fair play which our constitutions enshrine ; and whether i seriously believe that unsupported they will serve merely as counsels of moderation, I do not think that anyone can say what will be left of those principles ; I do not know whether they will serve only as counsels ; but this much I think I do know-that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish. " (see p. 164 supra ).

( 1420 ) IT is axiomatic that the involvement of a nation in war by a declaration of war against another country can change the entire course of history of the nation. A wrong decision in this respect can cause untold suffering, result in national humiliation, take toll of thousands of lives and cripple the economy of the nation for decades to come. If the government and the Parliament can be entrusted with power of such far reaching magnitude on the assumption that such a power would not be abused but would be exercised reasonably in the national interest, it would seem rather anomalous to have an approach of distrust in those very organs of the State and to deny to the Parliament the power of amendment of fundamental rights because of the supposed possibility of the abuse of such power.

( 1421 ) THERE is one other aspect of the matter which may be not lost sights of. Part III deals with a number of fundamental rights. Assuming that one relating to property, out of the many fundamental rights, is found to be an obstacle in pushing forward certain ameliorative measures and it is proposed to abridge that fundamental rights and it is also decided not to abridge or take away any other fundamental right, the present position, according to the stand taken on behalf of the petitioners is that there is no power under Article 368 to abridge the obstructive fundamental right. The result is that even though reference is made on behalf of the petitioners to those fundamental rights as enshrine within themselves the valued concept of liberty of person and freedom of expression, the protection which is, in fact sought is for the fundamental right to property which causes obstruction to pushing forward ameliorative measures of national weal. It is not, in my opinion, a correct approach to assume that if Parliament is held entitled toamend Part III of the Constitution so as to take away or abridge fundamental rights, it would automatically or necessarily result in the abrogation of all fundamental rights. I may mention in this context that for seventeen years, from 1950 till 1967 when Golak Nath case (supra) was decided, the accepted position was that the Parliament had tile power to amend Part III of the constitution so as to take away or abridge fundamental rights. Despite the possession of that power by the Parliament, no attempt was made by it to take away or abridge fundamental rights relating to cherished values like liberty of person and freedom of expression. If it was not done in the past, why should we assume that the majority of members of the Parliament in future would acquire sudden aversion and dislike for these values and show an anxiety to remove them from the Consititution. There is a vital distinc- tion, in my opinion, between the vesting of a power, the exercise of the power and the manner of its exercise. What we are concerned with is as to whether on the true construction of Article 368, the Parliament has or has not the power to amend the Constitution so as to take away or abridge fundamental rights. So far as this question is concerned, the answer, in my opinion, should be in the affirmative, as long as the basic structure of the constitution is retained.

( 1422 ) IN the context of abuse of power of the amendment, reference has been made on behalf of the petitioners to the Constitution of Weimar republic and it is urged that unless there are restrictions on the power of amendment in so far as fundamental rights are concerned, the danger is that the Indian Constitution may also meet the same fate as did the Weimar constitution at the hands of Hitler. This argument, in my opinion, is wholly misconceived and is not based upon correct appreciation of historical facts. Following military reversals when Kaiser fled to Holland in 1918 his mutinous subjects proclaimed a republic in Germany. There was thus a break in the continuity of the authority and the Weimar Republic had to face staggering political problems. It had to bear the burden of concluding a humilitating peace. It was later falsely blamed for the defeat itself by some of the politicians who were themselves, responsible for the collapse and capitulation of 1918. The Republic had to wrestle, within a decade and a half, with two economic crises of catastrophic proportions which ruined and made desparate the ordinarily stable elements of society. The chaos with political party divisions in the country was reflected in Reichstag where no party obtained a clear majority. There were 21 cabinets in 14 years. It was in those conditions that Hitler emerged on the scene. He made use of article 48 of the Weimar Constitution which dealt with emergency powers. Under Article 48 of the Constitution, the President was empowered to issue decrees suspending the rights guaranteed by the basic law and to make direct use of the army and navy should emergency conditions so require. The purpose of the provisions was, of course, to provide the executive with means to act in the event of some grave national emergency where the immediate and concentrated use of the power of the state might become suddenly necessary. But what happened was that almost from its beginning the government found itself in one emergency after another, so that rule by executive decrees issued under the authority provided for by Article 48 supplanted the normal functioning of the legislative branch of government. The increasing division among the political parties, the staggering economic problem and the apparent failure of the parliamentary government to function, were accompanied by the steady growth in power of the National socialists under Hitler. In less than two years, the Weimar Republic was transformed into a totalitarian dictatorship. The Enabling Act of 23/03/1933, pushed through the Reichstag by a narrow Nazi majority, providedgovernment by decree without regard to constitutional guarantees. The act empowered the government to enact the statutes without the sanction of the Parliament. Hitler made a show of following the Constitution, but the acts of his party in and out of the government in practice violated the basic law. The few limitations imposed upon the government were ignored, and Hitler's Third Reich was launched (see Modern Constitutions by R. F. Moore, pp. 86-87 and The Constitutions of Europe by E. A. Goerner, pp. 99- 100 ). It would thus appear that it was not by use of the power of amending the Constitutions but by acting under the cover of Article 48 of the Constitution dealing with emergency powers that Hitler brought about the Nazi dictatorship. He thus became what has been described as ". . . . . . the supreme political leader of the people, supreme leader and highest superior of the administration, supreme judge of the people, supreme commander of the armed forces and the source of all law. "

( 1423 ) APART from the fact that the best guarantee against the abuse of power of amendment is good sense of the majority of the members of parliament and not the unamendability of Part III of the Constitution, there is one other aspect of. the matter. Even if Part III may be left intact, a mockery of the entire parliamentary system can be made by amending articles 85 and 172 which are not in Part III and according to which the life of the Lok Sabha and Vidhan Sabhas of the States, unless sooner dissolved, would be five years, and by providing that the life of existing Lok sabha and Vidhan Sabhas shall be fifty years. This would be a flagrant abuse of the power of amendment and I refuse to believe that public opinion in our country would reach such abysmal depths and the standard of political and constitutional morality would sink so low that such an amendment would ever be passed. I need express no opinion for the purpose of this case as to whether this court would also not quash such an amendment. In any case such an amendment would be an open invitation for and be a precursor of revolution.

( 1424 ) EVEN without amending any article, the emergency provisions of the Constitution contained in Articles 358 and 359 can theoretically be used in such a manner as may make a farce of the democratic set up by prolonging the rule of the party in power beyond the period of five years since the last general election after the party in power has lost public support. A Proclamation of Emergency under Article 352 can be issued by the president if he is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or even by internal disturbance. Such a Proclama- tion has to be laid before each House of Parliament. Resolution approving the Proclamation has thereafter to be passed by the Houses of Parliament. According to Article 83, the House of the People, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the House provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parlia- ment by law for a period not exceeding one year at a time and no extending in any case beyond a period of six months after the Proclamation has ceased to operate. As the government and Parliament play a vital part in the Proclamation and continuation of emergency, the emergency provisions can theoretically be used for avoiding the election and continuing a party in power even though it has lost popular support by extending the life of the House of the People in accordance with Article 83 (2 ). The effective check against such unabashed abuse of power is the sense of politicalresponsibility, the pressure of public opinion and the fear of popular uprising. We need not go into the question as to whether the court would also intervene in such an event. It is, in my opinion, inconceivable that a party would dare to so abuse the powers granted by the emergency provisions. The grant of the above power under Article 83 (2) is necessarily on the assumption that such a power would not be abused.

( 1425 ) ARGUMENT has "then been advanced on behalf of the petitioners that the power of amendment might well be used in such a manner as might result in doing away with the power of amendment under Article 368 or in any case so amending that article as might make it impossible to amend the constitution. It is,. in my opinion, difficult to think that majority of members of future Parliament would attempt at any time to do away with the power of amendment in spite of the knowledge as to what was the fate of unamendable constitutions in other countries like France. Assuming that at any time such an amendment to abolish all amendments of Constitution is passed and made a part of the Constitution, it would be nothing short of laying the seeds of a future revolution or other extra-constitutional methods to do away with unamendable Constitution. It is not necessary for the purpose of this case to go into the question of the constitutional validity of such an amendment.

( 1426 ) WE may now deal with the question as to what is the scope of the power of amendment under Article 368. This would depend upon the connotation of the word '"amendment". Question has been posed during arguments as to whether the power to amend under the above article includes the power to completely abrogate the Constitution and replace it by an entirely new Constitution. The answer to the above question, in my opinion, should be in the negative. I am further of the opinion, that amendment of the Constitution necessarily contemplates that the Constitution has not to be abrogated but only changes have to be made in it. The word "amendment" postulates that the old Constitution survives without loss of its identity despite the change and continues even though it has been sub- jected to alterations. As a result of the amendment, the old Constitution cannot be destroyed and done away with; it is retained though in the amended form. What then is meant by the retention of the old Consti- tution ? It means the retention of the basic structure or framework of the old Constitution. A mere retention of some provisions of the old Constitution even though the basic structure or framework of the Constitution has been destroyed would not amount, to the rentention of the old Constitution. Although it is permissible under the power of amendment to effect changes, howsoever important, and to adapt the system to the requirements of chang- ing conditions, it is not permissible to touch the foundation or to alter the basic institutional pattern. The words "amendment of the Constitution" with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution. It would not be competent under the garb of amendment, for instance, to change the democratic government into dictatorship or hereditary monarchy nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the State according to which the State shall not discriminate against any citizen on the ground of religion only cannot likewise bo done away with. Provision regarding the amendment of the Constitution docs not furnish a pretence for subverting the structure of the Constitution nor can Article 368 be so construed as to embody the death wish of the Constitution or provide sanction for what may perhaps be called its lawful harakir. Suchsubversion or destruction cannot be described to be amendment of the Consti- tution as contemplated by Article 368.

( 1427 ) THE words "amendment of this Constitution" and "the Cons- titution shall stand amended" in Article 368 show that what is amended is the existing Constitution and what emerges as a result of amendment is not a new and different Constitution but the existing Constitution though in an amended form. The language of Article 368 thus lends support to the conclusion that one cannot, while acting under that article, repeal the existing Constitution and replace it by a new Constitution.

( 1428 ) THE cofinotation of the amendment of the Constitution was brought out clearly by Pt. Nehru in the course of his speech in support of the first Amendment wherein he said that "a. Constitution which is responsive to the people's will,' which is responsive to their ideas, in that it can be varied here and there, they will respect it all the more and they will not fight against, when we want to change it". It is, therefore, plain that what pt. Nehru contemplated by amendment was the varying of the Constitution "here and there" and not the elimination of its basic structure for that would necessarily result in the Constitution losing its identity.

( 1429 ) REFERENCE to some authorities in the United States so far as the question is concerned as to whether the power to amend under Article 5 of u. S. Constitution would include within itself the power to alter the basic structure of the Constitution are not helpful because there has been no amendment of such a character in the United States. No doubt the Cons- titution of the United States had in reality, though not in form, changed a good deal since the beginning of last century; but the change had been effected far less by formally enacted constitutional amendments than by the growth of customs or institutions which have modified the working without altering the articles of the Constitution (see The Law of the Constitution by A. V. Dicey, Tenth Ed. p. 129 ).

( 1430 ) IT has not been disputed during the course of arguments that the power of amendment under Article 368 does not carry within itself the power to repeal the entire Constitution and replace it by a new Constitution. If the power of amendment does not comprehend the doing away of the entire Constitution but postulates retention or continuity of the existing constitution, though in an amended form, question arises as to what is the minimum of the existing Constitution which should be left intact in order to hold that the existing Constitution has been retained in an amended form and not done away with. In my opinion, the minimum required is that which relates to the basic structure or framework of the Constitution. If the basic structure is retained, the old Constitution would be considered to continue even though other provisions have undergone change. On the contrary, if the basic structure is changed, -mere retention of some articles of the existing Constitution would not warrant a conclusion that the existing constitution continues and survives.

( 1431 ) ALTHOUGH there are some observations in "limitations of Amend- ment Procedure and the Constituent Power" by Conrad to which it is not possible to subscribe, the following observations, in my opinion, represent the position in a substantially correct manner :"any amending body organized within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority. "it has further been observed :"the amending procedure is concerned with the statutory frame- work of which it forms part itself. It may effect changes in detail, remould the legal "expression of underlying principles, adapt the system to the needs of changing conditions, be m the words of Calhoun 'the medicatrix (Sic) of the system', but should not touch its fundations. "a similar idea has been brought out in the following passage by Carl,. , friedrich, page 272 of 'mah and His government" (1963) :"a Constitution is a living system. But just as in a living, organic system, such as the human body, various organs develop and decay, yet the basic, structure or pattern remains the same with each of the organs having its proper function, so also in a constitutional system the basic institutional pattern remains even though the different compo- nent parts may undergo significant alterations. For it is the characteris- tic of a system that it perishes when one of its essential component parts it destroyed. The United States may retain some kind of constitutional government, without, say, the Congress or the federal division of powers, but it would not be the constitutional system now prevailing. This view is uncontested even by many who do not work with the precise concept of a Constitution here insisted upon. "

( 1432 ) ACCORDING to "the Construction of Statutes" by Crawford, a law is amended when it is in whole or in part permitted to remain and something is added to or taken from it or in some way changed or altered in order to make it more complete or perfect or effective. It should be noticed, however, that an amendment is not the same as repeal, although it may operate as a repeal to a certain degree. Sutherland in this context states that any change of the scope or effect of an existing statute whether by addition, omission, or substitution of provisions ' which does not wholly terminate its existence whether by an Act purporting to amend, repeal, revise or supplement or by an Act independent and original in form, is treated as amendatory.

( 1433 ) IT is, no doubt, true that the effect of the above conclusion at which I have arrived is that there would be no provision in the Constitution giving authority for drafting a new and radically different Constitution with different basic structure or framework. This fact, in my opinion, would not show that our Constitution has a lacuna and is not a perfect or a complete organic instrument, for it is not necessary that a Constitution must contain a provision for its abrogation and replacement by an entirely new and different Constitution. The people in the final analysis are the ultimate sovereign and if they decide to have an entirely new Constitution, they would not need the authority of the existing Constitution for this purpose.

( 1434 ) SUBJECT to the retention of the basic structure or framework of the constitution, I have no doubt that the power of amendment is plenary and would include within itself the power to add, alter or repeal the various article including those relating to fundamental rights. During the course of years after the Constitution comes into force, difficulties can be experienced in the working of the Constitution. It is to overcome those difficulties that the Constitution is amended. The amendment can take different forms. It may sometimes be necessary to repeal a particular provision of the constitution without substituting another provision in its place. It may in respect of a different article become necessary to replace it by a new pro- vision Necessity may also be felt in respect of a third article to add somefurther clauses in it. The addition of the new clauses can be either after repealing some of the earlier clauses or by adding new clauses without re- pealing any of the existing clauses. Experience of the working of the Cons- titution may also make it necessary to insert some new and additional articles in the Constitution. Likewise, experience might reveal the necessity of deleting some existing articles. All these measures, in my opinion, would lie within the ambit of the power of amendment. The denial of such a broad and comprehensive, power would introduce a rigidity in the Consti- tution as might break the Constitution. Such a rigidity is open to serious objection in the same way as an unamendable Constitution.

( 1435 ) THE word "amendments in Article 368 must carry the same meaning whether the amendment relates to taking away or abridging funda- mental rights in Part III of the Constitution or whether it pertains to some other provision outside? Part III of the Constitution. No serious objection is taken to repeal, addition or alteration of provisions of the Constitution other than those in Part III under the power of amendment conferred by article 368. The same approach, in my opinion, should hold good when we deal with amendment relating to fundamental rights contained in Part I II of the Constitution. It would be impermissible to differentiate between scope and width of power of amendment when it deals with fundamental right and the scope and width of that power when it deals with provisions not concerned with fundamental rights.

( 1436 ) WE have been referred to the dictionary meaning of the word "'amend", according to which, to amend is to "free from faults, correct, rectify reform, make alteration, to repair to better and surpass". The dictionary meaning of the word "amend" or "amendment", according to which power of amendment should be for purpose of bringing about an improvement, would not, in my opinion, justify a restricted construction to be placed upon those words. The sponsors of every amendment of the constitution would necessarily take the position that the proposed amend- ment is to bring about an improvement on the existing Constitution. There is indeed an element of euphemism in every amendment because it proceeds upon the assumption on the part of the proposer that the amendment is an improvement. In the realities and controversies of politics, question of improvement becomes uncertain with the result that in legal parlance the word amendment when used in reference to a constitution signifies change or alteration. Whether the amendment is in fact, an improvement or not, in my opinion, is not a justiciable matter, and in judging the validity of an amendment the courts would not go into the question as to whether the amendment has in effect brought about an improvement. It is for the special majority in each House of Parliament to decide as to whether it constitutes an improvement; the courts would not be substituting their own opinion for that of the Parliament in this respect. Whatever may be the personal view of a judge regarding the wisdom behind or the improving quality of an amendment, he would be only concerned with the legality of the amendment and this, in its turn, would depend upon the question as to whether the formalites prescribed in Article 368 have been complied with.

( 1437 ) THE approach while determining the validity of an amendment of the Constitution, in my opinion, has necessarily to be different from the approach to the question relating to the legality of amendment of pleadings. A Constitution is essentially different from pleadings filed in court of litiga- ting parties. Pleadings contain claim and counter-claim of private parties engaged in litigation, while a Constitution provides for the framework of thedifferent organs of the State, viz. , the executive, the legislature and the judiciary. A Constitution also reflects the hopes and aspirations of a people. Besides laying down the norms for the functioning of different organs a Constitution encompasses within itself the broad indications as to how the. nation is to march forward in times to come. A Constitution cannot be regarded as a mere legal document to be read as a will or an agreement nor is Constitution like a plaint or written statement filed in a suit between two litigants. A Constitution must of necessity be the vehicle of the life of a nation. It has also to be borne in mind that a Constitution is not a gate but aroad. Beneath the drafting of a Constitution is the awareness that things do not stand still but move on, that life of a progressive nation, as of an individual, is not static and stagnant but dynamic and dashful. A Consti- tution must therefore contain ample provision for experiment and trial in the task of administration. A Constitution, it needs to be emphasised, ii not a document for fastidious dialectics but the means of ordering the life of a people. It had {sic) its roots in the past, its continuity is reflected in the present and it is intended for the unknown future. The words of Holmes while dealing with the U. S. Constitution have equal relevance for our Consti- tution. Said the great Judge:". . . . . . . . . . . . the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth. " [see Gompers v. United States, 233 U. S. 604, 610 (1914)]. It is necessary to keep in view Marshall's great premises that "it is a constitution we are expounding". To quote the words of Felix Frankfurter in his tribute to Holmes :"whether the Constitution is treated primarily as a text for interpre- tation or as an instrument of government may make all the difference in the word. The fate of cases, and thereby of legislation, will turn on whether the meaning of the document is derived from itself or from one's conception of the country, its development, its needs, its place in a civilized society. " (See "air. Justice Holmes" edited by Felix Frankfurter, p. 58 ).

( 1438 ) THE principles which should guide the court in construing a constitution have been aptly laid down in the following passage by Kania, c.. , in the case of A. K. Gopalan v. The State of Madras:"in respect of the construction of a Constitution Lord Wright in James v. The Commonwealth of Australia observed that 'a. Constitution must not be construed in any narrow or pedantic sense'. Mr. Justice Higgins in attorney-General of New South Wales v. Brewary Employees Union, observed: "although we are to interpret words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting-to remember that it is a constitution, a mechanism under which laws are to be made and not a mere Act which declares what the law is to be. In In re the central provinces and Berar Act XIV of 1938 Sir Maurice Gwyer, C.. , afteradopting these observations said: 'especially is this true of a Federal constitution with its nice balance of jurisdictions. I conceive that a broad and liberal spirit should inspire those whose duty it is to inter- pret it; but I do not imply by this that they are free to stretch or pervert to language of the enactment in the interest of any legal or constitutional theory or even for the purpose of supplying omissions or of correcting supposed errors'. There is considerable authority for the statement that the courts are not at liberty to declare an Act viod because in their opinion it is opposed to asprit supposed to pervade the Constitution but not expressed in words. Where the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitu- tion which is not even mentioned in the instrument. It is difficult upon any general principles to limit the omnipotence of the sovereign legisla- tive power by judicial interposition, except so far as the express words of a written Constitution give that authority. It is also stated, if the words be positive and without ambiguity, there is no authority for a court to vacate or repeal a Statute on that ground alone. But it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and para- mount law settled by the deliberate wisdom of the nation that one can find a safe and solid ground for the authority of courts of justice to declare void and any legislative enactment. Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great and too indefinite either for its own security or the protection of private rights. "

( 1439 ) REFERENCE has been made on behalf of the petitioners to Para 7 of the Fifth Schedule to the Constitution which empowers the Parliament to amend by way of addition, variation or repeal any of the provisions of that schedule dealing with the administration and control of scheduled areas and scheduled tribes. Likewise, Para 21 of the Sixth Schedule gives similar power to the Parliament to amend by way of addition, variation or repeal any of the provisions of the Sixth Schedule relating to the administration of tribal areas. It is urged that while Article 368 contains the word "amendment" simpliciter, the above two paragraphs confer the power to amend by way of addition, variation or repeal and thus enlarge the scope of the power of amendment. This contention, in my opinion, is not well founded. The words "by way of addition, variation or repeal" merely amplify the meaning of the word "amend" and clarify what was already implicit in that word. It, however, cannot be said that if the words "by way of addition, variation or repeal" had not been there, the power of amendment would not have also included the power to add, vary or repeal. These observations would also hold good in respect of amended S. 291 of the government of India Act, 1935 which gave power to the governor- general at any time by Order to make such amendments as he considered necessary whether by way of addition, modification or repeal, in the provi- sions of that Act or of any Order made thereunder in relation to any Provin- cial Legislature with respect to the matters specified in that section. A clarification by way of abundant caution would not go to show that in the absence of the clarification, the power which inheres and is implicit would be non-existent. Apart from that, I am of the view that sub-paragraph (2) of Paragraph 7 of the Fifth Schedule indicates that the word "amendment" has been used in the sense so as to cover amendment by way of addition, variation or repeal. According to that paragraph, no law mentioned insub-paragraph (1) shall be deemed to be an amendment of the Constitution for purpose of Article 368. As sub-paragraph (1) deals with amendment by way of addition, variation or repeal, the amendment of Constitution for purpose of Article 368 referred to in sub-paragraph (2) should be construed to be co-extensive and comprehensive enough to embrace within itself amend- ment by way of addition, variation or repeal. The same reasoning would also apply to sub-paragraph (2) of Paragraph 21 of the Sixth Schedule.

( 1440 ) THE Judicial Committee in the case of British Coal Corporation v. The King laid down the following rule :"in interpreting a constituent or organic statute such as the Act, that construction most beneficial to the widest possible amplitude of its powers must be adopted. "the Judicial Committee also quoted with approval the following passage from Clement's Canadian ' Constitution relating to provision of British North america Act:"but there are statutes and statutes, and the strict construction deemed proper in the case, for example of a penal or taxing statute, or one passed to regulate the affairs of an English parish, would be often subversive of Parliament's real intent if applied to an Act passed to ensure the peace, order and good government. . . . . . . . . "orfield, while dealing with the amendment of the Constitution has observed that the amendment of a Constitution should always be construed more liberally. To quote from his book "the Amending of the Federal Constitution" :"is there a restriction that an amendment cannot add but only alter? An argument very much like the foregoing is that an amendment may alter but may not add. This chis contention is largely a quibble on the definition of the word "amendment'. It is asserted that by amending the Constitution is meant the changing of something that is already in the Constitution, and not the addition of something new and unrelated. Cases prescribing the very limited meaning of amendments in the law of pleading are cited as authoritative. It would seem improper however, to accept such a definition, as amendments to constitutions have always been construed more liberally and on altogether different principles from those applied to amendments of pleadings. "

( 1441 ) IT may also be mentioned that Article V of the U. S. Constitution confers powers of amendment. The word used in that article is amendment simplciter and not amendment by way of addition, alteration or repeal. In pursuance of the power conferred by Article V, Article XVIII was added to the American Constitution by the Eighteenth Amendment. Subsequently that article (Article XVIII) was repealed by the Twenty-first Amendment. Sec- tion 1 of Article XXI was in the following words :"the Eighteenth Article of amendment to the Constitution of the united States is hereby repealed. "the addition of the Eighteenth Article, though challenged, was upheld by the Supreme court. No one has questioned the repeal of the eighteenth article on the ground that the power of amendment would not include the power to repeal.

( 1442 ) I cannot subscribe to the view that an amendment of the Consti- tution must keep alive the provision sought to be amended and that it must be consistent with that provision. Amendment of Constitution has a wide and broad connotation and would embrace within itself the total repeal of some articles or their substitution by new articles which may not be consistent with or in conformity with earlier articles. Amendment in Article 368 has been used to denote change. This is clear from the opening words of the proviso to Article 368 according to which ratification by not less than half of State legislatures would be necessary if amendment seeks to make a change in the provisions of the Constitution mentioned in the proviso. The word change has a wide amplitude and would necessarily cover cases of repeal and replacement of earlier provisions by new provisions of different nature. Change can be for the better as well as for the worse. Every amendment would always appear to be a change for the worse in the eyes of those who oppose the amendment. 'as against that, those who sponsor an amendment would take the stand that it is a change for the better. The court in judging the validity of an amendment would not enter into the arena of this contro- versy but would concern itself with the question as to whether the constitu- tional requirements for making the amendment have been satisfied. An amendment of the constitution in compliance with the procedure prescribed by Article 368 cannot be struck down by the court on the ground that it is a change for the worse. If the court were to strike down the amendment on that ground, it would be tantamount to the court substituting its own opinion for that of the Parliament, reinforced in certain cases by that of not less than half of State Legislatures, regarding the wisdom of making the impugned Constitutional amendment. Such a course, which has the effect of empowering the court to sit in appeal over the wisdom of the Parliament in making constitutional amendment, on the supposed assumption that the court has superior wisdom and better capacity to decide as to what is for the good of the nation is not permissible. It would, indeed, be anunwar- ranted incursion into a domain which essentially belongs to the representa- tives of the people in the two Houses of Parliament, subject to ratification in certain cases by the State Legislatures. We may in this context recall the words of Holmes,. , in Lochner v. New York:"this case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I ' agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. "the above observations were contained in the dissent of Holmes,. The above dissent has subsequently been accepted by the U. S. Supreme court to lay down the correct law (see Ferguson v. Skrupa wherein it has been observed by the court :"in the face of our abandonment of the use of the 'vague contours' of the Due Process Clause to nullify laws which a majority of the court believed to be economically unwise, reliance on Adams v. Tanner is as mistaken as would be adherence to Adkins v. Children's hospital, overruled by West Coast Hotel Co. v. Parrish, 300 US 379, 81 l Ed 703, 57sgt578, 108 ALR 1330 (1937 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . We refuse to sit as a 'superlegislature to weigh the wisdom of legislation', and we emphatically refuse to go back to the time when courts used thedue Process Clause 'to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thoughf". "

( 1443 ) IT has also been urged on behalf of the petitioners that the framers of the Constitution could not have intended that even though for the amendment of articles referred to in the proviso to Article 368, ratification of not less than one-half of the State Legislatures would be necessary, in the case of" an amendment which deals with such vital matters as the taking away or abridgment of fundamental rights, the amendment could be brought about without such a ratification. This argument, in my opinion, is untenable. The underlying fallacy of this argument is that it assumes that ratification by the State Legislatures is necessary under the pro- viso in respect of constitutional amendments of great importance, while no such ratification is necessary in the case of comparatively less important amend- ments. Plain reading of Article 368, however, shows that ratification by the state Legislatures has been made imperative in the case of those constitutional amendments which relate to or affect the rights of the States. In other cases no such ratification is necessary. The scheme of Article 36?) is not to divide the articles of the Constitution into two categories, viz. , important and not so important articles. What Article 368 contemplates is that the amending power contained in it should cover all the articles leaving aside those provisions which can be amended by Parliament by bare majority. In the case, how- ever, of such of the articles as relate to the federal principle or the relations of the States with the Union, the framers of the Constitution put them in the proviso and made it imperative to obtain ratifications by not less than half of the State Legislatures in addition to the two-thirds majority of the members present and voting in each House of the Parliament for bringing about the amendment. It is plain that for the purpose of ratification by the State Legis- latures, the framers of the Constitution attached greater importance to the federal structure than to the individual rights. Such an approach is gener- ally adopted in the case of a provision for amendment of the federal Consti- tution. K. C. Wheare in his book on the Federal government has observed on page 55:"it is essential in a federal government that if there be a power of amending the Constitution, that power, so far at least as concerns those provisions of the Constitution which regulate the status and powers of the general and regional government, should not be confided exclusively either to the general governments or to the regional governments. "we may in this context refer to the speech of Dr. Ambedkar who while dealing with the category of articles for the amendment of which ratification by the States was required, observed :"now we have no doubt put certain articles in a third category where for the purposes of amendment the mechanism is somewhat different or double. It requires two-thirds majority plus ratification by the States. I shall explain why we think that in the case of certain articles it is desirable to adopt this procedure. If Members of the House who are interested in this matter are to examine the articles that have been put under the proviso, they will find that they refer not merely to the centre but to the relations between the centre and the provinces. We can not forget the fact that while we have in a large number of cases invaded provincial autonomy, we still intend and hive as a matter of fact seen to it that the federal structure of the Constitution remains funda- mentaly unaltered. We have by our laws given certain rights toprovinces, and reserved certain rights to the centre. We have distributed legislative authority; we have distributed executive authority and we have distributed administrative authority. Obviously to say that even those articles of the Constitution which pertain to the administrative, legislative, financial and other powers, such as the executive powers of the provinces should be made liable to alteration by the central parliament by two-thirds majority, without permitting the provinces or States to have any voice, is in my judgment altogether nullifying the fundamentals of the Constitution. "

( 1444 ) LEARNED counsel for the petitioners has addressed us at some length on the point that even if there are no express limitations on the power of amendment, the same is subject to implied limitations, also described as inherent limitations. So far as the concept of implied limitations is con- cerned, it has two facets. Under the first facet, they are limitations which flow by necessary implications from express provisions of the Constitution. The second facet postulates limitations which must be read in the Constitu- tion irrespective of the fact whether they flow from express provisions or not because they are stated to be based upon certain higher values which are very dear to the human heart and are generally considered essential traits of civilized existence. It is also stated that those higher values constitute the spirit and provide the scheme of the Constitution. This aspect of implied limitations is linked with the existence of natural rights and it is stated that such rights being of paramount character, no amendment of Constitution can result in their erosion.

( 1445 ) IT may at this stage clarify that there are certain limitations which inhere and are implicit in the word ""amendment". These are limi- tations which flow from the use of the word ""amendment" and relate to the meaning or construction of the word "'amendment'. This aspect has been dealt with elsewhere while construing the word "amendments. Subject to this clarification, we may now advert to the two facets of the concept of implied limitations referred to above.

( 1446 ) SO far as the first facet is concerned regarding a limitation which flows by necessary implication from an express provision of the Constitution, the concept derives its force and is founded upon a principle of interpretation of statutes. In the absence of any compelling reason it may be said that a constitutional provision is not exempt from the operation of such a principle. I have applied this principle to Article 368 and despite that, I have not been able to discern in the language of that article or other relevant articles any implied limitation on the power to make amendment contained in the said article.

