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PETITIONER: WAMAN RAO & ORS. ETC. ETC.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT09/05/1980

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N. KRISHNAIYER, V.R. TULZAPURKAR, V.D. SEN, A.P. (J)

CITATION:  1981 SCR  (2)   1        1980 SCC  (3) 587

ACT:      Maharashtra Agricultural  Lands (Ceiling  on  Holdings) Act, 27  of 1961 as amended by Amendment Acts 21 of 1975, 47 of 1975 and 2 of 1976-Whether violates Articles 14, 19 or 31 of the  Constitution-Right to challenge, if a constitutional provision which  deprives any  person/citizen of the benefit and protection of Articles 14, 19 and 31 is invalid. any law on the  ground it is inconsistent with or that it takes away or  abridges   the  right  conferred  by  Part  III  of  the Constitution-Constitution of India, Article 13(2), scope of- Constitutionality of  Articles 31A,  31B and  the  unamended Articles 31C  of the Constitution-Doctrine of stare decisis, applicability to  Articles 31A  & 31B-House  of  the  People (Extension of Duration) Act (30 of 1976) section 2 and House of the  People (Extension of Duration) Act (Act 109 of 1976) section 2-Proclamation  of Emergency  dated December 3, 1971 and June  25, 1975,  Constitution (Fortieth  Amendment) Act, 1976-Validity of.

HEADNOTE:      A ceiling  on  agricultural  holdings  was  imposed  in Maharashtra by  the Maharashtra  Agricultural Lands (Ceiling on  Holdings)  Act  27  of  1961,  which  was  brought  into operation on  January 26, 1962. The ceiling fixed by the Act (Principal Act)  was lowered  and certain  other  amendments were made  to that  Act by Acts 27 of 1975, 47 of 1975 and 2 of 1976.  The validity  of these  Acts was challenged in the Bombay High  Court. The  Division Bench  at Nagpur  repelled that challenge  by its  judgment dated  August 13,  1976  in Vithalrao Udhaorao  Uttarwar v.  State of  Maharashtra,  AIR 1977 Bombay  99. The appeals filed against the said decision were dismissed  by the  Supreme Court  by  its  judgment  in Dattatraya Govind  Mahajan v.  State of Maharashtra [1977] 2 SCR 790.  The only point urged in these appeals was that the Principal Act.  as amended,  was void being violative of the second proviso to Article 31A(1), in so far as it created an artificial  "family   unit"  and   fixed  the  unit  on  the agricultural holdings  on such  family units.  The  argument that the  violation of  the particular  proviso deprived the impugned laws of the protection conferred by Article 31A was

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rejected by  the Court on the view that even if the impugned provisions were  violative of  the second proviso they would receive the  protection of  Article 31B  by  reason  of  the inclusion of  the Principal Act and the amending Acts in the Ninth Schedule.  The Court  considered whether, in fact. the provisions of the impugned Acts were violative of the second proviso and held that it was entirely for the Legislature to decide what policy to adopt for the purpose of restructuring the agrarian  system and the Court could not assume the role of an  economic adviser  for pronouncing  upon the wisdom of such policy.  The  second  proviso  to  Article  31A(1)  was therefore held not to have been contravened.      The  judgment  of  this  Court  in  these  appeals  was delivered on  January 27,  1977 while  the  proclamation  of emergency was  in  operation.  On  the  revocation  of  that proclamation, petitions  were filed  in  the  Court  by  the appellants 2 praying for  the review  of the judgment in Dattaraya Govind Mahajan on  the ground  that several contentions, which were otherwise open  to them  for  assailing  the  constitutional validity of  the impugned  Acts, could not be made by reason of the  emergency and  that they should be permitted to make those contentions since the emergency was lifted. Fresh Writ Petitions were  also filed  in this  Court  in  which  those contentions were  put forward.  The  Court  acceded  to  the request for the review and hence the petitions.      Dismissing the petitions, the Court ^ HELD : (Majority view) Per Chandrachud,  C.J. (On  his own  behalf and on behalf of Krishna Iyer, Tulzapurkar and Sen, JJ.)      A. (1)  The Constitution  (First Amendment)  Act,  1951 which introduced  Article 31A  into  the  Constitution  with retrospective effect  and sec. 3 of the Constitution (Fourth Amendment) Act,  1955 which  substituted a  new clause  (1), sub-clauses (a)  to (e)  for the  original clause  (1)  with retrospective effect,  do not  damage any  of the  basic  or essential  features   of  the   Constitution  or  its  basic structure and  are valid and constitutional being within the constituent power of the Parliament. [9 F-G=45 H, 46 A-B]      (2) The Agricultural Ceiling Acts, fall squarely within the terms  of clause  (a)  of  Article  31A(1).  Those  Acts provide for the extinguishment and modification of rights in an "estate", the expression "estate" being defined by clause (2) (a)  (iii) to mean "any land held or let for purposes of agriculture or  for purposes  ancillary thereto..".  It must follow, as a necessary corollary, that the impugned Acts are entitled to  the protection  of Article  31A(1)(a) with  the result that  their provisions  cannot be  deemed, and  there fore cannot  be declared, to be void on the ground that they are inconsistent  with or  take away  or abridge  any of the rights conferred by Articles 14, 19 or 31. [17 A-C]      (3) If  a constitutional  provision, which deprives the petitioners of the benefit and protection of Articles 14, 19 and 31  is invalid,  the petitioners  will  be  entitled  to challenge the  impugned laws  on the  ground that  they  are inconsistent with  or that  they take  away or  abridge  the rights conferred  by Part  III of  the Constitution. Article 13(2) has  a sensitive  touchstone. Not only does it mandate that the  State shall  not make  any law which takes away or abridges the  rights conferred  by Part III but, it provides that any  law made  in contravention of the clause shall, to the extent  of the contravention, be void. Mere abridgement, that is  to say curtailment, that is to say curtailment, and

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not necessarily abrogation that is to say total deprivation, is enough to produce the consequence provided for by Article 13(2). [17 C-E]      (4)  Though   the  withdrawal  of  the  application  of Articles 14,  19 and  31 in respect of laws which fall under clause (a)  is total  and complete,  that  is  to  say,  the application of  those articles  stands abrogated, not merely abridged,  in   respect   of   impugned   enactments   which indubitably fall  within the ambit of clause (a), every case in which  the protection of a fundamental right is withdrawn will not  necessarily result  in damaging  or destroying the basic structure  of the  Constitution. The  question  as  to whether the  basic structure  is damaged or destroyed in any given case would depend upon which particular Article of 3 Part III  is in  issue and,  whether what  is  withdrawn  is quint-essential to  the basic structure of the Constitution. [18 B-D]      (5)  The  true  position  of  law  on  the  subject  of Parliament’s power  to amend the Constitution is that though the Parliament has the power to amend each and every Article of the Constitution including the provisions of Part III the amending power  cannot be  exercised  so  as  to  damage  or destroy the basic structure of the Constitution. [19 G-H]      H. H.  Kesavananda Bharati  v. State  of Kerala, [1973] Supp. SCR  1; Smt. Indira Nehru Gandhi v. Raj Narain, [1976] 2 SCR  347 and  Minerva Mills Ltd. v. Union of India & Ors., [1981] 1 SCR p. 206, referred to.      (6) If  Article 31A  were not enacted, some of the main purposes of  the Constitution  would have  been delayed  and eventually defeated  and that  by the  First Amendment,  the constitutional edifice  was not  impaired but  strengthened. The First  and the  Fourth Amendments,  especially the First were made  so closely  on the heels of the Constitution that they ought  indeed to  be considered as a part and parcel of the Constitution  itself. These  amendments are  not born of second thoughts  and they do not reflect a fresh look at the Constitution in  order to deprive the people of the gains of the Constitution.  They are  in  the  truest  sense  of  the phrase,  a   contemporary  practical   exposition   of   the Constitution. [26 E-F, G-H, 27A]      (7) Article  39 of  the Constitution directs by clauses (b) and  (c) that  the ownership and control of the material resources of  the community  are so  distributed as  best to subserve the common good; that the operation of the economic system does  not result  in the  concentration of wealth and means of  production to  the common  detriment.  These  twin principles of  State policy  were a part of the Constitution as originally  enacted and  it is in order to effectuate the purpose of these Directive Principles that the First and the Fourth Amendments were passed. [27 A-B]      (8) Article  31A(I) could  easily have  appeared in the original Constitution itself as an illustration of its basic philosophy. What remained to be done in the hope that vested interests will not distort the base of the Constitution, had to be  undertaken with a sense of urgency and expediency. It is that  sense and  sensitivity  which  gave  birth  to  the impugned amendment.  The progress  in the  degeneracy of any nation can  be  rapid,  especially  in  societies  riven  by economic disparities  and caste barriers. We embarked upon a constitutional era  holding forth  the promise  that we will secure  to   all  citizens  justice,  social,  economic  and political; equality  of status and of opportunity; and, last but not  the least, dignity of the individual. Between these promises and  the First  Amendment there  is  discernible  a

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nexus, direct  and immediate.  Indeed, if there is one place in an agriculture-dominated society like ours where citizens can hope  to have  equal justice, it is on the strip of land which they till and love, the land which assures to them the dignity of  their persons by providing to them a near decent means of livelihood. [28 E-H]      (9) The  First Amendment  has made  the  constitutional ideal of  equal justice  a living truth. It is like a mirror that reflects  the ideals of the Constitution, it is not the destroyer of  its basic structure. The provisions introduced by it  and the  Fourth Amendment  for the  extinguishment or modification of  rights in lands held or let for purposes of agriculture or  for purposes  ancillary thereto,  strengthen rather than  weaken the basic structure of the Constitution. [29 A-B] 4      The First  Amendment is  aimed at  removing social  and economic disparities  in the  agricultural  sector.  It  may happen that  while existing  inequalities are being removed, new inequalities may arise marginally and incidentally. Such marginal  and   incidental  inequalities  cannot  damage  or destroy the  basic structure  of  the  Constitution.  It  is impossible for  any Government,  howsoever expertly advised, socially oriented  and prudently  managed, to  remove  every economic  disparity   without  causing   some  hardship   or injustice to  a class  of persons  who also  are entitled to equal treatment under the law. Thus, the adoption of "family unit" as  the unit  of application  for the revised ceilings may cause  incidental hardship  to  minor  children  and  to unmarried  daughters.   That  cannot,  however,  furnish  an argument for  assailing the impugned laws on the ground that they violate  the guarantee  of equality.  It seems ironical indeed that  the laws  providing for  agricultural  ceilings should  be   stigmatised  as  destroying  the  guarantee  of equality when  their true object and intendment is to remove inequalities in  the matter of agricultural holdings. [29 B- E]      The note of the Panel set up by the Planning Commission in May  1959 on the adoption of "family unit" as the unit of application  for  the  revised  ceilings  and  the  counter- affidavit  of   the  Deputy   Secretary  to   the  Govt.  of Maharashtra show  the relevance  and efficacy  of the family being treated as the real operative unit in the movement for agrarian reform.  Considering the  Indian social milieu, the Panel came  to the  conclusion that agricultural ceiling can be most  equitably applied  if the  base of  application  is taken as  the family  unit consisting  of husband,  wife and three minor  children. In  view of  this expert  data a  law passed truly  for  implementing  the  objective  of  Article 31A(l)(a) cannot  be open to challenge on the ground that it infringes Articles 14,19 or 31. [29 E-G] B.   (1).  The   Amendment  introduced  by  sec.  4  of  the Constitution (First  Amendment) Act, 1951 does not damage or destroy  the  basic  structure  of  the  Constitution.  That Amendment must,  therefore, be upheld on its own merits. [29 H]      (2) The  validity of  Article 31A  cannot be  upheld by applying the  doctrine of  stare decisis, though the Article has continued  to be  recognised as  valid ever since it was introduced  into   the  Constitution.   The   constitutional validity of  Article 31A  has been  recognised in  the  four decisions, namely. Shankari Prasad v. Union of India, [1952] SCR 89,  95; Sajjansingh  v. State of Rajasthan,[1965] 1 SCR 933; I.C.  Golakanath v.  Union of  India & Ors,[1967] 2 SCR 762 and  H. H.  Kesavananda Bharati Sripadagalavaru v. State

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of  Kerala,  [1973]    Suppl.  SCR,  1  sometimes  directly, sometimes indirectly  and sometimes  incidentally. It may be mentioned, though  it has  no relevance on the applicability of the  rule of  stare decisis,  that in  none of  the three earlier decisions  was the validity of Article 31A tested on the ground  that it damaged or destroyed the basic structure of the  Constitution. That  theory was  elaborated  for  the first time in Kesavananda Bharati and it was in the majority judgment delivered  in that case that the doctrine found its first acceptance.  Even in  the two  latest  cases,  namely, Ambika Prasad Mishra v. State of U.P., [1980] 3 SCR p. 1159, Thumati Venkaiah  v. State  of A.P.,  [1980] 3  SCR 1143 the question as to whether Article 31A can be upheld by applying the doctrine of stare decisis was never decided. Nor was the question of  vires of  Articles 31A, 31B and 31C (unamended) considered in these decisions.[30G-H, 31A-B, C, 32 B-C] 5      It is  true to say that for the application of the rule of stare  decisis, it  is not  necessary  that  the  earlier decision  or   decisions  of   long  standing   should  have considered and  either accepted  or rejected  the particular argument which  is advanced in the case on hand. Were it so, the previous  decisions could  more  easily  be  treated  as binding by  applying the  law of  precedent and  it will  be unnecessary  to  take  resort  to  the  principle  of  stare decisis. It  is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision  rests or what is the basis of the decision. In other words,  for the  purpose of applying the rule of stare decisis, it  is unnecessary  to enquire  or determine  as to what was the rationale of the earlier decision which is said to operate  as stare  decisis.  Therefore,  the  reason  why Article 31A  was upheld  in the earlier decisions. if indeed it was,  are not germane for the purpose of deciding whether this is  a fit  and proper  case  in  which  to  apply  that rule.[34 C-G]      But there  are four  principal reasons for not invoking the  rule   of  stare   decisis  for   deciding   upon   the constitutionality  of  Article  31A.  In  the  first  place, Article  31A   breathes  its   own  vitality,   drawing  its sustenance from  the basic  tenets of  our Constitution. The second reason  is that  neither in  Shankari Prasad,  nor in Sajjan  Singh  nor  in  Golak  Nath  and  evidently  not  in Kesavananda  Bharati,   was  the  question  as  regards  the validity as  such of Article 31A raised or decided. Thirdly, the history of the World’s constitutional law shows that the principle of  stare decisis  is treated  as having a limited application only.  The fourth  reason is  that on  principle rules like stare decisis should not be invoked for upholding constitutional devices  like Articles 31A, 31B and 31C which are designed  to protect  not only past laws but future laws also. The  principle of  stare decisis can apply, if at all, to laws  protected by  these articles,  if those  laws  have enjoyed the  protection of  these articles  for a long time, but the  principle cannot  apply to the articles themselves. The principle  of stare  decisis permits  the saving of laws the validity  of which  has been accepted or recognised over the years.  It does  not require or sanction that, in future too, laws  may be  passed even  though they  are invalid  or unconstitutional. Future  perpetration of  illegality is  no part of the doctrine of stare decisis.[34 F-H, 35 A-B, D, 36 B-E]      Burnet v.  Coronado Oil  & Gas  Co., 285  US. 393, 406; Tramways Case  (No. 1)  1914 (CLR)  54@ 58;  Bengal Immunity

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Case [1955]  2 SCR  603; Income Tax officer, Tuticorin v. T. S. D. Nadar, AIR 1968 SC 623; New York v. United States, 326 U.S. 572, 590-591 [1946]; U.S. v. International Boxing Club, 348 U.S.  236, 249  [1955]; Mac  Pherson v. Buick Motor Co., 217 N.Y.  382, 391  [1916]: State  of Washington  v.  W.  C. Dawson &  Co., 264  U.S. 219,  238 [1924]  James. Monoroe v. Frank Pape,  5 L.Ed.  2nd U.S.  492, 523,  528, quoted  with approval. C.   (1) All  amendments to the Constitution which were made before April 24, 1973 and by which the Ninth Schedule to the Constitution was  amended from time to time by the inclusion of various  Acts  and  Regulations  therein  are  valid  and constitutional. Amendments  to the  Constitution made  on or after April  24, 1973  by which  the Ninth  Schedule to  the Constitution was  amended from time to time by the inclusion of  various   Acts  and  Regulation  therein,  are  open  to challenge on  the ground  that they,  or any  one or more of them, are  beyond the  constituent power  of the  Parliament since they  damage the  basic or  essential features  of the Constitution or its basic structure in view of the Judg- 6 ment in  Kesavananda  Bharati.  If  any  Act  or  Regulation included in the Ninth Schedule by a constitutional amendment made on  or after April 24, 1973 is saved by Article 31A, or by Article  31C as  it stood  prior to  its amendment by the Forty Second Amendment, the challenge to the validity of the relevant constitutional  Amendment  by  which  that  Act  or Regulation is  put in the Ninth Schedule, on the ground that the Amendment  damages or  destroys  a  basic  or  essential feature of  the  Constitution  or  its  basic  structure  as reflected in  Articles 14, 19 or 31, will become otiose. [10 C-F=46 C-F]      (2) Article  31B provides that the Acts and Regulations specified in  the Ninth  Schedule shall  not be deemed to be void or ever to have become void on the ground that they are inconsistent with  or take away or abridge any of the rights conferred by Part III of the Constitution. The provisions of the Article  are expressed  to be  without prejudice  to the generality  of   the  provisions  in  Article  31A  and  the concluding portion  of the  Article supersedes any judgment, decree or  order of  any court  or tribunal to the contrary. This Article was introduced into the Constitution by section 5 of  the Constitution  (First Amendment) Act, 1951, Article 31A  having  been  introduced  by  section  4  of  the  same Amendment. Article  31B has  to be read along with the Ninth Schedule because it is only those Acts and Regulations which are put  in that Schedule that can receive the protection of that  article.     The  Ninth  Schedule  was  added  to  the Constitution by section 14 of the First Amendment Act, 1951. The device or mechanism which sections 5 and 14 or the First Amendment  have  adopted  is  that  as  and  when  Acts  and Regulations   are   put   into   the   Ninth   Schedule   by constitutional amendments  made from time to time, they will automatically by  reason of  the provisions  of Article 31B, receive the protection of that article. [36F-H, 37A-B]      The view  of the  Court that  it would not be proper to invoke the  doctrine of  stare  decisis  for  upholding  the validity of  Article 31A,  must govern  the question  of the validity of  Article 31 B. But just as there are significant similarities between  Articles  31A  and  31B,  there  is  a significant  dissimilarity  too.  Article  31A  enables  the passing of  laws of the description mentioned in clauses (a) to (e),  in violation  of the guarantee afforded by Articles 14 and  19. In  so far  as Article 31B is concerned, it does not define  the category  of laws  which are  to receive its

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protection, and secondly, it affords protection to Schedule- laws  against   all  the  provisions  of  Part  III  of  the Constitution. No  Act can  be placed  in the  Ninth Schedule except by  the Parliament  and since the Ninth Schedule is a part of the Constitution, no additions or alterations can be made  therein   without  complying   with  the   restrictive provisions governing  amendments to  the Constitution. Thus, Article 31B  read with  the Ninth  Schedule provides what is generally described  as, a  protective umbrella  to all Acts which are  included in  the  Schedule,  no  matter  of  what character, kind or category they may be. Putting it briefly, whereas Article  31A protects  laws of  a defined  category, Article 31B  empowers the Parliament to include in the Ninth Schedule such laws as it considers fit and proper to include therein. Thus the fourth reason for not applying the rule of stare decisis  to Article 31A that any particular law passed under clauses  (a) to  (e) can be accepted as good if it has been treated  as valid  for a  long number  of years but the device in  the form  of the  Article cannot be upheld by the application of  that rule,  applies to Article 31B read with the Ninth Schedule by the self-same test.[37 G-H, 38 B-D, E- F]      (3) The decision in Kesavananda Bharati must be treated as  a  landmark.  The  theory  that  the  Parliament  cannot exercise its amending power so as to 7 damage or  destroy the  basic structure of the Constitution, was  propounded   and  accepted   for  the   first  time  in Kesavananda Bharati. This is one reason for holding the laws incorporated into  the Ninth  Schedule before April 24,1973, on which  date  the  judgment  in  Kesavananda  Bharati  was rendered.  The  second  reason  for  drawing  a  line  at  a convenient and  relevant point  of time is that the first 66 items in  the Ninth  Schedule, which  were inserted prior to the decision in Kesavananda Bharati, mostly pertains to laws of agrarian reforms.[38 G-H, 39A, B] D. (1) Article 31C of the Constitution, as it stood prior to its amendment by section 4 of the Constitution (Forty Second Amendment) Act,  1976, is  valid to  the extent to which its constitutionality was upheld in Kesavananda Bharati. Article 31C, as  it stood  prior to  the Constitution  (Forty Second Amendment) Act does not damage any of the basic or essential features of the Constitution or its basic structure. Once it is held that Article 31A is valid on its own merits, it must follow logically  that the  unamended Article  31C  is  also valid. The  unamended portion  of Article 31C is not like an unchartered ship.  It gives  protection  to  a  defined  and limited category  of laws which are passed for giving effect to the  policy of  the State towards securing the principles specified in  clause (b)  or clause (c) of Article 39. It is impossible to  conceive that  any  law  passed  for  such  a purpose can  at all  violate Article  14 or  Article 19.  In fact,  far   from  damaging   the  basic  structure  of  the Constitution, laws  passed truly  and bona  fide for  giving effect to  directive principles  contained in clause (b) and (c) of  Article 39  will fortify that structure. [10 F-G, 40 G-H, 41 A-C] E. (1) The normal term of the Lok Sabha expired on March 18, 1976. On  April 2,  1976, the  Lok Sabha passed the Fortieth Amendment  Act   by  which   the  Maharashtra  Land  Ceiling Amendment Acts  were put in the Ninth Schedule as Items 157, 159 and  160. On  November 24,  1976  the  House  of  People (Extension of  Duration) Amendment  Act was passed extending the term of the Parliament for a further period of one year. The Forty  Second Amendment  Act was  passed on November 12,

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1976. The  Lok Sabha  was dissolved  on January 18, 1977 and both the  emergencies dated  December 3,  1971 and  June 25, 1975 were revoked on March 21, 1977. [43 E-G]      In so  far as  the proclamation  of December 3, 1971 is concerned, there  was manifest justification for that course of action.  The danger  to the  security of  the country was clear  and  present.  From  the  various  dates  and  events mentioned and furnished to the Court, it may be possible for a layman  to conclude  that there  was no reason to continue the state  of emergency  at least  after  the  formality  of exchanging the  prisoners of  war was  completed. But Courts have severe  constraints which deter them from undertaking a task which cannot judicially be performed. [44 D-F, H]      (2) The two Acts, the House of the People (Extension of Duration) Act,  Act 30  of 1976  and the House of the People (Extension of  Duration) Amendment Act 109 of 1976, by which the duration  of the  Lok Sabha  was extended  are valid and lawful. The  Fortieth and  the Forty  Second  Constitutional Amendments cannot,  therefore, be  struck down on the ground that they  were passed by a Lok Sabha which was not lawfully in existence. [45 F-G]      Section 2  of the  first of these Acts, Act 30 of 1976, which was  passed on  February 16,  1976, provided  that the period of  five years  in relation  to the then House of the People shall be extended for a period of one year "while the Pro- 8 clamation of  Emergency issued  on the  3rd day of December, 1971 and  on the  25th  day  of  June,  1975,  are  both  in operation." The second Act of Extension continues to contain the same provision. Both the proclamations of emergency were in fact in operation on February 16, 1976 when the first Act was passed as also on November 24, 1976 when the second Act, 109 of  1976, was passed. Neither the first Proclamation can be deemed  not to  be  in  existence,  nor  can  the  second Proclamation be  held to  have been  issued mala  fide  and, therefore non  est, since  the evidence  produced before the Court is  insufficient for recording a decision on either of these matters. [45 C-F]      Per Bhagwati, J. (Contra)      The doctrine  of  stare  decisis  can  be  invoked  for sustaining the  constitutional validity  of Article 31A. [50 E]      Minerva Mills  v. Union  of India,  [1981] 1 SCR p. 206 reiterated; Ambika  Prasad Mishra v. State of U.P., [1980] 3 SCR p. 1159, followed.      Per Krishna Iyer, J. (Contra)      Applying the principle of stare decisis, Article 31A is valid. In constitutional issues over stress on precedents is inept. Even  so, great  respect and  binding value  are  the normal claim  of rulings  until reversed  by larger Benches. [51 C-D]      Ambika Prasad  Mishra v. State of U.P., [1980] 3 SCR p. 1159 reiterated.

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition Nos. 656-660, 512- 533 and 503-511 of 1977.            (Under Article 32 of the Constitution)                             AND      Review Petitions  Nos. 34,  62-65, 66-72, 73-74, 75-77, 78-81, 82,  83-84, 85,  86-87, 88,  89-90, 91-92, 93-94, 95, 95A, 96, 103-107, 110, 120, 121, 122-130 of 1977.

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                           AND      Writ Petition  No. 63 of 1977. (Under Article 32 of the Constitution).      M. N.  Phadke, N.  M. Ghatate (Dr.), S. N. Bapat and S. V. Deshpande for the Petitioners in RPs. 34, 62-95, 95A, 96, 103-107, 120-123 & WPs. 656-660, 503-511/77.      M. S.  Gupta for  the Petitioners  in  RPs.  110,  122- 130/77.      S. N.  Kherdikar, M. N. Ingle, A. G. Ratnaparkhi and C. K. Ratnaparkhi for the Petitioners in WPs. 512-533/77.      S. V. Gupte, Att. Genl. K. H. Bhatt, R. N. Sachthey and Miss A. Subhashini for R 1 in WPs. 503-511, 512-533, 656-660 & RPs. 34, 62-65/77.      S. V.  Gupte, Att.  Genl. C. J. Sawant, M. C. Bhandare, M. B.  Bor &  M. N.  Shroff for R. 2 in WPs. 503-533 and for RR. 2 & 3 in WPs. 656-660/77. 9      S. V.  Gupte, Att.  Gen. and Miss A. Subhashini for the Att. Genl.      R. K.  Rastogi, J.  S. Rastogi and Bardridas Sharma for the State of Rajasthan in WP No. 656/77.      G. N. Dikshit and M. V. Goswami for the State of U.P.      Altaf Ahmed  for the  State of  Jammu & Kashmir in WPs. 533 & 656/77. FOR THE ADVOCATES GENERAL:      U. P. Singh and Shambhunath Jha (State of Bihar).      M. M. Abdul Khader and K. R. Nambiar (State of Kerala).      B. M. Patnaik and R. K. Mehta (State of Orissa).      K. M. K. Nair and N. Nettar (State of Karnataka).      K. M. K. Nair and N. Nettar (State of Tamil Nadu). FOR THE INTERVENERS:      V. N Ganpule for Pratap Rao in W.P. 503.      R. K.  Garg for  Shyam Narain  Tiwari in  RP 34/77 & WP 512/77      R. N. Bannerjee, J. S. Sinha and J.B.D. & Co. for Panch Valley Coal Co. and Shri Bimal Poddar in WP. 512/77.      G. L.  Sanghi, Miss  Bhubnesh Kumari, K. J. John and J. B. D.  & Co.  for the  Appellant Intervener  Lt. Col. Himmat Singh & Ors.      S. B.  Wad for  the Applicant/Intervener  in WPs. 342 & 343 of 77 and RP. 63/77.      The following Order was delivered on 9th May, 1980.      (1) The  Constitution (First Amendment) Act, 1951 which introduced  Article   31A   into   the   Constitution   with retrospective effect,  and section  3  of  the  Constitution (Fourth Amendment)  Act, 1955 which substituted a new clause (1), sub-clauses  (a) to  (e), for  the original  clause (1) with retrospective effect, do not damage any of the basic or essential  features   of  the   Constitution  or  its  basic structure and are valid and constitutional, being within the constituent power of the Parliament.      (2) Section 5 of the Constitution (First Amendment) Act 1951 introduced  Article 31B  into  the  Constitution  which reads thus:           "31B. Without  prejudice to  the generality of the      provisions contained  in article  31A, none of the Acts      and Regulations specified in the Ninth Schedule nor any      of the provi- 10      sions 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      provisions  of   this  Part,  and  notwithstanding  any      judgment, decree  or order  of any court or tribunal to

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    the contrary,  each of  the said  Acts and  Regulations      shall,  subject   to  the   power  of   any   competent      Legislature to repeal or amend it, continue in force." In Kesavananda Bharati (1973, Suppl. SCR 1) decided on April 24, 1973  it was held by the majority that Parliament has no power to  amend the  Constitution so as to damage or destroy its basic  or essential  features or its basic structure. We hold that all amendments to the Constitution which were made before April  24, 1973  and by which the 9th Schedule to the Constitution was  amended from time to time by the inclusion of various  Acts and  Regulations  therein,  are  valid  and constitutional. Amendments  to the  Constitution made  on or after April  24, 1973  by which  the  9th  Schedule  to  the Constitution was  amended from time to time by the inclusion of  various  Acts  and  Regulations  therein,  are  open  to challenge on  the ground  that they,  or any  one or more of them, are  beyond the  constituent power  of the  Parliament since they  damage the  basic or  essential features  of the Constitution or  its basic  structure. We  do not  pronounce upon  the   validity  of   such  subsequent   constitutional amendments except  to say  that if  any  Act  or  Regulation included in  the 9th  Schedule by a constitutional amendment made after  April 24,  1973 is  saved by  Article 31A, or by Article 31C  as it  stood prior to its amendment by the 42nd Amendment, the  challenge to  the validity  of the  relevant Constitutional Amendment  by which that Act or Regulation is put in  the 9th  Schedule, on  the ground that the Amendment damages or  destroys a  basic or  essential feature  of  the Constitution or its basic structure as reflected in Articles 14, 19 or 31, will become otiose.      (3) Article  31C of the Constitution, as it stood prior to its  amendment by  section 4  of the  Constitution  (42nd Amendment) Act,  1976, is  valid to  the extent to which its constitutionality was upheld in Kesavananda Bharati. Article 31C, as  it stood  prior to  the Constitution (42 Amendment) Act does  not damage  any of the basic or essential features of the Constitution or its basic structure.      (4)  All   the  Writ  Petitions  and  Review  Petitions relating to  the validity  of the  Maharashtra  Agricultural Lands Ceiling Acts are dismissed with costs. The stay orders granted in these matters will stand vacated. We quantify the costs at  Rs. five  thousand which  will be borne equally by the petitioners in Writ Petitions Nos. 656-660 of 11 1977; 512-533  of 1977;  and 503  to 511  of 1977. The costs will be  payable to  the Union  of India  and the  State  of Maharashtra in equal measure.      (5) Writ  Petition No.  63 of  1977 (Baburao Samant vs. Union of India) will be set down for hearing.      (6) Reasons for this Order will follow later.      The following Judgments were delivered:      CHANDRACHUD, C.J.  A ceiling  on agricultural  holdings was imposed  in Maharashtra  by the Maharashtra Agricultural Lands (Ceiling  on Holdings)  Act, 27  of  1961,  which  was brought into  operation on  January 26,  1962.  The  ceiling fixed by  that Act  (the Principal  Act),  was  lowered  and certain other amendments were made to that Act by Acts 21 of 1975, 47  of 1975  and 2 of 1976. The validity of these Acts was challenged  in the Bombay High Court in a large group of over 2660  petitions. A  Division Bench  of the  High  Court sitting at  Nagpur repelled  that challenge  by  a  judgment dated August  13, 1976,  in Vithalrao  Udhaorao Uttarwar  v. State of Maharashtra The High Court held that the provisions of the  aforesaid Acts  were not  open to  challenge on  the ground that  they were  inconsistent with  or took  away  or