( 1447 ) WE may now deal with the second aspect of the question which pertains to limitation on the power of making amendment because such a limitation, though not flowing from an express provision, is stated to be based upon higher-values which are very dear to the human heart and are considered essential traits of civilized existance. So far as this aspect is con- cerned, one obvious objection which must strike every one is that the Consti- tution of India is one of the lengthiest Constitutions, if not the lengthiest, of the world. The framers of the Constitution dealt with different constitutional matters at considerable length and made detailed and exhaustive provisions about them. Is it then conceivable that after having dealt with the matter so exhaustively and at such great length in express words, they would leave things in the realm of implication in respect of such an important article as that relating to the amendment of the Constitution ? If it was intendedthat limitations should be read on the power of making amendment, ques- tion would necessarily arise as to why the framers of the Constitution refrained from expressly incorporating such limitations on the power of amendment in the Constitution itself. The theory of implid limitations on the power of making amendment may have some fascination and attraction for political theorists, but a deeper reflection would reveal that such a theory is based upon a doctrinaire approach and not what is so essential for the purpose of construing and working a Constitution, viz. , a pragmatic and practical approach. . This circumstance perhaps accounts for the fact that the above theory of implied limitations has not been accepted by the highest court in any country.

( 1448 ) AS 'the concept of implied limitations on the power of amend- ment under the second aspect is not based upon some express provision of the Constitution, it must be regarded as essentially nebulous. The concept has no definite contours and its acceptance would necessarily introduce elements of uncertainty and vagueness in a matter of so vital an importance as that pertaining to the amendment of the Constitution. Whatever might be the justification for invoking the concept of implied limitations in a short constitution so far as the Constitution of India with all its detailed pro- visions is concerned, there is hardly any scope or justifications for invoking the above concept. What was intended by the framers of the -Constitution was put in express words and, in the absence of any words which may expressly or by necessary implication point to the existence of limitations on the power of amendment, it is, in my opinion, not permissible to read such limitation in the Constitution and place them on the power of amendment. I find it difficult to accede the submission that the framers af the Constitution after having made such detailed provisions for different subjects left something to be decided by implication, that in addition to what was said there were things which were not said 'but which were intended to be as effective as things said. The quest for things not said, but which were to be as effective as things said, would take us to the realm of speculation and theorising and must bring in its wake the uncertainty which inevitably is there in all such speculation and theorising. All the efforts of the framers of the Constitution to make its provisions to-be definite and precise would thus be undone. We shall be in doing so, not merely ignoring but setting at naught what must be regarded as a cardinal principle that a Constitution is not a subject of fastidious and abstract dialectics but has to be worked on a practical plane so that it may become a real and effective vehicle of the nation's progress. As observed by Story in Para 451 of the Constitution of the United States, volume I : Constitutions are not designed for metaphysical or logical subtle- ties, for niceties of expression, for critical propriety, for elaborate shades of meaning; or for the exercise of philosophical acuteness, or judicial research. They are instruments of practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings.

( 1449 ) IN the National Prohibition cases (supra) the petitioners challenged before the U. S. Supreme court the validity of the Eighteenth Amendment relating to prohibition. It was urged that the aforesaid amendment had resulted in encroachment upon the police power of the States. There was implied limitation on the power to make such an amendment, according to the petitioners in those cases, under Article 5 of the U. S. Constitution. Although the Supreme court gave no reasons in support of its conclusions, it upheld the validity of the Eighteenth Amendment. Argument about the implied limitations on the power of amendment was thus tacitly rejected.

( 1450 ) EMINENT authors like Rottschaefer and Willis have taken the view that the theory of implied limitations should be taken to have been rejected in the National Prohibition cases (supra) by the U. S. Supreme court. Rottschaefer in Handbook of American Constitutional Law has observed on pages 8 to 10 : "the only assumption on which the exercise of the amending power would be inadequate to accomplish those results would be the existence of express or implied limits on the subject-matter of amend- ments. It has been several times contended that the power of amending the federal Constitution was thus limited, but the Supreme court has thus far rejected every such claim, although at least one state court has subjected the power of amending the state Constitution to an implied limit in this respect. The former position is clearly the more reasonable, since the latter implies that the ultimately sovereign people have inferentially deprived themselves of that portion of their sovereign power, once possessed by them, of determining the content of their own fundamental law. "

( 1451 ) QUESTION of implied limitation on the powers to make amendment also arose in the case of Jeremish Ryan and Others v. Captain Michael lennon. Article 50 of the Constitution of the Irish Free State which came into force on 6/12/1922, as originally enacted, provided as follows:"amendments of this Constitution within the terms of the Scheduled treaty may be made by the Oireachtas, but no such amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a a majority of the votes on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters in the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation and as such shall be subject to the provisions of Article 47 hereof. "

( 1452 ) BY the Constitution (Amendment No. 10) Act, 1928, passed within the said period of eight years, the Constitution was amended by, inter alia, the deletion of Article 47 (dealing with referendum) and the deletion from Article 50 of the words "and as such shall be subject to the provisions of Article 47 thereof". By the Constitution (Amendment No. 16) Act, 1929, also passed within the said period of eight years. Article 50 was amended by the substitution of the words "sixteen years" for the words "eight years" therein. By the Constitution (Amendment No. 17) Act, 1931 the Constitution was amended by inserting therein a provision relating to the establishment of a tribunal consisting of officers of Defence Forces to try a number of offences. Power of detention on suspicion in certain cases was also conferred. It was in the context of the validity of the establishment of such tribunals that the question arose as to whether there was an implied limitation on the power to make amendment. It was held by the Supreme court (Fitz Gibbon and Murnaghan.. and Kennedy, C.. , disagreeing), while dealing with the first two amendments, that these enactments were within the power of amendment conferred on the Oireachtas by Article 50 and werevalid amendments of the Constitution; and that, consequently, an amendment of the Constitution enacted after the expiry of the original period of eight years was not invalid by reason of not having been submitted to a referendum of the people under Article 50 or Article 47 as originally enacted. Dealing with the Constitution (Amendment No. 17) Act, 1931 it was held by the same majority that it was a valid amendment and was not ultra vires by reason of involving a partial repeal of the Constitution or by reason of conflicting with specific articles of the Constitution such as Article 6 relating to the liberty of the person. Article 64 relating to the exercise of judicial power or Article 72 relating to the trial by jury or by reason of infringing or abrogating other articles of the Constitution or principles underlying the various articles of the Constitution which were claimed to be fundamental and immutable. Kennedy, C.. , after referring to the different articles of the Constitution, held that there was not, either expressly or by necessary implication, any power to amend the power of amendment itself. He observed in this connection :"no doubt the Constituent Assembly could, if it had so intended, have given a power of amendment of the power to amend the Constitution, but in that case it would seen far more likely "that it would rather have conferred on the Oireachtas a general open and free power of amendment of the Constitution, unlimited in scope and without limiting and restraining requirements for its exercise, than have done the same thing indirectly by giving a strictly limited power with power to remove the limitations. The Constituent Assembly clearly, to my mind, did not so intend. In my opinion, on the true interpretation of the power before us, upon a consideration of the express prohibition, limitations and requirements of the clause containing it, the absence of any express authority, the donation of the effective act in the exercise of the power to the people as a whole, the relevant surrounding circumstances to which I have already referred, and the documents and their tenor in their entirety, there is not here, either expressly or by necessary implication, any power to amend the power of amendment itself. "fitz Gibbon,. , dealt with this question in these words :"unless, therefore, these rights appear plainly from' the express provisions of our Constitution to be inalienable, and incapable of being modified or taken away by any legislative act, I cannot accede to the argument that the Oireachtas cannot alter, modify, or repeal them. The framers of our Constitution may have intended 'to bind man down from mischief by the chains of the Constitution', but if they did, they defeated their object by handing him the key of the padlock in article 50. "murnagham,. , observed:"the terms in which Article 50 is framed does authorise the amendment made and there is not in the Article any express limitation which excludes Article 50 itself from the power of amendment. I cannot, therefore, find any ground upon which the suggested limitation can be properly based. "

( 1453 ) THE theory of implied limitations on the power of amendment was thus rejected by the majority of the Judges of the Irish Supreme court. It would further appear that the crucial question which arose for determination in that case was whether there was any power to amend the article relating to amendment of the Constitution or whether there was anyrestriction in this respect. No such question arises under our Constitution because there is an express provision in clause (e) of the proviso to article 368 permitting such amendment. Apart from that I find that in the case of Moore and Others v. The Attorney-General for the Irish Free State and others the counsel for the appellant did not challenge the constitutional validity of the 1929 amendment. The counsel conceded that the said amendment was regular and that the validity of the subsequent amendments could not be attacked on the ground that they had not been submitted to the people in a referendum. Dealing with the above concession, the judicial Committee observed that the counsel had rightly conceded that point. The Judicial Committee thus expressed its concurrence with the conclusion of the majority of the Irish Supreme court relating to the constitutional validity of the Amendment Act of 1929.

( 1454 ) A. B. KEITH has also supported the view of the majority and has observed that the view of the. chief justice in this respect was wrong (see letters on Imperial Relations: Indian Reform Constitutional and International Law 1916-1935 p. 157 ). Keith observed in this connection:"but that the chief justice was wrong on this head can hardly be denied. Article 50 of the Constitution, which gave the power for eight years to effect changes by simple Act, did not prevent alteration of that Article itself, and, when the Constitution was enacted, it was part of the. constitutional law of the Empire that a power of change granted by a Constitution applies to authorise change of the power itself, unless it is safeguarded, as it normally is, by forbidding change of the S. giving the power. The omission of this precaution in the free State Constitution must have been intentional, and therefore it was natural that the Dail, at Mr. Consgrave's suggestion, and with the full approval of Mr. de. Valera, then in opposition should extend the period for change without a referendum. "

( 1455 ) DEALING with the doctrine of implied limitations on the power of amendment, Or field observes:"today at a time when absolutes are discredited, it must not be too readily assumed that there are fundamental purposes in the Constitution which shackle the amending power and which take precedence over the general welfare and needs of the people of today and of the future. " [see The Amending of the Federal Constitution (1942), p. 107]. It has been further observed :"an argument of tremendous practical importance is the fact that it would be exceedingly dangerous to lay down any limitations beyond those expressed. The critics of an unlimited power to amend have too often neglected to give due consideration to the fact that alteration of the federal Constitution is not by a simple majority or by a somewhat preponderate majority, but by a three-fourths majority of all the states. Undoubtedly, where a simple majority is required, it is not an especially serious matter for the courts to supervise closely the amending process both as to procedure and as to substance. But when so large a. majority as three-fourths has finally expressed its will in the highest possible form outside of revolution, it becomes perilous for the judiciary to intervene. " {see ibid p. 120 ). Or field in this context quoted the following passage from a judicial decision :"impressive words of counsel remind us of our duty to maintain the integrity of constitutional government by adhering to the limitations laid by the sovereign people upon the expression of its will. . . . . . . . . Not less imperative, however, is our duty to refuse to magnify their scope by resort to subtle implication-Repeated decisions have informed ua that only when conflict with the Constitution is clear and indisputable will a statute be condemned as void. Still more obvious is the duty of caution and moderation when the act to be reviewed is not an act of ordinary legislation but an act of the great constituent power which has made Constitutions and hereafter may unmake them. Narrow at such times are the bounds of legitimate implications. " (See ibid p. 121 ). H. E. Willis has rejected the theory of implied limitations in his book "constitutional Law of the United States" in the following words :"but it has been contended that there are all sorts of implied limitations upon the amending power. Thus it has been suggested that no amendment is valid unless it is germane to some thing else in the constitution, or if it is a grant of a new power, or if it is legislative in form, or if it destroys the powers of the states under the dual form of government or if it changes the protection to personal liberty. The united States Supreme court has brushed away all of these arguments,. . . . . . " (see p. 123 ).

( 1456 ) WE may now deal with the concept of natural rights. Such rights are stated to be linked with cherished values like liberty, equality and democracy. It is urged that such rights are inalienable and cannot be affected by an amendment of the Constitution. I agree with the learned counsel for the petitioners that some of the natural rights embody within themselves cherished values and represent certain ideals for which men have striven through the ages. The natural rights have, however, been treated to be not of absolute character but such as are subject to certain limitations. Man being a social. being, the exercise of his rights has been governed by his obligations to the fellow beings and the society, and as such the rights of the individual have been subordinated to the general weal. No one has been allowed to so exercise his rights as to impinge upon the rights of others. Although different streams of thought still persist, the later writers have generally taken the view that natural rights have no proper place outside the constitution and the laws of the state. It is up to the state to incorporate natural rights, or such of them as are deemed essential, and subject to such limitations as are considered appropriate, in the Constitution or the laws made by it. But independently of the Constitution and the laws of the state, natural rights can have no legal sanction and cannot be enforced. The courts look to the provisions of the Constitution and the statutory law to determine the rights of individuals. The binding force of constitutional and statutory provisions cannot be taken away nor can their amplitude and width be restricted by invoking the concept of natural rights. Further, as natural rights have no place in order to be legally enforceable outside the provisions of the Constitution and the statute, and have to be granted by the constitutional or statutory provisions, and to the extent and subject to such limitations as are contained in those provisions, those rights, having been once incorporated in the Constitution or the statute, can be abridged or taken away by amendment of the Constitution or the statute. The rights, as such, cannot be deemed to be supreme or of superior validity to the enactments made by the state, and not subject to the amendatory process,

( 1457 ) IT may be emphasised in the above context that those who refuse to subscribe to the theory of enforceability of natural rights do not deny that there are certain essential values in life, nor do they deny that there are certain requirements necessary for a civilized existence. It is also not denied by them that there are certain ideals which have inspired mankind through the corridor of centuries and that there are certain objectives and desiderata for which men have struggled and made sacrifices. They are also conscious of the noble impulses yearning for a better order of things, of longings natural in most human hearts, to attain a state free from imperfections where higher values prevail and are accepted' Those who do not subscribe to the said theory regarding natural rights, however, do maintain that rights in order to be justiciable and enforceable must form part of the law or the Constitution, that rights to be effective must receive their sanction and sustenance from the law of the land and that rights which have not been codified or otherwise made a part of the law, cannot be enforced in courts of law nor can those rights override or restrict the scope of the plain-language of the statute or the constitution.

( 1458 ) WILLOUGH by while dealing with the concept of natural rights has observed in Vol. I of Constitution of the United States:"the so-called "natural" or unwritten laws defining the natural, inalienable, inherent rights of the citizen, which, it is sometimes claimed, spring from the very nature of free government, have no force either to restrict or to extend the written provisions of the Constitution. The utmost that can be said for them is that where the language of the constitution admits of doubt, it is to be presumed that authority is not given for the violation of acknowledged principles of justice and liberty. "

( 1459 ) IT would be pertinent while dealing with the natural rights to reproduce the following passage from Salmond on Jurisprudence, Twelfth edition:"rights, like wrongs and duties, are either moral or legal. A moral or natural right is an interest recognized and protected by a rule of morality-an interest the violation of which would be a moral wrong, and respect for which is a moral duty. A legal right, on the other hand, is on interest recognized and protected by a rule of law an interest the violation of which would be a legal wrong done to him whose interest it is, and respect for which is a legal duty. Bentham set the fashion still followed by many of denying that there are any such things as natural rights at all. Ail rights are legal rights and the creation of the law. "natural Law, natural rights', he says, "are two kinds of fictions or metaphors, which play so great a part in books of legislation, that they deserve to be examined by themselves. . . . . . Rights properly so called are the creatures of law properly so called; real laws give rise to real rights. Natural rights are the creatures of natural law; they are a metaphor which derives its origin from another metapnor'. Yet the claim that men have natural rights need not involve us in a theory of natural law. In so far as we accept rules and principles of morality prescribing how men ought to behave, we may speak of there being moral or natural rights and in so far as these rules lay down that men have certain rights, we may speak, of moral or natural rights. The fact that such natural or moral rights and duties are not prescribed inblack and white like their legal counterparts points to adistinction between law and morals; it does not entail the complete non- existence of moral rights and duties. " (See pp. 218-219 ).

( 1460 ) THE observations on page 61 of P. W. Peterson's 'natural Law and natitral Rights' show that the theory of natural rights which was made so popular by John Locke has since ceased to receive general acceptance. Locke had propounded -the theory that the community perpetually retains a supreme power of saving themselves from the attempts and designs of anybody, even of their legislators whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject (see Principles of Civil government Book, 2 S. 149 ).

( 1461 ) WHILE dealing with natural rights, Rescoe Pound states on page 500 of Vol. 1 of his Jurisprudence:"perhaps nothing contributed so much to create and foster hostility to courts and law and constitutions as this conception of the courts as guardians of individual natural rights against the state and against society; this conceiving of the law as a final and absolute body of doctrine declaring these individual natural rights ; this theory of constitutions as declaratory of common law principles, which are also natural law principles, anterior to the state and of superior validity to anactments by the authority of the state ; this theory of Constitutions as having for their purpose to guarantee and maintain the natural rights of individuals against the government and all its agencies. In effect, it set up the received traditional social, political, and economic ideals of the legal profession as a super-constitution, beyond the reach of any agency but judicial decision. "

( 1462 ) I may also in this connection refer to a passage on the inherent and inalienable rights in A History of American Political Theories by C. Merriam:"by the later thinkers the idea that men possess inherent and inalienable rights of a political or quasi-political character which are independent of the state, has been generally given up. It is held that these natural rights can have no other than an ethical value, and have no proper place in politics. 'there never was, and there never can be/ says Burgess, 'any liberty upon this earth and almong human beings, outside of state organization. In speaking of natural rights, therefore, it is essential to remember that these alleged fights have no political force whatever, unless recognized and enforce by the State. It is asserted by Willoughby that 'natural rights' could not have even a moral value in the supposed "state of nature"; they would really be equivalent to force and hence have no ethical signifance. " (see p. 310 ).

( 1463 ) IT is then argued on behalf of the petitioners that essential features of the Constitution cannot be changed as a result of amendment. So far as the expression "essential features" means the basic structure or framework of the Constitution, I have already dealt with the question as to whether the power to amend the Constitution would include within itself the power to change the basic structure or framework of the Constitution. Apart from that, all provisions of the Constitution are subject to amendatory process and cannot claim exemption from that process by being described essential features.

( 1464 ) DISTINCTION has been made on behalf of the petitioners between a fundamental right and the essence, also described as core, of that fundamental right. It is urged that even though the Parliament in compliance with Article 368 has the right to amend the fundamental right to property, it has no right to abridge or take away the essence of that right. In my opinion, this differentiation between fundamental right and the essence or core of that fundamental right is an over-refinement which is not permissible and cannot stand judicial scrutiny. If there is a power to abridge or take away a fundamental, right, the said power cannot be curtailed by invoking the theory that though a fundamental right can be abridged or taken away, the essence or core of that fundamental right cannot be abridged or taken away. The essence or core of a fundamental right must in the nature of things be its integral part and cannot claim a status or protection different from and higher than that of the fundamental right of which it is supposed to be the essence or core. There is also no objective standard to determine as to what is the core of a fundamental right and what distinguishes it from the periphery. The absence of such a standard is bound to introduce uncertainty in a matter of so vital an importance as the amendment of the Constitution. I am, therefore, unable to accept the argument, that even if a fundamental right be held to be amendable, the core or essence of that right should be held to be immune from the amendatory process.

( 1465 ) THE enforcement of due process clause in Fourteenth Amendment of U. S. Constitution, it is submitted on the petitioners behalf, has not caused much difficulty and has not prevented the U. S. courts from identifying the area wherein that clause operates. This fact, according to the submission, warrants the conclusion that the concept of implied limitation on the power of amendment would also not cause much difficulty in actual working. I find considerable difficulty to accede to the above submission. The scope of due process clause in Fourteenth Amendment and of power of amendment of Constitution in Article 368 is different; the two provisions operate in different areas, they are meant to deal with different subjects and there is no similarity in the object of Fourteenth Amendment and that of Article 368. Any attempt to draw analogy between the two, in my opinion, is far fetched.

( 1466 ) IT may be mentioned that the Draft Report of the Sub-Committee on Fundamental Rights initially contained Clause 11, according to which "no person shall be deprived of his life, liberty or property without due process of law". It was then pointed out that a vast volume of case law had gathered around the words "due process of law" which were mentioned in the Fifth and the Fourteenth Amendment of the U. S. Constitution. At first those words were regarded only as a limitation on procedure and not on the substance of legislation. Subsequently those words were held to apply to matters of substantive law as well. It was further stated that "in fact, the phrase 'without due process of law' appears to have become synonymous with 'without just cause' the court being the judge of what is 'just cause' and since the object of most legislation is to promote the public welfare by restraining. and regulating individual rights of liberty and property the court can be invited, under this clause, to review almost any law". View was also expressed that Clause 11 as worded might hamper social legislation. Although the members of the Committee felt that there was no case for giving a carte blanche to the government to arrest, except in a grave emergency, any person without "due process of law', there was considerable support for the view that due process clause might hamper legislation dealing with property and tenancy. A compromise formula was then suggested by Mr. Panikkarand with the support of Mr. Munshi, Dr. Ambedkar and Mr. Rajagopachari the suggestion was adopted that the word "property" should be omitted from the clause. In the meanwhile, Mr. B. N. Rau, during his visit to america had discussion with Justice Frankfurter of the U. S. Supreme court who expressed the opinion that the power of review implied in the "due process" clause was not only undemocratic (because it gave a few judges the power of vetoing legislation enacted by the representatives of the nation) but also threw an unfair burden on the judiciary. This view was communicated to the Drafting Committee-which replaced the expression "without due process of law" by the expression "except according to procedure established by law". The newly inserted words were borrowed from Article 31 of the japanese Constitution (see pages 232-235 of the Framing of India's Constitution : Study by Shiva Rao ). Reference to the proceedings of the Drafting committee shows that a major factor which weighed for the elimination of the expression "due process of law" was that it had no definite contours. In case the view is now accepted that there are implied limitations on the power of making amendment, the effect would necessarily be to introduce an element of vagueness and indefiniteness in our Constitution which our Constitution-makers were so keen to avoid.

( 1467 ) OUR attention has been invited to the declaration of human rights in the Charter of the United Nations. It is pointed out that there is similarity between the fundamental rights mentioned in Part III of the constitution and the human rights in the Charter. According to Article 56 of the Charter, all members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55, Article 55. inter alia, provides that the united Nations shall promote universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. It is submitted on behalf of the petitioners that if the power of amendment of the Constitution under Article 368 were to include the power to abridge or take away fundamental rights, the amendment might well have the effect of curtailing-or doing away with some of the human rights mentioned in the United Nations Charter. In this respect I am of the view that the width and scope of the power of amendment of the constitution would depend upon the provisions of the-Constitution. If the provisions of the Constitution are clear and unambiguous and contain no limitations on the power of amendment, the court would not be justified in grafting limitations on the power of amendment because of an apprehension that the amendment might impinge upon human rights contained in the united Nations Charter. It is only in cases of doubt or ambiguity that the courts would interpret a statute as not to make it inconsistent with the comity of nations or established rules of international law, but if the language of the statute is clear, it must be followed notwithstanding the conflict between municipal law and international law which results, (see maxwell on The Interpretation of Statutes, Twelfth Edition, p. 183 ). It has been observed on page 185 :"but if a statute is clearly inconsistent 'with international law or the comity of nations, it must be so construed, whatever the effect of such a construction may be. There is, for instance, no doubt that a right conferred on an individual by a treaty made with the Crown may be taken from him by act of the legislature. "the above observations apply with greater force to a constitutional pro- vision as such provisions are of a paramount nature. It has already been mentioned above that the provisions of our Constitution regarding the powerof making amendment are clear and unambigious and contain no limitation on that power. I, therefore, am not prepared to accede to the contention that a limitation on the power of amendment should be read because of the declaration of Human Rights in the UN Charter.

( 1468 ) I may mention in the above context that it is always open to a state to incorporate in its laws the provisions of an international treaty, agreement or convention. In India the provisions of the Geneva Conventions have been incorporated in the Geneva Conventions Act, 1960 (Act 6 of 1960 ). According to 'the Treaties of European Communities, a State on becoming a member of the European Economic Communities (EEC) has to give primacy to the Community law over the national laws. The principle of primacy of Community laws was accepted in six countries of the European communities. Three of them, namely, Netherlands, Luxembourg and belgium specifically amended their written constitutions to secure, as far as possible, the principle of the primacy of the Community law. The other three, namely, France, Germany and Italy have also constitutional provisions under which it would be possible for the courts in those countries to concede primacy to the Treaties of European Communities, and thus through them secure the primacy of the Community law. Ireland which became a new member of EEC with effect from January 1, 1973 has amended its constitution by the Third Amendment of the Constitution Bill, 1971. This bill has been approved In a referendum. The relevant part of the Amendment reads as under:"no provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof. from having the force of law in the State. "in Britain also, primacy of the European Community law over the domestic law has been recognized by S. 2 of the European Communities act, 1972. Question is now engaging the attention of constitutional experts as to whether it has become necessary to place limitations on the legislative powers of the British Parliament and whether it is on that account essential to have a written Constitution for the United Kingdom (see July, 1972 modern Law Review, p. 375 onwards on the subject of Parliamentary Sovereignty and the Primacy of European Community Law ).

( 1469 ) I am also of the view that the power to amend the provisions of the Constitution relating to the fundamental rights cannot be denied by describing the fundamental rights as natural rights or human rights. The basic dignity of man does not depend upon the codification of the fundamental rights nor is such codification a prerequisite for a dignified way of living. There was no constitutional provision for fundamental rights before 26/01/1950 and yet can it be said that there did not exist conditions for dignified way of living for Indians during the period between 15/08/1947 and 26/01/1950. The plea that provisions of the Constitution, including those of Part III, should be given retrospective effect has been rejected by this court. Article 19 which makes provision for fundamental rights, is not applicable to persons who are not citizens of India. Can it, in view of that, be said that the non-citizens cannot while staying in India lead a dignified life? It would, in my opinion, be not a correct approach to say that amendment of the Constitution relating to abridgement or taking away of the fundamental rights would have the effect of denuding human beings ofbasic dignity and would result in the extinguishment of essential values of life.

( 1470 ) IT may be mentioned that the provisions of Article 19 show that the framers of the Constitution never intended to treat fundamental rights to be absolute. The fact that reasonable restrictions were carved in those rights clearly negatives the concept of absolute nature of those rights. There is also no absolute standard to determine as to what constitutes a fundamental right. The basis of classification varies from country to country. What is fundamental right in some countries is not so in other countries. On account of the difference between the fundamental rights adopted in one country and those adopted in another country, difficulty was experienced by our constitution-makers in selecting provisions for inclusion in the Ch. on fundamental rights (see in this connection Constitutional Precedents, III Series on Fundamental Rights p. 25 published by the Constituent Assembly of India ).

( 1471 ) REFERENCE has been made on behalf of the petitioners to the preamble to the Constitution and it is submitted that the Preamble would control the power of amendment. Submission has also been made in the above context that there is no power to amend the Preamble because, according to the submission. Preamble is not a part of the Constitution but "'walks before the Constitution"'. I am unable to accept the contention that the Preamble is not a part of the Constitution. Reference to the debates of the Constituent Assembly shows that there was considerable discussion in the said Assembly on the provisions of the Preamble. A number of amend- ments were moved and were rejected. A motion was thereafter adopted by the Constituent Assembly that "the Preamble stands part of the Consti- tution" (see Constituent Assembly Debates, Vol. X, pp. 429-456 ). There is, therefore, positive evidence to establish that the Preamble is a part of the indian Constitution. In view of the aforesaid positive evidence, no help can be derived from the observations made in respect of other Constitutions on the point as to whether preamble is or is not a part of the Constitution. Apart from that, I find that the observations on pp. 200-201 in Craies on statute Law, Sixth Edition show that the earlier view that preamble of a statute is not part thereof has been discarded and that preamble is as much a part of a statute as its other provisions.

( 1472 ) ARTICLE 394 of the Constitution shows that the said article as well as Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388,391, 392, 393 came into force at once,. e. on 26th day of November, 1949 when the constitution was adopted and enacted and the remaining provisions of the constitution would come into force on the 26th day of January, 1950 '"which day is referred to in this Constitution as the commencement of this Consti- tution". Article 394 would thus show that except for sixteen articles which "were mentioned in that article, the remaining provisions of the Constitution came into force on the 26th day of January, 1950. The words '"the remaining provisions'", in my opinion, would include the 'preamble as well as Part III and Part IV of the Constitution. It may also be mentioned that a proposal was made in the Constituent Assembly by Mr. Santhanam that preamble should come into force on 26/11/1949 but the said pro- posal was rejected.