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abridged any  of the  rights conferred  by Part  III of  the Constitution, since  those Acts  were placed  in  the  Ninth Schedule by  the Constitution  17th Amendment Act, 1964, and the Constitution  40th Amendment Act, 1976, and also because of the  promulgation of  Emergency as a result of which, the rights under  Articles 14  and 19  of the Constitution could not be  enforced. The High Court also repelled the challenge to the  validity of  Article 31B  itself by holding that far from damaging  the basic  structure of the Constitution, the Constitution (First  Amendment) Act,  1951, which introduced Article 31B  into the Constitution, fortified that structure by subserving  a fundamental constitutional purpose. Certain provisions of  the Principal  Act and  of the Amending Acts. particularly the  concept of  ’family unit’  were challenged before the  High Court  on the ground, inter alia, that they were outside  the purview  of Article  31A.  On  an  overall consideration of  the movement  of  agrarian  reforms,  with particular reference to the relevant statistics in regard to Maharashtra, the  High Court  rejected that challenge too on the ground  that  those  provisions  formed  a  part  of  an integral  scheme  of  agrarian  reforms  under  which  large agricultu- 12 ral  holdings  had  to  be  reduced  and  the  surplus  land distributed amongst the landless and others.      The appeals  filed against  the decision  of the Bombay High Court  were dismissed by this Court by a judgment dated January 27,  1977 in  Dattatraya Govind  Mahajan v. State of Maharashtra. The  only point urged in those appeals was that the Principal  Act, as  amended, was void being violative of the second  proviso to  Article 31A(1),  in  so  far  as  it created an artificial ’family unit’ and fixed the ceiling on the agricultural holdings of such family units. The argument was that  the violation  of the  particular proviso deprived the impugned  laws of  the protection  conferred by  Article 31A. That  argument was  rejected by  the Court  on the view that even  if the  impugned provisions were violative of the second proviso, they would receive the protection of Article 31B by  reason of the inclusion of the Principal Act and the Amending Acts  in the  Ninth Schedule.  The Court considered whether, in  fact, the  provisions of the impugned Acts were violative of  the  second  proviso  and  held  that  it  was entirely for  the legislature to decide what policy to adopt for the purpose of restructuring the agrarian system and the Court could  not assume  the role of an economic adviser for pronouncing upon  the wisdom  of  such  policy.  The  second proviso to  Article 31A(1)  was therefore  held not  to have been contravened.      The judgment of this Court in the appeals aforesaid was delivered on  January 27,  1977 while  the  proclamation  of emergency was  in  operation.  On  the  revocation  of  that proclamation, petitions  were filed  in this  Court  by  the appellants  praying  for  the  review  of  the  judgment  in Dattatraya Govind Mahajan (Supra) on the ground that Several contentions, which were otherwise open to them for assailing the constitutional  validity of the impugned Acts, could not be made  by reason  of the emergency and that they should be permitted to  make those contentions since the emergency was lifted. Fresh Writ Petitions were also filed in the Court in which those  contentions were  put forward. The Court having accepted the  request for  the review  of  the  judgment  in Dattatraya Govind  Mahajan, (supra)  these matters have come before us  for consideration of the other points involved in the appeals.      In these  proceedings, the main challenge now is to the

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constitutionality of  Articles 31A,  31B and  the  unamended Article 31C  of the  Constitution. The  various  grounds  of challenge to  the Principal  Act and  the Amending Acts were met on behalf of the respondents by rely- 13 ing on  the provisions  of  these  Articles  which  throw  a protective cloak  around laws  of a  certain description and variety, by  excluding challenge  thereto on the ground that they are  violative of certain articles of the Constitution. The reply  of the  appellants and  the  petitioners  to  the defence of the respondents is, as it could only be, that the very provisions of the Constitution on which the respondents rely for  saving the  impugned laws are invalid, since these particular  provisions   of  the  Constitution,  which  were introduced by  later amendments, damage or destroy the basic structure of  the Constitution  within the  meaning  of  the ratio of the majority judgment in Keshavananda Bharati.      Articles 14,  19, 31A. 31B, 31C (as unamended) and 368, which are  relevant for our purpose, are familiar to lawyers and laymen  alike, so great is their impact on law and life. Article 14,  the saviour  of the  rule of law, injuncts that the State  shall not  deny to any person equality before the law or the equal protection of the laws within the territory of India.  Article 19  confers upon the citizens rights like the freedom  of speech and expression, the right to assemble peaceably, the right to form associations, the right to move freely throughout  the territory  of  India,  the  right  to reside and  settle in  any part  of India,  and the right to practise any  profession or  to carry on any trade, business or calling.  These rights  make life meaningful and, without the freedoms  conferred by  Article  19,  the  goal  of  the Preamble will  remain a  dream  unfulfilled.  The  right  to property conferred  by Articles  19(1)(f) and 31 was deleted by the 44th Amendment with effect from June 20, 1979.      Article 31A(1) (a) provides that:           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, shall be                deemed to  be void  on the  ground that it is                inconsistent with,  or takes away or abridges                any of  the rights conferred by article 14 or                article 19.      Article 31B provides that:           Without  prejudice   to  the   generality  of  the      provisions contained  in article  31A, none of the Acts      and Regulations specified in the Ninth Schedule nor any      of the  provisions thereof  shall be deemed to be void,      or ever  to have  become void,  on the ground that such      Act, Regulation or provision is 14      inconsistent with, or takes away or abridges any of the      rights conferred  by, any  provisions of this Part, and      notwithstanding any  judgment, decree  or order  of any      court or  tribunal to  the contrary,  each of  the said      Acts and Regulations shall, subject to the power of any      competent Legislature  to repeal  or amend it, continue      in force.      Article 31C,  as it  existed prior  to its amendment by the 42nd  Amendment Act, which came into force on January 3, 1977, provided 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

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    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      or article 19; 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.      Articles  31A   and  31B   were  introduced   into  the constitution by  the  Constitution  (First  Amendment)  Act, 1951, the  former with retrospective effect from the date of the enactment  of the  Constitution. Article 31C (unamended) was introduced  by the Constitution (Twenty-fifth Amendment) Act, with  effect from  April 20,  1972. The  last clause of that article,  which gave  conclusiveness to the declaration regarding the  policy of the particular Act, was struck down as invalid  in Kesavananda  Bharati (supra).  That part  now lives an  italicized existence  in official  publications of the Indian Constitution. The words "the principles specified in clause  (b) or clause (c) of article 39’ were substituted by the words "all or any of the principles laid down in Part IV", by  the 44th Amendment, with effect from June 20, 1979. We are  concerned with  Article 31C  as it  stood originally but, of  course, without  the concluding part struck down in Kesavananda Bharati (supra).      Article 368 of the Constitution reads thus:           "368.  (1)   Notwithstanding  anything   in   this      Constitution,  Parliament   may  in   exercise  of  its      constituent power  amend by  way of addition, variation      or  repeal   any  provision  of  this  Constitution  in      accordance  with   the  procedure  laid  down  in  this      article.           (2)   x    x    x    x    x 15           (3) Nothing  in article  13  shall  apply  to  any      amendment made under this article.           (4) No  amendment of  this Constitution (including      the provisions  of Part III) made or purporting to have      been made  under this  article (whether before or after      the commencement  of section  55  of  the  Constitution      (Forty-second Amendment  Act 1976)  shall be  called in      question in any court on any ground.           (5) For  the  removal  of  doubts,  it  is  hereby      declared that  there shall be no limitation whatever on      the constituent  power of Parliament to amend by way of      addition, variation  or repeal  the provisions  of this      Constitution under this article." Clauses (4) and (5) above were inserted by section 55 of the 42nd Amendment  Act 1976  with effect  from January 3, 1977. Those  clauses  were  declared  unconstitutional,  as  being beyond the  amending power  of the  Parliament,  by  a  very recent decision  of this  Court in  Minerva Mills  which was pronounced on  July 31,  1980. The  judgment of the Court on the invalidity  of clauses  (4) and  (5) was  unanimous. The question as  to whether  Articles  31A(1)(a),  31B  and  the unamended Article  31C are valid shall have to be decided on the basis  that clause  (5) of Article 368 is ineffective to enlarge the  Parliament’s amending power so as to empower it to make  amendments which  will damage or destroy any of the basic  features  of  the  Constitution  and  Clause  (4)  is ineffective  to  take  away  the  power  of  the  courts  to pronounce a  constitutional amendment invalid, if it damages or destroys  any of  the basic features of the Constitution. Thus, the  main question arising before us has to be decided by applying the ratio of Kesavananda Bharati (supra), in its pristine form.  It is  quite  another  matter  that  learned

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counsel led  by Shri M. N. Phadke question whether any ratio at  all  is  discernible  from  the  majority  judgments  in Kesavananda (supra).      The  first   question  to  which  we  have  to  address ourselves is  whether in enacting Article 31A (1) (a) by way of   amendment   of   the   Constitution,   the   Parliament transgressed its  power of  amending  the  Constitution.  As stated earlier, Article 31A was inserted in the Constitution by section 4 of the Constitution (First Amendment) Act, 1951 with retrospective  effect  from  the  commencement  of  the Constitution. 16 Article 31A(1),  as introduced  by the 1st Amendment on June 18, 1951, read thus:           31A. (1) Notwithstanding anything 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. Article  31A   was  amended,   with  the   same  degree   of retrospective effect  again,  by  the  Constitution  (Fourth Amendment) Act,  1955. Two  alterations, not  substance-wise material, were  made by  the 4th Amendment. The opening non- obstante clause  which originally  extended to  "anything in the foregoing  provisions of this Part", that is to say Part III, was  substituted by  a clause  restricted to  "anything contained  in  Article  13".  Secondly,  whereas  under  the Article as  conceived originally,  the challenge  to laws of agrarian reform  was excluded on the broader ground of their inconsistency, abrogation,  or abridgement  of  any  of  the rights conferred  by "any provisions of" Part III, under the amended article the challenge is excluded in relation to the violation of  the three  specific articles, namely, Articles 14, 19  and 31.  The 4th Amendment introduced clauses (a) to (e) in Article 31A, the content of clause (a) being the same as that  of old  clause (1).  Clauses (b)  to (e) were added newly by the 4th Amendment, comprehending laws of four other categories like  laws providing  for the  taking over of the management of  any property  by  the  State  for  a  limited period, laws  providing for  amalgamation  of  two  or  more corporations,   laws   providing   for   extinguishment   or modification   of    rights   of   persons   interested   in corporations;  and  laws  providing  for  extinguishment  or modification of  rights accruing  under any agreement, lease or licence  relating to  minerals. We  are not  concerned in these matters  with the  provisions of  clauses (b)  to (e), though we  would like  to state  expressly and  specifically that whatever is relevant on the question of the validity of clause (a)  will apply  with equal  force to the validity or otherwise of clauses (b) to (e).      By  section   7  of   the  Constitution   (Forty-fourth Amendment) Act, 1978 the reference to Article 31 was deleted from the  concluding portion  of Article  31A(1) with effect from June  20, 1979,  as a  consequence of  the deletion, by section 2  of the  44th Amendment,  of clause (f) of Article 19(1) which  gave to the citizens the right to acquire, hold and dispose  of property.  The  deletion  of  the  right  to property from  the array  of  fundamental  rights  will  not deprive  the   petitioners  of   the  arguments  which  were available to them prior to the coming into 17 force of  the 44th  Amendment, since  the impugned Acts were

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passed before  June 20,  1979 on which date Article 19(1)(f) was deleted.      There is  no doubt, nor indeed is it disputed, that the Agricultural Lands Ceiling Acts, which are impugned in these proceedings, fall squarely within the terms of clause (a) of Article 31A(1).  Those Acts  provide for  the extinguishment and modification  of rights  in an  ’estate’, the expression ’estate’ being  defined by clause (2) (a) (iii) to mean "any land held or let for purposes of agriculture or for purposes ancillary thereto....".  It  must  follow,  as  a  necessary corollary, that  the  impugned  Acts  are  entitled  to  the protection of  Article 31A(1) (a) when the result that their provisions  cannot   be  deemed,  and  therefore  cannot  be declared,  to   be  void   on  the   ground  that  they  are inconsistent with  or take away or abridge any of the rights conferred by Articles 14, 19 or 31.      This is  the reason  why and  the contest  in which the validity of  Article 31A(1)(a)  is itself  assailed  by  the petitioners. If  a constitutional  provision, which deprives the petitioners  of the  benefit and  protection of Articles 14, 19  and 31, is invalid, the petitioners will be entitled to challenge  the impugned  laws on the ground that they are inconsistent with  or that  they take  away or  abridge  the rights conferred  by Part  III of  the Constitution. Article 13(2), has  a sensitive touchstone. Not only does it mandate that the  State shall  not make  any law which takes away or abridges the  rights conferred  by Part III but, it provides that any  law made  in contravention of the clause shall, to the extent  of the contravention, be void. Mere abridgement, that is  to say curtailment, and not necessarily abrogation, that is  to say  total deprivation, is enough to produce the consequence provided for by Article 13(2).      The validity  of the  constitutional amendment by which Article  31A(1)(a)  was  introduced  is  challenged  by  the petitioners  on   the  ground  that  it  damages  the  basic structure of the Constitution by destroying one of its basic features, namely, that no law can be made by the legislature so as to abrogate the guarantees afforded by Articles 14, 19 and 31.  It is  tautologous to  say so but, if we may so put it, the  obliteration  of  the  rights  conferred  by  these Articles, which  Article 31A  (1) (a) brings about, is total and complete  because, as the clear and unequivocal language of that  Article  shows,  the  application  of  these  three articles stands  totally withdrawn in so far as laws falling within the  ambit of  clause (a)  are concerned.  It  is  no argument to  say that  the withdrawal  of the application of certain articles in Part III in respect of laws of a defined category is  not total  abrogation of  the articles  because they will  continue to  apply to  other situations and other laws. In any given case, what is decisive 18 is whether,  in so far as the impugned law is concerned, the rights available  to persons  affected by that law under any of the  articles in  Part III  is totally  or  substantially withdrawn and  not whether  the articles, the application of which stands  withdrawn in  regard to  a defined category of laws, continue  to be  on the  Statute  Book  so  as  to  be available in  respect of  laws of  other categories. We must there fore  conclude that  the withdrawal of the application of Articles  14, 19  and 31  in respect  of laws  which fall under clause  (a) is total and complete, that is to say, the application of  those articles  stands abrogated, not merely abridged,  in  respect  of  the  impugned  enactments  which indubitably fall  within the  ambit of  clause (a). We would like to  add that  every case  in which  the protection of a

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fundamental right  is withdrawn  will not necessarily result in  damaging  or  destroying  the  basic  structure  of  the Constitution. The question as to whether the basic structure is damaged  or destroyed in any given case would depend upon which particular Article of Part III is in issue and whether what is  withdrawn is quint-essential to the basic structure of the Constitution.      The judgment  of  this  Court  in  Kesavananda  Bharati (supra) provoked  in its  wake a  multi-storied controversy, which is  quite understandable. The judgment of the majority to which  seven out  of the  thirteen Judges  were  parties, struck a  bridle path by holding that in the exercise of the power conferred  by Article 368, the Parliament cannot amend the Constitution  so as  to  damage  or  destroy  the  basic structure of  the Constitution.  The  seven  learned  Judges chose their words and phrases to express their conclusion as effectively and  eloquently as language can do. But, at this distance of time any controversy over what was meant by what they said  is plainly  sterile. At  ’this distance of time’, because though  not more than a little less than eight years have gone  by since  the  decision  in  Kesavananda  Bharati (supra) was  rendered,  those  few  years  are  packed  with constitutional events of great magnitude. Applying the ratio of the  majority judgments  in that  epoch-making  decision, this Court  has since  struck down constitutional amendments which would  otherwise have  passed muster.  For example, in Smt. Indira  Gandhi v.  Raj Narain  Art. 329A(4) was held by the Court  to be  beyond  the  amending  competence  of  the Parliament since,  by making separate and special provisions as to  elections to Parliament of the Prime Minister and the Speaker,  it   destroyed  the   basic   structure   of   the Constitution. Ray C.J. based his decision on the ground that the  39th  Amendment  by  which  Art.  329A  was  introduced violated the Rule of Law 19 (p. 418);  Khanna J.  based his  decision on the ground that democracy was  a basic  feature of  the  Constitution,  that democracy contemplates  that elections  should be  free  and fair and  that the clause in question struck at the basis of free and  fair elections (pp. 467 and 471); Mathew J. struck down the  clause on  the ground that it was in the nature of legislation ad  hominem (p.  513) and  that it  damaged  the democratic structure of the Constitution (p. 515); while one of us,  Chandrachud J., held that the clause was bad because it violated  the Rule of Law and was an outright negation of the principle  of equality  which is  a basic feature of the Constitution (pp. 663-665). More recently, in Minerva Mills, (supra) clauses  (4) and (5) of Article 368 itself were held unconstitutional by  a unanimous  Court, on  the ground that they destroyed  certain basic  features of  the Constitution like judicial  review and  a  limited  amending  power,  and thereby damaged  its  basic  structure.  The  majority  also struck down  the amendment  introduced  to  Article  31C  by section 4 of the 42nd Amendment Act, 1976.      The period between April 24, 1973, when the judgment in Kesavananda Bharati  (supra) was  delivered and  now  is  of course a  short span  in our  constitutional history but the occasional challenges  which  evoked  equal  responses  have helped settle  the controversy  over the  limitations on the Parliament’s power  to amend the Constitution. Khanna J. was misunderstood to mean that fundamental rights are not a part of the  basic structure  of the Constitution when he said in Kesavananda Bharati (supra):      I have  no doubt that the power of amendment is plenary      and would include within itself the power to add, alter

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    or repeal the various articles including those relating      to fundamental rights. (p. 688) But he  clarified the  true position  in his judgment in the Election  Case  (supra)  (pages  497-499),  by  drawing  the attention of  doubters to a significant qualification ’which he had  engrafted on  the above  statement, at pages 688 and 758 of  his judgment  in Kesavananda  Bharati  (supra).  The qualification was that subject to the retention of the basic structure or  framework of  the Constitution,  the power  of amendment was  plenary.  The  law  on  the  subject  of  the Parliament’s power  to amend  the Constitution  must now  be taken as  well-settled, the  true position being that though the Parliament has the power to amend each and every article of the  Constitution including  the provisions  of Part III, the amending  power cannot  be exercised  so as to damage or destroy the  basic structure  of the  Constitution. It is by the application  of this  principle that  we shall  have  to decide upon the 20 validity  of   the  Amendment   by  which  Article  31A  was introduced. The  precise question  then for consideration is whether section 4 of the Constitution (First Amendment) Act, 1951 which  introduced Article  31A  into  the  Constitution damages or destroys the basic structure of the Constitution.      In the  work-a-day civil  law,  it  is  said  that  the measure of  the permissibility of an amendment of a pleading is how far it is consistent with the original: you cannot by an amendment  transform the  original into  the opposite  of what it  is. For that purpose, a comparison is undertaken to match the amendment with the original. Such a comparison can yield fruitful  results  even  in  the  rarefied  sphere  of constitutional law.  What were  the basic  postulates of the Indian Constitution  when it  was enacted ? And does the 1st Amendment  do   violence  to  those  postulates  ?  Can  the Constitution  as  originally  conceived  and  the  amendment introduced by the 1st Amendment Act not endure in harmony or are they  so incongruous that to seek to harmonize them will be like  trying to  fit a square peg into a round aperture ? Is the  concept underlying section 4 of the 1st Amendment an alien in  the house of democracy?--its invader and destroyer ? Does  it damage or destroy the republican framework of the Constitution as originally devised and designed? These questions  have a  historical slant  and content:  and history can furnish a safe and certain clue to their answer. The relevant part of the statement of Objects and Reasons of the 1st amendment says:           During the  last fifteen  months of the working of      the  Constitution,   certain  difficulties   have  been      brought   to    light   by   judicial   decisions   and      pronouncements specially  in regard  to the  chapter on      fundamental rights.  The citizen’s  right to freedom of      speech and  expression guaranteed  by article 19(1) (a)      has been  held by some courts to be so comprehensive as      not to  render a  person culpable  even if he advocates      murder and other crimes of violence. In other countries      with written  constitutions, freedom  of speech  and of      the press  is not  regarded as debarring the State from      punishing or  preventing abuse  of  this  freedom.  The      citizen’s right  to practise any profession or to carry      on any  occupation,  trade  or  business  conferred  by      article 19(1)(g)  is subject to reasonable restrictions      which  the  laws  of  the  State  may  impose  "in  the      interests of the general public." While the words cited      are  comprehensive   enough  to  cover  any  scheme  of      nationalisation which  the State  may undertake,  it is

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    desirable to place 21      the matter  beyond doubt by a clarificatory addition to      article 19(6).  Another  article  in  regard  to  which      unanticipated difficulties  have arisen  is article 31.      The validity  of agrarian reform measures passed by the      State Legislatures  in the  last three  years  has,  in      spite of  the provisions  of clauses  (4)  and  (6)  of      article  31,  formed  the  subject-matter  of  dilatory      litigation, as  a result of which the implementation of      these important  measures, affecting  large numbers  of      people has been held up.           The main objects of this Bill are, accordingly, to      amend article  19 for  the purposes indicated above and      to insert  provisions fully securing the constitutional      validity of  zamindari abolition  laws in  general  and      certain  specified   State  Acts   in  particular.  The      opportunity has  been taken  to  propose  a  few  minor      amendments  to   other  articles  in  order  to  remove      difficulties that may arise.      In Shankari Prasad v. Union of India, Patanjali Sastri, C.J. explained  the reasons  that led  to the  insertion  of Articles 31A and 31B by the 1st Amendment thus:           What led  to that  enactment is a matter of common      knowledge. The political party now in power, commanding      as it  does a  majority of  votes in  the several State      Legislatures as  well as  in  Parliament,  carried  out      certain measures  of agrarian  reform in  Bihar,  Uttar      Pradesh and  Madhya  Pradesh  by  enacting  legislation      which may  compendiously be  referred to  as  Zamindari      Abolition Acts.  Certain Zamindars,  feeling themselves      aggrieved, attacked  the  validity  of  those  Acts  in      Courts of  law on  the ground that they contravened the      fundamental rights conferred on them by Part III of the      Constitution. The High Court at Patna held that the Act      passed in  Bihar was  unconstitutional while  the  High      Courts at  Allahabad and  Nagpur upheld the validity of      the corresponding  legislation  in  Uttar  Pradesh  and      Madhya  Pradesh   respectively.  Appeals   from   those      decisions are pending in this Court. Petitions filed in      this  Court   by  some   other  zamindars  seeking  the      determinations of  the same  question are also pending.      At this stage, the Union Government, with a view to put      an end  to all  this litigation and to remedy what they      considered to  be certain  defects brought  to light in      the working of the Constitution, brought forward a Bill      to  amend  the  Constitution,  which  after  undergoing      amendments in various particulars, 22      was  passed   by  the   requisite   majority   as   the      Constitution (First Amendment) Act, 1951.      Article 31A  was  further  amended  with  retrospective effect by  the Constitution (Fourth Amendment) Act 1955, the object of which was explained as follows in the Statement of Objects and Reasons of that Amendment:           It will  be recalled  that the zamindari abolition      laws which  came  first  in  our  programme  of  social      welfare legislation  were  attacked  by  the  interests      affected mainly  with reference  to article  14, 19 and      31, and that in order to put an end to the dilatory and      wasteful  litigation   and  place   these  laws   above      challenge in  the courts,  articles 31A and 31B and the      Ninth Schedule  were enacted by the Constitution (First      Amendment)   Act.    Subsequent   judicial    decisions      interpreting articles 14, 19 and 31 have raised serious

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    difficulties in  the way  of the  Union and  the States      putting through  other  and  equally  important  social      welfare legislation  on the  desired lines,  e.g.,  the      following:-           (i)  While the  abolition of  zamindaries and  the                numerous intermediaries between the State and                the tiller  of the soil has been achieved for                the most  part, our  next objectives  in land                reform are the fixing of limits to the extent                of agricultural  land that  may be  owned  or                occupied by  any person,  the disposal of any                land held in excess of the prescribed maximum                and the further modification of the rights of                land  owners   and  tenants  in  agricultural                holdings.           (ii) x     x     x     x     x     x           (iii) x     x     x     x     x     x           (iv) x     x     x     x     x     x           It is accordingly proposed in clause 3 of the Bill      to extend the scope of article 31A so as to cover these      categories of essential welfare legislation.      The Constitution (First Amendment) Act was moved in the Provisional Parliament  on May  12, 1951  as Bill  No. 48 of 1951. It  was referred  to a  Select Committee and after the receipt of  its report,  it was debated in the Parliament on various dates  in May and June. It received the Presidential assent on June 18, 1951.      The speeches  made in  the  Provisional  Parliament  by Jawaharlal  Nehru   and  other   national  leaders  who  had participated in the freedom 23 movement show,  in a significant measure, the genesis of the 1st Amendment and its avowed purpose.      While moving  that the  Bill be  referred to  a  Select Committee, Jawaharlal Nehru said:           This Bill is not a very complicated one: nor is it      a big  one. Nevertheless,  I need hardly point out that      it is  of  intrinsic  and  great  importance.  Anything      dealing with  the Constitution  and change  of it is of      importance. Anything  dealing with  Fundamental  Rights      incorporated in  the Constitution  is of  even  greater      importance. Therefore,  in bringing this Bill forward I      do so  and the  Government does  so  in  no  spirit  of      lightheartedness, in  no  haste,  but  after  the  most      careful thought and scrutiny given to this problem.           I  might  inform  the  House  that  we  have  been      thinking  about   this  matter   for  several   months,      consulting  people,  State  Governments,  Ministers  of      Provincial  Governments,   consulting   when   occasion      offered itself,  a number  of Members  of  this  House,      referring it  to various  Committees and  the like  and      taking such  advice from competent legal quarters as we      could obtain,  so that  we have proceeded with as great      care as  we could  possibly give to it. We have brought      it forward  now after  that care, in the best form that      we  could   give  it,   because  we  thought  that  the      amendments  mentioned   in  this   Bill  are  not  only      necessary, but  desirable, and  because we thought that      if these  changes are  not made, perhaps not only would      great difficulties  arise, as  they have  arisen in the      past few  months, but perhaps some of the main purposes      of the very Constitution may be defeated or delayed.      The Parliamentary  Debates, Part  II, Volumes  XII  and XIII (May  15-June  9,  1951)  contain  the  record  of  the speeches made  while the  1st Amendment was on the anvil. We

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reproduce below  the relevant  extracts from the speeches of the then Prime Minister, Jawaharlal Nehru:           The real difficulty which has come up before us is      this. The  Constitution  lays  down  certain  Directive      Principles of State Policy and after long discussion we      agreed to  them and  they point out the way we have got      to travel.  The Constitution  also  lays  down  certain      Fundamental Rights.  Both are  important. The Directive      Principles of  State Policy  represent a  dynamic  move      towards a  certain objective.  The  Fundamental  Rights      represent something static, to preserve certain 24      rights which  exist. Both  again are right. But somehow      and sometime  it might so happen that  dynamic movement      and that  static standstill  do not quite fit into each      other.           A dynamic  movement towards  a  certain  objective      necessarily means  certain changes taking place that is      the essence of movement. (p. 8820)           Now I  shall proceed  with the  other article, the      important one,  namely article 31. When I think of this      article the  whole gamut of pictures comes up before my      mind, because  this article deals with the abolition of      the zamindari  system,  with  land  laws  and  agrarian      reform. I am not a zamindar, nor I am a tenant. I am an      outsider. But  the whole  length of  my public life has      been intimately connected, or was intimately connected,      with agrarian  agitation in  my Province.  And so these      matters came  up before  me  repeatedly  and  I  became      intimately associated  with them.  Therefore I  have  a      certain emotional  reaction to  them and  awareness  of      them which  is much  more than  merely an  intellectual      appreciation. If  there is  one thing  to which we as a      party have  been committed in the past generation or so      it is  the agrarian  reform and  the abolition  of  the      zamindari system. (p. 8830)           Now apart  from our  commitment, a  survey of  the      world today,  a survey  of Asia  today  will  lead  any      intelligent person  to  see  that  the  basic  and  the      primary problem  is the  land problem today in Asia, as      in  India.   And  every   day  of  delay  adds  to  the      difficulties  and  dangers,  apart  from  being  an  in      justice in itself. (pp 8830-8831)           ....it is  patent that  when you are out to remedy      inequalities,  you   do  not   remedy  inequalities  by      producing further  inequalities. We  do not want anyone      to suffer.  But, inevitably, in big social changes some      people have to suffer. (p. 8831)           How are  we to  meet this challenge of the times ?      How are  we to answer the question: For the last ten or      20 years you have said, we will do it. Why have you not      done it ? It is not good for us to say: We are helpless      before fate  and the  situation which we are to face at      present. Therefore,  we have to think in terms of these      big changes,  and changes and the like and therefore we      thought of  amending article  31. Ultimately we thought      it best  to propose additional articles 31A and 31B and      in addition to that there is a Schedule 25      attached  of   a  number   of  Acts   passed  by  State      Legislatures, some  of which  have been  challenged  or      might be challenged and we thought it best to save them      from long  delays and  these difficulties, so that this      process of change which has been initiated by the State      should go ahead. (pp. 8831-8832)