( 1473 ) AS Preamble is a part of the Constitution, its provisions other than those relating to basic structure or framework, it may Well be argued, are as much subject to the amendatory process contained in Article 368 as other parts of the Constitution. Further, if Preamble itself is amendable, its provisions other than those relating to basic structure cannot impose anyimplied limitations on the power of amendment. The argument that Pream- ble creates implied limitations on the power of amendment cannot be accepted unless it is shown that the Parliament in compliance with the provisions of article 368 is debarred from amending the Preamble in so far as it relates to matters other than basic structure and removing the supposed limitations which are said to be created by the Preamble. It is not necessary to further dilate upon this aspect because I am of the view that the principle of construction is that reference can be made to Preamble for purpose of construing when the words of a statute or Constitution are ambiguous and admit of two alternative constructions. The preamble can also be used to shed light on and clarify obscurity in the language of a statutory or constitutional provision. When, however, the language of a S. or article is plain and suffers from no ambiguity or obscurity, no gloss can be put on the words of the S. or article by invoking the Preamble. As observed by Story on Constitution, the Preamble can never be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se, it can never amount by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution. Its true office is to expound the nature, and extent, and application of the powers actually conferred by the Constitution, and not substantively to. create them : (see para 462 ). The office of the Preamble has been stated by the House of Lords in Attorney-General v. H. R. H. Prince Earnest Augustus of hanover. In case. Lord Normand said :"'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 provisions. The Preamble is not, however, of the same weight as an aid to construction of a S. of the Act as are other relevant enacting words to be found elsewhere in the Act or even in related Acts. There may be no exact correspondence between Preamble and enactment, and the enactment may go beyond, or it may fall short of the indications that may be gathered from the Preamble. Again, the preamble cannot be of much or any assistance in construing pro- visions which embody qualifications or exceptions from the operation of the general purpose of the Act. It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail. . . . . . . . . . . . If they (the enacting words) 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. "

( 1474 ) IN the President's reference In Re: The Berubari Union and Exchange of enclaves, the matter related to the implementation of the agreement between the Prime Ministers of India and Pakistan regarding the division of berubari Union and for exchange of Cooch-Behar Enclaves in Pakistan and pakistan enclaves in India. The contention which was advanced on behalf of the petitioner in that case was that the agreement was void as it ceded part of Indians territory, and in this connection, reference was made to the preamble to the Constitution. Rejecting the contention this court after referring to the words of Story that preamble to the Constitution is "a. key to open the minds of the makers" which may show the general purposes forwhich they made the several provisions, relied upon the following observations of Willoughby about the Preamble to the American Constitution :"it has never been regarded as the source of any substantive power conferred on the government of the United States, or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted. "to the above observations this court added :"what is true about the powers is equally true about the prohibitions and limitations. "

( 1475 ) APART from what has been stated above about the effect of preamble on the power of amendment, let us deal with the provisions of the Preamble itself. After referring to the solemn resolution of the people of India to constitute India into a sovereign democratic republic, the Preamble makes mention of the different objectives which were to be secured to all its citizens. These objectives are:justice, social, economic, and political;liberty of thought, expression, belief, faith and worship;equality of status and of opportunity; and to promote among them all;fraternity assuring the dignity of the individual and the unity of the Nation. It would be seen from the above that the first of the objectives mentioned in the Preamble is to secure to all citizens of India Justice, social, economic and political. Article 38 in Part IV relating to the Directive Principles of State policy recites that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

( 1476 ) SINCE the latter half of the eighteenth century when the idea of political equality of individuals gathered force and led to the formation of democratic governments, there has been a great deal of extension of the idea of equality from political to economic and social fields. Wide disparaties in the standard of living of the upper strata and the lower strata as also huge concentration of wealth in the midst of abject poverty are an index of social mal-adjustment and if continued for long, they give rise to mass discontent and a desire on the part of those belonging to the lower strata to radically alter and, if necessary, blow up the social order. As those belonging to the lower strata constitute the bulk of the population, the disparties provide a fertile soil for violent upheavals. The prevention of such upheaval is not merely necessary for the peaceful evolution of society, it is also in the interest of those who belong to the upper strata to ensure that the potential causes for violent upheaval are eliminated. Various remedies have been suggested in this connection and the stress has been laid mainly upon having what is called a welfare state. The modern states have consequently to take steps with a view to ameliorate the conditions of the poor and to narrow the chasm which divides them from the affluent S. of the population. For this purpose the state has to deal with the problems of social security,economic planning and industrial and agrarian welfare. Quite often in the implementation of these policies, the state is faced with the problem of conflict between the individual rights and interests on the one side and rights and welfare of vast S. of the population on the other. The approach which is now generally advocated for the resolving of the above conflict is to look upon the rights of the individuals as conditioned by social responsibility. Harold Laski while dealing with this matter has observed in Encyclopaedia of the Social Sciences:"the struggle for freedom is largely transferred from the plane of political to that of economic rights. Men become less interested in the abstract fragment of political power an individual can secure than in the use of massed pressure of the groups to which they belong to secure an increasing share of the social product. . . . . . so long as there is inequality, it is argued, there cannot be liberty. The historic inevitability of this evolution was seen a century ago by de Tocqueville. It is interesting to compare this insistence that the democratization of political power mean equality and that its absence would be regarded by the masses as oppression with the argument of Lord Acton that liberty and equality are antitheses. To the latter liberty was essentially an autocratic ideal; democracy destroyed individuality, which was the very pith of liberty, by seeking identity of conditions. The modern emphasis is rather towards the principle that material equality is growing inescapable and that the affirmation of personality must be effective upon an immaterial plane. " (see Vol. IX, p. 445 ).

( 1477 ) I may also refer to another passage on page 99 of Grammar of politics by Harold Laski:"the state, therefore, which seeks to survive must continually transform itself to the demands of men who have an equal claim upon that common welfare which is its ideal purpose to promote. We are concerned here, not with the defence of anarchy, but with the conditions of its avoidance. Men must learn to subordinate their self-interest to the common welfare. The privileges of some must give way before the rights of all. Indeed, it may be urged that the interest of the few is in fact the attainment of those rights, since in no other environment is stability to be assured. "

( 1478 ) A modern state has to usher in and deal with large schemes having social and economic content. It has to undertake the challenging task of what has been called social engineering, the essential aim of which is the eradication of the poverty, uplift of the downtrodden, the raising of the standards of the vast mass of people and the narrowing of the gulf between the rich and the poor. As occasions arise quite often when the individual rights clash with the larger interests of the society, the state acquires the power to -subordinate the individual rights to the larger interests of society as a step towords social justice. As observed by Roscoe Pound on page 434 of Volume I of Jurisprudence under the heading "limitations on the Use of Property" :"today the law is imposing social limitations-limitations regarded as involved in social life. It is endeavouring to delimit the individual interest better with respect to social interests and to confine the legal right or liberty or privilege to the bounds of the interest so delimited. "to quote the words of Friedmann in Legal Theory:"but modern democracy looks upon the right to property as oneconditioned by social responsibility by the needs of society, by the balancing of interests' which looms so large in modern jurisprudence, and not as pre-ordained and untouchable private right. " (Fifth Edition, p. 406 ).

( 1479 ) WITH a view to bring about economic regeneration, the state devises various methods and puts into operation certain socio-economic measures. Some of the methods devised and measures put into operation may impinge upon the property rights of individuals. The courts may sometimes be skeptical about the wisdom behind those methods and measures, but that would be an altogether extraneous consideration in determining the validity of those methods and measures. We need not dilate further upon this aspect because we are only concerned with the impact of the Preamble, In this respect I find that although it gives a prominent place to securing the objective of social, economic and political justice to the citizens, there is nothing in it which gives primacy to claims of individual right to property over the claims of social, economic and political justice. There is, as a matter of fact, no clause or indication in the Preamble which stands in the way of abridgement of right to property for securing social, economic and political justice. Indeed, the dignity of the individual upon which also the Preamble has laid stress, can only be assured by securing the objective of social, economic and political justice.


( 1480 ) REFERENCE has been made on behalf of the petitioners to the nehru Report in order to show that in the pre-independence days, it was one of the objectives of national' leaders to have some kind of charter of human rights. This circumstance, in my opinion, has not much material bearing on the point of controversy before us. Our Constitution-makers did incorporate in Part III of the Constitution certain rights and designated them as fundamental rights. In addition to that, the Constitution-makers put in part IV of the Constitution certain Directive Principles. Although those directive Principles were not to be enforceable by any court. Article 37 declared that those principles were nevertheless fundamental in the governance of the country and it should be the duty of the State to apply those principles in making laws. The Directive Principles embody a commitment which was imposed by the Constitution-makers on the State to bring about economic and social regeneration of the teeming millions who are steeped in poverty, ignorance and social backwardness. They incorporate a pledge to the coming generations of what the State would strive to usher in. No occasion has arisen for the amendment of the Directive Principles. Attempts have, however, been made for time to time to amend the fundamental rights in Part. The question with which we are concerned is whether there is power of amendment under Article 368 so as to take away or abridge the fundamental rights. This question would necessarily have to depend upon the language of Article 368 as well as upon the width and scope of the power of amendment under Article 368 and the consideration of the nehru Report in this context would be not helpful. If the language of Article 368 warrants a wide power of amendment as may include the power to take away or abridge fundamental rights, the said power cannot be held to be non-existent nor can its ambit be restricted by reference to Nehru Report. The extent to which historical material can be called in aid has been laid down in Maxwell on Interpretation of Statutes on pages 47-48 as under:"in the interpretation of statutes, the interpreter may call to his aid all those external or historical facts which are necessary for comprehension of the subject-matter, and may also consider whether astatute was intended to alter the law or to leave it exactly where it stood before. But although we can have in mind the circumstances when the act was passed and the mischief which then existed so far as these are common knowledge. . . . . . . . . we can only use these matters as an aid to the construction of the words which Parliament has used. We cannot encroach on its legislative function by reading in some limitation which we may think was probably intended but which cannot be inferred from the words of the Act. "the above observations hold equally good when we are construing the provisions of a Constitution. Keeping them in view we can get no material assistance in support of the petitioners contention from the Nehru Report.

( 1481 ) APART from what has been stated above, we find that both before the dawn of independence as well as during the course of dabates of the constituent assembly stress was laid by the leaders of the nation upon the necessity of bringing about economic regeneration and thus ensuring social and economic justice. The Congress Resolution of 1929 on social and economic changes stated that ""the great poverty and misery of the Indian people are due, not only to foreign exploitation in India but also to the economic structure of society, which the alien rulers support so that their exploitation may continue. In order therefore to remove this poverty and misery and to ameliorate the condition of the Indian masses, it is essential to make revolutionary changes in the present economic and social structure of society and to remove the gross inequalities". The resolution passed by the Congress in 1931 recited that in order to end the exploitation of the masses, political freedom must include real economic freedom of the starving millions. The objectives Resolution which was moved by Pt. Nehru in the Constituent assembly on 13/12/1946 and was subsequently passed by the Constituent Assembly mentioned that there would be guaranteed to all the people of India, "justice, social, economic, and political; equality of status, of opportunity and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality". It would, therefore, appear that even in the Objectives Resolution the first position was given to justice, social economic and political. Pt. Nehru in the course of one of his speeches, said :"the service of India means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us, but as long as there are tears and suffering, so long our work will not be over. "granville Austin in his book ' 'extracts from the Indian Constitution'. Cornerstone of Nation" after quoting the above words of Pt. Nehru has stated :"'two revolutions, the national and the social, had been running parallel in India since the end of the First World War. With independence, the national revolution would be completed, but the social revolution must go on. Freedom, was not an end in itself, only "a means to an end', Nehru had said, "that end being the raising of the people. . . . . . to higher levels and hence the general advancement of humanity". The first task of this Assembly (Nehru told the members) is to free india through a new Constitution, to feed the starving people, and to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity. K. Santhanam, a prominent southern member of the Assembly and editor of a major newspaper, described the situation in terms of three revolutions. The political revolution would end, he wrote, with independence. The social revolution meant "to get (India) out of the medievalism based on birth, religion, custom, and community and reconstruct her social structure on modern foundations of law, individual merit, and secular education'. The third revolution was an economic one: 'the transition from primitive rural economy to scientific and planned agriculture and industry'. Radhakrishnan (now President of india) believed India must have a 'socio-economic revolution' designed not only to bring about "the real satisfaction of the fundamental needs of the common man', but to go much deeper and bring about 'a fundamental change in the structure of Indian society'. On the achievement of this great social change depended India's survival. "if we cannot solve this problem soon' Nehru warned the assembly, "all our paper Constitutions will become useless and purposeless'". . . . . . . . . ''the choice for India' wrote Santhanam," is between rapid evolution and violent revolution because the Indian masses cannot and will not wait for a long time to obtain the satisfaction of their minimum needs'. "what was of greatest importance to most Assembly members, however, was not that socialism be embodied in the Constitution, but that a democratic Constitution and with a socialist bias be framed so as to allow the nation in the future to become as socialist as its citizens desired or its needs demanded. Being, in general, imbued with the goals, the humanitarian bases, and some of the techniques of social democratic thought such was the type of Constitution that Constituent Assembly members created. "dealing with the Directive Principles, Granville Austin writes:"in the Directive Principles, however, one finds an even clearer statement of the social revolution. They aim at making the Indian masses free in the positive sense, free from the passivity engendered by centuries of coercion by society and by nature, free from the abject physical conditions that had prevented them from fulfilling their best selves. By establishing these positive obligations of the State, the members of the Constituent Assembly made it the responsibility of future Indian governments to find a middle way between individual liberty and the public good, between preserving the property and the privilege of the few and bestowing benefits on the many in order to liberate "the powers of all men equally for contributions to the common good'the Directive Principles were a declaration of economic independence, a declaration that the privilege of the colonial era had ended, that the Indian people (through the democratic institutions of the Constitution) had assumed economic as well as political control of the country,and that Indian capitalists should not inherit the empire of British colonialist's. "pt. Nehru, in the course of his speech in support of the Constitution (First amendment) Bill, said:"and as I said on the last occasion the real difficulty we have to face is a conflict between the dynamic ideas contained in the Directive principles of Policy and the static position of certain things that are called 'fundamental' whether they relate to property or whether they relate to something else. Both are important undoubtedly. How are you to get over them? A Constitution which is unchanging and static, it does not matter how good it is, how perfect it is, is a Constitution that has past its use. "again, in the course of his speech in support of the Constitution (Fourth amendment) Bill, Pt. Nehru said:"but, I say, that if that is correct, there is an inherent contradiction in the Constitution between the fundamental rights and the Directive Principles of State Policy. Therefore, again, it is up to this Parliament to remove that contradiction and make the fundamental rights subserve the Directive Principles of State Policy. "

( 1482 ) IT cannot, therefore, be said that the stress in the impugned amendments to the Constitution upon changing the economic structure by narrowing the gap between the rich and poor is a recent phenomenon. On the contrary, the above material shows that this has been the objective of the national leaders since before the dawn of independence, and was one of the underlying reasons for the First and Fourth Amendments of the Constitution. The material further indicates, that the approach adopted was that there should 'be no reluctance to abridge or regulate the fundamental right to property if it was felt necessary to do so for changing the economic structure and to attain the objectives contained in the Directive principles.

( 1483 ) SO far as the question is concerned as to whether the right to property can be said to pertain to basic structure or framework of the constitution, the answer, in my opinion, should plainly be in the negative. Basic structure or framework indicates the broad outlines of the Constitution, while the right to property is a matter of detail. It is apparent from what has been discussed above that the approach of the framers of the Constitution was to subordinate the individual right to property to the social good. Property right has also been changing from time to time. As observed by harold Laski in Grammar of Politics, the historical argument is fallacious if it regards the regime of private property as a simple and unchanging thing. The history of private property-is, above all, the record of the most varied limitations upon the use of the powers it implies. Property in slaves was valid in. Greece and Rome; it is no longer valid today. Laski in this context has quoted the following words of John Stuart Mill :"the idea of property is not some one thing identical throughout history and incapable of alteration. . . . . . at any given time it is a brief expression denoting the rights over things conferred by the law or custom of some given society at that time ; but neither on this point, nor on any other, has the law and custom of a given time and place, a claim to be steno typed for ever. A proposed reform in laws or customs is not necessarily objectionable because its adoption would imply, not theadaptation of all human affairs to the existing idea of property, to the growth and improvement of human affairs. "

( 1484 ) THE argument that Parliament cannot by amendment enlarge its own powers is untenable. Amendment of the Constitution, in the very nature of things, can result in the conferment of powers on or the enlargement of powers of one of the organs of the state. Likewise, it can result in the taking away or abridgement of the powers which were previously vested in an organ of the state. Indeed nearly every expansion of powers and functions granted to the Union government would involve consequential contraction of powers and functions in the government of the States. The same is true of the converse position. There is nothing in the Constitution which prohibits or in any other way prevents the enlargement of powers of parliament as a ' result of Constitutional amendment and, in my opinion, such an amendment cannot be held to be impermissible or beyond the purview of Article 368. Indeed, a precedent is afforded by the Irish case of jeremish Ryan (supra) wherein amendment made by the Oirechtas as a result of which it enlarged its powers inasmuch as its power of amending the constitution without a referendum was increased from eight years to 16 years was held to be valid. Even Kennedy, C.. , who gave a dissenting judgment did not question the validity of the amendment on the ground that Oirechtas had thereby increased its power. He struck it down on the ground that there was no power to amend the amending clause. No such difficulty arises under our Constitution because of the existence of an express provision. I am also unable to accede to the contention that an amendment of the Constitution as a result of which the President is bound to give his assent to an amendment of the Constitution passed in accordance with the provisions of Article 368 is not valid. Article 368 itself gives, inter alia, the power to amend Article 368 and an amendment of Article 368 which has been brought about in the manner prescribed by that Article would not suffer from any constitutional or legal infirmity. I may mention in this context that an amendment of the U. S. Constitution in accordance with Article V of the U. S. Constitution does not require the assent of the president. The change made by the Twenty-fourth Amendment in the constitution of India, to which our attention has been invited, has not done away with the assent of the President but has made it obligatory for him to give his assent to the Constitution Amendment Bill after it has been passed in accordance with Article 368. As it is not now open to the President to withhold his assent to a Bill in regard to a constitutional amendment after it has been duly passed, the element of personal discretion of the president disappears altogether. Even apart from that, under our Constitution the position of the President is that of a Constitutional head and the scope for his acting in exercise of his personal discretion is rather small and limited.

( 1485 ) REFERENCE was made during the course of arguments to the provisions of S. 6 of the Indian Independence Act, 1947. According to to Ss. (1) of that section, the Legislature of each of the new Dominions shall have full power to make laws for that Dominion, including laws having extra-territorial operation. Ss. (6) of the S. provided that the power referred to in Ss. (1) of this S. extends to the making of laws limiting for the future the powers of the Legislature of the Dominion. No help, in my opinion, can be derived from the above provisions because the constituent Assembly framed and adopted the Constitution not on the basis of any power derived from S. 6 of the Indian Independence Act. On the contrary, the members of the Constituent Assembly framed and adopted the constitution as the representatives of the people and on behalf of the peopleof India. This is clear from the opening and concluding words of the preamble to the Constitution. There is, indeed, no reference to the Indian independence Act in the Constitution except about its repeal in Article 395 of the Constitution.

( 1486 ) APART from the above, I find that all that Ss. (6) of Section 6 of the Indian -Independence Act provided for was that the power referred to in Ss. (1) would extend to the making of laws limiting for the future the powers of the Legislature of the Dominion. The Provisional parliament acting as 'the Constituent Assembly actually framed the Constitution which placed limitations on the ordinary legislative power of the future parliaments by providing that the legislative laws would not contravene the provisions of the Constitution. At the same time, the Constituent Assembly inserted Article 368 in the Constitution which gave power to the two Houses of future Parliaments to amend the Constitution in compliance with the procedure laid down in that article. There is nothing in S. 6 of the indian Independence Act which stood in the way of the Constituent Assembly against the insertion of an article in the Constitution conferring wide power of amendment, and I find it difficult to restrict the scope of Article 368 because of anything said in S. 6 of the Indian Independence Act.

( 1487 ) ARGUMENT on behalf of the petitioners that our Constitution represents a compact on the basis of which people joined the Indian Union and accepted the Constitution is wholly misconceived. The part of India other than that comprised in erstwhile Indian States was already one territory on 15/08/1947 when India became free. So for as the erstwhile Indian states were concerned, they acceded to the Indian Union long before the Constitution came into force on 26/01/1950 or was adopted on 26/11/1949. There thus arose no question of any part of India comprising the territory of India joining, the Indian Union on the faith of any assurance furnished by the provisions of the Constitution. Some assurances were given to the minorities and in view of that they gave up certain demands. The rights of minorities are now protected in Articles 25 to 30. Apart from the articles relating to protection to the minorities, the various articles contained in Part III of the Constitution are applicable to all citizens. There is nothing to show that the people belonging to different regions would have or indeed could have declined to either join the Indian Union or to remain in the Indian Union but for the incorporation of articles relating to fundamental rights in the Constitution. . The Constitution containing fundamental rights was framed by the people of India as a whole speaking through their representatives and if the people of India as a whole acting again through their representatives decide to abridge or taking away some fundamental right like one relating to property, no question of breach of faith or violation of any alleged compact can, in my opinion, arise.

( 1488 ) THIS apart, compact means a bargain or agreement mutually entered into, which necessarily connotes a choice and volition for the party to the compact. Whatever may be the relevance or significance of the concept of compact in the context of the U. S. Constitution where different states' joined together to bring into existence the United States of America and where further each one of the States ratified the Constitution after it had been prepared by the Philadelphia Convention, the above concept has plainly no relevance in the context of the Indian Constitution. The whole of India was, as already mentioned, one country long before the Constitution was adopted. There was also no occasion here for the ratification of the constitution by each State after it had been adopted by the Constituent assembly.

( 1489 ) REFERENCE has been made on behalf of the petitioners to the case of Mangal Singh and Another v. Union of India which related to the Punjab Reorganization Act, 1966. This court while upholding the validity of the act dealt with Article 4, according to which any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) (as Parliament may deem necessary, and observed) :"'power with which the Parliament is invested by Articles 2 and 3, is power to admit, establish or form new States which conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise by law is supplemental, incidental or consequential to the admission, establishment or formation of a State as contemplated by the Constitution, and is not power to override the constitutional scheme. No State can therefore be formed, admitted or set up by law under Article 4 by the Parliament which has not effective legislative, executive and judicial organs. "

( 1490 ) THE above passage, my opinion, does not warrant an interence of an implied limitation on the power of amendment as contended on behalf of the petitioners. This court dealt in the above passage with the import of the words '"supplemental, incidental and consequential provisions" and held that these provisions did not enable the Parliament to override the constitutional scheme. The words "constitutional, scheme" had plainly reference to the provisions of the Constitution which dealt with a State, its legislature, judiciary and other matters in Part. Once the State of haryana came into being, it was to have the attributes of State contemplated by the different articles of Part VI in the same way as did the other States. No question arose in that case about limitation on the power of amendment under Article 368 and as such, that case cannot be of any avail to the petitioners.


( 1491 ) LEARNED counsel for the petitioner has invited our attention to the constitutional position specially in the context of civil liberties in Canada. In this respect we find that the opening words of the preamble to the British north America Act, 1867 read as under:"whereas the provinces of Canada, Nova Scotia, and New brunswick have expressed their desire to be federally united into one dominion under the Crown of. the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the united Kingdom:"section 91 of the above mentioned act deals with. the legislative authority of Parliament of Canada. The opening words of S. 91 areas under:"it shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces; and for greater certainty, but not so as to restrict the generality of the foregoing terms of the S. it is hereby declared that (notwithstanding anything in this Act) theexclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated ; that is to say,--"there follows a list of different subjects. The first amongst the subjects, which was inserted by British North America Act, 1949, is : "'the Amendment from time to time of the Constitution of Canada, except, as regards matters coming within the classes of subjects by this Act assigned exclusively to the legislatures of the provinces' or'. . . . . . . . . . . . . . . . . . . . . " it is not necessary to give the details of other limitations on the power of amendment. S. 92 of the British North America Act enumerates the subjects of exclusive provincial legislation. According to this section, in each province the Legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated. There then follows a list of subjects, the first amongst which is '"the amendment from time to time, notwithstanding anything in this Act, of the Constitution of the province, except as regards the office of the Lieutenant governor". In view of the fact that amendment of the Constitution is among the subjects of legislation, the only distinction in Canada, it has been said, between ordinary legislation by Parliament and constitutional law is that the former concerns all matters not specially stated as within the ambit of provincial legislation while the latter concerns any fundamental change in the division of rights. Further, although because of the federal character of the State, the Canadian Constitution cannot be called flexible, it is probably the least rigid of any in the modern federal states (see Modern Political Constitutions by c. F. Strong ).

( 1492 ) IT appears that at least six different views have been propounded in Canada about the constitutional position of basic liberties. To date, the Supreme court of Canada has not given Judicial approval to any of these views. Different members of the court have voiced various opinions on the matter, but all of these fall far short of settling the issue. It should also be noted that the fundamental problem is not whether Parliament or the legislatures may give to the people basic freedoms, but rather which one may interfere with them or take them away (see Civil Liberties in Canada by D. A. Schmeiser, p. 13 ).

( 1493 ) AN important case which had bearing on the question of civil liberties was the Alberta Press case That case related to the validity of an act which had placed limitations on the freedom of the press and the supreme court of Canada held that the Act was ultra vires, since it was ancillary to and dependent upon the Alberta Social Credit Act, which itself was ultra vires. Three of Judges, including Duff, C.. , went further than this, and dealt with the freedom of speech and freedom of Press. It was observed that curtailment of the exercise of the right of the public discussion would interfere with the working of Parliamentary institutions of Canada. Opinion of Duff, C.. , was based not on the criminal law power but on the necessity for maintaining democratic society as contemplated by the Constitution. A later decision dealing with free speech was Sulitzmend v. Elbing and Attorney- general of Quebec. In that case the Supreme court declared invalid the quebec Communistic Propaganda Act. All the judges but one were agreed that the statute did not fall within provincial competence under property and civil rights or matters of a merely local or private nature in the province. Abbot,. , held that the Parliament itself could not abrogate the right of discussion and debate.

( 1494 ) AN article by Dale Gibson in Volume 12-1966-67 in Mcgill law Journal shows that though the proposition enunciated by Duff) C. , has commanded the allegiance of an impressive number of judges and has not been decisively rejected, it has never been accepted by a majority of the members of the Supreme court of Canada or of any other court. Some judges have assumed that basic freedoms may properly be the subject-matter of legislation separate, and apart from any other subject-matter. Others have taken the view that unlimited jurisdiction falls within Dominion control under its general power to make laws '"for the peace, order and good government of Canada". A third view which has been taken is that the creation of a Parliament and reference in the Preamble to "a Constitution similar in principle to that of the United Kingdom" postulates that legislative body would be elected and function in an atmosphere of free speech, it is not necessary to give the other views or dialate upon different views. Bora laskin while dealing with the dictum of Abbott,. , has observed in Canadian constitutional Law:"apart from the dictum by Abbott,. , in the Switzman case (supra) there is no high authority which places civil liberties beyond the legislative reach of both Parliament and the provincial Legislatures. There are no explicit guarantees of civil liberties in the B. N. A. Act-nothing comparable to the Bill of Rights (the first ten amendments) in the Constitution of the United States, which, within limits and on conditions prescribed by the Supreme court as ultimate expounder of the meaning and range of the Constitution, prohibits both federal and State action infringing, inter alia, freedom of religion, of speech, of the press and of assembly". (See p. 970 ).

( 1495 ) IT would appear from the above that the different views which have been expressed in Canada are in the context of the preamble and sections of the British North America Act, the provisions of which are materially different from our Constitution. Even in the context of the British north America Act, the observations of Abbott,. , relied upon on behalf of the petitioners have not been accepted by the majority of the Judges of the Canadian Supreme court, and in my opinion, they afford a fragile basis for building a theory of implied limitations.

( 1496 ) IT may be mentioned that in August, 1960, the Parliament of Canada passed the Canadian Bill of Rights. S. 1 of the Bill declared certain human rights and fundamental freedoms and reads as under:"1. It is hereby recognised and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely- (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law ; (b) the right of the individual to equality before the law and the protection of the law ; (c) freedom of religion; (d) freedom of speech ; (e) freedom of assembly and association; and (f) freedom of the press. "

( 1497 ) ACCORDING to S. 2 of the Bill, every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorise the abrogation, abridgment or infringement of any of the rights or freedoms therein recognized and declared. The relevant part of S. 2 reads as under:"every law of Canada shall, unless it is expressly declared by cm Act of the Parliament of Canada that it shall operate notwithstanding the Canadian bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorise the abrogation, abridgement or infringement of any of the rights or freedoms herein recognised and declared, and in particular, no law of, Canada shall be construed or applied so as to. . . . . . " (underlining supplied ). Plain reading of S. 2 reproduced above makes it manifest that the human rights and fundamental freedoms mentioned in S. I of the Bill are not absolute but are subject to abrogation or abridgment, if an express declaration to that effect be made in law of Canada. S. 2 of the bill shows that if an express declaration to that effect be made an Act of the parliament can override the provisions of the Bill of Rights. S. 2 is thus inconsistent with the theory of implied limitations based on human rights on the power of the Canadian Parliament.

( 1498 ) ANOTHER case from Canada which has been referred to on behalf of the petitioners and which in my opinion is equally of no avail to them is The Attorney-General of Nona Scotia and The Attorney-General of Canada decided by the Supreme court of Canada. . It was held in that case that an Act respecting the delegation of jurisdiction from the Parliament of canada to the Legislature of Nova Scotia and vice versa, if enacted, would not be constitutionally valid since it contemplated delegation by Parliament of powers, exclusively vested in it by S. 91 of the British North America act, to the Legislature of Nova Scotia; and delegation by that Legislature of powers, exclusively vested in Provincial Legislature under S. 92 of the Act, to Parliament. The Parliament of Canada and each Provincial legislature, according to the Supreme court of Canada, was sovereign body within its sphere, possessed of exclusive jurisdiction to legislate with regard to the subject-matters assigned to it under S. 91 or S. 92, as the case may be. Neither was capable, therefore, of delegating to the other the powers with which it had been vested nor of receiving from the other the powers with which the other had been vested. It is plain that that case related to the delegation of powers which under the British North america Act had been assigned exclusively to Parliament or to the Provincial legislatures. Such a delegation was held to be not permissible. No such question arises in the present case.

( 1499 ) WE may now deal with some of the other cases which have been referred to on behalf of the petitioner. Two of those cases are from Ceylon. The constitutional position there was that S. 29 of the Ceylon (Constitution) Carder in council, 1946 gave the power to make laws as well as the power to amend the Constitution though the procedure prescribed for the two was different. S. 29 reads as under:"29. (1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island. (2) No such law shall- (a) prohibit or restrict the free exercise of any religion; or (b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable; or (c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions ; or (d) alter the Constitution of any religious body except with the consent of the governing authority of that body, so, however, that in any case where a religious body is incorporated by law, no such alteration shall be made except at the; request of the governing authority of that body :provided, however, that the preceding provisions of this sub section shall not apply to any law-making provision for, relating to or connected with, the election of Members of the House of Representatives, to represent persons registered as citizens ,of Ceylon under the Indian and Pakistani Residents (Citizenship) Act. This proviso shall cease to have effect on a date to be fixed by the governor-General by Proclamation published in the Gazette. (3) Any law made in contravention of Ss. (2) of this section shall, to the extent of such contravention, be void. (4) In the exercise of its powers under this section. Parliament may amend or repeal any of the provisions of this Order, or of any other order of Her Majesty in council in its application to the Island:provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand of the Speaker that the number of votes cast in favour thereof, in the House of Representatives amounted to not less than two-thirds of the whole number of Members of the House (including those not present ). Every certificate of the Speaker under this Ss. shall be conclusive for all purposes and shall not be questioned in any court of law.

( 1500 ) IN Liyanage and Others v. The Queen the appellants had been charged with offences arising out of an abortive coup d'etat on 27/01/1962. The story of the coup d'etat was set out in a White Paper issued by the Ceylon Government. On 16/03/1962 the Criminal Law (Special provisions) Act was passed and it was given retrospective effect from 1/01/1962. The Act was limited in operation to those who were accused of offences against the State in or about January 27, 1962. The Act legalised the imprisonment of the appellants while they were awaiting trial, and modified a S. of the penal code so as to enact ex post facto a new offence to meet the circumstances of the abortive coup. The Act empowered the Minister of Justice to nominate the three judges to try the appellants without a jury. The validity of the Act was challenged as well as the nomination which had been made by the Minister of Justice of the three judges. The Ceylon Supreme court upheld the objection about the vires of some of the provisions of the Act as well as the nomination of the judges. Subsequently the Act was amended and the power of nomination of the judges was conferred on the Chief Justice. The appellants having been convicted at the trial before a court of three judges nominated under the amended Act, went up in appeal before the Judicial Committee. The conviction of the appellants was challenged on three grounds but the Judicial committee dealt with only two grounds. The first ground was that the ceylon Parliament was litnited by an inability to pass legislation which was contrary to fundamental principles of justice. The two Acts of 1962, it was stated, were contrary to such principles in that they were not only directed against individuals but also ex post facto created crimes and for which those individuals would otherwise he protected the second contention was that the Acts of 1962 offended against the Constitution in that they amounted to a direction to convict the appellants or to a legislative plan to secure the conviction and severe punishment of the appellants and thus constituted an unjustifiable assumption of judicial power by the legislature, or an interference with judicial power, which was outside the legislature's competence and was inconsistent with the severance of power between legislature, executive, and judiciary which the Constitution ordained. Dealing with the first contention, the Judicial committee referred to the provisions of the Ceylon (Constitution) Order in council, 1946 and the Ceylon Independence Act, 1947 and observed that the joint effect of the said Order and Act was intended to and resulted in giving the Ceylon Parliament the full legislative powers of an independent sovereign state. The legislative power of the Ceylon Parliament, it was held, was not limited by inability to pass laws which offended fundamental principles of justice. On the second ground, the Judicial Committee held the Acts of 1962 to be invalid as they involved a usurpation and infringement by. the legislature of judicial powers inconsistent with the written constitution of Ceylon, which, while not interms vesting judicial functions in the judiciary, manifested an intention to secure in the judiciary a freedom from a political, legislative and executive control.

( 1501 ) IT would thus appear that the decisions it based upon the ground of severance of powers between legislature, judiciary and executive under the Ceylon Constitution and furnishes no support for the theory of implied limitations on the power of Parliament. On the contrary, the Judicial committee while dealing with the first contention rejected the theory of limitations on the power of Parliament to make a law in violation of the fundamental principles of justice. The Judicial Committee, it is also noteworthy, expressly pointed out that there had been no amendment of the constitution in accordance with S. 29 (4) of the Constitution by two- thirds majority and as such they had not to deal with that situation.

( 1502 ) ANOTHER case to which reference was made on behalf of the petitioners was The Bribery Commissioner v. Pedrick Ranasinghe. In that case it was found that the members of the Bribery tribunal had been appointed by the governor- General on the advice of the Minister of Justice in accordance with Bribery Amendment Act but in contravention of S. 55 of the Ceylon Constitution [ceylon (Constitution) Order in council, 1946] according to which the appointment of judicial officers was vested in the judicial Service Commission. It was held that a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign, as is that of Ceylon.

( 1503 ) IT would appear from the above that the point of controversy which arose for determination in that case was different from that which arises in the present case because we are not in this case concerned with any law made by a legislature in contravention of the constitutional provisions. Reference has been made on behalf of the petitioners to a passage in the judgment wherein while dealing with Ss. (2) of S. 29 of the ceylon Constitution, the provisions of which have been reproduced earlier, the Judicial Committee observed that the various clauses of Ss. (2) set out entrenched religious and racial matters which shall not be the subject of legislation. It was further observed that those provisions represented the solemn'" balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution, and these are therefore unalterable under the Constitution. It is contended that those observations show that the rights mentioned in S. 29 (2) of the Ceylon constitution which were similar to the fundamental rights in Part III of the indian Constitution, were held by the Judicial Committee to be unalterable under the Constitution. There was, it is further submitted, similarity between the provisions of S. 29 (3) of the Ceylon Constitution and article 13 (2) of the Indian Constitution because it. was provided in section 29 (3) that any law made in contravention of S. 29 (2) shall to the extent of such contravention bevoid.

( 1504 ) I find it difficult to accede to the contention that the Judicial committee laid down in the above case that S. 29 (2) and 29 (3) placed a restriction on the power of amendment of the Constitution under Section 29 (4) of the Constitution. The question with which the Judicial committee was concerned was regarding the validity of the appointment of the members of the Bribery tribunal. Such appointment though made in compliance with the provisions of the Bribery Amendment Act, was in contravention of the requirements of S. 55 of the Ceylon Constitution. No question arose in that case relating to the validity of a constitutional amendment brought about in compliance with S. 29 (4) of the Constitution. Reference to the argument of the counsel for the respondent on top of page 187 of that case shows that it was conceded on his behalf that ""there is no limitation at the moment on the right of amendment or repeal except the requirement of the requisite majority". The Judicial Committee nowhere stated that they did not agree with the above stand of the counsel for the respondent. Perusal of the judgment shows that the Judicial committee dealt with S. 18 and 29 together and pointed out the difference between a legislative law, which was required to be passed by a majority of votes under S. 18 of the Constitution, and a law relating to a constitutional amendment which was required to be passed by a two- thirds majority under S. 29 (4 ). Dealing with the question of sovereignty, the Judicial Committee observed:"a Parliament does not cease to be sovereign whenever its component members fail to produce among themselves a requisite majority, e. g. , when in the case of ordinary legislation the voting is evenly divided or when in the case of legislation to amend the Constitution there is only a bare majority if the Constitution requires something more. The minority are entitled under, the Constitution of Ceylon to have no amendment of it which is not passed by a two-thirds majority. The limitation thus imposed on some lesser majority of members does not limit the sovereign power of Parliament itself which can always, whenever it chooses, pass the amendment with the requisite majority. "it has been submitted on behalf of the respondents that the above passage indicates that the Judicial Committee took the view that the amendment of all the provisions of the Ceylon Constitution including those contained in. sub-sections (2) and (3) of S. 29 could be passed by a two-thirds majority. It is also stated that the restrictions imposed by Ss. (2) of section 29 of the Ceylon Constitution are on the power of ordinary legislation by simple majority and not on the power of making Constitutional amendment by two-thirds majority in compliance with S. 29 (4) of the Constitution. It was in that sense that the Judicial Committee, according to the submission, used the word entrenched". Our attention has also been invited to the observations on Pages 83 and 84 of the Constitutional structure by K. C. Wheare 1963 Reprint that "these safeguards (contained in S. 29) of the rights communities and religions could be repealed or amended by the parliament of Ceylon provided it followed the prescribed procedure for amendment of the Constitution". These submissions may not be bereft of force, but it is, in my, opinion, not necessary to dilate further upon this matter and discuss the provisions of the Ceylon Constitution at greater length. The point of controversy before us would have to be decided in the light essentially of the provisions of our own Constitution. Suffice it to say that Ranasinghe case (supra) does not furnish any material assistance to the stand taken on behalf of the petitioners.

( 1505 ) WE may now advert to the case of Mccawley v. The King. The said case related to the Constitution of Queensland in Australia. Queensland was granted a Constitution in 1859 by an Order in council made on June 6. The Order in council set up a Legislature in the territory consisting of the Queen, a Legislative council and a Legislative Assembly and the law-making power was vested in the Queen acting with the advice and consent of the council and Assembly. Any law could be made for the "peace, welfare and good government to the colony" the phrase generally employed to denote the plenitude of sovereign legislative power even though that power be confined to certain subjects or within certain reservations. The Legislature passed aconstitution Act in 1867. By S. 2 of that Act the legislative body was declared to have power to make laws for the peace, welfare and good government of the colony in all cases whatsoever. The only express restriction on this comprehensive power was in S. 9 which required a two-thirds majority of the council and of the Assembly as a condition precedent to the validity of legislation altering the Constitution of the council. In 1916 the industrial Arbitration Act was passed. The said Act authorised the governor in council to appoint the President or a judge of the court of industrial Arbitration to be a judge of the Supreme court of Queensland. It was also provided that the judge so appointed shall have the jurisdiction of both offices, and shall hold office as a judge of the Supreme court during good behavior. The governor in council, by a commission, appointed the appellant who was the President of the court of Industrial Arbitration to be a judge of the Supreme Court during good behaviour. The Supreme court of Queensland held that the appellant was not entitled to have the oath of office administered to him or to take his seat as a member of the Supreme court. Subsequently, the Supreme court of Queensland gave a judgment in ouster against the appellant. The provisions of S. 6 of the Industrial arbitration Act of 1916 under which the appellant had been appointed a judge of the Supreme court were held to be inconsistent with the provisions of the Constitution Act and as such void. On appeal four out of the seven judges of the High court of Australia agreed with the Supreme court ofqueensland, while the three other judges took the opposite view and expressed the opinion that the appeal should be allowed. The matter was then taken up in appeal to the Privy council. Lord Birkenhead giving the opinion of the judicial Committee held: (1) that the Legislature of Queensland had power, both under the Colonial Laws Validity Act, 1865, and apart therefrom, to authorise the appointment of a judge of the-Supreme court for a limited period; and (2) that Section 6 of the Industrial Arbitration Act authorised an appointment as a judge of the Supreme court only for the period during which the person appointed was a judge of the court of Industrial Arbitration. The appellant was further held to have been validly appointed. The above case though containing observations that a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law, laid down the proposition that in the absence of a restriction, it is not possible to impose a restriction upon the legislative power, it was observed:"the Legislature of Queensland is the master of its own household, except in so far as its powers have in special cases been restricted. No such restriction has been established, and none in fact exists, in such a case as is raised in the issues now under appeal. "it was also observed:"still less is the Board prepared to assent to the argument, at one time pressed upon it, that distinctions may be drawn between different matters dealt with by the Act, so that it becomes legitimate to say of one section: 'this S. is fundamental or organic; it can only be altered In such and such manner' ; and of another : 'this S. is not of such a kind ; it may consequently be altered with as little ceremony as any other statutory provision'. "the decision in the above cited case can hardly afford any assistance to the petitioners. On the contrary, there are passages in the judgment which go against the stand taken on behalf of the petitioners.

( 1506 ) S. 5 of the Colonial Laws Validity Act, 1865 to which there was a reference in the Mccawley's case (supra) reads as under :"every colonial legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish courts of judicature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein ; and every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the Constitution, powers, and procedure of such legislature ; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, order in council, or colonial law for the time being in force in the said colony. "reference has been made during arguments to the decision of the Privy council in the case of Attorney-General for New South Wales v. Trethowan. The said case related to a Bill passed by the New South Wales Parliament for repeal of a S. providing for referendum as well as to another Bill for abolition of the Legislative council. The Privy Council affirmed the decision of the Australian High court which had held by majority that the Bills hadnot been passed in the "manner and form" within the meaning of S. 5 of the Colonial Laws Validity Act, and as such could not be presented for royal assent. The Privy council based its decision upon the language of the above S. and the meaning of the word "passed" in that section. We are not concerned in the present case with the aforesaid provisions. There is also nothing in the conclusions at which I have arrived which runs counter to the principles laid down in the Trethowan's case (supra ).

( 1507 ) ANOTHER Australian case to which reference has been made during the course of argument is The State of Victoria v. The Commonwealth it has been laid down by the High court of Australia in that case that the commonwealth Parliament in exercise of its powers under S. 51 (ii) of the Constitution may include the Crown in right of a State in the operation of a law imposing a tax or providing for the assessment of a tax. The inclusion of the Grown in the right of a State, according to the court, in the definition of "employer" in the pay-roll Tax Assessment Act, thus making the Grown in right of a State liable to pay the tax in respect of wages paid to employees, including employees of the departments engaged in strictly governmental functions, is a valid exercise of the power of the Common- wealth under the above provisions of the Constitution. There was discussion in the course of the judgment on the subject of implied limitation on the commonwealth legislative power under the Constitution and different views were expressed. Three of Judges, including Barwick, C.. , took the view that there was no such limitation. As against that, four Judges were of the opinion that there was an implied limitation on Commonwealth legislative power under the Constitution but the impugned Act did not offend such limitation, opinion was expressed that the Commonwealth Parliament while acting under the legislative entry of taxation could not so use the power of taxation as to destroy the States in a federal structure. The question as to what is the scope of the power of amendment was not considered in that case. The above case as such cannot be of much assistance for determining as to whether there are any implied limitations on the power to make constitutional amendment.

( 1508 ) I am, therefore, of the opinion that the majority view in the golak Nath's case (supra) that Parliament did not have the power to amend any of the power to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights cannot be accepted to be correct. Fundamental rights contained in Part III of our Constitution can, in my opinon, be abridged or taken away in compliance with the procedure prescribed by Article 363, as long the basic structure of the Constitution remains unaffected.

( 1509 ) WE may now deal with the Twenty-fourth Amendment. It has sought to make clear matters regarding which doubt had arisen and conflicting views had been expressed by this court. We may in this context set forth the statement of Objects and Reasons of the Constitution (Twenty-fourth amendment) Bill. The statement of Objects and Reasons reads as under:statement OF OBJECTS AND REASONS"the Supreme court in the well-known Golak Nath's case, [ (1967) 2 SCR 762] reversed, by a narrow majority, its own earlier decisions upholding the power of Parliament to amend all parts of the constitution including Part III relating to fundamental rights. The result of the judgment is that Parliament is considered to have no powerto take away or curtail any of the fundamental rights guaranteed by Part iii of the Constitution even if it becomes necessary to do so for giving effect to the Directive Principles of State Policy and for the attainment of the objectives set out in the preamble to the Constitution. It is, therefore, considered necessary to provide expressly that Parliament has power to amend any provision of the Constitution so as to include the provisions of Part III within the scope of the amending power. (2) The Bill seeks to. amend Article 368 suitably for the purpose and make 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. "

( 1510 ) S. 2 of the Bill which was ultimately passed as the Constitution (Twenty-fourth Amendment) Act has added a clause in Article 13 that nothing in that article would apply to any amendment of the Constitution made under Article 368. As a result of S. 3 of the Amendment act, Article 36 has been re-numbered as clause (2) thereof and the marginal heading now reads '"power of Parliament to amend the Constitution and procedure therefor". Non-obstante clause (1) has been inserted in the article to emphasise the fact that the power exercised under that article is constituent power, not subject to the other provisions of the Constitution, and embraces within itself addition, variation and repeal of any provision of the Constitution. Amendment has also been made so as to make it obligatory for the President to give his assent to the Amendment Bill after it has been passed in accordance with the article. Clause (3) has further been added in Article 368 to the effect that nothing in Article 13 would apply to an amendment made under Article 368. Although considerable arguments have been addressed before us on the point as to whether the power of amendment under Article 368 includes the power to amend Part iii so as to take away of abridge fundamental rights, it has not been disputed before us that the Constitution (Twenty-fourth Amendment) Act was passed in accordance with the procedure laid down in Article 368 of the Constitution as it existed before the passing of the said Act. In view of what has been discussed above at length, I find no infirmity in the Constitution (Twenty- fourth Amendment) Act, I, therefore, uphold the validity of the said Act.

( 1511 ) WE may now deal with the Constitution (Twenty-fifth Amendment) Act, 1971. The Twenty-fifth Amendment has made three material changes : (i) It has amended Article 31 (2) in two respects : (a) It substitutes the word "amount" for the word ""compensation" for property acquired or requisitioned. (b) It has provided that the law for the purpose of acquisition or requisition shall not be called in question on the ground that the whole or any part of the "'amount" is to be given otherwise than in cash. (ii) It has provided that the fundamental right to acquire, hold and dispose of property under Article 19 (1) (f) cannot be invoked in respect of any such law as is referred to in Article 31 (2 ). (iii) It has inserted Article 31-C as an overriding Article which makes the fundamental rights conferred by Articles 14, 19 and 31in-applicable to certain categories of laws passed by the Parliament or by any State Legislature. So far as the substitution of the word "amount" for the word "compensation" for property acquired or requisitioned in Article 31 (2) is concerned, we find that this court held in Mrs. Bela Banerjee case that by the guarantee of the right to compensation for compulsory acquisition under Article 31 (2), before it was amended by the Constitution (Fourth amendment) Act, the owner was entitled to receive a "just equivalent" or "full indemnification". In P. Vajravelu Mudaliar's case this court held that notwithstanding the amendment of Article 31 (2) by the Constitution (Fourth Amendment) Act and even after the addition of the words "and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate", the expression "compensation" continued to' have the same meaning as it had in Article 31 (2) before it was amended, viz. , just equivalent or full indemnification. Somewhat different view was taken by this court thereafter, in the case of shantitlal Mangaldas. In the case of P. Vajravelu Mudaliar (supra) it was observed that the Constitutional guarantee was satisfied only if a just equivalent of the property was given to the owner. In the case of Shantilal Mangaldas case (supra) it was held that "compensation" being itself incapable of any precise determination, no definite connotation could be attached thereto by calling il "just equivalent" or "full indemnification", and under Acts enacted after the amendment of Article 31 (2) it is not open to the court to call in question the law providing for compensation the ground that it is inadequate, whether the amount of compensation is fixed by the law or is to be determined occording to principles specified therein (see observation of Shah,. , in the case of R. C. Cooper v. Union of India. After further discussion of the views expressed in those two cases. Shah,. , speaking for the majority observed :"both the lines of thought which converge in the ultimate result, support the view that the principle specified by the law for determination of compensation is beyond the pale of challenge if it is relevant -to the determination of compensation and is a recognized principle applicable in the determination of compensation for property compulsorily acquired and the principle is appropriate in determining the value of the class of property sought to be acquired. On the application of the view expressed in P. Vajravelu Mudaliar's case (supra) or in Shantilal Mangaldas's case (supra) the Act, in our judgment, is liable to be struck down as it fails to provide to the expropriated banks compensation determined according to relevant principles. "

( 1512 ) THE amendment in Article 31 (2) made by the Twenty-fifth amendment by substituting the word "amount" for the word "compensation" is necessarily intended to get over the difficulty caused by the use of the word "compensation". As the said word was held by this court to have a particular connotation and was consulted to mean just equivalent or full indemnification, the amendment has replaced that word by the word "amount". In substituting the word "amount" for "compensation" the amendment has sought to ensure that the amount determined for acquisition or requisition of property need not be just equivalent or full indemnificationand may be, if the legislature so chooses, plainly inadequate. It is not necessary to further dilate upon this aspect because whatever may be the connotation of the word "amount", it would not affect the validity of the amendment made in Article 31 (2 ).

( 1513 ) ANOTHER change made in Article 31 (2) is that the law for the purpose of acquisition' or requisition shall not be called in question on the. ground that the whole or-any part of the '"amount' 'fixed or determined for the acquisition or requisition of the property is to be given otherwise than in cash. I have not been able to find any infirmity in the above changes made in Article 31 (2 ).

( 1514 ) ACCORDING to clause (2-B) which has been added as a result of the twenty-fifth Amendment in Article 31, nothing in sub-clause (f) of clause (1) of Article 19, shall affect any such law as is referred to in clause (2 ). In this connection we find that this court held in some cases that Articles 19 (1) (/)and 31 (2) were exclusive. In A. K. Gopalanv. The State of Madras a person detained pursuant to an order made in exercise of the power conferred by the Preventive Detention Act applied to this court for a writ of habeas corpus claiming that the Act contravened the guarantees under articles 19, 21 and 22 of the Constitution. The majority of this court (Kania,g.. , and Patanjali Sastri,. Mahajan,mukherjea and Da,.) held that Article 22 being a complete code relating to preventive detention, the validity of an order of detention must be determined strictly, according to the terms and "within the four corners of that Article". They held that a person detained may not claim that the freedom guaranteed under Article 19 (1) (d) was infringed by his detention, and that validity of the law providing for making orders of detention will not be tested in the light of the reasonableness of the restrictions imposed thereby on the freedom of movement, nor on the ground that his right to personal liberty is infringed otherwise than according to the procedure established by law. Fazl Ali,. , expressed a contrary view. This case formed the nucleus of the theory that the protection of the guarantee of a fundamental freedom must be adjudged in the light of the object of State action in relation to the individual's right and not upon its effect upon the guarantee of the fundamental freedom. and as a corollary thereto, that the freedoms under Articles 19, 21, 22 and 31 are exclusive-each article enacting a code relating to protection of distinct rights [see p. 571 in the case of R. C. Cooper, (supra ). ] The view expressed in Gopalan's case (supra) was reaffirmed in Ram Singh and Others v. The State of Delh. The principle underlying the judgment of the majority was extended to the protection of the right to property and it was held that article 19 (1) (f) and Article 31 (2) were mutually exclusive in their operation. In the case of State of Bombay v. Bhanji Munji and Another this court held that Article 19 (1) (f) read with clause (5) postulates the existence of property which can be enjoyed and over which rights can be exercised because otherwise the reasonable restrictions contemplated by clause (5) could not be brought into play. If there is no property which can be acquired, held or disposed of, no restriction can be placed on the exercise of the right to acquire, hold or dispose it of. In kavalappara Kattarathil Kochunis case Subba Rao,. , delivering the judgement of the majority of the court, observed that clause (2) of Article 31 alonedeals with compulsory acquisition of property by the State for a public purpose, and not Article 31 (1) and he proceeded to hold that the expression "authority of law" means authority of a valid law, and on that account validity of the law seeking to deprive a person of his property is open to challenge on the ground that it infringes other fundamental rights, e. g. under Article 19 (1) (f ). It was also observed that after the Constitution 'fourth Amendment) Act, 1955 Bhanji Munji's case (supra) '"no longer holds the field". After the decision in K. K. Kochuni's case (supra) there arose two divergent lines' of authority. According to one view, "authority of law" in Article 31 (1) was liable to be tested on the ground that it violated other fundamental rights and freedoms, including the right to hold property guaranteed by Article 19 (1) (f' ). The other view was that "authority of a law" within the meaning of Article 31 (2) was not liable to be tested on the ground that it impaired the guarantee of Article 19 (1) (f) in so far as it imposed substantive restrictions-though it may be tested on the ground of impairment of other guarantees. In the case of. R. C. Cooper (supra ). Shah,. , speaking for the majority held that in determining the impact of State action upon constitutional guarantees which are fundamental, the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individual's rights. It was further observed:"we are therefore unable to hold that the challenge to the validity of the provision for acquisition is liable to be tested only on the ground of non-compliance with Article 31 (2 ). Article 31 (2) requires that pro- perty must be acquired for a public purpose and that it must be acquired under a law with characteristics set out in that Article. Formal compliance with the conditions under Article 31 (2) is not sufficient to negative the protection of the guarantee of the right to property. Acquisition must be under the authority of a law and the expression "law' 'means a law which is within the competence of the Legislature, and does not impair the guarantee of the rights in Part. We are unable, therefore, to agree that Articles 19 (1) (f) and 31 (2) are mutually exclusive. "

( 1515 ) THE Twenty-fifth Amendment seeks to overcome the effect of the above decision in R. C. Cooper's case (supra ). It has sought to resolve the earlier conflict of views noticeable in this respect in the judgments of this court. Provision has accordingly been made that the fundamental right to acquire, holder dispose of property under Article 19 (1) (f) cannot be invoked in respect of any such law as is referred to in Article 31 (2 ). In view of what has been discussed earlier while dealing with the Twenty-fourth Amendment, the change made by addition of clause (2-B) in Article 3. 1 (2) is permissible under Article 368 and cannot be held to be invalid.

( 1516 ) WE may now deal with Article 31-C, introduced as a result of the Twenty-fifth Amendment. Perusal of this article which has been reproduced in the earlier part of this judgment shows that the article consists of two parts. The first part states that notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles 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. According to the second part of this article, no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. There then follows theproviso, according to which where such law is made by the Legislature of a state, the provisions of the article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.

( 1517 ) THE first part of Article 31-C is similar to Article 31-A except in respect of the subject-matter. Article 31-A was inserted by the Constitution (First Amendment) Act, 1951. Clause (1) of Article 31-A as then inserted was in the following words :. " (1) Notwithstanding any thing in the foregoing provisions of this part, no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights shall ' be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part :provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. "subsequently, clause (1) of Article 31-A was amended by the Constitution (Fourth Amendment) Act, 1955. New clause (1) was in the following words:" (1) Notwithstanding anything contained in Article 13, no law providing for- (a) the acquisition by the state of any estate or of any rights therein or the extinguishment or modification of any such rights, or (b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or (c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or (d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of share- holders thereof, or (e) the extinguishment or-modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence,shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31 :provided that where such law is a law made by the Legislature of a state, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the president, has received his assent. "clauses (b) and (c) of Article 39 referred to in Article 31-C read asunder:"39. The state shall, in particular, direct its policy towards securing- (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

( 1518 ) IT would appear from the above that while Article 31-A dealt with a law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of such rights or other matters mentioned in (clauses (b) to (e) of that article. Article 31-C relates to the securing of the objective that the ownership and control of the material resources of the community are so distributed as best to subserve the common good and that operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. But for the difference in subjects, the language of the first clause of Article 31-A and that of the first part of Article 31-C is identical. Both Articles 31-A and 31-C deal with right to property. Article 31-A deals with certain kinds of property and its effect is, broadly speaking, to take those kinds of property from the persons who have rights in the said property. The objective of Article 31-C is to prevent concentration of wealth and means of production and to ensure the distribution of ownership and control of the material resources of the community for the common good. Article 31-C is thus essentially an extension of the principle which was accepted in Article 31-A. The fact that the provisions of Article 31-C are more comprehensive and have greater width compared to those of Article 31-A would not make any material difference. Likewise, the fact that Article 31-A deals with law providing for certain subjects, while Article 31-C deals with law giving effect to the policy towards securing the principles specified in clause (b) or clause (c) of Article 39, would not detract from the conclusion that Article 31-C is an extension of the principle which was accepted in article 31-A. Indeed, the legislature in making a law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39 acts upon the mandate contained in Article 37, according to which the Directive Principles are fundamental in the governance of the country and it shall be the duty of the State to apply those principles in making laws. If the amendment of the Constitution by which article 31-A was inserted was valid, I can see no ground as to how the twenty-fifth Amendment relating to the insertion of the first part of Article 31-C can be held to be invalid. The validity of the First Amendment which introduced Article 31-A was upheld by this court as long ago as 1952 in the case of Sankri Prasad v. Union of India (supra ). Article 31-A having been held to be Valid during all these years, its validity cannot now be questioned on account of the doctrine of stare decisis. Though the period lor which Sankari Prasad's case (supra) stood unchallenged was not very long, the effects which have followed in the passing of the State laws on the faith of that decisions as observed by Wanchoo,. , in Golak Nath's case (supra) are so overwhelming that we should not disturb the decision in that case up- holding the validity of the First Amendment. It cannot be disputed that millions of acres of land have changed hands and millions of new titles in agricultural lands which have been created and the State laws dealing withagricultural land which have been passed in the course of the years after the decision in Sankari Prasad's case (supra) have brought about an agrarian revolution. Agricultural population constitutes a vast majority of the population in this country. In these circumstances it would in my opinion be wrong to hold now that the decision upholding the First Amendment was not correct, and thus disturb all that has been done during these years and create chaos into the lives of millions of our countrymen who have benefited by these laws relating to agrarian reforms. I would, therefore, hold that this is one of the fittest cases in. which the principle of stare decisis should be applied. The ground which sustained the validity of clause (1) of Article 31-A, would equally sustain the validity of the first part of Article 31-C. I may in this context refer to the observations of Brandeis,. in Lesses v. Garnett, while upholding the validity of the 19th Amendment, according to which the right of citizens of the United States to vote shall not be denied or abridged by the United States or by States on account of sex. This case negatived the contention that a vast addition to the electorate destroyed the social compact and the residuary rights of the States. Justice Brandeis observed:"this amendment is in character and phraseology precisely similar to the 15th. For each the same method of adoption was pursued. One cannot be valid and the other invalid. That the 15th is valid. . . . . . has been recognized and acted upon for half a century. . . . . . The suggestion that the 15th was incorporated in the Constitution not in accordance with law, but practically as a war measure which has been validated by acquiesence cannot be entertained. "

( 1519 ) WE may now deal with the second part of the Article 31-C, according to which no law containing a declaration that it is for giving effect to the policy of State towards securing the principles specified in clause (b) or clause (c) of Article 39 shall be called in question in any court on the ground that it does not give effect to such policy. The effect of the second part that once the declaration contemplated by that article is made, the validity of such a law cannot be called in question in any court on the ground that it is inconsistent with or takes away or abridges any of the right conferred by articles 14, 19 or 31 of the Constitution. The declaration thus gives a complete protection to the provisions of law containing the declaration from being assailed on the ground of being violative of Articles 14, 19 or 31. However, tenuous the connection of a law with the objective mentioned in clause (b) and clause (c) of Article 39 may be and however violative it may be of the provisions of Articles 14, 19 and 31 of the Constitution, it cannot be assailed in a court of law on the said ground because of the insertion of the declaration in question in the law. The result as that if an Act contains 100 S. and 95 of them relate to matters not connected with the objectives mentioned in clauses (b) and (c) of Article 39 but the remaining five S. have some nexus with those objectives and a declaration is granted by the Legislature in respect of the entire Act, the 95 S. which have nothing to do with the objectives of clauses (b) and (c) of Article 39, would also get protection. It is well-known that State Legislatures are quite often swayed by local and regional considerations. It is not difficult to conceive of laws being made by a state legislature which are directed against citizens of India who hail from other States on the ground that the residents of the State in question are economically backward. For example, a law might be made that as the old residents in the State are economically back- word and those who have not resided in the State for more than threegenerations have an affluent business in the State or have acquired property in the State, they shall be deprived of their business and property with a view to vest the same in the old resident of the State. Such a law if it contains the requisite declaration, would be protected and it would not be permissible to assail it on the ground of being violative of Articles 14, 19 and 31 of the Constitution even though such a law strikes at the integrity and unity of the country. Such a law might also provoke the Legislatures of other states to make laws which may discriminate its in the economic sphere against the persons hailing from the State which was the first to enact such discriminatory law. There Would thus be a chain reaction of laws which discriminate between the people belonging to different States and which in the very nature of things would have a divisive tendency from a national point of view. The second part of Article 31-C would thus provide the cover for the making of laws with a -regional or local bias even though such laws imperil the oneness of the nation and contain the dangerous seeds of national disin- tegration. The classic words of Justice Holmes have a direct application to a situation like this. Said the great Judge:"i do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States. " (Holmes, Collected Legal Papers (1920) 295-96]. The fact that the assent of the President would have to be obtained for such a law might not provide an effective safeguard because occasions can well be visualized when the State concerned might pressurise the Centre and thus secure the assent of the President. Such occasions would be much more frequent when the party in power at the Centre has to depend upon the political support of a regional party which is responsible for the law in question passed by the State Legislature.

( 1520 ) IT seems that while incorporating the part relating to declaration in Article 31-C, the sinister implications of this part were not taken into account and its repercussions on the unity of the country were not realised. In deciding the question relating to the validity of this part of Article 31 -C, we should not, in my opinion, take too legalistic a view. A legalistic judgment would indeed be a poor consolation if it affects the unity of the country. It would be apposite in this context to reproduce a passage from Story's Commentaries on the Constitution of the United States wherein he adopted the admonition of Burke with a slight variation as under:"the remark of Mr. Burke may, with a very slight change of phrase be addressed as an admonition to all those, who are called upon to frame, or to interpret a Constitution. government is a practical thing made for the happiness of mankind, and not to furnish out a spectacle of uniformity to gratify the schemes of visionary politicians. The business of those, who are called to administer it, is to rule, and not to wrangle. It would be a poor compensation, that one had triumphed in a dispute, whilst we had lost an empire; that we had frittered down a power, and at the same time had destroyed the republic (para 456 ). "

( 1521 ) THE evil consequences which would flow from the second part of article 31-C would not, however, be determinative of the matter. I would therfore examine the matter from a legal angle. In this respect I find that there can be three types of constitutional amendments which may be conceived to give' protection to legislative measures and make them immune from judicial scrutiny or attack in court of law.