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         The other day I was reading an article about India      by a  very eminent  American and  in that article which      contained many  correct statements  and some  incorrect      statements, the author finished up by saying that India      has very  difficult problems to face but the most acute      of them he said can be put in five words and those five      words were:  land, water,  babies, cows  and capital. I      think that  there is  a great  deal of  truth  in  this      concise analysis  of the  Indian situation.  (pp. 8832-      8833)           Now I  come to  articles 31,  31A and  31B. May  I      remind the  House or  such Members of the House as were      also Members  of the  Constituent Assembly  of the long      debates that we had on this issue. Now the whole object      of these  articles in the Constitution was to take away      and I  say so deliberately to take away the question of      zamindari and  land reform  from  the  purview  of  the      courts. That  is the  whole object  of the Constitution      and we  put in  some proviso  etc. in regard to article      31. (p. 9082)           What are we to do about it? What is the Government      to do  ? If  a Government  has not  even the  power  to      legislate to  bring about  gradually that equality, the      Government fails to do what it has been commanded to do      by this  Constitution. That  is why  I  said  that  the      amendments I  have placed before the House are meant to      give effect to this Constitution. I am not changing the      Constitution  by   an  iota;  I  am  merely  making  it      stronger.  I  am  merely  giving  effect  to  the  real      intentions of  the framers  of the Constitution, and to      the  wording   of  the   Constitution,  unless   it  is      interpreted in  a very  narrow and legalistic way. Here      is a  definite  intention  in  the  Constitution.  This      question of land reform is under article 31(2) and this      clause tries  to take  it away  from the purview of the      courts and  somehow article  14 is brought in That kind      of thing  is not surely the intention of the framers of      the Constitution.  Here again  I may say that the Bihar      High Court  held that view but the Allahabad and Nagpur      High Courts  held a  contrary view. That is true. There      is confusion  and  doubt.  Are  we  to  wait  for  this      confusion and 26      doubt  gradually  to  resolve  itself,  while  powerful      agrarian movements  grow up  ? May  I remind  the House      that this  question of  land reform  is most intimately      connected with  food production.  We  talk  about  food      production and  grow-more-food and if there is agrarian      trouble and insecurity of land tenure nobody knows what      is to  happen. Neither  the zamindar nor the tenant can      devote his energies to food production because there is      instability. Therefore  these loud  arguments and these      repeated appeals  in courts are dangerous to the State,      from  the   security  point  of  view,  from  the  food      production point  of view and from the individual point      of view,  whether it  is that  of the  zamindar or  the      tenant or any intermediary. (pp 9082-9084)                                     (Emphasis is supplied in                                          the passages above)      These statements were made by the Prime Minister on the floor of  the house after what is correctly described as the most careful  deliberation and  a  broad-based  consultation with diverse  interests. They  were made in order to resolve doubts and  difficulties  and  not  with  the  intention  of creating confrontation  with any other arm of the Government

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or with  the people.  They stand in a class apart and convey in a language characterized by logic and directness, how the Constitution was failing of its purpose and how essential it was, in order to remove glaring disparities, to pour meaning and content  into the  framework of the Constitution for the purpose of  strengthening its  structure. Looking  back over the  past   thirty  years’  constitutional  history  of  our country, we,  as lawyers  and Judges, must endorse the claim made in  the speeches  above that  if Article  31A were  not enacted, some of the main purposes of the Constitution would have been  delayed and  eventually defeated  and that by the 1st Amendment,  the constitutional  edifice was not impaired but strengthened.      Conscious as  we are  that though  extraneous  aids  to constitutional interpretation  are permissible  the views of the mover  of a  Bill are  not conclusive on the question of its objects and purposes, we will consider for ourselves the question,  independently,   whether  the  1st  and  the  4th Amendments damage  or destroy  the basic  structure  of  the Constitution in any manner. But before doing that, we desire only to state that these amendments, especially the 1st were made so  closely on  the heels of the Constitution that they ought indeed  to be  considered as  a part and parcel of the Constitution itself. These Amendments are not born of second thoughts and  they do  not  reflect  a  fresh  look  at  the Constitution in  order to deprive the people of the gains of the Consti- 27 tution. They  are, in  the truest  sense of  the  phrase,  a contemporary  practical exposition of the Constitution.      Article 39  of the  Constitution directs by clauses (b) and (c)  that the  ownership and  control  of  the  material resources of  the community  are so  distributed as  best to subserve the common good, that the operation of the economic system does  not result  in the  concentration of wealth and means of  production to  the common  detriment.  These  twin principles of  State policy  were a part of the Constitution as originally  enacted and  it is in order to effectuate the purpose of  these Directive  Principles that the 1st and the 4th Amendments  were passed. In his address to the Allahabad Session of  the Agri-Economics  Conference, Dr. D. R. Gadgil put a home-truth succinctly by saying:           "Among all  resources, the  supply of  land is the      most limited  and the  claimants for its possession are      extremely numerous.  It is, therefore, obviously unjust      to allow  the exploitation of any large surface of land      by  a  single  individual  unless  other  over-whelming      reasons make  this highly  desirable. Further,  in  the      light of  the available  supplies of  land, labour  and      capital, it  would be undesirable to encourage capital-      intensive method  of production. Moreover, whatever the      economics of  large-scale management,  they should,  in      the congested  state  of  our  countryside,  accrue  to      collective or co-operative bodies of cultivators rather      than an  individual family.  Lastly, in  the context of      the current socio-political climate, re-distribution of      land would rather appear to be imperative." As stated  in the  Report of  the Committee  of the Panel on Land Reforms  (Government  of  India,  Planning  Commission, 1959), the  policy of  imposition of ceiling on agricultural lands fulfils the following objectives:-           "(i) meeting  the wide-spread  desire  to  possess      land;           (ii) reducing  glaring inequalities  in  ownership      and use of land;

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         (iii)  reducing   inequalities   in   agricultural      incomes, and           (iv) enlarging the sphere of self-employment."      The Report  of the  Working Group on Land Reforms, 1978 (Ministry  of  Agriculture  and  Irrigation,  Department  of Agriculture) says  that it  was widely  recognised that  the imposition of  ceiling on  agricultural holdings and tenancy reforms constituted  the substance  of the  agrarian  reform movement and that, concentration of land in the hands of a 28 small group  inhibits production,  encourages  concealed  or irregular tenancies  and  results  in  unequal  accesses  to facilities of production in the rural sector. In any economy with a  preponderant agricultural  sector, overall growth of the economy  is largely determined by growth in agricultural production and  elimination of constraints on production has to  be   a  major  national  priority.  Studies  in  certain developing countries  have established that the productivity of smaller  holdings can  conceivably be higher than that of larger holdings,  primarily because the intensity of farming operations varies  inversely with  the size  of the holding. The Report  of the  Working Group says in paragraph 2.1 that whether  or   not  this  is  true  in  all  situations,  the production  system  that  denies  opportunities  of  gainful employment  to   large  numbers  of  workers  and  leads  to pronounced  distortions  in  the  distribution  of  economic disadvantages, needs  imperative over-hauling.  In paragraph 2.2, the  Report proceeds  to say  that in  a  predominantly agricultural society,  there is  a  strong  linkage  between ownership of  land and  the person’s  status in  the  social system. Those  without land suffer not only from an economic disadvantage, but a concomitant social disadvantage has also to be  suffered by them. In the very nature of things, it is not possible  to provide  land to  all landless  persons but that cannot  furnish an  alibi for  not undertaking at all a programme  for  the  redistribution  of  agricultural  land. Agrarian  reform   therefore  requires,   inter  alia,   the reduction of  the larger  holdings and  distribution of  the excess land according to social and economic considerations.      These then  are the  objectives of the Constitution and these the  reasons that  formed the  motive force of the 1st Amendment. Article 31A (1) could easily have appeared in the original Constitution itself as an illustration of its basic philosophy. What remained to be done in the hope that vested interests will not distort the base of the Constitution, had to be  undertaken with a sense of urgency and expediency. It is that  sense and  sensitivity  which  gave  birth  to  the impugned amendment.  The progress  in the  degeneracy of any nation can  be  rapid,  especially  in  societies  riven  by economic disparities  and caste barriers. We embarked upon a constitutional era  holding forth  the promise  that we will secure  to   all  citizens  justice,  social,  economic  and political, equality  of status and of opportunity; and, last but not  the least, dignity of the individual. Between these promises and the 1st Amendment there is discernible a nexus, direct and  immediate. Indeed,  if there  is one place in an agriculture-dominated society  like ours  where citizens can hope to have equal justice, it is on the strip of land which they till  and love,  the land  which assures  to  them  and dignity of  their person  by providing to them a near decent means of livelihood. 29      The First  Amendment has  thus made  the constitutional ideal of  equal justice  a living truth. It is like a mirror that reflects  the ideals of the Constitution; it is not the

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destroyer of  its basic structure. The provisions introduced by it  and the  4th  Amendment  for  the  extinguishment  or modification of  rights in lands held or let for purposes of agriculture or  for purposes  ancillary thereto,  strengthen rather than weaken the basic structure of the Constitution.      The First  Amendment is  aimed at  removing social  and economic disparities  in the  agricultural  sector.  It  may happen that  while existing  inequalities are being removed, new inequalities may arise marginally and incidentally. Such marginal  and   incidental  inequalities  cannot  damage  or destroy the  basic structure  of  the  Constitution.  It  is impossible for  any Government,  howsoever expertly advised, socially oriented  and prudently  managed, to  remove  every economic  disparity   without  causing   some  hardship   or injustice to  a class  of persons  who also  are entitled to equal treatment under the law. Thus, the adoption of ’family unit’ as  the unit  of application  for the revised ceilings may cause  incidental hardship  to  minor  children  and  to unmarried daughters. That cannot, in our opinion, furnish an argument for  assailing the impugned laws on the ground that they violate  the guarantee  of equality.  It  seems  to  us ironical indeed  that the  laws providing  for  agricultural ceilings should  be stigmatised  as destroying the guarantee of equality  when their  true object  and intendment  is  to remove inequalities in the matter of agricultural holding.      The Note of the Panel set up by the Planning Commission in May  1959 on the adoption of ’family unit’ as the unit of application  for   the  revised  ceilings  and  the  counter affidavit of  Shri J. G. Karandikar, Deputy Secretary to the Government of Maharashtra show the relevance and efficacy of the family  being treated  as the real operative unit in the movement for  agrarian reform. Considering the Indian social milieu, the  Panel came  to the conclusion that agricultural ceiling can  be  most  equitably  applied  if  the  base  of application is  taken  as  the  family  unit  consisting  of husband, wife  and three  minor children.  In view  of  this expert data,  we are unable to appreciate how any law passed truly for  implementing the  objective of Article 31A(1) (a) can be  open to  challenge on  the ground  that it infringes Articles 14, 19 or 31.      For  these  reasons,  we  are  of  the  view  that  the Amendment introduced by section 4 of the Constitution (First Amendment) Act,  1951 does  not damage  or destroy the basic structure  of   the  Constitution.   That  Amendment   must, therefore, be upheld on its own merits. 30      This makes  it unnecessary  to consider whether Article 31A can  be upheld by applying the rule of stare decisis. We have, however,  heard long  and studied  arguments  on  that question also,  in deference  to which  we must consider the alternate submission  as to  whether the  doctrine of  stare decisis can  save Article  31A, if it is otherwise violative of the  basic structure  of the  Constitution.  In  Shankari Prasad v.  Union of  India (supra)  the validity  of the 1st Amendment which  introduced Articles  31A & 31B was assailed on six  grounds, the fifth being that Article 13(2) takes in not only  ordinary laws  but constitutional amendments also. This argument was rejected and the 1st Amendment was upheld. In Sajjansingh  v. State  of Rajasthan  the Court refused to reconsider the decision in Shankari Prasad (supra), with the result that  the validity  of  the  1st  Amendment  remained unshaken. In  Golaknath it  was held  by a  majority of 6: 5 that the  power to amend the Constitution was not located in Article 368.  The inevitable  result of  this holding should have been the striking down of all constitutional amendments

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since, according to the view of the majority, Parliament had no power  to amend  the Constitution in pursuance of Article 368. But  the Court  resorted to the doctrine of prospective overruling and held that the constitutional amendments which were already  made would  be left  undisturbed and  that its decision will  govern  the  future  amendments  only.  As  a result, the 1st Amendment by which Articles 31A and 31B were introduced remained  inviolate. It  is trite  knowledge that Golaknath was  overruled in  Kesavananda Bharati  (supra) in which it  was held  unanimously that  the power to amend the Constitution  was   to  be  found  in  Article  368  of  the Constitution. The  petitioners produced  before us a copy of the Civil  Misc. Petition  which was  filed  in  Kesavananda Bharati, (supra)  by which  the reliefs originally asked for were modified. It appears thereform that what was challenged in that  case was  the 24th, 25th and the 29th Amendments to the Constitution.  The validity of the 1st Amendment was not questioned Khanna  J., however,  held-while dealing with the validity of  the unamended  Article 31C that the validity of Article 31A  was upheld  in shukari  Prasad,(supra) that its validity could  not be  any longer questioned because of the principle of  stare decisis and that the ground on which the validity of  Article 31A  was sustained  will  be  available equally for  sustaining the  validity of  the first  part of Article 31C (page 744).      Thus, the  constitutional validity  of Article  31A has been recognised in these four decisions, sometimes directly, sometimes indirectly  and  sometimes  incidentally.  We  may mention in passing, though it has 31 no relevance  on the  applicability of  the  rule  of  stare decisis, that in none of the three earlier decisions was the validity of Article 31A tested on the ground that it damaged or destroyed  the basic  structure of the Constitution. That theory was  elaborated for  the first  time  in  Kesavananda Bharati  (supra)   and  it  was  in  the  majority  judgment delivered in  that case  that the  doctrine found  its first acceptance.      Though Article  31A has thus continued to be recognised as valid ever since it was introduced into the Constitution, we find it somewhat difficult to apply the doctrine of stare decisis for upholding that Article.      In Ambika  Prasad Mishra  v. State  of U.P.  this  very Bench delivered  its judgment  on May  9, 1980 rejecting the challenge to  the validity  of the ’Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960’. But, the question as to whether  Article  31A  can  be  upheld  by  applying  the doctrine of  stare decisis  was not decided in that case. In fact, the  broad consensus  among the  members of  the Court that the  question of  vires of  Articles  31A,  31B  &  31C (unamended) will be decided in the other cases, is reflected in the following observation specifically made by one of us, Brother Krishna Iyer, J., who spoke for a unanimous Court:           "In this  judgment, we  side-step the bigger issue      of  the  vires  of  the  Constitutional  amendments  in      Articles 31A,  31B and  31C as  they are  dealt with in      other cases disposed of recently". (p. 721). Since the  question of vires of these three articles was not dealt with by Brother Krishna Iyer in his judgment on behalf of the  Court, we  are, as  previously arranged  amongst us, dealing with  that question in this judgment. At page 722 of the  report   (paragraph  5),   Brother  Krishna   Iyer  has reaffirmed this position in these words:           "Thus we get the statutory perspective of agrarian      reform and  so, the constitutionality of the Act has to