( 1522 ) ACCORDING to the first type, after a statute has already been enacted by the Legislature a constitutional amendment is made in accordance with Article 368 and the said statute is inserted in the Ninth Schedule under article 31-B. Such a statute or any of the provisions thereof cannot be struck down in a court of law and cannot be deemed to be void or ever to have become void on the ground that the statute or any provisions thereof is inconsistent with or takes away or abridges any of the rights conferred by any provision of Part. in such a case, the provisions of the entire statute are placed before each House of Parliament. It is open to not less than one- half of the members of each House and not less than two-thirds of the members of each House voting and present after applying their mind to either place the statute in the Ninth Schedule in its entirety or a part thereof or not to do so. It is only if not less than one-half of the total members of each house of Parliament and not less than two-thirds of the members present and voting in each House decide that the provisions of a particular statute should be protected under Article 31-B either in their entirety or partly that the said provisions are inserted in the Ninth Schedule. A constitutional amendment of this type relates to an existing statute of which the provisions can be examined by the two Houses of Parliament and gives protection to the statute from being struck down on the ground of being violative of any provision of part III of the Constitution. Such an amendment was introduced by the constitution (First Amendment) Act, 1951 and its validity was upheld in sankari Prasad's case (supra ).

( 1523 ) THE second type of constitutional amendment is that where the constitutional amendment specifies the subject in respect of which a law may be made by the Legislature and the amendment also provides that no law made in respect of that subject shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Part III of the Constitution. In such a case the law is protected even though it violates the provisions of Part III of the Constitution. It is, however, open in such a case to the court, on being moved by an aggrieved party, to see whether the law has been made for the purpose for which there is constitutional protection. The law is thus subject to judicial review and can be struck down if it is not for the purpose for which protection has been afforded by the constitutional amendment. To this category belong the laws made under Article 31-A of the Constitution which has specified the subject for which law might be made, and gives protection to those laws. It is always open to a party to assail the validity of such a law on the ground that it does not relate to any of the subject mentioned in Article 31-A. It is only if the court finds that the impugned law relates to a subject mentioned in Article 31-A that the protection contemplated by that article would be afforded to the impugned law and not otherwise. Article 31-A was intro- duced by the Constitution (First Amendment) Act, 1951 and as mentioned earlier, the validity of the First Amendment was upheld in Sankari Prasad's case (supra ).

( 1524 ) THE third type of constitutional amendment is one, according to which a law made for a specified object is protected from attack even though it violates Articles 14, 19 and 31. The constitutional amendment further provides that the question as to whether the law is made for the specified object is not justiciable and a declaration for the purpose made by the legislature is sufficient and would preclude the court from going into the question as to whether the law is made for the object prescribed by the constitutional amendment. To such category belongs that part of Twenty-fifth Amendment which inserted Article 31-C when taken alongwith its second part. The lawmade under Article 31-C is not examined and approved for the purpose of protection by not less than one-half of the members of each House of Parliament and not less than two-thirds of the members present and voting in each House, as is necessary in the case of laws inserted in the Ninth Schedule of the Constitution. Nor can the law made under Article 31-G be subject to judicial review with a view to find out whether the law has, in fact, been made for an object mentioned,in Article 31-C. Article 13-C thus departs from the scheme of Article 31-A because while a judicial review is permissible under article 31-A to find out' as to whether a law has been made for any of the objects mentioned in Article 31-A, such a judicial review has been expressly prohibited under Article 31-C. The result is that even if a law made under article 31-C can be shown in court of law to have been enacted not for the purpose mentioned in Article 31-C but for another purpose, the law would still be protected and cannot be assailed on the ground of being violative of Articles 14, 19 and 31 of the Constitution because of the declaration made by the legislature as contemplated by second part of Article 31-C. It may also be mentioned in this context that such a law can be passed by a bare majority in a legislature even though only the minimum number of members required by the quorum, which is generally one-tenth of the total membership of the legislature, are present at the time the law is passed.

( 1525 ) THE effect of the above amendment is that even though a law is in substance not in furtherance of the objects mentioned in Article 39 (b) and {c) and has only a slender connection with those objects, the declaration made by the Legislature would stand in the way of a party challenging it on the ground that it is not for the furtherance of those objects. A power is thus being conferred upon the central and State Legislatures as a result of this provision to make a declaration in respect of any law made by them in violation of the provisions of Articles 14, 19 and 31 and thus give it protection from being assailed on the ground in a court of law. The result is that even though for the purpose of making an amendment of the Constitution an elaborate procedure is provided in Article 368, power is now given to a simple majority in a State or central Legislature, in which only the minimum number of members are present to satisfy the requirement of quorum, to make any law in. contravention of the Provisions of Articles 14, 19 and 31 and make it immune from attack by inserting a declaration in that law. It is natural for those who pass a law to entertain a desire that it may not be struck down. There would, therefore, be an inclination to make an Act immune from attack by inserting such a declaration even though only one or two provisions of the Act have a connection with the objects mentioned in article 39 (b) and (c ). Articles 14, 19 and 31 can thus be reduced to a dead letter, an ineffective purposeless showpiece in the Constitution.

( 1526 ) THE power of making an amendment is one of the most important powers which can be conferred under the Constitution. As mentioned earlier, according to Finer, the amending clause is so fundamental to a constitution that it may be called the Constitution itself, while according to burgess, the amending clause is the most important part of a Constitution. This circumstance accounts for the fact that an elaborate procedure is prescribed for the amending of the Constitution. The power of amendment being of such vital importance can neither be delegated nor can those vested with the authority to amend abdicate that power in favour of another body. Further, once such a power is granted, either directly or in effect, by a constitutional amendment to the State Legislatures, it would be difficult to take away that power, because it can be done only by means of a consti- tutional amendment and the States would be most reluctant, having got sucha power, to part with it. In empowering a State Legislature to make laws violative of Articles 14. , 19 and 31 of the Constitution and in further empowering the State Legislature to make laws immune from attack on the ground of being violative of Articles 14, 19 and 31, by inserting the requisite declaration, the authority vested with the power to make amendment under article 368 (viz. , the prescribed majority in each House of Parliament) has in effect, delegated or granted the power of making amendment in important respects to a State Legislature. Although the objects for which such laws may-be made have been specified, the effect of the latter part of Article 31-C relating" to the declaration is that the law in question may relate even to objects which have not been specified. Article 31-C taken along with the second part relating to the declaration departs from the scheme of Article 31-A because while the protection afforded by Article 31-A is to laws made for specified subjects, the immunity granted under Article 31-C can be availed of even by laws which have not been made for the specified objects. The law thus made by' the State Legislatures would have the effect of pro tanto amendment of the Constitution. Such a power, as pointed out earlier, can be exercised by the State Legislature by a simple majority in a House where- in the minimum number of members required by the rule of quorum are present.

( 1527 ) IN re Initiative and Referendum Act the Judicial Committee after referring to a previous decision wherein the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regula- tions relating to Taverns observed on page 945:"but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence. Their Lordships do no more than draw attention to the gravity of the constitutional questions which thus arise. "if it is impermissible for a ' legislature to create and endow with its own capacity a legislative power not created by the Act to which it owes its own existence, it should, in my opinion, be equally impermissible in the face of article 368 in its present form under our Constitution, for the amending authority to vest its amending power in another authority like State Legislature. It has to be emphasised in this context that according to Article 368, an amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament. The word "only" has a significance and shows that as long as Article 368 exists in its present form, the other methods of amendments are ruled out.

( 1528 ) IT may be mentioned that apart from the question of legislative competence, the articles for the violation of which statutes have been quashed in overwhelming majority of cases are Articles 14, 19 and 31. The question as to whether the impugned statute is beyond legislative competence can be agitated despite the protection of Article 31-C in the same way as that question can be agitated despite the protection of Article 31-A, but in other respects, as would appear from what has been stated above. Article 31-C goes much beyond the scope of Articles 31-A and 31-B.

( 1529 ) IN a federal system where the spheres of legislative powers are distributed between the central Legislature and the State Legislatures, there has to be provided a machinery to decide in case of a dispute as to whether the law made by the State Legislatures encroaches upon the field earmarkedfor the central Legislature as also a dispute whether a law made by the central Legislature deals with a subject which can be exclusively dealt with by the State Legislatures. This is true not only of a federal system but also in a constitutional set up like ours wherein the Constitution-makers, though not strictly adopting the federal system, have imbibed the features of a federal system by distributing and setting apart the spheres of legislation between the central Legislature and the State Legislatures The machinery for the resolving of disputes as to whether the central Legislature has trespassed upon the legislative field of the State Legislatures or whether the state Legislatures have encroached upon the legislative domain of the central legislature is furnished by the courts and they are vested with the powers of judicial review to determine the validity of the Acts passed by the Legislatures. The power of judicial review is, however, confined not merely to deciding whether in making the impugned laws the central or State Legislatures have acted within the four corners of the legislative lists earmarked for them; the courts also deal with the question as to whether the laws are made in conformity with and not in violation of the other provisions of the constitution. Our Constitution-makers have provided for fundamental rights in Part III and made them justiciable. As long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are not contravened. Dealing with draft Article 25 (corresponding to present Article 32 of the Constitution) by which a right is given to move the Supreme court for enforcement of the fundamental rights, dr. Ambedkar speaking in the Constituent Assembly on 9/12/1948 observed:"if I was asked to name any particular article in this Constitution as the most important an article without which this Constitution would be a nullity-1 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 " (Constituent Assembly debates, Vol VII, p. 953 ). Judicial review has thus become an integral part of our constitutional system and a power has been vested in the High courts and the Supreme court to decide about the constitutional validity of provisions of statutes. If the provisions of the statute are found to be violative of any article of the constitution, which is the touchstone for the validity of all laws, the Supreme court and the High courts are empowered to strike down the said provisions. The one sphere where there is no judicial review for finding out whether there has been infraction of the provisions of Part III and there is no power of striking down an Act, regulation or provision even though it may be inconsistent with or takes away or abridges any of the rights conferred by part III of the Constitution is that incorporated in Article 31-B taken alongwith the Ninth Schedule. Article 31-B was inserted, as mentioned earlier, by the Constitution (First Amendment) Act. According to Article 31-B, none of the Acts and regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void on the ground that such Act, regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by any provision of Part III of the Constitution. The one thing significant to be noted in this connection, however, is that the power under Article 31-B of exclusion of judicial review, which might be undertaken for the purpose of finding whether there has been contravention of any provision of Part III, is exercised not by the legislature enacting the impugned law but by the authority which makes theconstitutiotial amendment under Article 368, viz. , the prescribed majority in each House of Parliament. Such a power is exercised in respect of an existing statute of which the provisions can be scrutinized before it is placed in the Ninth Schedule. It is for the prescribed majority in each House to decide whether the particular statute should be placed in the Ninth schedule, and if so, whether it should be placed there in its entirety or partly. As against that, the position under Article 31-C is. that though judicial review has been excluded by the authority making the constitutional amendment, the law in respect of which the judicial review has been excluded is one yet to be passed by the legislatures. Although the object for which such a law can be enacted has been specified in Article 31-C, the power to decide as to whether the law enacted is for the attainment of that object has been. vested not in the courts but in the very legislature which passes the law. The vice of-Article 31-C is that even if the law enacted is not for the object mentioned in Article 31-C, the declaration made by the legislature precludes a party from showing that the law is not for that object and prevents a court from going into the question as to whether the law enacted is really for that object. The kind of limited judicial review which is permissible under Article 31-A for the purpose of finding as to whether the law enacted is for the purpose mentioned in Article 31 has also been done away with under Article 31-C. The effect of the declaration mentioned in Article 31-C is to grant protection to the law enacted by a legislature from being challenged on grounds of contravention of Articles 14, 19 and 31 even though such a law can be shown in the court to have not been enacted for the objects mentioned in Article 31-C. Our Constitution postulates Rule of Law in the sense of supremacy of the Constitution and the laws as opposed to arbitrariness. The vesting of power of exclusion of judicial review in a legislature, including State legislature, contemplated by Article 31-C, in my opinion, strikes at the basic structure of the Constitution. The second part of Article 31-C thus goes beyond the permissible limit of what constitues amendment under Article 368.

( 1530 ) IT has been argued on behalf~of the respondents that the declaration referred to in Article 31-C would not preclude the court from finding whether a law is for giving effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 and that if an enactment is found by the court to be not for securing the aforesaid objectives, the protection of Article 31-C would not be available for such legislation.

( 1531 ) I find it difficult to accede to this contention in view of the language of Article 31-C pertaining to the declaration. The abovecontention would have certainly carried weight if the second part of the article relating to the declaration were not there. In the absence of the declaration in question, it would be open to, and indeed necessary, for the court. to find whether the impugned law is for giving effect to the policy of the State towards securing the principles specified in clause (b) or (c) of Article 39 before it can uphold the validity of the impugned law under Article 31-C, once, however, a law contains such a declaration, the declaration would stand as bar and it would not be permissible for the court to find whether the impugned law is for giving effect to the policy, mentioned in Article 31-C. Article 31 -C protects the law giving effect to the policy of the State towards securing the principles specified in clause {b) or (e) of Article 39 and at the same time provides that no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. It is, therefore, manifest thatonce a law contains the requisite declaration the court would be precluded from going into the question that the law does not give effect to the policy of the State towards securing the principles specified in clause (b) or (c) of article 39. In view of the conclusive nature of the declaration, it would, in my opinion, be straining the language of Article 31-C to hold that a court can despite the requisite declaration go into the question that it docs not give effect to the policy of the State towards securing the principles specified in clause (b) or (c) of Article 39. The result is that if a law contains the declaration contemplated by Article 31-C, it would have complete protection from being challenged on the ground of being violative of Articles 14,19 and 31 of the Constitution, irrespective of the fact whether the law is 'or is not for giving effect to the policy of the State towards securing the principles specified in clause (b) or (c) of Article 39. To put it in other words, even those laws which do not give effect to the policy of the State towards securing the principles specified) in clause (b) or (c) of Article 39 would also have the protection if they contain the declaration mentioned in Article 31-C.

( 1532 ) I am also of the view that the validity of the latter part of article 31-C relating to declaration cannot be decided on the basis of any concession made during the course of arguments on behalf of the respondents. Such a concession if not warranted by the language of the impugned pro- vision, cannot be of much avail. Matters relating to construction of an article of the Constitution or the constitutional validity of an impugned provision have to be decided in the light of the relevant provisions and a concession made by the State counsel or the opposite counsel would not absolve the court from determining the matter independently of the concession. A counsel may sometimes make. a concession in order to secure favourable verdict on another important point; such a concession would, however, not be binding upon another counsel. It is well-settled that admission or concession made on a point of law by the counsel is not binding upon the party represented by the counsel, far less would such admission or concession preclude other parties from showing that the concession was erroneous and not justified in law. It may, therefore, be laid down as a broad proposition that constitutional matters cannot be disposed of in terms of agreement or compromise between the parties, nor can the decision in such disputes in order to be binding upon others be based upon a concession even though the concession emanates from the State counsel. The concession has to be made good and justified in the light of the relevant provisions.

( 1533 ) THE position as it emerges is that it is open to the authority amending the Constitution to exclude judicial review regarding the validity of an existing statute. It is likewise open to the said authority to exclude judicial review regarding the validity of a statute which might be enacted by the legislature in future in respect of a specified subject. In such an event, judicial review is not excluded for finding whether the statute has been enacted in respect of the specified subject. Both the above types of constitutional amendments are permissible under Article 368. What is not permissible, however, is a third type of constitutional amendment, according to which the amending authority not merely excludes judicial review regarding the validity of a 'statute which might be enacted by the Legislature in future in respect of a specified subject but also excludes judicial review for finding whether the statute enacted by the Legislature is in respect of the subject for which judicial review has been excluded.

( 1534 ) IN exercising the power of judicial review, it may be mentioned that the courts do not and cannot go into the question of wisdom behind a legislative measure. The policy decisions have essentially to be those of thelegislatures. It is for the legislatures to decide as to what laws they should enact and bring on the statute book. The task of the courts is to interpret the laws and to adjudicate about their validity they neither approve nor disapprove legislative policy. The office of the courts is to ascertain and declare whether the impugned legislation is in consonance with or in violation of the provisions of the Constitution. Once the courts have done that, their duty ends. The courts do not act as super legislature to suppress what they deem to be unwise legislation for if they were to do so the courts will divert criticism from the legislative door where it belongs and will thus dilute the responsibility of the elected representatives of the people. As was observed by Shri Alladi Krishnaswamy lyer in speech in the Constituent assembly on 12/09/1949 "'the Legislature may act wisely or unwisely. The principles formulated by the Legislature may commend themselves to a court or they may not. The province of the court is normally to administer the law as enacted by the Legislature within the limits of its power. "

( 1535 ) IN exercising the power of judicial review, the courts cannot be oblivious of the practical needs of the government. The door has to be left open for trial and error. Constitutional law like other mortal contrivances has to take some chances. Opportunity must be allowed for vindicating reasonable belief by experience. Judicial review's not intended to create what is sometimes called Judicial Oligarchy, the Aristrocracy of the Robe, Covert Legislation, or Judge-made law. The proper forum to fight for the wise use of the legislative authority is that of public opinion and legislative assemblies. Such contest cannot be transferred to the judicial arena. That all constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision. The sobering reflection has always to be there that the Constitution is meant not merely for people of their way of thinking but for people of fundamentally differing views. As observed by Justice Holmes while dealing with the Fourteenth Amendment to the US Constitution :"the Fourteenth Amendment does not enact Mr. Herbert Spencer's social Statics. . . Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez. faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. " (See Mr. Justice Holmes, p. 82-83 (1931 Edition ). It would also be pertinent in this context to reproduce the words of Patanjali sastri, C.. in the case of State of Madras v. V. G'. Row while dealing with reasonable restrictions:"in evaluating such elusive factors and forming their own concep 79. 1952 SCR 597 : AIR 1952 SC 116: 1952 SCJ 253 : 1952 Cri LJ 966. tion of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable. "1535-A. In my opinion, the second part of Article 31-C is liable to be quashed on the following grounds : (1) It gives a carte blanche to the Legislature to make any law violalive of Articles 14, 19 and 31 and make it immune from attack by inserting the requisite declaration. Article 31-C taken along with its second part gives in effect the power to the Legislature, including a state Legislature, to amend the Constitution. (2) The Legislature has been made the final authority to decide as to whether the law made by it is for the objects mentioned in article 31-C. The vice of second part of Article 31-C lies in the fact that even if the law enacted is not for the object mentioned in article 31-G, the declaration made by the Legislature precludes a party from showing that the law is not for that object and prevents a court from going into the question as to whether the law enacted is really for that object. The exclusion by the Legislature, including a State Legislature, of even that limited judicial review strikes at the basic structure of the constitution. The second part of Article 31-C goes beyond the permissible limit of what constitutes amendment under Article 368. The second part of Article 31-C can be severed from the remaining part of article 31-C and its invalidity would not affect the validity of the remaining part. I would, therefore, strike down the following words in Article 31-C. "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. "

( 1536 ) WE may now deal with the Constitution (Twenty-ninth Amendment) Act. This Act, as mentioned earlier, inserted the Kerala Act 35 of 1969 and the Kerala Act 25 of 1971 as entries Nos. 65 and 66 in the Ninth schedule to the Constitution. I have been able to find no infirmity in the constitution (Twenty-ninth Amendment) Act. It may be mentioned that anargument was advanced before us that Articles 31-Band 31-A are linked together and that only those enactments can be placed in the Ninth Schedule as fall within the ambit of Article 31-A. Such a contention was advanced in the case of N. B. Jeejeebhoy v. Assistant Collector, Thana Prant, Thana. Repelling the contention Subba Rao,. (as he then was) speaking for the Constitution bench of this court observed :"the learned Attorney-General contended that Article 31-A and article 31-B should be read together and that if so read Article 31-B would only illustrate cases that would otherwise fall under Article 31-A and, therefore, the same construction as put upon Article 31-B should also apply to Article 31-A of the Constitution. This construction wassought to be based upon the opening words of Article 31-B, namely, 'without prejudice to the generality of the provisions contained in Article 31-A'. We find it difficult to accept this argument. The words "without prejudice to the generality of the provisions', indicate that the acts and regulations specified in the Ninth Schedule would have the immunity even if. they did not attract Article 31-A of the Constitution. If every Act in the Ninth Schedule would be covered by Article 31-A, this article would become redundant. Indeed, some of the Acts mentioned therein, namely, items 14 to 20 and many other Acts added to the ninth Schedule, do not appear to relate to estates as defined in Article 31-A (2) of the Constitution. We, therefore, hold that Article 31-B is not governed by Article 31-A and that Article 31-B is a constitutional device to place the specified statutes beyond any attack on the ground that they infringe Part III of the Constitution. "i see no cogent ground to take a different view. In the result I uphold the validity of the Constitution (Twenty-ninth Amendment) Act.

( 1537 ) I may now sum up my conclusions relating to power of amendment under article 368 of the Constitution as it existed before the amendment made by the Constitution (Twenty-fourth Amendment) Act as well as about the validity of the Constitution (Twenty-fourth Amendment) Act, the Constitution (Twenty-fifth Amendment) Act and the Constitution (Twenty-ninth amendment) Act: (i) Article 368 contains not only the procedure for the amendment of the Constitution but also confers the power of amending the constitution. (ii) Entry 97 in List I of the Seventh Schedule of the Constitution does not cover the subject of amendment of the Constitution. (iii) The word "law" in Article 13 (2) does not include amendment of the Constitution. It has reference to ordinary piece of legislation. It would also in view of the definition contained in clause (a) of Article 13 (3) include an ordinance, order, bye law, rule, regulation, notification, custom or usage having in the territory of India the force of law. (iv) Provision for amendment of the Constitution is made with a view to overcome the difficulties which may be encountered in future in the working of the Constitution. No generation has a monopoly of wisdom nor has it a right to place fetters on future generations to mould the machinery of governments. If no provision were made for amendment of the Constitution, the people would have recourse to extra-constitutional method like revolution to change the Constitution. (v) Argument that Parliament can enact legislation under Entry 97 list I of Seventh Schedule for convening a Constituent Assembly or holding a referendum for the purpose of amendment of part III of the Constitution so as to take away or abridge fundamental rights is untenable. There is no warrant for the proposition that as the amendments under Article 368 are not brought about through referendum or passed in a convention the power of amendment under Article 368 is on that account subject to limitations. (vi) The possibility that power of amendment may be abused furnishes no ground for denial of its existence. The best safeguard against abuse of power is public opinion and the good sense of the majority of the members of Parliament. It is also not correct to assume that if Parliament is held entitled to amend part III of the Constitution, it would automatically and necessarily result in abrogation of all fundamental rights. (vii) The power of amendment under Article 368 does not include the power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution. Subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend the various articles of the Constitution, including those relating to fundamental rights as well as those which may be said to relate to essential features. No part of a fundamental right can claim immunity from amendatory process by being described as the essence or core of that right. The power of amendment would also include within itself the power to add, alter or repeal the various articles. (viii) Right to property does not pertain to basic structure or framework of the Constitution. (ix) There are no implied or inherent limitations on the power of amendment apart from those which inhere and are implicit in the word "amendment". The said power can also be not restricted by reference to natural or human rights. Such rights in order to be enforceable in a court of law must become a part of the statute or the Constitution. (x) Apart from the part of the Preamble which relates to the basic structure or framework of the Constitution, the Preamble does not restrict the power of amendment. (xi) The Constitution (Twenty-fourth Amendment) Act does not suffer from any infirmity and as such is valid. (xii) The amendment made in Article 31 by the Constitution (Twenty-fifth Amendment) Act is valid. (xiii) The first part of Article 31-C introduced by the Constitution (Twenty-fifth Amendment) Act is valid. The said pan is as under:"31-C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31 :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 this assent. " (xiv) The second part of Article 31-C contains the seed of national disintegration and is invalid on the following two grounds : (1) It gives a carte blanche to the Legislature to make any law violative of Articles 14, 19 and 31 and make it immune from attack by inserting the requisite declaration. Article 31-C taken along with its second part gives in effect the power to the Legislature including a State Legislature, to amend the constitution in important respects. (2) The Legislature has been made the final authority to decide ask to whether the law made by it is for the objects mentioned in Article 31-C. The vice of second part of Article 31-G lies in the fact that even if the law enacted is not for the object mentioned in Article 31-C, the declaration made by the Legislature precludes a party from showing that the law is not for that object and prevents a court from going into the question as to whether the law enacted is really for that object. The exclusion by the Legislature, including a State Legislature, of even that limited judicial review strikes at the basic structure of the Constitution. The second part of Article 31-G goes beyond the permissible limit of what constitutes amendment under Article 368. The second part of Article 31-C can be severed from the remaining part of Article 31-C and its invalidity would not affect the validity of the remaining part. I would, therefore, strike down the following words in Article 31-C-"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. " (xv) The Constitution (Twenty-ninth Amendment) Act does not suffer from any infirmity and as such is valid.

( 1538 ) THE petition shall now be posted for hearing before the Constitution bench for disposal in the light of our findings.

( 1539 ) MATHEW,. In the cases before us, the Constitution of our country, in its most vital parts has to be considered and an opinion expressed which may essentially influence the destiny of the country. It is difficult to approach the question without a deep sense of its importance and of the awesome responsibility involved in its resolution.

( 1540 ) I enterain little doubt that in important cases it is desirable for the future development of the law that there should be plurality of opinions even if the conclusion reached is the same. There are dangers in their being only one opinion. "then the statements in it have tended to be treated as definitions and it is not the function of a court to frame definitions. Some latitude should be left for future developments. The true ratio of a decision generally appears more clearly from a comparison of two or more statements in different words which are intended to supplement each other". In cassell and Co. Ltd. v. Broome and Another, Lord Chancellor, Lord hailsham said that Lord Devlin's statement of the law in Rookes v. Barnard, has been misunderstood particularly by his critics and that the view of the House of Lords has suffered to some extent from the fact that its reasonswere given in a single speech and that whatever might be the advantages of a judgment delivered by one voice, the result may be an unduly fundament- alist approach to the actual language employed. In Graves v. Newyork, frankfurter,. , in his concurring judgment,characterized the expression of individual opinions by the justices as a healthy practice rendered impossible only by the increasing volume of the business of the court.

( 1541 ) AS the arguments were addressed mainly in Writ Petition No. 135/ 1970, I will deal with it now. In this writ petition the petitioner challenged the validity of the Kerala Land Reforms Amendment Act, 1969, and the Kerala Land Reforms Amendment Act, 1971, for the reason that some of the provisions thereof violated Articles 14, 19 (1) (f),25,26 and 31 of the constitution.

( 1542 ) DURING the pendency of the Writ Petition, the Amending Body under the Constitution 'passed three constitutional amendments, namely, the Constitution 24th, 25th and 29th Amendment Acts.

( 1543 ) THE 24th Amendment made certain changes in Article 368 to make it clear that the Parliament, in the exercise of its constituent power, has competence to amend by way of addition, variation or repeal, any of the provisions of the Constitution in accordance with the procedure laid down in the article and that Article 13 (2) would not be a bar to any such amendment. By the 25th Amendment, the word 'amount' was substituted for the word 'compensation' in Clause 2 of Article 31. That was done in order to make it clear that the law for acquisition or requisition of the property need only fix an amount or lay down the principles for determining the amount and not the just equivalent in money of the market value of the property acquired or requisitioned. The Amendment also makes it clear that no such law shall be called in question in any court on the ground that the whole or any part of such amount is to be given otherwise than in cash. The 29th Amendment put the two Acts in question, viz. , the Kerala Land Reforms (Amendment) Act, 1969, and the Kerala Land reforms (Amendment) Act, 1971, in the Ninth Schedule with a view to make the provisions thereof immune from attack on the ground that the acts or the provisions thereof violate any of the Fundamental Rights.

( 1544 ) THE petitioner challenges the validity of these Amendments.

( 1545 ) AS the validity of the 25th and the 29th Amendments essentially depends upon the validity of the 24th Amendment, it is necessary to consider and decide that question first. I, therefore, turn to the circumstances which necessitated the Constitution 24th Amendment Act.

( 1546 ) THE Constitution (First Amendment) Act, 1951, was passed by Parliament on 18/06/1951, S. 2, 3 and 4 of the Act made amendments in some of the articles in Part III of the Constitution. The validity of the Amendment was challenged before this court in Sankari prasad v. The Union of India, and one of the questions which fell for decision was whether, in view of Clause 2 of Article 13, Parliament had power to amend the Fundamental Rights in such a way as to take away or abridge them. And the argument was that the word "slate" in Clause 2 of Article 13 includes Parliament and the word 'law' would take in an amendment of the Constitution and, therefore. Parliament had no power to pass a law amending the Constitution in such a way as to take awayor abridge the Fundamental Rights. Pantajali Sastri,. , who delivered the judgment of the court said that although the word 'law' would ordinarily include constitutional law, there is a distinction between ordinary law made in the exercise of legislative power and constitutional law made in the exercise of constituent power and that, in the context of Clause 2 of Article 13, the word 'law' would not include an amendment of the Constitution.

( 1547 ) THIS decision was followed in Sajjan Singh v. State of Rajasthan. There, Gajendragadkar, C.. , speaking for himself and two of his colleagues, substantially agreed with the reasoning of Pantanjali Sastri,. , in sankari Prasad v. The Union of India. Hidayatullah and Mudholkar,. , expressed certain doubts as to whether Fundamental Rights could be abridged or taken away by amendment of the Constitution under Article 368.

( 1548 ) THE question again came up before this court in Golaknath v. State of Punjab, hereinafter called 'golaknath case' where the validity of the 17th Amendment was challenged on much the same grounds. The majority constituting the bench decided that Parliament has no power to amend the Pundamental Rights in such a way as to take away or abridge them, but that the 1st, 4th and 17th Amendments were valid for all time on the basis of the doctrine of prospective overruling and that the Acts impugned in the case were protected by the Amendments.

( 1549 ) THE reasoning of the leading majority (Subba Rao,c.. , and the colleagues who concurred in the judgment pronounced by him) was that Article 368, as it stood then, did not confer the substantive power to amend the provisions of the Constitution but only prescribed the procedure for the same, that the substantive power to amend is in Articles 245, 246 and 248 read with Entry 97 of List I of the Seventh Schedule, that there is no distinction between a law amending the Constitution and an ordinary law passed in the exercise of the legislative power of Parliament and that the word 'law' in Clause 2 of Article 13 would include an amendment of the Con- stitution.

( 1550 ) HIDAYATULLAH,. , who wrote a separate judgment concurring with the conclusion of the leading majority, however, took the view that article 368 conferred the substantive power to amend the Constitution but that Fundamental Rights cannot be amended under the article so as to take away or abridge them. He said that there is no distinction between constitutional law and ordinary law, that both are laws, that the Constitution limited the powers of the government but not the sovereignty of the State, that the State can, in the exercise of its supremacy, put a limit on its supremacy, echoing in effect the view that there could be 'auto-limitation' by a sovereign of his own supreme power and that, by clause 2 of Article 13, the State and all its agencies, including the Amending Body, were prohibited from making any law, including a law amending the Constitution, in such a way as to take away or abridge the Fundamental rights. 1550-A. Let me first take up the question whether Article 368 as it stood before the 24th Amendment gave power to Parliament to amend the rights conferred by Part III in such a way as to take away or abridge them.

( 1551 ) IN Golaknath case, Hidayatullah.. , said that it is difficult to take a narrow view of the word 'amendment' as including only minor changes within the general framework, that by an amendment, new matter may be added, old matter removed or altered, and that except two dozen articles in Part III, all the provisions of the Constitution could be amended. Wanchoo,. , speaking for the leading minority in that case was of the view that the word, 'amendment' in its setting in the article was of the widest amplitude and that any provision of the Constitution could be amended. Bachawat,. ,vas also inclined to give the widest meaning to the word. Ramaswami,. , did not specifically advert to the point, but it seems clear from the tenor of his judgment that he was also of the same view.

( 1552 ) MR. Palkhivala for the petitioner contended that the word 'amendment' in the article could only mean a change with a view to make improvement; that in the context, the term connoted only power to make such changes as were consistent with the nature and purpose of the Constitution, that the basic structure and essential features of the Constitution cannot be changed by amendment, and that the assumption made by these judges that the word 'amendment' in the article was wide enough to make any change by way of alteration, addition or repeal of any of the provisions of the Constitution was unwaranted. He said that the article was silent as regards the subject-matter in respect of which amendments could be made or the extent and the width thereof, that it was set in a low key as it did not contain the words "amend by way of addition, variation or repeal", that these circumstances should make one pause before ascribing to the word 'amendment' its widest meaning and that, in the context, the word has only a limited meaning.

( 1553 ) I do not think that there is any substance in this contention.

( 1554 ) IN the Oxford English Dictionary, the meanings of the word 'amend' are given as-"to make professed improvements (in a measure before Parliament) ; formally to alter in detail, though practically it may be to alter its principle so as to thwart it. "according to "standard Dictionary", Funk and Wagnalls (1894), the meanings of "amendment' are:"the act of changing a fundamental law, as of a political constitution, or any change made in it according to a prescribed mode of procedure; as, to alter the law by amendment ; an amendment of the constitution. "

( 1555 ) THE proviso to Article 368 used the expression 'change' and that would indicate that the term 'amend' really means 'change'. The main part of Article 368 thus gave power to amend or to make changes in the constitution. Normally, a change is made with the object of making an improvement; at any rate, that is the professed object with which an amendment is sought to be made. The fact that the object may not be achieved is beside the point. Amendment contains in it an element of euphemism of conceit in the proposer, an assumption that the proposal is an improvement. Beyond this euphemistic tinge, amendment as applied to alteration of laws according to dictionaries means 'alter' or 'change.

( 1556 ) IN the National Prohibition Cases,, it was argued before the United States Supreme court that an amendment under Article V of the united States Constitution must be confined in its scope to an alteration or improvement of that which is already contained in the Constitution and cannot change its basic features but this argument was overruled.

( 1557 ) IN Ryan' s case, the Supreme court of Ireland held by a majority that the word 'amendment' occurring in Article 50 of the Irish constitution was of the widest 'amplitude. Fitz Gibbon,. , observed after reading the various meanings of the word 'amendment' that the word as it occurred in a Constitution Act must be given its widest meaning. Murnaghan,. , observed that although complete abolition of the Constitution without any substituted provisions might not" properly be called in law an 'amendment', the word is wide enough to allow of the repeal of any number of articles of the Constitution, however important they might be. Kennedy, C.. , did not specifically deal with the meaning of the word.

( 1558 ) IN this context it is relevant to keep in mind the general rules of construction for interpreting a word like "amendment' occurring in a constituent Act like the Constitution of India.

( 1559 ) IN In Re The central Provinces and Berar Sales of Motor Spirit and lubricants Taxation Act, 1938, etc. Sir Maurice Gwyer said that a broad and liberal spirit should inspire those whose duty it is to interpret a Constitution, that a court should avoid a narrow and pedantic approach and that when a power is granted without any restriction, it can be qualified only by some express provision or by the scheme of the instrument.

( 1560 ) THE basic principles of construction were definitively enunciated by the Privy council in The Queen v. Burah, and those principles were accepted and applied by Earl Loreburn in Attorney-General for Ontario v. Attorney-General for Canada. Lord Selborne said in the former case that the question whether the prescribed limits of a power have been exceeded has to be decided by looking to the terms of the instrument by which, affirmatively, the power was created, and by which, negatively, it is restricted and that if what has been done is within the general scope of the affirmative words which give the power, and if it violates no express condition of restriction by which that power is limited, it is not for any court of justice to inquire further, or to enlarge constructively those conditions and restrictions. In other words, in interpreting a Constitution, as Lord Loreburn said in the latter case, if the text is explicit, the text is conclusive, alike in what it directs and what it prohibits.

( 1561 ) I should think that in such matters everything turns upon the spirit in which a judge approaches the question before him. The words he must construe are, generally speaking, mere vessels in which he can pour nearly anything he will. "men do not gather figs of thistles, nor supply institutions from judges whose outlook is limited by parish or class. They must be aware that there are before them more than verbal problems; more than final solutions cast in generalizations in every society which make it an organism ; which demand new schemata of adaptation ; which will disrupt it,if rigidly confined". And this is why President Roosevelt said that the judges of the Supreme court must be not only great Justices, but they must be great constructive statesmen.

( 1562 ) THEREFORE, although the word 'amendment' has a variety of meanings, we have to ascribe to it in the article a meaning which is appropriate to the function to be played by it in an instrument apparently intended to endure for ages to come and to meet the various crises to which the body politic will be subject. The nature of that instrument demands awareness of certain presupposition. The Constitution has no doubt its roots in the past but was designed primarily for the unknown future. The reach of this consideration was indicated by Justice Holmes in language that remains fresh no matter how often repeated :". . . . . . . . . . . . . . . when we are dealing with words that also are a constituent Act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. . . . . . . . . . . . . . . .

( 1563 ) EVERY well-drawn Constitution will therefore provide for its own amendment in such a way as to forestall as is humanly possible all revolutionary upheavels. That the Constitution is a framework of great governmental powers to be exercised for great public ends in the future, is not a pale intellectual concept but a dynamic idea which must dominate in any consideration of the width of the amending power. No existing Constitution has reached its final form and shape and become, as it were a fixed thing incapable of further growth. Human societies keep changing; needs emerge, first vaguely felt and unexpressed, imperceptibly gathering strength, steadily becoming more and more exigent, generating a force which, if left unheeded and denied response so as to satisfy the impulse behind it, may burst forthwith an intensity that exacts more than reasonable satisfaction. As Wilson said, a living Constitution must be Darwinian in structure and practice. The Constitution of a nation is the outward and visible manifestation of the life of the people and it must respond to the deep pulsation for change within. "a Constitution is an experiment as all life is an experiment". If the experiment fails, there must be provision for making another. Jefferson said that there is nothing sanctimonious about a Constitution and that nobody should regard it as the ark of the covenant, too sacred to be touched. Nor need we ascribe to men of preceding age, a wisdom more than human and suppose that what they did should be beyond amendment. A Constitution is not an end in itself, rather a means for ordering the life of anation. The generation of yesterday might not know the needs of today, and, 'if yesterday is not to paralyse today', it seems best to permit each generation to take care of itself. The sentiment expressed by Jefferson in this behalf was echoed by Dr. Ambedkar. If thare is one sure conclusion which I can draw from this speech of Dr. Ambedkar, it is this : He could nothave conceived of any limitation upon the amending power. How could he have said that what Jefferson said is "not merely true but absolutely true", unless he subscribed to the view of Jefferson that "each generation is a distinct nation with a right, by the will of the majority to bind themselves but none 'to bind the succeeding generations more than the inhabitants of another country", and its corollary which follows as 'the night the day' that each gene- ration should have the power to determine the structure of the Constitution under which they live. And how could this be done unless the power, of amendment is plenary, for it "would be absurd to think that Dr. Ambedkar contemplated a resolution in every generation for changing the Constitution to to suit its. needs and aspirations. I should have thought that if there is any implied limitation upon any power, that limitation is that the amending body should not limit the power of amendment of the future generation by exercising its power to amend the amending power. Mr Palkhivala said that if the power of amendment of the amending power is plenary, one generation can, by exercising that power, take away the power of amendment of the Constitution from the future generations and foreclose them from ever exercising it. I think the argument is too speculative to be countenanced. It is just like the argument that if men and women are given the freedom to choose their vocations in life, they would all jump into a monastery or a nunnery, as the case may be, and prevent the birth of a new generation; or the argument of some political thinkers that if freedom of speech is allowed to those who do not believe in it, they would themselves deny it to others when they get power and, therefore, they should be denied that freedom today, in order that they might not deny it to others tomorrow.

( 1564 ) SEEING, therefore, that it is a "constitution that we are expounding" and that the Constitution-makers had before them several Constitutions where the word 'amendment' or "alteration' is used to denote plenary power to change the fundamentals of the Constitution, I cannot approach the construction of the word 'amendment' in Article 368 in a niggardly or petty- fogging spirit and give it a narrow meaning ; but "being a familiar expression, it was used in its familiar legal sense".

( 1565 ) HOWEVER, Mr. Palkhivala contended that there are provisions in the Constitution which would militate against giving the word 'amendment' a wide meaning in the article and he referred to the wording in schedule V, Para 7 (1) and Schedule VI, Para 21 (1 ). These paragraphs use along with the word 'amend', the expression "by way of addition, variation or repeal". Counsel said that these words were chosen to indicate the plenitude of the power of amendment and that this is in sharp contrast with the wording of Article 368 where only the word 'amendment' was used. But Schedule V, Para. 7 (2) and Schedule VI, Para 21 (2) them- selves indicate that, but for these provisions, an amendment of the schedule by way of addition, variation or repeal would be an amendment of the constitution under Article 368. In other words, the sub-paragraphs show clearly that the expression "amend by way of addition, variation or repeal" in Para 7 (1) of Schedule V and Para 21 (1) of Schedule VI has the same content as the word 'amendment' in Article 368.

( 1566 ) RELIANCE was also placed by counsel on S. 291 of the Government of India Act, 1935, as amended by the Third Amendment Act, 1949, which provided that "such amendments as he considers necessary whether by way of addition, modification or repeal in the Act". No inferencecan be drawn from the use of these words as to the meaning to be assigned to the word 'amendment' in Article 368 or its width as it is well known that draftsmen use different words to indicate the same idea for the purpose of elegance or what is called "the graces of style" or their wish to avoid the same word, or sometimes by the circumstance that the Act has been compiled from different sources and sometimes by alteration and addition from various hands which the Acts undergo in their progress in Parliament.

( 1567 ) IT was submitted that if the word 'amendment' is given an unlimited amplitude, the entire Constitution could be abrogated or repealed and that certainly could not have been the intention of the makers of the constitution. The question whether the power of amendment contained in article 368 as it stood before the amendment went to the extent of completely abrogating the Constitution and substituting it by an entirely new one in its place is not beyond doubt. I think that the power to amend under that article included the power to add any provision to the Constitution, to alter any provision, substitute any other provision in its place and to delete any provision. But when the article said that, on the bill for the amendment of the Constitution receiving the President's assent, "the Constitution shall stand amended", it seems to be fairly clear that a simple repeal or abrogation of the Constitution without substituting anything in the place of the repealed Constitution would be beyond the scope of the amending power, for, if a Constitution were simply repealed, it would not stand amended. An amendment which brings about a radical change in the Constitution like introducing presidential system of government for cabinet system, or, a monarchy for a republic, would not be an abrogation or repeal of the constitution. However radical the change might be, after the amendment, there must exist a system by which the State is constituted or organised. As already stated, a simple repeal or abrogation without more, would be contrary, to the terms of Article. 368 because it would violate the constitutional provision that "the Constitution shall stand amended".

( 1568 ) EVEN if the word 'amendment' in Article 368 as it stood originally was wide enough to empower the amending body to amend any of the provisions of the Constitution, it was submitted by the petitioner, that article 13 (2) was a bar to the amendment of the Fundamental Rights by parliament in such a way as to take away or abridge them:"13 (2) 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. "in this context it is necessary to understand the basic distinction between a flexible and a rigid Constitution to appreciate the argument that an amendment of the Constitution is 'law' within the purview of the sub-article.

( 1569 ) THE outstanding characteristic of a flexible Constitution like the British Constitution as contrasted with a rigid one like ours is the unlimited authority of the Parliament to which it applies, to pass any law without any restriction. In a rigid Constitution, there is a limitation upon the power of the Legislature by something outside itself. There is a greater law than the law of the ordinary Legislature and that is the law of the Constitution which is of superior obligation unknown to a flexible Constitution. ft does not follow that because a Constitution is written, it is thereforerigid. There can be a written Constitution which is flexible. "the sole criterion of a rigid Constitution is whether the constituent assembly which drew up the Constitution left any special direction as to how it was to be changed". If a special procedure is prescribed by the Constitution for amending it, different from the procedure for passing ordinary law, then the Constitution is rigid.

( 1570 ) IT is said that Articles 4 and 169, Paragraph 7 of the Fifth Schedule and Paragraph 21 of the Sixth Schedule show that amendment of the constitution can be made by the ordinary law-making procedure. These provisions themselves show that the amendment so effected shall not be deemed to be amendment for the purpose of Article 368. This is because the procedure prescribed by them is different from the procedure laid down in Article 368.

( 1571 ) MR. Prikhivala did not contend that the power to amend is located in Articles 245, 246 and 248 read with Entry 97 of List I of the seventh Schedule. He only submitted that it is immaterial whether the power is located in Articles 245, 246 and 248 read with Entry 97 of List I of the Seventh Schedule or in Article 368. I do not think that there could be any doubt that Article 368 as it stood before the 24th Amendment contained not only the procedure but also the substantive power of amendment. As the article laid down a procedure different from the procedure for passing ordinary laws, our Constitution, is a rigid one and the power to amend a constituent power.

( 1572 ) THE vital distinction between constitutional law and ordinary law in a rigid Constitution lies in the criterion of the validity of the ordinary law. An ordinary law, when questioned, must be justified by reference to the higher law embodied in the Constitution; but in the case of a Constitution, its validity is, generally speaking, inherent and lies within itself. Kelsen has said, the basic norm (the Constitution) is not created in a legal procedure by a law-creating organ. It is not-as a positive legal norm is-valid because it is created in a certain way by a legal act, but it is valid because it is presupposed to be valid ; and it is presupposed to be valid because, without this presupposition, no human act could be interpreted legal, especially as a norm-creating act. In other words, the validity of the Constitution generally lies in the social fact of its being accepted by the community and for the reason that its norms have become efficacious. Its validity is meta-legal.

( 1573 ) WHETHER the observations of Kelsen would apply to our Constitution would depend upon the answer to the question whether the legal source of the Constitution should be traced to the Indian Independence Act, 1947, or, whether the Constitution was the result of the exercise of the revolutionary constituent power of the people.

( 1574 ) IT does not follow from what has been said that there are no basic rules in a flexible Constitution like that of Great Britain. The principle of the English Constitution, namely, that the court will enforce Acts of parliament is not derived from any principle of common law, but is itself an ultimate principle of English Constitutional law.

( 1575 ) ONCE it is realised that a Constitution differs from law in that a Constitution is always valid whereas a law is valid only if it is in conformity with the Constitution and that the body which makes the Constitution is a sovereign body and generally needs no legal authority whereas a body which makes the ordinary law is not sovereign, but derives its power from the Cons- titution, an amendment to the Constitution has the same validity as the constitution itself, although the question whether the amendment has been made in the manner and form and within the power conferred by the Cons- titution is always justiciable. Just as an ordinary law derives its validity from its conformity with the Constitution, so also, an amendment of the constitution derives its validity from the Constitution. An amendment of the Constitution can be ultra vires just as an ordinary law can be.

( 1576 ) WHEN a legislative body is also the sovereign Constitution- making body, naturally the distinction between Constitution and an ordinary law becomes conceptual and, in fact, disappears as that body has both the constituent power of the sovereign as well as legislative power. The British constitution under which the distinction between the sovereign and the ordinary Legislature is eclipsed due to the theory of the sovereignty of the british Parliament, is certainly not the ideal constitution to choose for ap- preciating the distinction between constitutional law and ordinary law under our polity. Sir Ivor Jennings said that there is no clear distinction between constitutional law and ordinary law in England and that the only fundamental law there is that Parliament is supreme. Strictly speaking, therefore, there is no constitutional law at all in Britain; there is only arbitrary power of parliament.

( 1577 ) IT is said that the Bill of Rights (1689), Act of Settlement (1701), etc. , partake the character of constitutional law and there is no reason to exclude that type of law from the ambit of the word law' in clause (2) of Article 13.

( 1578 ) IN a flexible Constitution like the British Constitution the only dividing line between constitutional law and ordinary law is that constitu- tional law deals with a particular subject-matter, namely, the distribution of the sovereign power among the various organs of the State and other allied matters; but in India, as I have said, that distinction may not be quite relevant. For our purpose, the only relevant factor to be looked into is whe- ther a provision is embodied in the Constitution of India: Any provision, whether it relates strictly to the distribution of sovereign power among the various organs of the State or not, if it is validly embodied in the document known as "the Constitution of India", would be a law relating to the constitution. In other words, irrespective of the subject-matter, the moment a provision becomes validly embodied in the Constitution, it acquires a validity of its own which is beyond challenge and the question whether it relates to constitutional law with reference to the subject-matter is wholly irrelevant. "where a written Constitution exists, it is approximately true to say that the Constitution itself provides such a supreme norm. . . . . . . . . . even so, the Constitution may not be altogether identified with the supreme norm; for there may be rules for its interpretation which judges accept as binding but which are not prescribed in the Constitution. Effectively, therefore, it is the traditional judicial interpretation of the constitution that is the supreme norm". For, as Bishop Hoadley said in his sermon "whoeverhath absolute authority to interpret any written or spoken laws, it is he who is the law-giver to all intents and purposes and not the person who first wrote or spoke them".

( 1579 ) AS I said, for the purpose of Article 13 (2), the only relevant question is whether an amendment of the Constitutipn is law'. Since both an amendment of the Constitution and an ordinary law derive their validity from the Constitution, -the criterion that an ordinary law can be tested for its validity on the touchstone of the Constitution must equally apply to an amendment of the Constitution. Therefore, by and large, the only distinc- tion between a law amending the Constitution and an ordinary law in a rigid constitution is that an amendment of the Constitution has always to be made in the manner and form specially prescribed by the Constitution.

( 1580 ) MR. Pafkhivala contended that when Articles 13 (1) and 372 speak of "laws in force" in the territory of India immediately before the com- mencement of the Constitution, the expression would take in also all cons- titutional law existing in the territory of India immediately before the coming into force of the Constitution, and therefore, the word law' in clause (2) of Article 13 must also include constitutional law. Assuming that the expression "laws in force" in Articles 13 (1) and 372 is wide enough to in- clude constitutional law, the question is, what. is the type of constitutional law that would be included? So far as British India was concerned, Article 395 repealed the Indian Independence Act, 1947, and the government of india Act, 1935, together with all enactments amending and supplementing the latter Act. I am not sure whether there were any Orders passed under the government of India Act which would he called constitutional law. That apart, I doubt whether the government of India Act, 1935, and the indian Independence Act, 1917, were constitutional laws in the sense of their being the supreme law of the land like the Constitution of India for both of them could have been repealed by the legal sovereign, namely, the British parliament. And the reason why their provisions could not have been challenged in a court of the Law was not that they were the supreme law of the land but because they were laws in conformity with the supreme law, namely, the will of the British Parliament. As regards the native States, the fact that the courts therein could not have challenged the validity of the provisions of the Constitution promulgated by an absolute monarch would not show that those provisions could be equated with the provisions of the Constitution of India. A Constitution established by an absolute monarch will be enforced by the court of the State, not because the Constitution is the supreme law of the State but because it is a law in conformity with the supreme law, namely, the supreme will of the monarch which alone is the supreme law, unless, as Alf Ross said, the Constitution was granted by the monarch with the intention that it should not be revoca- ble. Therefore, those constitutional laws cannot be characterised as cons- titutional laws in the sense in which we speak of the Constitution of India, for, such of the provisions of those constitutions in the native States existing before the commencement of the Constitution of India which contravened the provisions of Part III became void [article 13 (1)] and others which continued, continued subject to the provisions of the Constitution (Article 372 ). In other words, for the purpose of Article 13 (2), what is relevant is whether the word 'law' there, is comprehensive enough to take in constitutional law in the sense of a law embodied in a constitution which is the supreme law of the land and from which all other laws derive their validity. The cons- titutional laws in force in the territory of India immediately before thecommencement of the Constitution did not have the status of constitutional law in the sense of a law which is supreme. Were it otherwise, none of them would have been void under Article 13 (1) and none of them subject to the provisions of the Constitution under Article 372.

( 1581 ). It seems to me to be clear that the word ' law' in Article 13 (2), in the context, could only mean an ordinary law. When Article 13 (2) said that the State shall not make any 'law', the meaning of the expression 'law' has to be gathered from the context. Though, analytically, it might be possible to say that the word law' would include an amendment of the Constitution also, from the context it would be clear that it only meant ordinary law. A word by itself is not crystal clear. It is the context that gives it the colour. In the setting of Article 13 (2), what was prohibited was that the Parliament shall not pass a law in pursuance of its powers under Ch. I of Part XI or any other provisions enabling it to pass laws, which were legislative in character. The Constitution-makers only wanted to provide against the more common invasion of Fundamental Rights byordinary legislation.

( 1582 ). If the power to amend was to be found within Article 368 and not under Article 248 read with Entry 97 of List I of the Seventh Schedule, it stands to reason to hold that constituent power for amendment of the Constitution is distinct from legislative power. The leading majority in the Golaknath case> took pains to locate the power to amend in Article 248 read with Entry 97 of list I of the Seventh Schedule to show that the Constitution can be amended by an ordinary law and that such a law would be within the purview of article 13 (2 ). But if the power to amend the Constitution is a legislative power and is located in the residuary Entry (97 of List I of the Seventh schedule), then any law amending the Constitution by virtue of that power, can be passed only "subject to the provisions of the Constitution" as men- tioned in Article 245. A power of amendment by ordinary law "subject to the provisions of the Constitution" seems to me a logical contradiction; for, how can you amend the provisions of the Constitution by an ordinary law which can be passed only subject to the provisions of the Constitution?

( 1583 ) IT would be strange that when a whole Ch. has been devoted to the "amendment of the Constitution" and when the question of amend- ment loomed large in the mind of the Constitution-makers that, even if the power to amend the Constitution was thought to be legislative in character, it was not put as a specific entry in List I but relegated to the-residuary entry ! and, considering the legislative history of the residuary entry, it is impossible to locate the power of amendment in that entry. The legislative power of parliament under Entry 97 of List I of the Seventh Schedule is exclusive and the power to amend cannot be located in that entry because, in respect of the matters covered by the proviso to Article 368, Parliament has no exclusive power to amend the Constitution.

( 1584 ). That apart, the power to amend a rigid Constitution, not being an ordinary legislative power but a constituent one, it would be strange that the Constitution-makers put it sub-silentio in the residuary legislative entry.

( 1585 ). Article 368 was clear that when the procedure prescribed by e article was followed, what resulted was an amendment of the Constitution. The article prescribed a procedure different from the legislative procedure prescribed in Articles 107 to 111 read with Article 100. Article 100 runs as follows: "save as otherwise provided in this Constitution all questions at anysitting of either House or joint sitting of the Houses shall be determined by a majority of votes of the members present and voting. . . . . . . . . . . . . . . " Certain types of amendment, as is clear from Article 368, also require to be ratified. The first part of Article 368 required that a bill must be passed in each House : (1) by a majority of the total membership of that House and (2) by a majority of not less then two-thirds of the members of that House present and voting. These provisions rule out a joint sitting of both the Houses, under Article 108 to resolve disagreement. between the two Houses. Again, the majority required to pass a bill in each House is not a majority of the members of that house present and voting but a majority of the total membership of each house and a majority of not less than two-thirds of the members of that house present and voting. As regards matters covered by the proviso, there is a radical departure from the legislative procedure prescribed for Parlia- ment by Articles 107 to 1 11. Whereas in ordinary legislative matters Parlia- ment's power to enact laws is not dependent on the State Legislatures, in matters covered by the proviso to Article 368, even if the two Houses pass a bill by the requisite majorities, the bill cannot be presented to the President for his assent unless the bill has been ratified by resolutions to that effect passed by the Legislatures of not less than half the number of States.

( 1586 ). Subba Rao. C.. , in his judgment in Golaknath case relied on mccawley v. The King and the Bribery Commissioner v. Pedrick Ranasingh to show that the power to amend the Constitution was a legislative power. In mccawley's case (supra) Lord Birkenhead said that it is of the utmost importance to notice that where the Constitution is uncontrolled the consequences of its freedom admit of no qualification whatever and that it would be an elemen- tary common place that in the eye of the law the legislative document or docu- ments which defined it occupied precisely the same position as the Dog Act or any other Act, however humble its subject-matter and that the so called constitutional law (I call them so called because it is constitutional law only with reference to the subject-matter, not with reference to its superior character) will stand amended by the Dog Act, if it is in any way repugnant to the legislative documentor documents.

( 1587 ). In Ranasinghe's case (supra), the question for determination before the Privy council was whether the statutory provisions for the appointment of members of the penal of the Bribery tribunal, otherwise than by the Judicial service Commission, violated S. 55 of the Constitution Order and, if so, whether that provision was void. S. 18 and 29 of the Order provide as follows:"section 18.-Save as otherwise provided in Ss. (4) of section 29, any question proposed for decision by either Chamber shall be determined by a majority of votes of the Senators or Members, as the case may be, present and voting. The President or Speaker or other person presiding shall not vote in the first instance but shall have and exercise a casting vote in the event of an equality of votes. ""section 29.- (1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island. (2) No such law shall: (a) prohibit or restrict the free exercise of any religion; or (b) make persons of any community or religion liable to disabilities or restrictions to which persons of other com- munities or religions are not made liable; or (c) confer on persons of anycommunity or religion any privilege or advantage which is not conferred on persons of other communities or religions; or (d) alter the Consti- tution of any religious body except with the consent of the governing authority of that body : Provided that, in any case where a religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body. (3) Any law made in con- travention of Ss. (2) of this S. shall, to the extent of such contravention, be void. (4) In the exercise of its powers under this section. Parliament may amend or repeal any of the provisions of this order, or of any other Order of His Majesty in council in its application to the Island: Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented to the Royal Assent unless it has endorsed on it a certificate under the hand of the speaker that the number of votes cast in favour thereof in the House of Represen- tatives amounted to not less than two-thirds of the whole number of members of the 'house (including those not present ). Every certificate of the Speaker under this Ss. shall be conclusive for all purpose and shall not be questioned in any court of law. "

( 1588 ). The appellant contended that whereas S. 29 (3) expressly pro- vided that a law which contravened S. 29 (2) was void there was no such provision for the violation of Section 29 (4) which was merely procedural and that as Ceylon was a sovereign State and had the power to amend the Con- stitution, any law passed by the legislature was valid even if it contravened the constitution, and Mccawley's case (supra) was cited as supporting this contention. But the Privy council said that the law impugned in Mccawley case (supra) was not required to be passed by a special procedure, but in the present case the law which contravened S. 55 could only be passed as required by S. 29 (4) for the amendment of the Constitution and as it was not so passed, it was ultra mns and void.

( 1589 ). It is not possible to draw the inference which Subba Rao, C.. , drew from these two cases. There is a distinction between a general power to legislate and a power to legislate by special legislative procedure and the results of the exercise of the two powers are different. In Mccawley's case (su- pra) it was observed that if a Legislature has full power to make a law which conflicted with the Constitution, the law was valid since it must be treated as a pro-tanto amendment of the Constitution which was neither fundamental in the sense of being beyond change nor so constructed as to require any special legislative process to pass upon the topic dealt with, and an ordinary law in conflict with the Constitution must, in such a case be treated as an implied alteration of the Constitution. In Ranasinghe's case (supra) the Privy council said that where even an express power of a Legislature to alter can be exercised only by laws which comply with the "special legislative procedure laid down in the Constitution", such a Legislature has no general power to legislate for the amendment of the Constitution, and a law passed in the exercise of such general power is void if the law contravenes the Constitution, and, where a legislative power is "subject to the provisions of the Constitu- tion", any exercise of it in contravention of such provisions renders it invalid and ultra vires. As already stated, in a controlled Constitution which confers general legislative power subject to the provisions of the Constitution and provides a special procedure for amendment of the Constitution, law passed in the exercise of the general legislative power and conflicting with the Constitution must be void because the Constitution can be amended only by special procedure. In a Constitution which confers general legislative power including a power to amend the Constitution, the Constitution isuncontrolled and is not a fundamental document which the laws made under it are to be tested, for, any law contrary to the Constitution impliedly alters it. The result is that no law passed under an uncontrolled Constitution is ultra vires.

( 1590 ). The substance of the decision in Ranasinghe's case (supra) is that though Ceylon Parliament has plenary power of ordinary legislation, in the exercise of its constituent power. It was subject to the special procedure laid down in S. 29 (4 ). The decision, therefore, makes a clear distinction between legislative and constituent powers.

( 1591 ). It was contended that the amending power can be a legislative power as in Canada and, therefore, there was nothing wrong in the leading majority in Golaknath case locating the power of amendment in the residuary entry.

( 1592 ). S. 91 (1) of the British North America Act provides for a restricted power of amendment of the Constitution. This power, undoub- tedly, is a legislative power and the Constitution, therefore, to that extent is an uncontrolled or a flexible one. There is no analogy between the power of amendment in Canada which is legislative in character and the power of amendment under Article 368 which is a constituent power. As I indicated, even if there was an entry for amending the Constitution in List I of the seventh Schedule, that would not have enabled the Parliament to make any amendment of the Constitution because the opening words of Article 245 "subject to the provisions of this Constitution" would have presented an insuperable bar to amend any provision of the Constitution by the exercise of legislative power under the Constitution. Under a controlled Constitution like ours, the power to amend cannot be a legislative power; it can only be a constituent power. Were it otherwise, the Constitution would cease to be a controlled one.


( 1593 ). It was submitted that if Fundamental Rights wer (r) intended to be amended by the Constitution-makers in such a way as to abridge or take them away, considering the paramount importance of these rights, the procedure required by 'the proviso to Article 368 would, at any rate, have been made mandatory and that not being so, the intention of the Constitu- tion-makers was that the Fundamental Rights should not be amended in such a way as to abridge or take them away. This argument overlooks the purpose of the proviso. The proviso was mainly intended to safeguard the rights and powers of the States in their juristic character as person in a federation. The purpose of the proviso was that the rights, powers and privileges of the States or their status as States should not be taken away or impaired without their participation to some extent in the amending process. Fundamental Rights are rights of individuals or minorities, and they are represented in Parliament. The States, as States, are not particularly affec- ted by amendment of Fundamental Rights. As Wheare said, it is essential in a federal government that if there be a power of amending the Constitu- tion, that power, so far at least as concerns those provisions of the Constitu- tion which regulate the status and powers of the general and regional governments, should not be confided exclusively either to the general govern- ments or to the regional governments.

( 1594 ). The Constitution (First Amendment) Act amended the Funda- mental Rights under Articles 15 and 19 in such a way as to abridge them. The speech of Pandit Jawaharlal Nehru in moving the amendment and those of others who were responsible for drafting the Constitution make it clear that they never entertained any doubt as to the amendability of the fundamental Rights in such a way as to abridge them. Strong opponents of the amendments' like S. P. Mukherjee, never made even the whisper of a suggestion in their speeches that Fundamental Rights were not amend- able in such a way as to abridge them. Contemporaneous practical exposition is a valuable aid to the meaning of a provision of the Constitution or a statute.