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    be tested  on the  touchstone of  Article 31-A which is      the relevant  protective armour  for land  reform laws.      Even here,  we must state that while we do refer to the      range of constitutional immunity Article 31A confers on      agrarian reform measures we do not rest our decision on      that provision.  Independently  of  Article  31-A,  the      impugned  legislation   can  withstand   constitutional      invasion and  so the  further challenge to Article 31-A      itself is of no consequence". 32      Krishna Iyer J. has observed in the same paragraph that           "The extreme  argument that Article 31-A itself is      void  as  violative  of  the  basic  structure  of  the      Constitution has  been negatived by my learned Brother,      Bhagwati J.,  in a  kindred group  of cases  of  Andhra      Pradesh". the citation  of that  group of cases being Thumati Venkaiah v. State  of A.P.  But, in  that judgment  too, one  of  us, Brother Bhagwati, who spoke for the unanimous Court, did not refer to  the vires  of Articles  31A, 31B  and 31C. It will thus be  clear that neither the one or the other of us, that is to say neither Brother Bhagwati nor Brother Krishna Iyer, dealt with  the question  of vires  of Articles 31A, 31B and 31C which  we are  doing by  this judgment.  It  has  become necessary  to   make  this   clarification  in  view  of  an observation  by  Brother  Krishna  Iyer  in  the  very  same paragraph 5  of the  aforesaid  judgment  in  Ambika  Prasad Mishra that  the decision  in Kesavananda Bharati (Supra) on the validity  of Article 31A, "binds, on the simple score of stare  decisis...."   Brother  Krishna  Iyer  clarified  the position  once  again  by  a  further  caveat  in  the  same paragraph to this effect:           ".....as  stated  earlier,  we  do  not  base  the      conclusion on Article 31A".      The doctrine  of stare  decisis is  the basis of common law. It  originated in  England and was used in the colonies as the basis of their judicial decisions. According to Dias, the genesis of the rule may be sought in factors peculiar to English legal  history, amongst which may be singled out the absence of  a Code.  The Normans  forbore to impose an alien code on a half-conquered realm, but sought instead to win as much   wide-spread   confidence   as   possible   in   their administration of  law, by  the application  of near uniform rules. The older the decision, the greater its authority and the more  truly was  it accepted as stating the correct law. As the  gulf of  time  widened,  says  Dias,  Judges  became increasingly  reluctant  to  challenge  old  decisions.  The learned author  cites the  example of  Bracton and  Coke who always preferred  older authorities.  In fact,  Bracton  had compiled a  Notebook of  some two thousand cases as material for his treatise and employed some five hundred of them.      The principle of stare decisis is also firmly rooted in American Jurisprudence.  It is  regarded as a rule of policy which promotes  predictability,  certainty,  uniformity  and stability. The legal system, it is 33 said, should  furnish a  clear guide  for  conduct  so  that people may  plan    their  affairs  with  assurance  against surprise. It  is important  to further  fair and expeditious adjudication by  eliminating the  need to  relitigate  every proposition in  every case. When the weight of the volume of the decisions  on a  point of  general public  importance is heavy enough,  courts are  inclined to  abide by the rule of stare decisis, leaving it to the legislature to change long- standing  precedents   if  it  so  thinks  it  expedient  or

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necessary. In  Burnet v.  Coronado Oil  & Gas  Co.,  Justice Brandeis stated  that ’stare  decisis is  usually  the  wise policy, because  in most  matters it  is more important that the applicable  rule of  law be  settled than  it be settled right’.      While dealing  with the  subject of stare decisis, Shri H. M.  Seervai in  his book on ’Constitutional Law of India, has pointed out how important it is for judges to conform to a certain  measure of  discipline so  that decisions  of old standing are  not  overruled  for  the  reason  merely  that another view  of the matter could also be taken. The learned author has  cited an  Australian case  in which  it was said that though  the court  has the  power to reconsider its own decisions, that  should not  be done  upon a mere suggestion that some  or all  of the  members of  the later  court  may arrive at  a different  conclusion if  the matter  were  res integra. The  learned author then refers to two cases of our Supreme Court  in  which  the  importance  of  adherence  to precedents was stressed. Jagannadhadas J. said in the Bengal Immunity Case  that the  finality of  the decisions  of  the Supreme Court,  which is  the Court  of last resort, will be greatly weakened  and much mischief done if we treat our own judgments, even  though recent,  as open to reconsideration. B. P.  Sinha J.  said in  the same  case that if the Supreme Court were  to review  its own  previous decisions simply on the ground  that another  view was  possible,  the  litigant public  may  be  encouraged  to  think  that  it  is  always worthwhile taking  a chance  with the  highest Court  of the land. In  I.T.O. Tuticorin v. T.S.D. Nadar, Hegde J. said in his dissenting  Judgment that  the Supreme  Court should not overrule   its    decisions    except    under    compelling circumstances. It  is only when the Court is fully convinced that public  interest of  a substantial  character would  be jeopardised by a previous 34 decision, that  the Court  should  overrule  that  decision. Reconsideration of  the earlier  decisions, according to the learned Judge,  should be  confined to  questions  of  great public importance.  Legal problems  should not be treated as mere subjects  for mental  exercise. An earlier decision may therefore be  overruled only  if  the  Court  comes  to  the conclusion that  it is  manifestly wrong,  not upon  a  mere suggestion that  if the matter were res integra, the members of the later court may arrive at a different conclusion.      These decisions  and texts  are of  high authority  and cannot  be   overlooked.  In   fact,  these   decisions  are themselves precedents on the binding nature of precedents.      It is  also true to say that for the application of the rule of  stare decisis, it is not necessary that the earlier decision  or   decisions  of   long  standing   should  have considered and  either accepted  or rejected  the particular argument which  is advanced in the case on hand. Were it so, the previous  decisions could  more  easily  be  treated  as binding by  applying the  law of  precedent and  it will  be unnecessary  to  take  resort  to  the  principle  of  stare decisis. It  is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision  rests or what is the basis of the decision. In other words,  for the  purpose of applying the rule of stare decisis, it  is unnecessary  to enquire  or determine  as to what was the rationale of the earlier decision which is said to operate  as stare  decisis.  Therefore,  the  reason  why Article 31A  was upheld  in the earlier decisions, if indeed it was,  are not germane for the purpose of deciding whether

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this is a fit and proper case in which to apply that rule.      But, there  are four  principal reasons  why we are not disposed to  invoke the  rule of  stare decisis for deciding upon the  constitutionality of  Article 31A.  In  the  first place, Article  31A breathes  its own  vitality, drawing its sustenance from  the basic  tenets of  our Constitution. Its unstated premise  is an  integral part of the very making of the Constitution  and it  holds, as it were, a mirror to the ideals which inspired the framing of the Constitution.      The second  reason why  we do not want to resort to the principle of stare decisis while determining the validity of Article 31A is that neither in Shankari Prasad(Supra) nor in Sajjan Singh(Supra),  nor in Golak Nath(Supra) and evidently not  in  Kesavananda  Bharati(Supra)  was  the  question  as regards the  validity as  such  of  Article  31A  raised  or decided. As  stated earlier, Shankari Prasad(Supra) involved the larger  question as to whether constitutional amendments fall within 35 the purview  of Article  13(2) of  the Constitution.  It was held that  they did not. In Sajjan Singh (Supra), the demand for   reconsideration    of   the   decision   in   Shankari Prasad(Supra) was  rejected, that  is to  say, the Court was not inclined  to consider  once again whether constitutional amendments are also comprehended within the terms of Article 13(2). Golak  Nath (Supra)  raised the  question as to where the amending  power was located and not whether this or that particular amendment  was valid.  In none of these decisions was the validity of Article 31A put in issue. Nor indeed was that question  considered and decided in any of those cases. A  deliberate   judicial  decision  made  after  hearing  an argument on a question which arises in the case or is put in issue may  constitute a precedent, and the precedent by long recognition may  mature into  stare decisis. But these cases cannot be  considered as having decided, reasons apart, that the 1st  Amendment which  introduced Article  31A  into  the Constitution is valid.      Thirdly, the  history of the World’s constitutional law shows that  the principle  of stare  decisis is  treated  as having a  limited application  only. Justice William Douglas said in  New York  v. United States that it is a wise policy to restrict the principle of stare decisis to those areas of the  law   where  correction  can  be  had  by  legislation. Otherwise, the  constitution loses  the flexibility which is necessary  if  it  is  to  serve  the  needs  of  successive generations. It  is  for  that  reason  again  that  Justice Frankfurter said  in U.S.  v. International Boxing Club that the doctrine  of stare  decisis is  not ’an  imprisonment of reason’. Older  the standing  of  a  decision,  greater  the provocation to  apply the  rule of stare decisis. A possible mischief arising  out of  this position  was pointed  out by Justice Benjamin Cardozo in MacPherson v. Buick Motor Co. by saying that  precedents drawn  from the  days of  travel  by stage-coach do  not fit  the conditions of travel today. And alive to that possibility, Justice Brandeis said in State of Washington v.  W. C.  Dawson &  Co. that  stare  decisis  is merely a  wise rule  of  action  and  is  not  a  universal, inexorable command.  "The instances  in which  the court has disregarded its admonition are many". In fact, the full form of the principle, "stare decisis et non quieta movere" which means "to  stand by  decisions and  not to  disturb what  is settled", was put by Coke in its classic English version as: "Those things  which have  been so  often adjudged  ought to rest in peace". Such being the justification of the rule, it was said in James Monroe v. Frank Pape that the rele-

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36 vant demands  of stare decisis do not preclude consideration of  an   interpretation  which   started  as  an  unexamined assumption.  We   have   already   pointed   out   how   the constitutional validity  of Article  31A has to be deemed to have been  upheld in  Shakari Prasad (supra) by a process of inferential  reasoning,  the  real  question  therein  being whether the  expression ’law’  in Article 13(2) includes law made in the exercise of constituent power.      The fourth  reason is  the one  cited by  Shri Tarkunde that on  principle, rules  like stare  decisis should not be invoked for  upholding constitutional  devices like Articles 31A, 31B and 31C which are designed to protect not only past laws but  future  laws  also.  Supposing  Article  31A  were invalid on  the ground  that it  violates the Constitution’s basic  structure,  the  fact  that  its  validity  has  been recognised for  a long  time cannot  justify its  protection being extended  to future  laws or  to laws  which have been recently passed  by the  legislature. The principle of stare decisis can  apply, if  at all,  to laws  protected by these articles, if those laws have enjoyed the protection of these articles for  a long time, but the principle cannot apply to the articles  themselves. The  principle  of  stare  decisis permits the  saving of  laws the  validity of which has been accepted or  recognised over  the years. It does not require or sanction  that, in  future too,  laws may  be passed even though  they   are  invalid   or  unconstitutional.   Future perpetration of  illegality is  no part  of the  doctrine of stare decisis.      Our disinclination  to invoke the rule of stare decisis for saving  Article 31A  does not  really matter  because we have upheld  the constitutional  validity  of  that  Article independently on its own merits.      Coming to  the validity  of Article  31B, that  article also contains a device for saving laws from challenge on the ground  of  violation  of  fundamental  rights.  Putting  it briefly, Article  31B provides that the Acts and Regulations specified in  the Ninth  Schedule shall  not be deemed to be void or ever to have become void on the ground that they are inconsistent with  or take away or abridge any of the rights conferred by Part III of the Constitution. The provisions of the article  are expressed  to be  without prejudice  to the generality  of   the  provisions  in  Article  31A  and  the concluding portion  of the  article supersedes any judgment, decree or  order of  any court  or tribunal to the contrary. This article was introduced into the Constitution by section 5 of  the Constitution  (First Amendment)  Act 1951, Article 31A  having  been  introduced  by  section  4  of  the  same Amendment. 37      Article 31B  has  to  be  read  along  with  the  Ninth Schedule because it is only those Acts and Regulations which are put  in that Schedule that can receive the protection of that  article.   The  Ninth   Schedule  was   added  to  the Constitution by  section 14  of the 1st Amendment Act, 1951. The device  or mechanism  which sections 5 and 14 of the 1st Amendment  have  adopted  is  that  as  and  when  Acts  and Regulations   are   put   into   the   Ninth   Schedule   by Constitutional amendments  made from time to time, they will automatically, by  reason of  the provisions of Article 31B, received the  protection of  that article.  Items 1 to 13 of the Ninth  Schedule were put into that Schedule when the 1st Amendment was  enacted on  June 18,  1951. These  items  are typical instances  of  agrarian  reform  legislations.  They relate mostly  to the  abolition  of  various  tenures  like

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Maleki, Taluqdari,  Mehwassi, Khoti,  Paragana and  Kulkarni Watans and  of Zamindaris  and Jagirs. The place of pride in the Schedule  is occupied  by the  Bihar Land  Reforms  Act, 1950, which  is item no. 1 and which led to the enactment of Article 31A  and to  some extent  of Article 31B. The Bombay Tenancy and  Agricultural Lands  Act, 1948 appears as item 2 in the  Ninth Schedule. Items 14 to 20 were added by the 4th Amendment Act  of 1955, items 21 to 64 by the 17th Amendment Act 1964, items 65 and 66 by the 29th Amendment Act of 1972, items 67  to 86  by the 34th Amendment Act 1974, items 88 to 124 by  the 39th  Amendment Act 1975 and items 125 to 188 by the 40th Amendment Act 1976. The Ninth Schedule is gradually becoming densely  populated and  it would  appear that  some planning is  imperative. But  that is another matter. We may only remind that Jawaharlal Nehru had assured the Parliament while speaking on the 1st Amendment that there was no desire to add  to the 13 items which were being incorporated in the Ninth Schedule  simultaneously with  the 1st  Amendment  and that  it   was  intended   that  the   Schedule  should  not incorporate laws  of any  other description than those which fell within  items 1  to 13. Even the small list of 13 items was described by the Prime Minister as a ’long schedule’.      While dealing  with the validity of Article 31A we have expressed the view that it would not be proper to invoke the doctrine of stare decisis for upholding the validity of that article. Though  the same  considerations  must  govern  the question of  the validity  of Article  31B, we would like to point out  that just  as there  are significant similarities between  Articles  31A  and  31B,  there  is  a  significant dissimilarity too.  Article 31A  enables the passing of laws of the  description mentioned  in clauses  (a)  to  (e),  in violation of  the guarantees  afforded by Article 14 and 19. The Parliament  is not  required, in  the  exercise  of  its constituent power  or otherwise, to undertake an examination of the laws 38 which are to receive the protection of Article 31A. In other words, when  a competent legislature passes a law within the purview of clauses (a) to (e), it automatically receives the protection of  Article 31A,  with the  result that  the  law cannot be  challenged on  the ground  of  its  violation  of Articles 14  and 19.  In so far as Article 31B is concerned, it does not define the category of laws which are to receive its protection,  and secondly,  going a  little further than Article 31A,  it affords protection to Schedule-laws against all the  provisions of  Part III of the Constitution. No act can be placed in the Ninth Schedule except by the Parliament and since  the Ninth Schedule is a part of the Constitution, no additions  or alterations  can be  made  therein  without complying  with   the   restrictive   provisions   governing amendments to  the Constitution. Thus, Article 31B read with the Ninth  Schedule provides what is generally described as, a protective  umbrella to all Acts which are included in the schedule, no matter of what character, kind or category they may be.  Putting it  briefly, whereas  Article 31A  protects laws  of  a  defined  category,  Article  31B  empowers  the Parliament to  include in the Ninth Schedule such laws as it considers fit  and  proper  to  include  therein.  The  39th Amendment which  was passed  on August 10, 1975 undertook an incredibly massive  programme to  include items  87  to  124 while the 40th Amendment, 1976 added items 125 to 188 to the Ninth Schedule in one stroke.      The necessity for pointing out this distinction between Articles 31A  and 31B is the difficulty which may apparently arise in  the application  of the principle of stare decisis