( 1595 ). Mr. Palkhivala also relied upon the speech of Dr. Ambedkar made on 17/09/1949, in the Constituent Assemly to show that fundamental Rights could not be taken away or abridged by an amendment of the Constitution.

( 1596 ). The question whether speeches made in the Constituent Assem- bly are admissible to ascertain the purpose behind a provision of the Consti- tution is not free from doubt. In A. K. Gopalan v. The State of Madras, kania, C. J,, said that while it is not proper to take into consideration the individual opinions of members of Parliament or Convention to construe the meaning of a particular clause, when a question is raised whether acertain phrase or expression was up for consideration at all or not, a reference to the debates may be permitted. In the same case, Patanjali Sastri,. , said that in construing the the provisions of an Act, speeches made in the course of the debates on a bill could at best be indicative of the subjective intent of the speaker but they could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Mukherjea,. , said that in construing a provision in the Constitution it is better to leave out of account the debates in the Constituent Assembly, but a higher value may be placed on the report of the Drafting Committee. In State of Travancore-Cochin awl Others v. The Bombay Co. Ltd. etc. . Patanjali Sastri, C.. , delivering the judgment of the court said that speeches made by the members of the Constituent Assembly in the course of the debates on the draft Consti- tution cannot be used as aids for interpreting the Constitution. In Golaknath case Subba Rao,c.. , referred to the speech of Pandit Jawaharlal nehru made on 30/04/1947, in proposing the adoption of the interim report on Fundamental Rights and that of Dr. Ambedkar made on Septem- ber 18, 1949, on the amendment proposed by Mr. Kamath to Article 304 of the draft Constitution (present Article 368) and observed that the speeches were referred to, not for interpreting the provisions of Article 368 but to show the transcendental character of Fundamental Rights. I am not clear whether the speech of Dr. Ambedkar throws any light on the transcendental character of Fundamental Rights. That speech, if it is useful for any purpose, is useful only to show that Fundamental Rights cannot be amended. In the Privy Purse caseshah,. referred to the speech of Sardar Vallabh- bhai Patel for understanding the purpose of Article 291 of the Constitution. Speeches made by inembers of the Constituent Assembly were quoted in profusion in the Union of India v. Harbhajan Singh Dhillon both in the majo- rity as well as in the minority judgments. In the majority judgment it wassaid that they were glad to find that the construction placed by them on the scope of Entry 91 in the draft Constitution corresponding to the present Entry 97 of List I of the Seventh Schedule agreed with the view expressed in the speeches referred to by them. The minority referred to the speeches made by various members to show that their construction was the correct one. Cooley said : "when a question of Federal Constitutional law is involved, the purpose of the Constitution, and the object to be accomplished by any particular grant of power, are often most important guides in reaching the real intent; and the debates in the Constitutional Convention, the discussions in the Federalist, and in the conventions of the States, are often referred on as throwing important light on clauses in the Constitution which seem blind or of ambiguous import". Julius Stone, the Australian jurist, has expressed the opinion that in principle the court should be free to inform itself con- cerning the social context of the problems involved from all reliable sources and that it is difficult to see in principle why British courts should exclude rigidly all recourse to the debates attending the legislative process. He asked the question on what basis is it explicable that lawyers can regard with equa- nimity cases in which judges may pronounce ex-cathedre that so and so clearly could not have been in the legislators' minds when the parliamentary debates ready at hand might show that that was precisely what was in their minds.

( 1597 ). Logically, there is no reason why we should exclude altogether the speeches made in the Constituent Assembly by individual members if they throw any light which will resolve latent ambiguity in a provision of Cons- titution. chief justice Marshall struck at the core of the matter when he said :"where the mind labours to discover the design of the Legislature, it seizes everything from which aid can be derived". If the purpose of construction is the ascertainment of meaning, nothing that is logically relevant should, as a matter of theory, be excluded. The rigidity of English courts in interpreting language merely by reading it, disregards the fact that enactments are, as it were organisms which exist in their en- vironment. It is, of course, difficult to say that judges who profess to ex- clude from their consideration all extrinsic sources are confined psychologically as they purport to be legally. A judge who deems himself limited to reading the provisions of the Constitution without an awareness of the history of their adoption in it would be taking a mechanical view of the task of construction. .

( 1598 ). If the debates in the Constituent Assembly can be looked into to understand the legislative history of a provision of the Constitution including its derivation, that is, the various steps leading up to and attend- ing its enactment, to ascertain the intention of the makers of the Consti- tution, it is difficult to see why the debates are inadmissible to throw light on the purpose and general intent of the provision. After all, legislative history only tends to reveal the legislative purpose in enacting the provision and thereby sheds light upon legislative intent. It would be drawing an invisible distinction if resort to debates is permitted simply to show the legislative history and the same is not allowed to show the legislative intentin case of latent ambiguity in the provision. Mr. W. Anderson said: "the nearer men can get to knowing what was intended the better. Indeed the search for intention is justified as a search for the meanings that the framers had in mind for the words used. But it is a search that must be under- taken in humility and with an awareness of its great difficulities". That awareness must make one scrutinize the solemnity of the occasion on which the speech was made, the purpose for which it was made, the preparation and care with which it was made and the reputation and scholarship of the person who made it'. A painstaking detailed speech bearing directly on the immediate question might be given the weight of an "encyclical" and would settle the matter one way or the other; but a loose statement made impromptu in the heat of the debate will not be given a decisive role in decision-making process. I should have thought that if there was a defi- nitive pronouncement from a person like Dr. Ambedkar in the Constituent assembly, that would have thrown considerable light upon the matter in controversy. In the 'speech relied on by counsel, Dr. Ambedkar is reported to have said :"'we divide the articles of the Constitution under three categories. The first category is the one which consists of articles which can be amended by Parliament by a bare majority. The second set of articles are articles which require two-thirds majority. If the future Parliament wishes to amend any particular article, which is not mentioned in part III or Article 304, all that is necessary for them is to have two- thirds majority. Then they can amend it. "mr. President: Of Members present. "yes. Now we have no doubt put certain articles in a third cate- gory where for the purpose of amendment the mechanism is somewhat different or double. It requires two-thirds majority plus ratification by the States. "there is scope for doubt whether the speech has been correctly reported. That apart, from the speech as reported, it would seem that according to dr. Ambedkar, an amendment of the articles mentioned in Part III and article 368 requires two-thirds majority plus ratification by the States. He seems to have assumed that the provisions of Part III would also fall within the proviso to Article 368 but he never said that Part III was not amendable. That it was his view that all the articles could be amended is clear from his other speeches in the Constituent Assembly. He said on 4/11/1948 :'. . . . . . . . . It is only for amendments of specific matters. . . . . . . . . . . and they are only few, that the ratification of the State legislatures is re- quired. All other articles of the Constitution are left to be amended byparliament. The only limitation is that it shall be done by amajo- rity of not less than two-thirds of the members of each House present and voting and a majority of the total membership of each House. . . "dr. Ambedkar, speaking on draft Article 25 (present Article 32) on 9/12/1948, stressed its importance in the following words. "if I was asked to name any particular article in this Constitution as the most important-an article without which this Constitution would be a nullity-1 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 realized its importance. "but having said that, he proceeded :". . . . . . . . . . . . The constitution has invested the Supreme court with these rights and these Writs could not be taken away unless and until the Constitution itself is amended by means left open to the Legislature. " (Emphasis added ). On 25/11/1949, Dr. Ambedkar refuted the suggestion that Fun- damental Right should be absolute and unalterable. He said after refer- ring to the view of the Jefferson already referred to, that the Assembly has not only refrained from putting a seal of finality and infallibility upon the Constitution by denying to the people the right to amend the Constitution as in Canada or by making the amendment of the Constitution subject to the fulfilment of extraordinary terms and conditions as in America or australia but has provided a most facile procedure for amending the Cons- titution.

( 1599 ). It is difficult to understand why the Constitution-makers did not specifically provide for an exception in Article 368 if they wanted that the Fundamental Rights should not be amended in such a way as to take away or abridge them. Article 304 of the draft Constitution corresponds to Article 368 of the Constitution. Article 305 of the draft Constitution provided:"article 305-Reservation of seats for minorities to remain in force for only ten years unless continued in operation by amendment of the Constitution.- notwithstanding anything contained in Article 304 of the Constitu- tion, the provision of this Constitution relating to the reservation of seats for the Muslims, the Scheduled Castes, the Scheduled Tribes or the indian Christians either in Parliament er in the Legislature of any state for the time being specified in Part I of the First Schedule shall not be amended during a period of ten years from the commencement of this constitution and shall cease to have effect on the expiration of that period unless continued inoperation by an amendment of the Constitution. "if it had been the intention of the Drafting Committee to exclude Funda- mental Rights from the purview of the constituent power intended to be conferred by Article 304, following the analogy of Article 305, it could have made an appropriate provision in respect of the said rights.

( 1600 ). In A. K. Gopalan v. State of Madras, Kania, C.. , said that article 13 (2) was inserted by way of abundant caution, that even if the article were absent, the result would have been the same. Mr. Palkhivala sub- mitted that the view of the learned chief justice was wrong, that Article 13 in the context of Article 368 before the 24th Amendment, had a function to play in the scheme of the Constitution, namely, that it stated the autho- rities against which the inhibition in Article 13 (2) operated, the categories of law to which the inhibition applied and the effect of a violation of the inhibition. Whether the latter part of Article 13 (2) was enacted by wayof abundant caution or not would depend upon the answer to the question whether the word law' in that article would includes an amendment of the constitution also. If the word 'law' would include amendment of the constitution, it cannot be said that the latter part of the article was redun- dant. The dictum of chief justice Kania is helpful only to show his reading of the meaning of the word ' law' in the article. Had the learned Chief justice read the word 'law' in the article as including an amendment of the Constitution also, heould certainly not have said that the article was redundant. Sir Ivor Jennings has taken the view that it was quite unnecessary to have enacted Article 13 (2), as even otherwise, under the general doctrine of ultra vires, and any law which is repugnant to the provisions of the Constitution, would, to the extent of the repugnancy, become void and inoperative.

( 1601 ). However,. think that Article 13 (2) was necessary for a different purpose, namely, to indicate the extent of the invasion of the fundamental right which would make the impugned law void. The word 'abridge' has a special connotation in the American constitutional jurisprudence; and, it is only fair to assume that when the Constitution-makers who were fully aware of the language of the First Amendment to the United States constitution, used that expression, they intended to adopt the meaning which that word had acquired there. Every limitation upon a. funda- mental right would not be an abridgment of it. Whether a specific law operates to abridge a specifically given fundamental right cannot be answered by any dogma, whether of a priori assumption or of mechanical jurisprudence. The court must arrive at a value judgment as to what it is that is to be protected from abridgment, and then, it must make a further value judgment as to whether the law impugned really amounts to an abridgment of that right. A textual reading might not always be conclusive. A judge con- fronted with the question whether a particular law abridges a Fundamental right must, in the exercise of his judicial function, advert to the moral right embodied in the Fundamental Right and then come to the conclusion whether the law would abridge that right. In this process, the court will have to look to the Directive Principles in Part IV to see what exactly is the content of the Fundamental Right and whether the law alleged to be in detraction or abridgment of the right is really so. The court would generally be more astute to protect personal rights than property rights. In other words. Fundamental Rights relating to personal liberty or freedom would receive greater protection from the hands of the court than property right, as those rights come with a momentum lacking in the case of shifting economic arrangements. To put it differently, the type of restric- tion which would constitute abridgment might be different for personal rights and property rights as illustrated by the doctrine of preferred freedoms. However, 'if is unnecessary to pursue the matter further for the purpose of this case.

( 1602 ) MR. Palkhivala contended that even if the word 'amendment' in Article 368 before it was amended is given its widest meaning and the word 'law' in Article 13 (2) is assumed not to include an amendment of the constitution there were and are certain inherent and implied limitations upon the power of amendment flowing from three basic features which must be present in the Constitution of every republic. According to counsel, these limitations flow from the fact that the ultimate legal sovereigntyresides in the people; that Parliament is a creature of the Constitution and not a constituent body and that the power to alter or destroy the essen- tial features of the Constitution belongs only to the people, the ultimate legal sovereign. Counsel submitted that if Parliament has power to alter or destroy the essential features of the Constitution, it would cease to be a creature of the Constitution and would become its master; that no consti- tuted body like the Amending Body can radically change the Constitution in such a way as to damage or destroy the basic constitutional structure, as the basic structure was decided upon by the people, in the exercise of their constituent revolutionary power. Counsel also argued that it is consti- tutionally impermissible for one constituent assembly to create a second perpetual constituent assembly above the nation with power to alter its essential features and, that Fundamental Rights constitute an essential feature of the Constitution.

( 1603 ). The basic premise of counsel's argument was that the ultimate legal sovereignty under the Constitution resides in the people. The pream- ble to the Constitution of India says that "we the people of India. . . . . . . . . . . . adopt, enact and give unto ourselves this Constitution". Every one knows that historically this is not a fact. The Constitution was framed by an assembly which was elected indirectly on a limited franchise and the assembly did not represent the vast majority of the people of the country. At best it could represent only 28. 5 per cent. of the adult population of the pro- vinces, let alone the population of the Native States. And who would dare maintain that they alone constituted the "people" of the country at the time of framing the Constitution? The Constituent Assembly derived its legal competence to frame the Constitution from S. 8 (1) of the Indian independence Act, 1947. The British Parliament, by virtue of its legal sovereignty over India, passed the said enactment and invested the Assembly with power to frame the Constitution. Whether might be the Constitutional result flowing from the doctrine that sovereignty is inalienable and that the indian Independence Act itself could have been repealed by Parliament, independence, once granted, cannot be revoked by an erstwhile sovereign ; at any rate, such revocation will not be recognised by the courts of the country to which independence was granted. What makes a transfer of sovereignty binding is simply the possession on the part of the transferee of power and force sufficient to prevent the transferor from regaining it. The assertion by some of the makers of the Constitution that the Constitution proceeded from the people can only be taken as a rhetorical flourish, pro- bably to lay its foundation on the more solid basis of popular will and to give it an unquestioned supremacy, for, ever since the days of Justinian, it was thought that the ultimate legislative power including the power to frame a Constitution resides in the people, and, therefore, any law or Constitution must mediately or immediately proceed from them. "it is customary nowadays to ascribe the legality as well as the supremacy of the Constitution- the one is, in truth, but the obverse of the other-exclusively to the fact that, in its own phraseology, it was "ordained' by 'the people of the United states'. Two ideas are thus brought into play. One is the so-called 'posi- tive' conception of law as a general expression merely for the particular commands of a human law giver, as a series of acts of human will; theother is that the highest possible embodiment of human will, is 'the people'. The same two ideas occur in conjunction in the oft-quoted text of Justi- nian's Institute's: "whatever has pleased the prince has the force of law, since the Roman people by the lex regia enacted concerning his imperium have yielded up to him ail their power and authority. The sole difference between the Constitution of the United States and the imperial legislation justified in this famous text is that the former is assumed to have proceeded immediately from the people, while the latter proceeded from a like source only mediately".

( 1604 ) IT is said that the assertion in the preamble that it was the people who enacted the Constitution raises an incontrovertible presumption and a court is precluded from finding out the truth. There is a similar preamble to the Constitution of the U. S. A. Yet, when chief justice Marshall was called upon to decide the question whether that Constitution proceeded from the people, he did not seek shelter under the preamble by asserting that the court is concluded by the recital therein, but took pains to demonstrate by referring to historical facts that the Constitution was ratified by the people in the State conventions and, therefore, in form and substance, it proceeded from the people themselves. It does not follow that because the people of India did not frame the Constitution or ratified it, the Consti- tution has no legal validity. The validity of a Constitution is one thing; the source from which it proceeds is a different one. Apart from its legal validity derived from the Indian Independence Act, its norms have become efficacious and a court which is a creature of the Constitution will not enter- tain a plea of its invalidity. If the legal source for the validity of the Consti- tution is not that it was framed by the people, the amending provision has to be construed on its own language, without reference to any extraneous consideration as to whether the people did or did not delegate all their constituent power to the Amending Body or that the people reserved to themselves the Fundamental Rights.

( 1605 ). Let me, however, indulge in the legal fiction and assume, as the preamble has done, that it was the people who framed the Consti- tution? What followed? Could it be said that, after the Constitution was framed, the people still retain and can exercise their sovereign constituent power to amend or modify the basic structure or the essential features of the Constitution by virtue of their legal sovereignty?

( 1606 ). According to Austin, a person or body is said to have legal sovereignty, when he or it has unlimited law-making power and that there is no person or body superior to him or it. Perhaps, it would be correct to say that the possession of unlimited law-making power is the criterion of legal sovereignty in a State, for, it is difficult to see how there can be any superior to a person or group that can make laws on all subjects since that person or group would pass a law abolishing the powers of the supposed superior. The location of sovereignty in a quasi-federal Constitution like ours is a most difficult task for any lawyer and I shall not attempt it. Many Writers take the view that sovereignty in the Austinian sense does not exist in any State and that, at any rate, in a federal State, the conceptof sovereignty in that sense is incapable of being applied. This court has said in State of West Bengal v. Union of India, that the "legal theory on which the Constitution was based was the withdrawal or resumption of all the powers of sovereignty into the people of this country" and that the ". . . . . . Legal sovereignty of the Indian nation is vested in the people of India, who, as stated by the preamble, have solemnly resolved to constitute India into a Sovereign Democratic Republic. . . . . . . . " I am not quite sure of the validity of the assumption implicit in this dictum. The Supreme court of U. S. A. has held that sovereignty vests in the people. The same view has been taken by writers like Jameson, Willlis Wilson and others. But it is difficult to understand haw the unorganised mass of the people can legally be sove- reign. "in no country, except perhaps in a direct democracy, can the people en masse be called legally sovereign. This is only to put more explicitly what Austin meant when he said that political power must be in a deter- minate person or body of persons, for, the people at large, the whole people, as distinct from particular person or persons, are incapable of concerted action and hence, of exercising political power and, therefore, of legal supre- macy. "when the purported sovereign is anyone but a single actual person, the designation of him must include the statement of rules for the ascertainment of his will, and these rules, since their observance is a con- dition of the validity of his legislation, are Rules of Law logically prior to him. . . . . . . . It is not impossible to ascertain the will of an individual without the aid of rules: he may be presumed to mean what he says, and he cannot say more than one thing a time. But the extraction of a precise expression of will from a multiplicity of human beings is, despite all the realists say, an artificial process and one which cannot be aomplished without arbi- trary rules. It is, therefore, an incomplete statement to say that in a State such and such an assembly of human beings is sovereign. It can only be sovereign when acting in a certian way prescribed by law. At least some rudimentary manner and form is demanded of it: the simultaneous incohe- rent cry of a rabble, small or large, cannot be law, for it is unintelligible while it is true that the sovereign cannot act otherwise than in compliance with law, it is equally true that it creates the law in accordance with which it is to act And what is the provision in the Constitution or the law for the people to act as legal sovereign or as regards the manner and form when they act as legal sovereign?

( 1607 ). The supremacy enjoyed by the Constitution has led some to think that the document must be regarded as sovereign. They talk about the government of laws and not of man; our sovereignty, by definition, must be vested in a person or body of persons. The Constitution itself is in capable of action. Willoughby has said that sovereignty of the people, popular sovereignty and national sovereignty cannot accurately be held to mean that, under an established government, the sovereignty remains in the people. It may mean, however, that the Constitutional jurisprudence of the State to which it is applied is predicated upon the principle that no political or individual or organ of the government is to be regarded as the source whence, by delegation, all other public powers are derived, but that, upon the contrary, all legal authority finds its originalsource in the whole citizen body or in an electorate representing the gov- erned. Probably, if sovereignty is dropped as a legal term and viewed as a term of political science, the view of the Supreme court of the U. S. A. and the writers who maintain that the people are sovereign might be correct. No concept has raised so many conflicting issues involving jurists and political theorists in so desperate a maze as the genuine and proper meaning of sovereignty. .

( 1608 ). Seeing, however, that the people have no constitutional or legal power assigned to them under the Constitution and that by virtue of their political supremacy they can unmake the Constitution only by a method not sanctioned by the juridical order, namely, revolution, it is difficult to agree with the proposition of counsel that the legal sovereignty under the Constitution resides in the peoples or, that as ultimate legal sovereign the people can cons- titutionally change the basic structure of the Constitution even when the Cons- titution provides for a specific mechanism for its amendment. In the last analysis, perhaps, it is right to say that if sovereignty is said to exist in any sense at all, it must exist in the Amending Body, for, as Willoughby has said : "in all those cases in which owning to the distribution of governing power there is doubt as to the political body in which sovereignty rests, the test to be applied is, the deter mination of which authority has, in the last instance the legal power to determine its own competence as well as that of others. In germany, the publicists have developed a similar theory known as the "'kom- petenz-kompetenz theory".>

( 1609 ). This, however, does not mean that the people have no right to frame the Constitution by which they would be governed. Of the people as well as the body politic, all that one can say is, not that they are sovereign, but that they have the natural right to full autonomy or to self-government. The people exercise this right when they establish a Constitution. And, under our Constitution, the people have delegated the power to amend the instrument which they created to the Amending Body.


( 1610 ). When a person holds a material good, it cannot be owned by another. He cannot give it to another without his losing possession of it and there can only be a question of transfer of ownership or a donation. But, when it is a question of a moral or spiritual quality such as a right or power, one can invest another with a right or power without losing possession of it, if that man receives it in a vicarious manner, as a vicar of the men who transferred it. The people are possessed of their right to govern themselves in an inherent and permanent manner, their representatives are invested with power which exists in the people, but in a vicarious manner.

( 1611 ). Delegation does not imply a parting with powers of one who grants the delegation but points rather to the conferring of an authority to do things which otherwise that person would have to do himself. It does not mean that the delegating person parts with the power in such a way as to denude himself of his sights.

( 1612 ). I will assume that the people, by designating their representa- tives and by transmitting to them the power to amend the Constitu- tion, did not lose or give up possession of their inherent, constituent power. There was great controversy among the civilians in the Middle ages whether, after the Roman people had transferred their authority to legislate to the emperor, they still retained it or could reclaim it. There is always a distinction between the possession of a right or power and the exercise of it. It. was in the exercise of the constituent power that the people framed the Constitution and invested the Amending Body with the power to amend the very instrument they created with a super-added power to amend that very power. The instrument they created, by necessary implication, limits the further exercise of the power by them, though not the possession of it. The Constitution, when it exists, is supreme over the people and, as the people have voluntarily excluded themselves from any direct or immediate participation in the process of making amendment to it and have directly placed that power in their representatives without reservation, it is difficult to understand how the people can juridically resume the power to continue to exercise it. It would be absurd to think that there can be two bodies for doing the same thing under the Constitution. It would be most incongruous to incorporate in the Constitution a provision for its amendment, if the cons- tituent power to amend can also be exercised at the same, time by the mass of the people, apart from the machinery provided for the amendment. In other words, the people having delegated the power of amendment, that power cannot be exercised in any way other than that prescribed nor by any instrumentality other than that designated for that purpose by the Constitu- tion. There are many Constitutions which provide for active participation of the people in the mechanism for amendment either by way of initiative or referendum as in Switzerland, Australia and Eire. But, in our Constitu- tion, there is no provision for-any such popular device and the power of amend- ment is vested only in the Amending Body

( 1613 ). It is said that "it is within the power of the people who made the Constitution to un-make it, that it is the creature of their own will and exists only by their will. This dictum has no direct relevancy on the question of the power of the people to amend the Constitution. It only echoes the philosophy of John Locke that people have the political right to revolution in certain circumstances and to frame a Constitution in the exercise of their revolutionary constituent power

( 1614 ). When the Frecnh political philosophers said that the nation alone possesses the constituent power, and an authority set up by a Constitu- tion created by the nation has no constituent power apart from a power to amend that instrument within the lines originally adopted by the people, what is ment is that the nation cannot part with the constituent power, but only the power to amend the Constitution within the original scheme of the constitution in minor details. Some jurists refer to these two powers, namely, the "constituent power" and the "amending power" as distinct. According to Carl,. Friedrich, the constituent power is the power which seeks to establish a Constitution which, in the exact sense, is to be understood the de facto residuary power of a not inconsiderable part of the community to change or replace an established order by a new Constitution. The consti- tuent power is the power exercised in establishing a Constitution, that is thefundamental decision on revolutionary measures for the organisation and limitation of a new government. From this constituent power must be distinguished the amending power which changes an existing constitution in form provided by the Constitution itself, for the amending power is itself a constituted authority. And he further points out that in French Constitu- tional Law the expression pouvoir constituant is often used to describe the "amending authority' as well as the constituent power, but the expression cons- tituent power, used by him is not identical with the pouoir constituant of the french Constitutional Law. It is, however, unnecessary to enter this arid tract of what Lincoln called 'pernicious abstraction' where no green things grow, or resolve the metaphysical niceties, for, under our Constitution, there is no scope for the constituent power of amendment being exercised by the people after they have delegated power of amendment to the Amanding body. To what purpose did that instrument give the Amending Body the power to amend the amending power itself, unless it be to confer plenary power upon the Amending Body to amend all or any of the provisions of the constitution ? It is no doubt true that some German thinkers, by way of protest against indiscriminate use of the amending power under the Weimer constitution of Germany, asserted that the power of amendment is confined to alteration witnin the constitutional text and that it cannot be used to change the basic structure of the Constitution. But, as I said, to say that a nation can still exercise unlimited constituent power after having framed a Constitu- tion vesting plenary power of amendment under it in a separate body, is only to say that the people have the political power to change the existing order by means of a revolution. But this doctrine cannot be advanced to place implied limitations upon the amending power provided in a written Constitu- tion.

( 1615 ). It is, therefore, only in revolutionary sense that one can disting- uish between constituent power and amending power. It is based on the assumption that the constituent power cannot be brought within the frame- work of the Constitution. "to be sure, the amending power is set up in the hope of anticipating a revolution by legal change and, therefore, as an additional restraint upon the existing government. But should the amending power fail to work, the constituent power may emerge at the critical point. The proposition that an unlimited amending authority cannot make any basic change and that the basic change can be made only by a revolution is something extra-legal that no court can countenance it. In other words, speaking in conventional phraseology, the real sovereign, the hundred per cent. sovereign the people can frame a Constitution, but that sovereign can come into existence thereafter unless otherwise provided, only by revolution. It exhausts itself by creation of minor and lesser sovereigns who can give any command. And, under the Indian Constitution, the original sovereign the people created, by the amending clause of the Constitution, a lesser sovereign, almost co-extensive in power with itself. This sovereign, the one established by the revolutionary act of the full or complete sovereign has been called by Max Radin the "pro- sovereign", the holder of the amending power under the Constitution. The hundred per cent. sovereign is established only by revolution and he can come into being again only by another revolution. As Wheare clearly puts it, once the Constitution is enacted, even when it has been submittedto the people for approval, it binds thereafter, not only the institutions which it establishes, but also the people themselves. They may amend the Cons- titution, if at all, only by the method which the Constitution itself provides. This is illustrated also in the case of the sover ign power of the people to make laws. When once a Constitution is framed and the power of legislation which appertains to the people is transferred or delegated to an organ constituted under the Constitution, the people cannot thereafter exercise that power. "the legal assumption that sovereignty is ultimately vested in the people affords no legal basis, for the direct exercise by the people of any sovereign power, whose direct exercise by them has not been expressly or impliedly reserved. Thus the people possess the power of legislation directly only if their Constitution so provides".

( 1616 ). It is 'said that although the Constitution does not provide for participation of the people in the process of amendment, there is nothing in the Constitution which prohibits the passing of a law under the residuary entry 97 of List I of the Seventh Schedule for convoking a constituent assembly for ascertaining the will of the people in the matter of amendment of Fundamental Rights. Hoar says: "the whole people in their sovereign capacity, acting through the forms of law at a regular election, may do what they will with their own frame of government, even though that frame of government does not expressly permit such action, and even though the frame of government attempts to prohibit such action". Again, he says: "thus we come back to the fact that all conventions are valid if called by the people speaking through the electorate at a regular election. This is true regardless of whether the Constitution attempts to prohibit or authorize them, or is merely silent on the subject. Their validity rests not upon constitutional provisions nor upon legislative act, but upon the fundamental sovereignty of the people themselves". As to this, I think the answer given by Willoughby is sufficient. He said : "the position has been quite consistently taken that constitutional amendments or new Constitutions adopted in modes not provi- ded for by the existing Constitutions cannot be recognized as legally valid unless they have received the formal approval of the old existing government. Thus, in. the case of the State of Rhode Island, the old Constitution of which contained no provision for its own amendment, the President of the United states refused to recognize de jure a government established under a new constitution which, without the approval of the old government, had been drawn up and adopted by a majority of the adult male citizens of that State. But, when, somewhat later, a new Constitution was adopted in accordance with provisions which the old government laid down and approved, it was, and has since been held a valid instrument both by the people of the State and by the National government of, the United States'.

( 1617 ). I think it might be open to the Amending Body to amend article 368 itself and provide for referendum or any other method for ascertaining the will of the people in the matter of amendment of Funda- mental Rights or any other provision of the Constitution. If the basic and essential features of the Constitution can be changed only by the people, and not by a constituted authority like the Amending Body, was it open to the amending Body, or, would it be open to the Amending Body today to amend article 368 in such a way as to invest the people with that power to beexercised by referendum or any other popular device? If counsel for the petitioner is right in his submission that the power to amend the amending power is limited, this cannot be done, for the Constitution would lose its identity by making such a radical change in the Constitution of the Amending body, and, therefore, there would be implied limitation upon the power to amend the amending power in such a way as to change the locus of the power to amend from the Amending Body as constituted to any other body including the people. The result is that ex-hypothesi, under Article 368 there was, or is, no power to amend the Fundamental Rights and the other essential or basic features in such a way as to destroy or damage their essence of core. Nor can the article be amended in such a way as to invest the people-the legal sovereign according to counsel for the petitioner-with power to do it. This seems to me to be an impossible position.

( 1618 ). Counsel for the petitioner submitted that the Preamble to the constitution would operate as an implied limitation upon the power of amendment, that the Preamble sets out the great objectives of the people in establishing the Constitution, that it envisages a sovereign democratic re- public with justice, social, economic and political, liberty of thought, belief and expression, equality of status and opportunity and fraternity as its fulorums and that no succeeding-generation can amend the provisions of the constitution in such a way as to radically alter or modify the basic features of that form of government or the great objectives of the people in establish- ing the Constitution. Counsel said that the Preamble cannot be amended as preamble is not a part of the Constitution, and so, no amendment can be made in any provision of the Constitution which would destroy or damage the basic form of government or the great objectives. The proceedings in the Constituent Assembly make it clear that the Preamble was put to vote by a motion which stated that the "preamble stands part of the Constitution" and the motion was adopted. Article 394 of the Constitution would show that the preamble, being a part of the provisions of the Constitution, came into operation on the 26th of January, 1950, not having been explicity stated in the article that it came into force earlier. And there seems to be no valid reason why the Preamble, being a part of the Constitution, cannot be amended.

( 1619 ). A Preamble, as Dr. Wynes said, represents, at the most only an intention which an Act seeks to effect and it is a recital of a present intention. In the Berubari caseit was argued that the Preamble to the Constitution clearly postulates that like the democratic republican form of government, the entire territory of India is beyond the reach of Parliament and cannot be affected either by ordinary legislation or even by constitutional amendment, but the court said: "it is not easy to accept the assumption that the first part of the Preamble postulates a very serious limitation on one of the very important attributes of sovereignty itself". This case directly negatived any limitation of what is generally regarded as a necessary and essential attribute of sovereignty on the basis of the objectives enshrined in the preamble.

( 1620 ). Story's view of the function of the Preamble, that it is a key to open the mind of the makers, as to the mischiefs which are to be remediedand the objects which are to be accomplished by the provisions of the Act or a Constitution is not in dispute. There is also no dispute that a Preamble cannot confer any power per se or enlarge the limit of any power expressly given nor can it be the source of implied power. Nor is it necessary to join issue on the proposition that in case of ambiguity of the enacting part, an unambiguous Preamble may furnish aid to the interpretation of the enacting part.

( 1621 ). The broad concepts of justice, social, economic and political, equality and liberty thrown large upon the canvas of the Preamble as eternal varieties are mere moral adjurations wh only that content which each genera- tion must pour into them anew in the light of its own experience. An inde- pendent judiciary cannot seek to fill them from its own bosom as, if it were to do so, in the end it will cease to be independent. "and its independence will be well lost, for that bosom is not ample enough for the hopes and fears of all sorts and conditions of men, nor will its answers be theirs. It must be content to stand aside from these fateful battles "as to what these concepts mean and leave it to the representative of the people".

( 1622 ). To Hans Kelsen, justice is an irrational ideal, and regarded from the point or rational cognition, he thinks there are oinly interests and hence conflict of interest. There solution, according to him, can be brought about by an Order that satisfies one interest at the expense of the other or seeks to achieve a compromise between opposing interests. llen said that the term "social justice" has no definite content that it means different things to different persons. "> Of liberty, Abraham Lincoln said, that the world never has had a good definition of it. The concept of equality appears to many to be a myth and they say that if the concept is to have any meaning in social and economic sphere the State must discriminate in order to make men equal who are otherwise unequal. It does not follow that because these concepts have no definite contours, they do not exist, for, it is a perennial fallacy to think that because something cannot be cut and dried or nicely weighed or measured, therefore it does not exists. But for a country struggling to build up a social order for freeing its teeming millions from the yoke of poverty and destitution, the Preamble cannot afford any clue as to the priority value of these concepts inter se. Justice Johnson, with one of his flashes of insight, called the science of government "the science of experiment". And for making the experiment for building up the social order which the dominant opinion of the community desires, these delphic concepts can offer no solution in respect of their priority value as among themselves. They offer no guide in what proportion should each of them contribute, or which, of them should suffer subordination or enjoy dominance in that social order. How then can one of them operate as implied limitation upon the power of amendment when the object of the amendment is to give priority value to the other or others?

( 1623 ). Mr. Palkhivala in elaborating his submission on implied limita- tions said that in a Constitution like ours there are other essential features besides the Fundamental Rights, namely, the sovereignty and integrity of india, the people's right to vote and elect their representatives to Parlia- ment or State Legislatures, the republican form of government, the secularstate, free and independent judiciary, dual structure of the Union, separa- tion of the executive, legislative and judicial powers, and so on, and for changing these essential features, the Parliament being a constituted authority, has no power.

( 1624 ). Whenever the question of implied limitation upon the power of amendment was raised in the U. S. A. the Supreme court has not coun- tenanced the contention. '

( 1625 ). In Leser v. Garnett the U. S, Supreme court upheld the validity of the 19th Amendment, rejecting the contention that the power of amendment conferred by the federal Constitution did not extend to that amendment because of its character as so great an addition to the elec- torate, if made without the State's consent, destroys its autonomy as a political body. In U. S. v. Sprague, the Supreme court rejected the Constitu- tion that an amendment, conferring on the United'. States, power over individuals, should be ratified in conventions instead of by State Legislatures. The argument before the court was that although Congress has absolute discretion to choose the one or the other mode of ratification, there was an implied limitation upon that discretion when rights of individuals would be directly affected and that in such a case the amendment must be ratified by convention. The court said that there was no limitation upon the absolute discretion of the Congress to have the amendment ratified either by conven- tions or State Legislatures. In the National Prohibition Cases which' upheld the validity of the 18th Amendment to the United States Constitution, the supreme court brushed aside the argument that there are implied limita- tions upon the power of amendment. Although the majority judgment gave no reasons for its conclusion, it is permissible to look at the elaborate briefs filed by counsel in the several cases and the oral arguments in order to understand what was argued and what was decided. The arguments ad- vanced in National Prohibition Cdses before the Supreme court were that an amendment is an alteration or improvement of that which is already contain- ed in the Constitution, that the Amendment was really in the nature of a legislation acting directly upon the rights of individual, that since the constitution contemplated an indestructible Union of States, any attempt to change the fundamental basis of the Union was beyond the power delegated to the Amending body by Article V and that the Amendment invaded the police power which inherse in the States for protection of health, safety and morals of their inhabitants. The only inference to be drawn from the court upholding the validity of the Amendment is that the court did not countenance any of the arguments advanced in the case.

( 1626 ). The result of the National Prohibition Cases seems to be that there is no limit to the power to amend the Constitution except that a State may not be deprived of its equal suffrage in the Senate. This means that by action of two-third of both Houses of Congress and of the Legislatures in three-fourth of the States, all the powers of the national government could be surrendered to the States and all the reserved powers of the States could be transferred to the Federal government.

( 1627 ). Dodd, speaking about the effect of the decision of the Supreme court in National Prohibition Cases (supra) said that the court has necessarily rejected substantially all of the arguments presented in favour of the implied limitations upon the amending power, although this statement does not necessarily go to the extent of denying all limitations other than those clearly expressed in the constitutional language itself.

( 1628 ) ART. V of, Constitutition prohibits any amendment by which any State "without its consent shall be deprived of its equal suffrage in the senate". Beyond this there appears to be no limit to the power of amend- ment. This, at any rate is the result of the decision in the so-called national Prohibition Cases. "


( 1629 ). In Schneiderman v U. S. Justice Murphy, after referring to national Prohibition cases (supra) said that Article V contains procedural provisions for Constitutional change by amendment without any present limitation whatsoever except that relating to equal suffrage in the Senate.

( 1630 ). In U. S. v. Dennis. Learned Hand was of the opinion that any amendment to Constitution passed in conformity with the provision in Constitution relating to amendments is as valid as though the amendment had been originally incorporated in it, subject to the exception that no State shall be denied its equal suffrage in the Senate

( 1631 ). The latest authority is the obiter dictum of Douglas,. , for the majority of the Supreme court in Whitehill v. Elkins:. "if the Federal Constitution is our guide, a person who might wish to 'alter' our form of government may not be cast into the outer darkness. For the Constitution prescribes the method of 'altera- tion by the amending process in Article V; and while the procedure for amending it is restricted, there is no restraint on the kind of amend- ment that may be offered. "

( 1632 ). Perceptive writers on the Constitution of the U. S. A. have also taken the view that there are no implied limitations whatever upon the power of amendment, that an amendment can change the dual form of government or the Bill of Rights and that the framers of the Consti- tution, did not intend to make an unalterable framework of government in which only the minor details could be changed by amendment.

( 1633 ). In Ryan's Case the Supreme court of Ireland had occasion to discuss and decide two questions ; the meaning to be given to the word 'amendment' in Article 50 of the Irish Constitution which provided for the amendment of the Constitution and (2) whether there are any implications to be drawn from the Constitution which would cut downthe scope of the amendment which could be made under Article 50. I have already dealt with the decision in the case with respect to the first point

( 1634 ). As regards the second point, Kennedy, C.. , was of the opinion that there were certain implied limitations upon the power of amendment while the other two learned judges held that there were no such limitations. However, it is not necessary to deal with the suggested implied limitations relied on by the learned chief justice in the light of his observation: "the only argument advanced in support of this position is that the power to amend the Constitution gives power to amend the power itself. It certainly does not say so. One would expect (if it were so intended) that the power would express that intention by the insertion of a provision to that effect by some such words as "including amendment of this power of amendment", but no such intention is expressed and there is nothing from which it can be implied. There might be some justification for the view of Kennedy, C.. , that a "power of amend- ing a Constitution is something outside and collateral to the Constitution itself" and that unless there is express power to amend the amending power, the amending power cannot be enlarged. Alf Ross, the Scandinavian jurist, has said that in the United States the highest authority is the constituent power constituted by the rules in Article V of the Constitution. These rules embody the highest ideaological presupposition of the American law system. But they cannot be regarded as enacted by any authority and they cannot be amended by any authority. Any amendment of Article v of the Constitution which, in fact, is carried out, is an a-legal fact and not the creation of law by way of procedure that has been instituted. Now, whereas Article 50 of the Irish Constitution did not contain any power to amend that article, proviso (e) of Article 368 makes it clear that article 368 itself can be amended and so, the whole line of the reasoning of Kennedy, C.. , has no relevance for our purpose. It is interesting to note that in Moore v. Attorney-General for the Irish State where the constitutional amendment made by the Irish Parliament in 1933 (Amend- ment No. 22) was challenged, Mr. Green conceded before the Privy council that Amendment No. 16 of 1929 [the amendment challenged in Ryan's case (supra)] was regular. The validity or otherwise of Amendment No. 16 was vital for the success of his client's case and the concession of counsel was, in their Lordships' view, "rightly" made

( 1635 ). The decision of the Privy council in Liyanage v. the Queen was relied on by the petitioner to show that there can be implied limitation upon legislative power. The question for consideration in that case was whether Criminal Law (Special Provisions) Act No. 1 of 1962 passed by Parliament of Ceylon was valid. . The Act purported ex post facto to create new offences and to alter the rules of evidence and the criminal procedure obtaining under the general law at the time of the commission of the offence and also to impose enhanced punishment. The appellants contended that the Act was passed to deal with the trial of the persons who partook in the abortive coup in question and the arguments before the Privy council were that the Act of 1962 was contrary to funda- mental principles of justice in that it was directed against individuals, that it ex post facto created crimes and their punishments, and that the Actwas a legislative plan to secure the conviction of these individuals and this constituted an usurpation of the judicial power by the Legislature.

( 1636 ). The Privy council rejected the contention that the powers of the Ceylon Legislature could be cut down by reference to vague and uncertain expressions like fundamental principles of British Law, and said that although there are no express provisions in the Ceylon Constitution vesting judicial power in the judiciary, the judicial system in Ceylon has been established by the charter of Justice of 1833, that the change of sovereignty did not produce any change in the functioning of the judicature, that under the provisions of the Ceylon Constitution there is a broad separation of powers and that, generally speaking, the Legislature cannot exercise judicial power in spite of the difficulty occasionally felt to tell judicial power from legislative power. Ever since the days when John locke wrote his "second Treaties on Civil government", it was considered axiomatic that the legislative power does not include judicial power. And I think what the Privy council said in effect was that the power to pass a law for peace, order, or good government under S. 29 (1) of the Constitution of Ceylon would not take in a power to settle a controversy between Richard Doe and John Doe in respect of Black Acre and label it a law. It is a bit difficult to see how the doctrine of implied limitation has any- thing to do with the well understood principle that the power to pass law would not include judicial power.

( 1637 ). Nor am I able to understand how the doctrine of implied limitations can draw any juice for its sustenance from the fact that president or governor is bound to act according to the advice of the council of Ministers, although the expression "aid and advise" taken by itself, would not denote any compulsion upon the President or Governor to act according to the advice. The expression, when it was transplanted into our Constitution from the English soil, had acquired a meaning and we cannot read it divested of that meaning.

( 1638 ). The doctrine of implied limitation against the exercise of a power once ascertained in accordance with the rules of construction was rejected by the Privy council In Web v. Outrim

( 1639 ). Counsel for the petitioner relied on certain Canadian cases to support his proposition that there are implied limitations upon the power of amendment. In Alberta Press case,chief Justice Sir Lyman p. Duff said that the British North America Act impliedly prohibits abrogation by provincial Legislatures of certain important civil liberties. He said that the reason was that the British North America Act requires the establishment of one Parliament for Canada and since the term 'parliament' means, when interpreted in the light of the preamble's reference to "a Constitution similar in principle to that of the United kingdom", a legislative body elected and functioning in an atmosphere of free speech, and that a legislation abrogating freedom of speech in a particular province would be an interference with the character of the federal Parliament, and therefore, ultra vires the provincial Legislature. This dictum logically involves a restriction of the powers of the dominionparliament also as was pointed out by Abbott,. , in the Padlock Law case. In that case, he expressed the view, although it was not necessary so to decide, that Parliament itself could not abrogate the right of discussion and debate since the provisions of the British North America Act are as binding on Parliament as on the provincial Legislatures

( 1640 ). In Seumur v. City Quebec, the preamble of the British North america Act was referred 'to as supporting the constitutional requirement of the religious freedom especially by Rand,. The basic issue in that case was whether or not the Provinces had legislative authority to enact laws in relation to the religious freedom, and whether the City of Quebec was justified by one of its bye-laws under a Provincial Act from prohibiting the distribution of booklets etc. in the streets without the written permission of the Chief of Police. The petitioner, a member of Jehovah's Witness es contended that the right to distribute booklets was guaranteed by the statement in the preamble to the British North america Act and that freedom of religion was secured by the Constitution of the United Kingdom, and that fundamental principles of that Consti- tution were made a part of the Canadian Constitution by implication of the preamble and accordingly the impugned Quebec bye-law was null and void. This contention was rejected by a majority of the courts, Rinfret,c.. , taschereau,. concurring, stated that the Privy Council, on several occasions had declared that powers distributed between Parliament and the Legislatures covered absolutely all the powers which Canada could exer- cise as a political entity. Kerwin,. , stated that the British North America act effected a complete division of legislative powers. Cartwright,. , (Fauteux,. , concurring) went even further. He said that there were no rights possessed by the citizens of Canada which could not be modified by either Parliament or the Legislatures of the Provinces. Rand,. , found some support in the preamble for freedom of speech, but did not mention freedom of religion in this context. Estey and locke,. . quoted the preamble, but did not indicate what conclusion they derived from it.

( 1641 ). It should be noted the view that neither the provinces nor the dominion Parliament could legislate on civil liberties so as to affect them adversely is contrary to the view of the Privy council that no topic of internal self-Government was withheld from Canada. "it would be subversive of the entire scheme and policy of the Act to assume that any topic of internal self-Goverement was withheld from Canada".

( 1642 ). The main objection however to the proposition that the British north America Act contains an implied bill of rights is that it is inconsistent with the doctrine of parliamentary supremacy. If the Constitution is similar in principle to that of Great Britain, it must follow that the Legislature is supreme as that is the fundamental law of the British Constitution. There- fore, no subject would be beyond the legislative competence of both Parlia- ment and provincial Legislatures. Whether there are any implied limitations upon the power of Parliament or not, it is clear that the dictum of Abbott, j" in Switzman's case (supra) is based on no high authority as there is nothing in the British North America Act to indicate that civil liberties are beyond the legislative reach of the Parliament and the provincial Legislatures. Therewas no express guarantee of civil liberties in the British North America Act, nothing comparable to the Bill of Rights in the 'american Constitution or to the Fundamental Rights under our Constitution.

( 1643 ). It is, however, impossible to see the relevance of these dicta so far as the interpretation of Article 368 is concerned as none of these cases are cases relating to implied limitation on the power of amendment of any constitution. They are cases on the legislative competence of legislatures to affect civil liberties. The Canadian Bill of Rights, 1960, makes it clear that Parliament of Canada 'can dispense with the application of the Cana- dian Bill of Rights in respect of any legislation which it thinks proper. Section 2 of the Canadian Bill of Rights provides :'"2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridg- ment or infringement of any of the rights or freedoms herein recognised and declared, and in particular, no law of Canada shall be construed or applied so as to. . . . . . . . . . . . . . "

( 1644 ). Nor is there anything in the actual decision of the Privy council in Re the Initiative and Referendum Act to show that there are implied limita- tions upon the power to amend any provision of the Constitution. The only point decided in that case was that in the absence of clear and unmis- takable language in S. 92 (1) of the British North America Act, 1867, the power of the Crown possessed through a person directly responsible to the Crown cannot be abrogated. That was because S. 92 (1) provides for an express exception to the power of amendment and that the Act in question, on a true construction of it, fell within the exception. The case is an authority only as to the true meaning of the expression "excepting as regards the office of Lieutenant governor" in S. 92 (1)of the aforesaid act. I am not concerned with the obiter dictum of Lord Haldane to the effect that a provincial Legislature cannot "create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence".

( 1645 ). However, it is relevant in this context to refer to the comment of bora Laskin on the obiter dictum of Lord Haldane in the above case; "this oft-quoted passage remains more a counsel of caution than a constitutional limitation". He then read the above passage and continued: "this proposition has in no way affected the widest kind of delegation by Parlia- ment and by a provincial Legislature to agencies of their own creation or under their control; see Reference re Regulations (Chemicals), (1943) 1 DLR 248; Shannon v. Lower Mainland Dairy Products Board, (1938) AC 708".

( 1646 ). Reference was made by counsel for the petitioner to Taylor v. Attorney General of Queensland as authority for the proposition that power of amendment can be subject to implied limitation. The questions which the court had to consider in the case were: (1) Was the Parliamentary Bills referendum Act of 1908 a valid and effective Act of Parliament? and (2) Was there power to abolish the Legislative council of Queensland by an Act passed in accordance with the provisions of the Parliamentary Bills referendum Act of 1908? These Acts did not alter the 'representative'character of the Legislature as defined in S. I of the Colonial Laws validity Act, 1865, nor did they affect the position of the Crown. There- fore, the question whether the representative character of the Legislature could be changed, or the Grown eliminated did not call for decision. This will be clear from the observations of Gavan Duffy and Rich,. , at p. 477

( 1647 ). The judgment of Issacs,. , shows that. the opinion expressed by him as regards the "representative" character of the Legislature is based on the meaning tobe given to the expression 'constitution of such legislature' on a true construction of S. 5 of the Colonial Laws Validity act. Isaacs,. , held that the word 'legislature' did not include the Crown. Having reached this conclusion on the express language of the Colonial laws Validity Act, he made the observation:"when power is given to a colonial Legislature to alter the Consti- tution of the Legislature, that must be read subject to the fundamental conception that consistently with the very nature of our Constitution as an Empire, the Crown is not included in the ambit of such power. "

( 1648 ). These observations are made in the context of the provisions of the Colonial Laws Validity Act where a "colony" is defined to include. "all of Her Majesty's possessions abroad in which there shall exist a Legislature, as hereinafter defined, except the Channel Islands, the Isle of Man". The observation of Isaacs,. , can only mean that when power to alter the Consti- tution of the Legislature is conferred upon a colony which is a part of her Majesty's possessions abroad (the Empire), it is reasonable to assume that such power did not include the power to eliminate the Queen as a part of a colonial Legislature. It is to be noted that Isaacs,. , had arrived at that conclusion on the true construction of the Colonial Laws Validity Act, namely, that the word 'legislature' did not include the Crown


( 1649 ). Mangal Singh v. Union of India, was also relied on as authority for the proposition that the power of amendment is subject to implied limita- tion. The only question which was considered in that case was that when by a law made under Article 4 of the Constitution, a State was formed, that state should have the legislative, executive and judicial organs, the court said:". . . . . . . . . . . . . . . Power with which the Parliament is invested by articles 2 and 3, is power to admit, establish, or form new States which conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise "by law is supplemental, incidental or consequential to the admission, establishment or formation of a State as contemplated by the Constitution, and not power to over- ride the constitutional scheme. No State can therefore be formed, admitted, or set up by law under Article 4 by the Parliament which has not effective legislative, executive and judicial organs. "

( 1650 ). I am unable to understand how this case lends any assistance to the petitioner for it is impossible to imagine a modern State without these organs

( 1651 ). S. 128 of the Australian Constitution Act provides for alteration of that Constitution. There are certain restrictions upon the power of amendment. We are not concerned with the controversy whether thoserestrictions can be taken away in the exercise of the power of amendment, as proviso (s) of Article 368 makes it clear that the amending power itself can be amended. Leading writers on the Constitution of Australia have taken the view that there are no other limitations upon the power of alte- ration and that all the provisions of the Constitution can be amended. "

( 1652 ). Reference was made to the case of Victoria v. Commonwealth. In support of the proposition that there are implied limitations upon the power of Commonwealth Parliament in Australia and therefore, there could be implied limitation upon the power of amendment. They pay roll tax imposed by the Pay Roll Tax Act, 1941 (Com.) was, according to the pay Roll Tax Assessment Act, 1941-69, to be levied and paid or payable by any employer. S. 3 (1) of the Pay Roll Tax Assessment Act defined 'employer' to include the Grown, in the right of a State. The State of victoria sought declaration that it was beyond the legislative competence of the Commonwealth to levy tax on wages paid by the Grown in the right of the State to officers and employees in the various departments. Menzies, windeyer, Walsh and Gibbs,. , held that there was implied limitation on commonwealth legislative power under the Constitution, but the Act did not offend such limitation. Barwich, C.. , and Owen,. , held that a law which in substance takes a State or its power or functions of government as its subject-matter is invalid because it cannot be supported upon any granted legislative power, but there is no implied limitation On Common- wealth legislative power under the Constitution arising from the federal nature of the Constitution. Mctiernan,. , held that there was no necessary implication restraining the Commonwealth from making the law.

( 1653 ). As to the general principle that non-discriminatory laws of the commonwealth may be invalid in so far as they interfere with the perfor- mance by the States of their constitutional functions, it must be noted that that is not claimed to rest on any reservation made in the Engineer's case itself to the general principle it advanced. It must also be noted that Men- zies, Walsh and Gibbs,. , were not prepared to formulate the proposition as a single test in precise and comprehensive terms and that they were alive to the great difficulties which would be encountered in the formulation.

( 1654 ). If there are difficulties in formulating an appropriate test, is it not legitimate to ask whether the proposed principle is one that is capable of formulation? It is not legitimate to ask whether there is a judicially manageable set of criteria available by which the proposed general principle may be formulated? The theory of the implied limitation propounded might invite the comment that "it is an interpretation of the Constitution depending on an implication which is formed on a vague, individual concep- tion of the spirit of the compact". It is difficult to state in clear terms from the judgments of those judges as to what kind of legislative action by the commonwealth will be invalid because of the application of the general principle.

( 1655 ). The stated purpose of the general principle is to protect the continued existence and independence of the States. Do the judgments of menzies, Walsh and Gibbs,. , disclose any reason why that existence and independence of the States will be threatened in the absence of the implied general principle?

( 1656 ). Windeyer,. 's. judgment is a little uncertain. He said that once a law imposes a tax it is a law with respect to taxation and that if it is invalid it must be for reasons that rest on other constitutional prohibitions, e. g. , an implied prohibition on a. tax discriminating against a State. How- ever, many cases arise in which competing possible characterizations of a commonwealth law' are possible; on one characterization it is valid, on another it is invalid. The courts, when faced with competing possible characterizations, may not hold a law valid because one possible characteri- zation is that the law is With respect to one of the enumerated heads of legislative power.

( 1657 ). Windeyer,. , said that a law of the Commonwealth which is directed against the States to prevent their carrying out of their functions, while it may be with respect to an enumerated subject-matter, is not for the peace, order and good government of the Commonwealth

( 1658 ). The basic principle of construction which was definitely enun- ciated by the court was that adopted by Lord Selborne in Queen v. Burah. The judges who-took the view that there was implied limitation on the power of Commonwealth to aim their legislation against the State did not differ in substance from the theory propounded by Barwick, C.. , and Owen,. , who said that it is a question of lack of power as the legislation is not with respect to a subject within the power of taxation conferred by S. 51 of australian Constitution

( 1659 ). I am unable to understand the relevancy of this decision. In a federal or quasi-federal State, the continued existence of the federated States, when the Constitution exists, is a fundamental pre-supposition and the legis- lative power of the federal Legislature cannot be exercised in such a way as to destroy their continued existence. But when we are dealing with an amending power, is there any necessity to make that fundamental assump- tion? There might be some logic in implying limitation upon the legis- lative power of the federal Legislature, as that power can be exercised only subject to the fundamental assumption underlying a federal State, namely, the continued existence of States. But what is its relevancy when we are dealing with implied limitation on the amending power, which is a power to alter or change the Constitution itself

( 1660 ). It is relevant in this connection to note the vicissitudes in the fortune on the doctrine of immunity of instrumentalities which was based on the theory of implied prohibition. Marshal, C.. , said in Mc Culloch V. Maryland: The rule thus laid down was based upon the existence of an implied prohibition that, the Federal and States governments respectively being sovereign and independent, each must be free from the control of the other; the doctrine was thus based upon the necessity supposed to arise in a federal system". The progressive retreat from the doctrine in its originalfom has been traced by Dixon,. , in Essendon Corporation v. Criterion Theatres. He said:"the shifting of judicial opinion shown in the foregoing formed a prelude to the decision of the court in Graves v. New York 306 US 466 where the court thought it imperative to "consider anew the immunity. . . . . . . . . for. the salary of an employee of a Federal instru- mentality from State Income tax and decided that there should be immunity". Frankfurter,. remarked: "in this court dissents have gradually become majority opinions and even before the present decision the rationale of the doctrine had been undermined". This case marked the end of the old doctrine

( 1661 ). I would add that the theory of immunity of linstrumentalities was definitely rejected by this court in State of West Bengal v. Union of India.

( 1662 ). Mr. Palkhivala argued with considerable force that if there are no limitations upon the power of amendment, the consequences would be far reaching. He said that it will be open to the Parliament to prolong the period of its existence, to make India a satellite of a foreign country, do away with the Supreme court and the High courts, abolish the Parlia- mentary system of government and take away the power of amendment or, at any rate, make the exercise of the power so difficult that no amend- ment would be possible. As I said there is no reason to think that the word 'amendment' was used in any narrow sense in Article 368 and that the power to amend under the article was in any way limited, if there is power, the fact that it might be abused is no ground for cutting down its width.

( 1663 ). In Vacher and Sons v. London Society of Compositorslord Atkinson said that it is well established that, in construing the words of a statute susceptible of more than one meaning, it is legitimate to consider the conse- quences which would result from any particular construction, for, as there are many things which the Legislature is presumed not to have intended to bring about, a construction which would not lead to any one of these things should be preferred to one which would lead to one or more of them. In the same case. Lord Mcnaughton said that a judicial tribunal has nothing to do with the policy of any Act and that the duty of the court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction.

( 1664 ). In Bank of Toronto v. Lambe,> the Privy council was concerned with the question whether the Legislature of a Province could not levy a tax on capital stock of the Bank, as that power may be so exercised as to destroy the Bank altogether. The Privy council said that if on a true construction of S. 92 of the British North America Act. the power fell within the ambit of the section, it would be quite wrong to deny its exis- tence because by some possibility that it may be abused or may limit the r range which otherwise would be open to the Dominion Parliament. The privy council observed that "their Lordships cannot conceive that whenthe Imperial Parliament conferred wide powers of local self-government on great countries such as Quebec, it intended to limit them on the specu- lation that they would be used in an injurious manner. People who are trusted with the great power of making laws for property and civil rights may well be trusted to levy a tax".

( 1665 ). In Ex-parte Crossman, it was held that the presumption is that every organ of a State will act in co-ordination, that though one organ can, by its action, paralyse the functions of the other organs and make the constitution come to a standstill, yet no Constitution proceeds on the assumption that one organ will act in such away as to defeat the action of the other

( 1666 ). Our Constitution, in its preamble has envisaged the establishment of a democratic sovereign republic. Democracy proceeds on the basic assumption that the representatives of the people in Parliament will reflect the will of the people ' and that they will not exercise their powers to betray the people or abuse the trust and confidence re-posed in them by the people. Some of the great powers appertaining to the sove- reignty of the State are vested in the representatives of the people. They have the power to declare war. They have power over coinage and cur- rency. These disaster-potential powers are insulated from judicial control. These powers, if they are imprudently exercised, can bring about conse- quences so extensive as to carry down with them all else we value. War and inflation have released evil forces which have destroyed liberty. If these great powers could be entrusted to the representatives of the people in the hope and confidence that they will not be abused, where is the warrant for the assumption that a plenary power to amend will be abused? The remedy of the people, if these powers are abused, is in the polling booth and the ballot box.

( 1667 ). The contention that 'if the power to amend Fundamental Rights in such a way as to take away or abridge them were to vest in Parliament, it would bring about the catastrophic consequences apprehended by counsel has an air of unreality when tested in the light of our experience of what has happend between 1951 when Sankari Prasad's case, recognised the power of the Parliament to amend the Fundamental Rights and 1967 when the Golaknath's case was decided. It should be rememberded in this connec- tion that the Parliament when it exercises its power to amend Fundamental rights is as much the guardian of the liberties of the people as the courts.

( 1668 ). If one of the tests to judge the essential features of the Consti- tution is the difficulty with which those features can be amended, then it is clear that the features which are broadly described as "federal features" contained in clauses (a) to (d) of the proviso to Article 368 are essential features of. the Constitution. The articles referred to in clauses (a) to (d) deal with some of the essential features of the Constitution like the Union judiciary, the High courts, the legislative relation between the Union and the States, the conferment of the residual power and so on. The power to amend the legislative lists would carry with it the power to transfer the residuary entry from the Union List to the State List. This would also enable Parliament to increase its power by transferring entries from the state List or Concurrent List to the Union List. The proviso to Article 368thus makes it clear that the Constitution-makers visualised the amendability of the essential features of the Constitution

( 1669 ). Mr. Palkhivala contended that Fundamental Rights are an essential feature of the Constitution, that they are the rock upon which the constitution is built, that, by and large, they are the extensions, combina- tions or permutations, of the natural rights of life, liberty and equality possessed by the people by virtue of the fact that they are human beings and that these rights were reserved by the people to themselves when they framed the Constitution and cannot be taken away or abridged by a constituted authority like Parliament. He said that the implied limitation stems from the character of those rights as well as the nature of the autho- rity upon which the power is supposed to be conferred

( 1670 ). On the other hand, the respondents submitted that the people of India have only such rights as the Constitution conferred upon them, that before the Constitution came into force, they had no Fundamental rights, that these rights were expressly conferred upon the people by Part III of the Constitution and that there is no provision in our Constitution like Article 10 of the United States Constitution which reserved the rights of the peopl to themselves. They also said that the chraracterization of fundamental Rights as transcendental, sacrosanct, or primordial in the sense that they are "not of today or yesterday but live eternally and none can date their birth" smacks of sentimentalism and is calculated to cloud the mind by an out-moded political philosophy, and would prevent a dispas- sionate analysis of the real issues in the case

( 1671 ). The question presented for decision sounds partly in the realm of political philosophy but that is no reason why the court should not solve it, for,asdetocqueville wrote: "scarcely any political question arises in the united States that is not resolved sooner or later into a judicial question". For the purpose of appreciating the argument of Mr. Palkhivala that there is inherent limitation on the power of Parliament to amend Fundamental Rights, it is necessary to understand the source from which these rights arise and the reason for their fundamentalness.