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in regard to Article 31B read with the Ninth schedule, since that doctrine  has been  held by  us not to apply to Article 31A. The fourth reason given by us for not applying the rule of stare  decisis to  Article 31A is that any particular law passed under  clauses (a)  to (e) can be accepted as good if it has  been treated as valid for a long number of years but the device  in the  form of  the Article cannot be upheld by the application of that rule. We propose to apply to Article 31B read with the Ninth Schedule the selfsame test.      We propose  to draw  a line,  treating the  decision in Kesavanda Bharati (supra) as the landmark. Several Acts were put in  the Ninth  schedule prior  to that  decision on  the supposition that  the power  of the  Parliament to amend the Constitution, was  wide and untrammeled. The theory that the parliament cannot  exercise its  amending  power  so  as  to damage or  destroy the  basic structure of the Constitution, was  propounded   and  accepted   for  the   first  time  in Kesavananda  Bharati   (supra).  This   is  one  reason  for upholding the  laws incorporated  into  the  Ninth  schedule before April 24, 1973, on which date the judgment in 39 Kesavananda Bharti  (Supra) was  rendered. A large number of properties must  have changed  hands and  several new titles must have  come into  existence on the faith and belief that the laws  included in  the Ninth  schedule were  not open to challenge on the ground that they were violative of Articles 14, 19 and 31. We will not be justified in upsetting settled claims and  titles and  in introducing  chaos and  confusion into the lawful affairs of a fairly orderly society.      The second  reason for  drawing a  line at a convenient and relevant point of time is that the first 66 items in the Ninth Schedule, which were inserted prior to the decision in Kesavananda Bharati,  (Supra)  mostly  pertain  to  laws  of agrarian reforms.  There are  a few exceptions amongst those 66 items,  like items  17, 18, 19 which relate to Insurance, Railways and  Industries. But  almost all  other items would fall within  the purview  of Article  31A (1)(a).  In  fact, items 65  and 66, which were inserted by the 29th Amendment, are the  Kerala Land  Reforms (Amendment)  Acts of  1969 and 1971 respectively,  which were  specifically  challenged  in Kesavananda Bharati (supra). That challenge was repelled.      Thus, in  so far  as the  validity of  Article 31B read with the  Ninth schedule is concerned, we hold that all Acts and Regulations  included in  the Ninth  Schedule  prior  to April 24,  1973 will  receive the full protection of Article 31B.  Those  laws  and  regulations  will  not  be  open  to challenge on  the ground  that they are inconsistent with or take away  or abridge  any of the rights conferred by any of the provisions  of Part  III of  the Constitution.  Acts and Regulations, which  are or  will be  included in  the  Ninth Schedule on  or after  April 24,  1973 will  not receive the protection of  Article 31B  for the plain reason that in the face of  the judgment  in Kesavananda  Bharati (supra) there was no  justification for  making  additions  to  the  Ninth schedule with  a view  to conferring a blanket protection on the  laws   included  therein.  The  various  constitutional amendments, by  which  additions  were  made  to  the  Ninth Schedule on  or after  April 24, 1973, will be valid only if they do  not damage  or destroy  the basic  structure of the Constitution.      That leaves  for consideration  the  challenge  to  the constitutional validity  of the unamended Article 31C. As we have stated  at the  beginning of this judgment, Article 31C was introduced  by the Constitution (Twenty-fifth Amendment) Act, 1971.  Initially, it sought to give protection to those

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laws only  which gave  effect to  the policy  of  the  State towards securing the principles specified in clauses (b) and (c) of  Article 39 of the Constitution. No such law could be deemed 40 to be  void on  the ground  that it  is inconsistent with or takes away  or abridges the rights conferred by Articles 14, 19 and  31. The  concluding portion of the unamended article which gave conclusiveness to certain declarations was struck down in Kesavananda Bharati, (supra)      Shri M.  N. Phadke,  who led  the argument on behalf of the petitioners, built a formidable attack against the vires of Article  31C. But,  with respect  to the learned counsel, the effort  is fruitless because the question as regards the validity of  Article 31C  is  no  longer  res  integra.  The opening clause  of Article 31C was upheld by the majority in Kesavananda Bharati  (Supra) and we do not quite see how the petitioners can be permitted to go behind that decision. The learned counsel  addressed to  us an interesting argument on the principles  governing the  theory of  precedent, and  he argued  that,  in  the  welter  of  judgments  delivered  in Kesavananda Bharati,  (Supra) it  is impossible to discern a ratio  because   different  learned  Judges  gave  different reasons in support of the conclusions to which they came. It is well-known  that six  learned Judges who were in minority in Kesavananda  Bharti (Supra)  upheld  the  first  part  of Article 31C,  which was a logical and inevitable consequence of their  view  that  there  were  no  inherent  or  implied limitations  on   the  Parliament’s   power  to   amend  the Constitution. Khanna, J. did not subscribe to that view but, all the  same, he  upheld the  first part of Article 31C for different reasons.  The question  of validity of the Twenty- fifth Amendment  by which  the  unamended  Article  31C  was introduced into  the Constitution  was  specifically  raised before the  Court and  the arguments  in  that  behalf  were specifically considered  by all  the six minority Judges and by  Khanna,   J.  It   seems  to   us  difficult,  in  these circumstances, to  hold that  no common  ratio can be culled out from  the decision  of the  majority of the seven Judges who upheld  the validity  of Article 31C. Putting it simply, and there  is no  reason why  simple matters  should be made complicated,  the   ratio  of   the  majority  judgments  in Kesavananda Bharati  (Supra)  is  that  the  first  part  of Article 31C is valid.      Apart from  this, if  we are  right  in  upholding  the validity of  Article 31A  on its  own merits, it must follow logically that  the unamended Article 31C is also valid. The unamended portion  of Article 31C is not like an unchartered ship. It  gives protection to a defined and limited category of laws  which are passed for giving effect to the policy of the State  towards  securing  the  principles  specified  in clause (b)  or clause  (c) of  Article 39.  These clauses of Article 39  contain directive  principles which are vital to the well-being of the country and the welfare of its people. Whatever we have said in respect of the 41 defined category  of laws envisaged by Article 31A must hold good, perhaps  with greater force, in respect of laws passed for the  purpose of  giving effect to clauses (b) and (c) of Article 39. It is impossible to conceive that any law passed for such  a purpose can at all violate Article 14 or Article 19. Article  31 is  now out of harm’s way. In fact, far from damaging the  basic  structure  of  the  Constitution,  laws passed truly  and bona  fide for  giving effect to directive principles contained  in clauses  (b) and  (c) of Article 39

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will fortify  that structure. We do hope that the Parliament will utilise  to the  maximum its  potential to  pass  laws, genuinely and  truly related  to the principles contained in clauses (b) and (c) of Article 39. The challenge made to the validity of  the first  part of  the unamended  Article  31C therefore fails.      A small,  though practically  important,  clarification seems called  for at  the end  of  this  discussion  of  the validity of Article 31A, 31B and 31C. We have held that laws included in  the Ninth  Schedule on or after April 24, 1973, will not  receive the  protection of Article 31B ipso facto. Those laws  shall  have  to  be  examined  individually  for determining whether  the constitutional  amendments by which they were  put in  the Ninth Schedule, damage or destroy the basic structure  of the  Constitution  in  any  manner.  The clarification which  we desire  to  make  is  that  such  an exercise will  become otiose  if the  laws included  in  the Ninth Schedule  on or  after April  24, 1973 fall within the scope and  purview of  Article 31A  or the unamended Article 31C. If  those laws are saved by these Articles, it would be unnecessary to  determine  whether  they  also  receive  the protection of  Article 31B read with the Ninth Schedule. The fact that  Article 31B  confers protection  on the  schedule laws against  "any provisions" of Part III and the other two Articles confer  protection as  against   Articles 14 and 19 only, will  make no  real difference to this position since, after the deletion of Article 31, the two provisions of Part III, which would generally come into play on the question of validity of the relevant, laws, are Articles 14 and 19.      Apart   from    these   challenges   to   the   various constitutional  amendments,   the  petitioners   have   also challenged  the   validity  of  the  Constitution  (fortieth Amendment) Act, 1976, by which the Amending Acts 21 of 1975, 41 of  1975 and 2 of 1976 were placed in the Ninth Schedule. It may  be recalled  that the  Principal Act  was amended by these Amending  Acts. The  normal term  of five years of the Lok Sabha  was due to expire on March 18, 1976 but, its life was extended  for one  year  by  the  House  of  the  People (Extension of  Duration) Act,  1976.  Yet  another  Act  was passed by the Parliament, The House of the People (Extension of Duration) Amendment Act, 1976, by which the 42 term of  the Lok Sabha was further extended by another year. The 40th  Amendment was  passed by the Lok Sabha on April 2, 1976 during  its extended  term. Since  by the aforesaid two Acts, the  life of the Lok Sabha was extended while both the proclamations  of   emergency   were   in   operation,   the petitioners challenge  the proclamations  of  the  state  of Emergency, dated  December 3, 1971 and June 25, 1975 as also the two  Acts by  which  the  term  of  the  Lok  Sabha  was extended. The  42nd Amendment  inserted clauses  4 and  5 in Article 368 with effect from January 3, 1975. Which was also during the  extended term  of the  Lok Sabha. That Amendment too is  challenged for that reason. We have struck down that amendment unanimously  by  our  judgment  in  Minerva  Mills (supra) for  the reason  that it damages the basic structure of the  Constitution. Thus,  we are now left to consider the validity of:           (1)  The Promulgation of the state of Emergency by                the proclamations  dated December 3, 1971 and                June 25, 1975;           (2)  The  House   of  the   People  (Extension  of                Duration) Act, 1976;           (3)  The House  of People  (Extension of Duration)                Amendment Act, 1976, and

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         (4)  The Constitution  (Fortieth  Amendment)  Act,                1976. The validity  of all  these is inter-connected and the focus of  the   challenge  is   the  aforesaid   proclamations  of Emergency.      The validity  of  the  proclamations  of  Emergency  is challenged mainly  by Shri A. K. Sen, Shri M. N. Phadke, Dr. N. M.  Ghatate and  by Shri  P. B.  Sawant who  appeared  in person in  Writ Petition  No. 63 of 1977. It is contended by the learned  counsel and  Shri P.  B. Sawant that the Courts have jurisdiction  to enquire whether the power conferred on the President  by Article  352 to  proclaim an  emergency is properly exercised  as also  the power  to determine whether there are  any circumstances  justifying the  continuance of the emergency.  There may  sometimes  be  justification  for declaring  an   emergency  but  if  an  emergency,  properly declared, is  allowed to continue without justification, the party in  power, according  to counsel,  can perpetuate  its rule and  cling to  power  by  extending  the  life  of  the Parliament from  time to time. The provisions of Article 352 should,  therefore,   be  interpreted   in  a   liberal  and progressive manner  so that  the  democratic  ideal  of  the Constitution will  be furthered  and not  frustrated. It  is urged that  the threat  to  the  security  of  India  having completely disap- 43 peared soon after the Pakistani aggression in December 1971, the continuance  of the  emergency proclaimed on December 3, 1971, must be held to be unjustified and illegal.      A list  of dates has been furnished to us by counsel in support of  their argument  that the  emergency declared  on December 3,1971,  could not  legitimately  be  continued  in operation for  a period  of more than six years. On December 3,1971 the president issued the proclamation of emergency in face of  the aggression  by Pakistan,  stating that  a grave emergency existed  whereby the  security of  the country was threatened  by  external  aggression.  Both  the  Houses  of Parliament approved  the proclamation  on the  4th, on which date the  Defence of  India Act,  1971, came into force. The Defence of India Rules, 1971, framed under section 22 of the Defence of  India Act,  came  into  force  on  the  5th.  On December  16,   1971;   the   Pakistani   forces   made   an unconditional surrender  in Bangladesh  and on  the 17th the hostilities between  India and  Pakistan came  to an end. In February 1972,  General Elections  were held  to  the  State Assemblies. On  August 28,  1972 the  two countries  entered into an  agreement for the exchange of prisoners of war, and by April  30, 1974  the repatriation of the prisoners of war was completed.  On August 16, 1974 the Presidential Election was held  in  India.  On  June  25,  1975  came  the  second proclamation  of   emergency;  in   the  wake   of  which  a notification  was  issued  under  Article  359  on  June  27 suspending the  enforcement of  the fundamental rights under Articles 14,  21 and  22. On  February 16, 1976 the House of People (Extension  of Duration)  Act was  passed. The normal term of the Lok Sabha expired on March 18, 1976. On April 2, 1976, the  Lok Sabha  passed the 40th Amendment Act by which the Maharashtra  Land Ceiling Amendment Acts were put in the Ninth Schedule  as Items  157, 159  and 160. On November 24, 1976 the  House of  People (Extension of Duration) Amendment Act was  passed extending  the term  of the Parliament for a further period  of one  year. The  42nd  Amendment  Act  was passed on  November 12, 1976. The Lok Sabha was dissolved on January 18,  1977 and  both the  emergencies were revoked on March 21, 1977.

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    The question  as to whether a proclamation of emergency issued  by   the  President  under  Article  352(1)  of  the Constitution raises  a justiciable  issue has been argued in this Court  from time  to time  but, for  some reason or the other, though  the question  has been  discussed briefly and occasionally, there  is no  authoritative pronouncement upon it. We  do not  propose to  enter into that question in this case also  partly because, there is good reason to hope that in future,  there will  be no  occasion to  bring before the Court the kind of grievance 44 which is  now made  in regard  to the circumstances in which the proclamation  of emergency  was issued on June 25, 1975. Section 48 of the Constitution (Forty-second Amendment) Act, 1976, which came into force on January 3, 1977, has inserted clauses (2)  to (8)  in Article  352 which  afford  adequate insurance  against   the  misuse   of  power   to  issue   a proclamation of  emergency. By  the newly  added clause (3), the President  cannot issue  a proclamation under clause (1) unless the  decision of  the Union Cabinet of Ministers that such a  proclamation may  be issued has been communicated to him in  writing. Under clause (4), every proclamation issued under Article  352 has  to be  laid  before  each  House  of Parliament, and  it ceases  to operate  at the expiration of one month,  unless before  the expiration of that period, it has been  approved by  a resolution  of both  the Houses  of Parliament. Clause  (4) provides  that the  proclamation  so approved shall,  unless revoked,  cease to  operate  on  the expiration of  a period  of six  months from the date of the passing of  the second  of  the  resolutions  approving  the proclamation.      The  question   as  to   whether  the   issuance  of  a proclamation of emergency is justiciable raises issues which are not easy to answer. In any event, that question can more appropriately and  squarely be  dealt with  when  it  arises directly and  not incidentally  as here.  In so  far as  the proclamation of  December 3,  1971 is  concerned, it  is not disputed, and  indeed it  cannot be disputed, that there was manifest justification for that course of action. The danger to the  security of  the  country  was  clear  and  present. Therefore, the attempt of the petitioners has been to assail the  continuance  of  the  state  of  emergency  under  that proclamation. From  the various  dates and  events mentioned and furnished  to us,  it may  be possible  for a  layman to conclude that  there was  no reason to continue the state of emergency at  least after  the formality  of exchanging  the prisoners of war was completed. But we are doubtful whether, on the  material furnished  to us, it is safe to conclude by way of  a judicial  verdict  that  the  continuance  of  the emergency  after  a  certain  date  became  unjustified  and unlawful. That  inference is somewhat non-judicious to draw. Newspapers and  public men  are entitled  to prepare  public opinion on  the need  to revoke a proclamation of emergency. They have  diverse sources  for gathering  information which they may not disclose and they are neither bound by rules of evidence nor  to observe  the elementary  rule  of  judicial business that  facts on  which a  conclusion is  to be based have to  be established by a preponderance of probabilities. But Courts  have severe  constraints which  deter them  from undertaking a  task which cannot judicially be performed. It was suggested  that the  proclamation of  June 25,  1975 was actuated by mala fides. But there 45 too, evidence  placed before  us of  mala fides  is  neither clear nor cogent.

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    Thus, in the first place, we are not disposed to decide the question as to whether the issuance of a proclamation of emergency raises  a justiciable issue. Secondly, assuming it does, it  is not  possible in the present state of record to answer that issue one way or the other. And, lastly, whether there  was   justification  for   continuing  the  state  of emergency after  the cessation  of hostilities with Pakistan is a  matter on  which we  find  ourselves  ill-equipped  to pronounce.      Coming to the two Acts of 1976 by which the life of the Lok Sabha  was extended,  section 2  of the  first of  these Acts, 30  of 1976,  which was  passed on  February 16, 1976, provided that  the period  of five  years in relation to the then House  of the  People shall be extended for a period of one year  "while the Proclamation of Emergency issued on the 3rd day of December, 1971 and on the 25th day of June, 1975, are  both   in  operation".  The  second  Act  of  Extension continues to  contain the same provision. It is contended by the petitioners  that the  proclamation of  December 3, 1971 should have  been revoked  long before February 16, 1976 and that the  proclamation of  June 25, 1975 wholly uncalled for and was  mala fide. Since the precondition on which the life of the Parliament was extended is not satisfied, the Act, it is contended,  is ineffective  to extend  the  life  of  the Parliament. We  find it difficult to accept this contention. Both  the   proclamations  of  emergency  were  in  fact  in operation on February 16, 1976 when the first Act was passed as also  on November  24, 1976  when the  second Act, 109 of 1976, was  passed. It  is not  possible for us to accept the submission of  the petitioners  that for the various reasons assigned by  them, the first proclamation must be deemed not be in  existence and  that the  second proclamation  must be held to  have been  issued mala  fide and therefore non-est. The  evidence   produced  before   us  is  insufficient  for recording a  decision on  either of  these matters.  It must follow that  the two  Acts by  which the duration of the Lok Sabha was  extended are  valid and  lawful. The 40th and the 42nd Constitutional  Amendments cannot, therefore, be struck down on  the ground  that they  were passed  by a  Lok Sabha which was not lawfully in existence.      These then  are our  reasons for  the  order  which  we passed on May 9, 1980 to the following effect:      "(1) The Constitution (First Amendment) Act, 1951 which introduced  Article   31A   into   the   Constitution   with retrospective effect,  and section  3  of  the  Constitution (Fourth Amendment) Act, 1955 46 which substituted  a new  clause (1), sub-clause (a) to (e), for the  original clause  (1) with  retrospective effect, do not damage  any of  the basic  or essential  features of the Constitution or  its  basic  structure  and  are  valid  and constitutional, being  within the  constituent power  of the Parliament.      (2) Section 5 of the Constitution (First Amendment) Act 1951 introduced  Article 31B  into  the  Constitution  which reads thus:      "31B    x    x    x    x    x    x      In keshvananda Bharati (1973, Suppl., SCR 1) decided on April 24,  1973 it  was held by the majority that Parliament has no  power to  amend the  Constitution so as to damage or destroy  its  basic  or  essential  features  or  its  basic structure. We  hold that  all amendments to the Constitution which were  made before  April 24, 1973 and by which the 9th Schedule to  the Constitution  was amended from time to time by the  inclusion of  various Acts  and Regulations therein,

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are valid and constitutional. Amendments to the Constitution made on or after April 24, 1973 by which the 9th Schedule to the Constitution  was amended  from  time  to  time  by  the inclusion of  various Acts and Regulations therein, are open to challenge  on the ground that they, or any one or more of them, are  beyond the  constituent power  of the  Parliament since they  damage the  basic or  essential features  of the Constitution or  its basic  structure. We  do not  pronounce upon  the   validity  of   such  subsequent   constitutional amendments except to say that if any Act Regulation included in the 9th Schedule by a Constitutional amendment made on or after April  24, 1973 is saved by Article 31A, or by Article 31C  as  it  stood  prior  to  its  amendment  by  the  42nd Amendment, the  challenge to  the validity  of the  relevant Constitutional Amendment  by which that Act or Regulation is put in  the 9th  Schedule, on  the ground that the Amendment damages or  destroys a  basic or  essential feature  of  the Constitutional  or  its  basic  structure  as  reflected  in Articles 14, 19 or 31, will become otiose.      (3) Article  31C of the Constitution, as it stood prior to its  amendment by  section 4  of the  Constitution  (42nd Amendment), Act,  1976, is  valid to the extent to which its constitutionality was upheld in Keshvananda Bharati. Article 31C, as  it stood prior to the Constitution (42nd Amendment) Act does  not damage  any of the basic or essential features of the Constitution or its basic structure.      (4)  All   the  Writ  Petitions  and  Review  Petitions relating to  the validity  of the  Maharashtra  Agricultural Lands Ceiling Acts are dismissed with costs. The stay orders granted in these matters will 47 stand vacated.  We quantify  the costs  at Rs. five thousand which will  be borne  equally by  the  petitioners  in  Writ Petitions Nos.  656-660 of 1977; 512-533 of 1977; and 505 to 511 of 1977. The costs will be payable to the Union of India and the State of Maharashtra in equal measure.      (5) Writ  Petition No.  63 of  1977 (Baburao  Samant v. Union of India) will be set down for hearing".      This Court  made an Order on 9th May, 1980 disposing of the writ  petitions challenging  the constitutional validity of the  Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 27  of 1961  as amended  from time  to time  by various subsequent acts. This Order was in the following terms:      "(1) The Constitution (First Amendment) Act, 1951 which introduced  Article   31A   into   the   Constitution   with retrospective effect,  and section  3  of  the  Constitution (Fourth Amendment)  Act, 1955 which substituted a new clause (1), sub-clause  (a) to (e), for the original clause(1) with retrospective effect,  do not  damage any  of the  basic  or essential  features   of  the   Constitution  or  its  basic structure and are valid and constitutional, being within the constituent power of the Parliament.      (2) Section 5 of the Constitution (First Amendment) Act 1951 introduced  Article 31B  into  the  Constitution  which reads thus:      "31B: x  x    x    x    x      In Keshvananda Bharati (1973, Suppl., SCR 1) decided on April 24,  1973 it  was held by the majority that Parliament has no  power to  amend the  Constitution so as to damage or destroy  its  basic  or  essential  features  or  its  basic structure. We  hold that  all amendments to the Constitution which were  made before  April 24, 1973 and by which the 9th Schedule to  the Constitution  was amended from time to time by the  inclusion of  various Acts  and Regulations therein, are valid and constitutional. Amendments to the Constitution

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made on or after April 24, 1973 by which the 9th Schedule to the Constitution  was amended  from  time  to  time  by  the inclusion of  various Acts and Regulations therein, are open to challenge  on the ground that they, or any one or more of them, are beyond the constituent power of the 48 Parliament since they damage the basic or essential features of the  Constitution or  its  basic  structure.  We  do  not pronounce   upon    the   validity    of   such   subsequent constitutional amendments  except to  say that if any Act or Regulation included  in the 9th Schedule by a constitutional amendment made  on or  after April  24,  1973  is  saved  by Article 31A,  or by  Article 31C  as it  stood prior  to its amendment by  the  42nd  Amendment,  the  challenge  to  the validity of  the relevant  Constitutional Amendment by which that Act  or Regulation  is put  in the 9th Schedule, on the ground that  the Amendment  damages or  destroys a  basic or essential feature of the Constitution or its basic structure as reflected in Articles 14, 19 or 31, will become otiose.      (3) Article  31C of the Constitution, as it stood prior to its  amendment by  section 4  of the  Constitution  (42nd Amendment) Act,  1976, is  valid to  the extent to which its constitutionality was upheld in Keshvananda Bharati. Article 31C, as  it stood prior to the Constitution (42nd Amendment) Act does  not damage  any of the basic or essential features of the Constitution or its basic structure.      (4)  All   the  writ  petitions  and  Review  Petitions relating to  the validity  of the  Maharashtra  Agricultural Lands Ceiling Acts are dismissed with costs. The stay orders granted in these matters will stand vacated. We quantify the costs at  Rs. five  thousand which  will be borne equally by the petitioners in Writ Petitions Nos. 656-660 of 1977; 512- 533 of  1977; and  505 to  511 of  1977. The  costs will  be payable to  the Union  of India and the State of Maharashtra in equal measure.      (5) Writ  Petition No.  63 of  1977 (Baburao  Sawant v. Union of  India) will  be set  down for hearing". No reasons were given  in support  of this Order but it was stated that reasons would be given later. While delivering my dissenting judgment in Minerva Mills Ltd. v. Union of India (1980)3 SCC 625 on  31st July 1980, I gave my reasons for subscribing to this Order. It is therefore not necessary to reiterate those reasons over  again but  they may be treated as forming part of this  judgment and a copy of my judgment in Minerva Mills case may  be attached as an annexure to this judgment. I may point out  that pages  1 to  6 and  pages 17  to 96  of  the judgment in  Minerva Mills  case set out the reasons for the making of the order dated 9th May 1980 and I re-affirm those reasons.      I have  had the  advantage of reading the judgment just delivered by  the learned  Chief Justice,  but I find myself unable to  agree with  him that "it is somewhat difficult to apply the doctrine of stare decisis 49 for upholding  "Article 31A  and that it would not be proper to invoke  the doctrine  of stare  decisis for upholding the validity of  that Article."  I  have  given  reasons  in  my judgment for  applying the  doctrine of  stare  decisis  for sustaining the  constitutional validity  of Article 31A, but apart from  the reasons given by me in support of my view, I find that  in Ambika  Prasad Mishra  v. State of U.P.(1) the same Bench  which is deciding the present writ petitions has upheld  the   constitutional  validity  of  Article  31A  by applying the  doctrine of  stare decisis.  Krishna Iyer,  J. speaking on behalf of a unanimous court said in that case:

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         "It is  significant that  even apart from the many      decisions  upholding   Article  31A,  Golak  Nath  case      decided by a Bench of 11 Judges, while holding that the      Constitution  (First   Amendment)  Act   exceeded   the      constituent power still categorically declared that the      said amendment and a few other like amendments would be      held good  based on  the doctrine  of prospective over-      ruling. The result, for our purpose, is that even Golak      Nath case  has held  Article 31A valid. The note struck      by later  cases reversing  Golak Nath does not militate      against the  vires of  Article 31A.  Suffice it  to say      that in  the Kesavananda  Bharati case  Article 31A was      challenged as beyond the amendatory power of Parliament      and, therefore,  invalid. But  after listening  to  the      Marathon erudition  from eminent  counsel, a  13  Judge      Bench of this Court upheld the vires of Article 31-A in      unequivocal terms.  That decision  binds, on the simple      score of stare decisis and the constitutional ground of      Article  141.  Every  new  discovery  or  argumentative      novelty cannot  undo or  compel  reconsideration  of  a      binding precedent.  In  this  view,  other  submissions      sparkling with  creative ingenuity  and presented  with      high-pressure advocacy,  cannot persuade  us to  reopen      what was  laid down for the guidance of the nation as a      solemn  proposition  by  the  epic  Fundamental  Rights      case."                                         (Emphasis supplied.)      These observations  show beyond  doubt that  this  very Bench held Article 31-A to be constitutionally valid "on the simple score  of stare  decisis". It  is true  that  Krishna Iyer, J.  stated in  the beginning of his judgment in Ambika Prasad Mishra’s case:           "In this  judgment, we  side-step the bigger issue      of  the  vires  of  the  constitutional  amendments  in      Articles 31-A, 50      31B and  31-C as  they are  dealt with  in other  cases      disposed of recently."      This statement  was made presumably because the learned Judge must  have thought  at the  time when  he prepared his judgment in  this case that the judgment in the present writ petitions would  be given  before his  judgment came  to  be delivered and  on this assumption, the learned Judge did not consider  it  necessary  to  discuss  the  entire  range  of arguments  relating   to  the   constitutional  validity  of Articles 31-A,  31-B and 31-C. But so far as Article 31A was concerned, the  learned  Judge  did  proceed  to  hold  that Article 31A  was constitutionally valid "on the simple score or  stare   decisis"  and  the  other  four  learned  Judges subscribed to  this view. It is also true that Krishna Iyer, J. did  not rest  his judgment  entirely on  the  protective armour of Article 31A and pointed out that "independently of Article  31-A,   the  impugned   legislation  can  withstand constitutional invasion"  and sustained  the validity of the impugned legislation on merits, but even so he did hold that Article 31-A  was constitutionally valid on the principle of stare  decisis   and  observed   that   "the   comprehensive vocabulary of  that purposeful  provision obviously  catches within its  protective net  the  present  Act,  and  broadly speaking,  the   undisputed  effect   of  that   Article  is sufficient to  immunise the  Act against invalidation to the extent stated  therein". I  cannot, therefore,  despite  the high regard  and great  respect which I have for the learned Chief Justice,  agree with  him that  the doctrine  of stare decisis cannot  be invoked  for upholding  the  validity  of

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Article 31-A, since that would be in direct contradiction of what has  been held  by this  very Bench  in  Ambika  Prasad Mishra v. State of U.P. (supra).      KRISHNA IYER,  J. While  I agree with the learned Chief Justice, I  must state  that certain  observations regarding Arts. 31A, 31B and 31C are wider than necessary and I do not go that  far despite  the decision  in Minerva Mills case. I also wish  to add a rider regarding the broader observations with the  application of  stare decisis  in sustaining  Art. 31A. I  have expressly  upheld Art. 31A by reliance on stare decisis and  cannot practise a volte face without convincing juristic basis  to convert me to a contrary position. I know that Justice Holmes has said: "Don’t be" consistent, "but be simply  true".   I  also   remind  myself  of  the  profound reflection of Ralph Waldo Emerson: 51           A foolish  consistency is  the hobgoblin of little      minds, adored  by little statesmen and philosophers and      divines. With  consistency  a  great  soul  has  simply      nothing to  do. He may as well concern himself with his      shadow on  the wall.  Speak what  you think now in hard      words and  tomorrow speak  what tomorrow thinks in hard      words again,  though it contradict every thing you said      today.-"Ah, so  you shall be sure to be misunderstood."      Is it  so bad  then to be misunderstood? Pythagoras was      misunderstood, and Socrates, and Jesus, and Luther, and      Copernicus, and Galileo, and Newton, and every pure and      wise spirit  that ever took flesh. To be great is to be      misunderstood.      And yet, I hold to what I have earlier stated in Ambika Prasad Misra.  (1) What  the learned  Chief Justice  has  in mind, if,  with respect,  I may  venture to speak is that in constitutional issues  over-stress on  precedents  is  inept because we  cannot be  governed by voices from the grave and it is  proper that  we are  ultimately right  rather than be consistently wrong. Even so, great respect and binding value are the  normal claim  of rulings  until reversed  by larger benches. That  is the  minimum price  we pay for adoption of the jurisprudence  of binding precedents. I leave it at that because the  learned Chief Justice has held the impugned Act good in  its own  right. Enough  unto the  day is  the  evil thereof. V.D.K.                                  Petitions dismissed. 52